A Lake in Florida Suing to Protect Itself

Lake Mary Jane, in central Florida, could be harmed by development. A first-of-its-kind lawsuit asks whether nature should have legal rights.
Four profiles of a human face made up of different natural materials.
For most of history, people saw themselves as dependent on their surroundings, and rivers and mountains had the last word.Illustration by Marion Fayolle

Lake Mary Jane is shallow—twelve feet deep at most—but she’s well connected. She makes her home in central Florida, in an area that was once given over to wetlands. To the north, she is linked to a marsh, and to the west a canal ties her to Lake Hart. To the south, through more canals, Mary Jane feeds into a chain of lakes that run into Lake Kissimmee, which feeds into Lake Okeechobee. Were Lake Okeechobee not encircled by dikes, the water that flows through Mary Jane would keep pouring south until it glided across the Everglades and out to sea.

Mary Jane has an irregular shape that, on a map, looks a bit like a woman’s head in profile. Where the back of the woman’s head would be, there’s a park fitted out with a playground and picnic tables. Where the face would be, there are scattered houses, with long docks that teeter over the water. People who live along Mary Jane like to go boating and swimming and watch the wildlife. Toward the park side of the lake sits an islet, known as Bird Island, that’s favored by nesting egrets and wood storks.

Like most of the rest of central Florida, Mary Jane is under pressure from development. Orange County, which encompasses the lake, the city of Orlando, and much of Disney World, is one of the fastest-growing counties in Florida, and Florida is one of the fastest-growing states in the nation. A development planned for a site just north of Mary Jane would convert nineteen hundred acres of wetlands, pine flatlands, and cypress forest into homes, lawns, and office buildings.

In an effort to protect herself, Mary Jane is suing. The lake has filed a case in Florida state court, together with Lake Hart, the Crosby Island Marsh, and two boggy streams. According to legal papers submitted in February, the development would “adversely impact the lakes and marsh who are parties to this action,” causing injuries that are “concrete, distinct, and palpable.”

A number of animals have preceded Mary Jane to court, including Happy, an elephant who lives at the Bronx Zoo, and Justice, an Appaloosa cross whose owner, in Oregon, neglected him. There have also been several cases brought by entire species; for instance, the palila, a critically endangered bird, successfully sued Hawaii’s Department of Land and Natural Resources for allowing feral goats to graze on its last remaining bit of habitat. (The palila “wings its way into federal court in its own right,” Diarmuid O’Scannlain, a judge on the U.S. Court of Appeals for the Ninth Circuit, wrote in a decision that granted the species relief.)

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Still, Mary Jane’s case is a first. Never before has an inanimate slice of nature tried to defend its rights in an American courtroom. Depending on your perspective, the lake’s case is either borderline delusional or way overdue.

“It is long past time to recognize that we are dependent on nature, and the continued destruction of nature needs to stop,” Mari Margil, the executive director of the Center for Democratic and Environmental Rights, said in a statement celebrating the lawsuit.

“Your local lake or river could sue you?” the Florida Chamber of Commerce said. “Not on our watch.”

The notion that “natural objects” like woods and streams should have rights was first put forward half a century ago, by Christopher Stone, a law professor at the University of Southern California. Stone, who died last year, was a son of the crusading journalist I. F. Stone, and as a kid, in the nineteen-fifties, he sometimes helped put out his father’s newspaper, I. F. Stone’s Weekly. In the fall of 1971, the younger Stone was assigned to teach U.S.C.’s introductory course on property law, and in one class he delivered a lecture on how ownership rights had evolved over time. Near the end of the hour, sensing that his students’ minds were wandering, he decided to shake things up. What would happen, he asked, if the law were to further evolve to grant rights to, say, trees or even rocks? “This little thought experiment,” he later recalled, created an “uproar.”

Until that moment, Stone hadn’t considered this question. But, having tossed it out, he found himself intrigued. He set about writing a law-review article. In the article, “Should Trees Have Standing?—Toward Legal Rights for Natural Objects,” Stone noted that rights are always socially constructed. In America in the eighteenth and nineteenth centuries, many groups—Blacks, Native Americans, women, children—were denied rights; then, as society, or what counted as society, changed, rights were slowly and painfully (and often incompletely) extended to them.

“Each time there is a movement to confer rights onto some new ‘entity,’ the proposal is bound to sound odd or frightening or laughable,” Stone wrote. “This is partly because until the rightless thing receives its rights we cannot see it as anything but a thing for the use of ‘us’—those who are holding rights at the time.” He went on, “I am quite seriously proposing that we give legal rights to forests, oceans, rivers and other so-called ‘natural objects’ in the environment—indeed to the natural environment as a whole.”

This extension of rights, Stone argued, was needed to address an otherwise insuperable problem. So long as “natural objects” were valued only in terms of their worth to humans—“for the use of ‘us’ ”—they could, quite legally, be destroyed. Stone cited the example of someone polluting a stream. People living downstream could take the polluter to court and perhaps win damages. But the waterway and the species dependent on it would never recoup their losses. In the conflict between the polluter and the downstream residents, he wrote, “the stream itself is lost sight of.”

As it happened, in the autumn of 1971, while Stone was at work on his article, a major environmental case was wending its way through the courts. A couple of years earlier, Disney had decided to build a giant ski resort in a wilderness area south of Yosemite known as Mineral King. (The resort was to be, in Disney’s words, an “American Alpine Wonderland,” with a five-story hotel, twenty-two lifts, and ten restaurants, including one at eleven thousand feet.) To construct the resort, and to bring in visitors, the company needed an access road through Sequoia National Park. When the Interior Department approved the highway, the Sierra Club sued, arguing that it would cause “irreparable harm to the public interest.” A federal judge in San Francisco ruled in the group’s favor and issued a preliminary injunction blocking work on the resort. On an appeal from the Interior Department, the ruling was reversed. The Sierra Club, the appellate court said, lacked standing to sue, since it wouldn’t be directly affected by the project. This time, the Sierra Club appealed.

When Stone learned that the case, Sierra Club v. Morton, was headed to the U.S. Supreme Court, he decided, with the help of the editors of the Southern California Law Review, to rush his article into print. A friend of his, who was a law clerk for the Supreme Court Justice William O. Douglas, seems to have relayed an early draft to Douglas, an ardent environmentalist. (Whether this back-channel communication was kosher is debatable.)

In April, 1972, the Supreme Court upheld the appellate court’s decision against the Sierra Club, by a vote of four to three. (Two seats on the Court were vacant.) Douglas, drawing heavily on Stone’s article, penned a dissenting opinion. “A ship has a legal personality, a fiction found useful for maritime purposes,” he wrote. A corporation, too, “is a ‘person’ for purposes of the adjudicatory processes. . . . So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.”

Douglas’s opinion has been described as “one of the most famous and passionate dissents in the Supreme Court’s history,” and it turned what probably otherwise would have been a little-noticed law-review article into a media event. “Should Trees Have Standing?” was reprinted in the Congressional Record and published in book form. The Berkeley Monthly declared it a sign of better times to come. There was something “amiably zany,” as Stone would later put it, about a law professor who wanted to bestow rights on shrubs.

Even Stone’s critics had fun with his idea. “Why wouldn’t Mineral King want to host a ski resort, after doing nothing for a billion years?” Mark Sagoff, a philosophy professor, quipped in the Yale Law Journal. Writing in the American Bar Association Journal, an attorney named John Naff lyricized:

Great mountain peaks of names prestigious
Will suddenly become litigious.
Our brooks will babble in the courts,
Seeking damages for torts.
How can I rest beneath a tree
If it may soon be suing me?

The bodies of water that have filed suit in Orange County have one co-plaintiff who walks on two legs, and that is Chuck O’Neal. O’Neal is sixty-six, with slate-gray hair, a broad face, and a reedy voice. He is the founder of Speak Up Wekiva, an organization named for a river that runs near his home, and until recently he was also the president, the chairman, and the director-at-large of a group called the Florida Rights of Nature Network.

“I often hear the word ‘radical,’ ” O’Neal told me. “And I’m, like, all right. ‘Radical’ comes from the Latin word radix, for root, and that’s exactly what this is: change at the root. Does nature have rights? That concept, I agree, is radical.”

One morning not long ago, O’Neal picked me up at the hotel where I was staying, north of downtown Orlando. Our plan was to tour all the bodies of water that have filed suit, starting with a stream called Wilde Cypress Branch. The drive took us past strings of shopping centers and clusters of condominiums, then past more shopping centers and the walls of gated communities. Eventually, we arrived at an area that wasn’t quite rural but also wasn’t quite suburban. O’Neal pulled off the road next to some open land studded with scraggly bushes. Stretching around the bushes, and for as far as I could see, was a five-foot-high barbed-wire fence, which appeared to be new. O’Neal explained that to reach Wilde Cypress we would have to get across the fence. While we were debating how to do this—over or under?—two men in a white pickup truck drove up and parked behind O’Neal’s car. The rapidity with which they’d shown up freaked us out, and we decided to head off to see another plaintiff, a stream known as Boggy Branch.

O’Neal, who grew up in Orange County and lives in the town of Apopka, describes himself as a “serial entrepreneur.” These days, he runs a business that mostly involves buying houses and flipping them. As we talked, he occasionally received calls on his cell phone from building-supply stores. We rode past fields occupied by clusters of black cows. O’Neal speculated that these were “rental cows.” In Florida, he explained, land that’s being grazed enjoys special tax advantages, which developers often avail themselves of until a parcel can be filled with something more profitable.

After a while, we pulled into a stretch of brand-new, tightly spaced houses, some still being framed. A banner that hung on a construction barrier identified the development as Meridian Parks: the “Perfect Place to Start,” it said. Between two groups of homes, the road ended abruptly in a set of reflective warning signs. Just beyond the signs lay Boggy Branch. More swamp than stream, it seemed barely to be moving. Cypress trees festooned with Spanish moss rose out of the black water. A ridge, clearly man-made, separated Boggy Branch from a large retention pond, also clearly man-made.

O’Neal had brought a map of the development he was fighting—a proposed extension of Meridian Parks known, inelegantly, as Meridian Parks Remainder. About a third of the map was stippled with black dots, indicating wetlands. To complete the project, which is supposed to include town houses, apartment buildings, and commercial space, the development company, Beachline South Residential, planned to extend the road across Boggy Branch and then across Wilde Cypress Branch. The roadwork and various other rearrangements of the landscape would entail filling in, or otherwise altering, wetlands covering more than a hundred acres. This was what the bodies of water were suing over. The move, their lawyer argued, would restrict the natural flow from the streams into the lakes, thereby wreaking havoc with the local ecology and threatening the lakes’ right to exist.

“This water has been flowing this way for tens of thousands of years,” O’Neal said, as we tromped along the ridge, more or less in people’s back yards. “Where’s that being considered anywhere in this development?”

A few years after Sierra Club v. Morton, Justice Douglas retired from the Supreme Court. Stone, meanwhile, moved on to other subjects. Like a vernal pool in summer, interest in “Should Trees Have Standing?” started to dry up. Then it bubbled back to life.

In 2005, residents of Tamaqua Borough, in eastern Pennsylvania, were fighting a plan to dump toxic sludge in an open pit in town. One of the members of Tamaqua Borough’s town council attended a meeting with representatives of the Community Environmental Legal Defense Fund, which had been set up to help local groups battle such projects. The organization’s leader at the time, a lawyer named Thomas Linzey, had recently chanced upon Stone’s article. It occurred to him that if trees—or, in the case of Tamaqua, ecosystems more generally—had standing then the town would have another legal tool to use in its campaign. He helped draft a local anti-sludge ordinance that, among many other things, declared it “unlawful for any corporation or its directors . . . to interfere with the existence and flourishing of natural communities.” For the purposes of the ordinance, natural communities were to be considered “persons.” When the ordinance came up for a vote, in 2006, the town council was split, three to three. Tamaqua’s mayor cast the tiebreaking vote, in favor of the “natural communities.” He later said, “If I am going to be sued, so be it.”

The proposed dump was cancelled, so Tamaqua’s ordinance, believed to be the first of its kind in the world, was never put to the test. Still, one thing led to another, and a year later Linzey received what he described to me as a “weird phone call.” Ecuador had elected a group of delegates to rewrite its constitution, and someone involved in the assembly had somehow heard about the Tamaqua ordinance. Linzey was invited to the Ecuadorian city of Montecristi. He ended up travelling to the country several times to consult with the delegates. “That was pretty cool,” he recalled.

“How much could your mother bench?”
Cartoon by Jeremy Nguyen

When Ecuador’s new constitution was adopted, in 2008, it marked another, much more significant world first. The constitution’s preamble celebrates Pacha Mama, usually translated from Quechua as “Mother Earth,” and a later section enumerates the rights that Pacha Mama enjoys. These include “the right to integral respect for its existence” and “the right to be restored.” The constitution also includes a right to buen vivir, which translates into English as “good living,” but is itself a translation of the Quechua term sumak kawsay, which has far-reaching spiritual and political implications.

“Ecuador is a country that takes pluralism very seriously,” Hugo Echeverría, an environmental lawyer in Quito, told me. “And the philosophical concept behind the rights of nature fits into the vision of its Indigenous peoples. That’s why you find the words Pacha Mama in the constitution.” In a recent landmark, or at least land-centric, decision, the country’s highest court ruled that mining permits that had been granted in Los Cedros, a protected forest north of Quito, violated the constitution and should be voided. (Most of the permits are held by Ecuador’s national mining company, which goes by the acronym ENAMI.)

“Los Cedros is a key case because it applied the constitution in a context where it was difficult to apply,” Echeverría said. “Wildlife was chosen over mining, which is a very important activity in Ecuador because it provides income to the state. No court has ever taken that step before.”

After his experience in Ecuador, Linzey continued to travel, in the hope of finding more communities—or countries—interested in granting rights to nature. In 2013, he flew to Orlando to speak at a seminar at the Barry University School of Law. Sitting in the audience was Chuck O’Neal. O’Neal, who was active in local environmental causes, was intrigued by what he heard, but he had his doubts. “For Florida, I just didn’t think it would work,” he told me. Then, in 2018, a toxic algae bloom the size of Connecticut turned the Florida Gulf Coast into a slick of dead fish.

O’Neal put aside his doubts. It was time, he decided, to try something new. In the spring of 2019, he invited Linzey back to Florida, to speak to a group of concerned citizens from around the state. (Soon afterward, Linzey went to work for the Center for Democratic and Environmental Rights, a group that he helped found.) The attendees agreed to go home and try to pass rights-of-nature laws in the regions where they lived.

With the help of some other Orange County residents, O’Neal wrote up a “bill of rights” for the Wekiva River and for the Econlockhatchee, a second river that passes near Orlando. He presented the bill to a commission that had been appointed to revise Orange County’s charter. To his surprise, the commission didn’t just take up his proposal; it expanded it. In November, 2020, when voters went to the polls, they were asked whether all of the county’s waterways—be they “fresh, brackish, saline, tidal, surface or underground”—should have the “right to exist, flow, to be protected against pollution and to maintain a healthy ecosystem.” Eighty-nine per cent voted to approve the charter amendment, which did better than almost anything or anyone else on the ballot in the county, including Joe Biden, who got sixty-one per cent.

The Orlando Sentinel said that the amendment had unified voters “in a state with a lousy track record for protecting natural resources.” It nominated O’Neal for “Central Floridian of the Year” and dubbed him “our local Lorax.”

In addition to prompting Mary Jane’s lawsuit, the Orange County charter amendment has inspired an art installation, and one day while I was in Florida O’Neal took me to see it. It was being exhibited in a ranch house turned gallery, which was decorated on the outside with wild swirls of tile. We knocked on the front door, and the artist, Brooks Dierdorff, answered.

In what had presumably once been the dining room, a large white slab covered most of the floor. On it rested several documents, including Ecuador’s constitution, and several glasses of water. Dierdorff, who teaches photography at the University of Central Florida, explained that the water had been collected from lakes and streams around Orange County. Most of it was clear, but one glassful was the color of strong tea. This turned out to be a sample from Lake Mary Jane, which is naturally high in tannins. O’Neal bent over to peer into the glass. “Wow, that’s really dark,” he said.

Dierdorff told us that his goal was to visit every lake, river, and stream in the county. Each time he went to a new one, he would add another glass: “My plan is to have things change and evolve over time.”

What had once perhaps been the house’s den was bathed in violet light and outfitted with speakers. Dierdorff told us that he was also collecting sound: at each waterway he sampled, he stuck a waterproof mike into the depths. He had layered sixteen of these recordings on top of one another, and the resulting track was playing on a loop. “I think of it as kind of a chorus,” he said.

I said I couldn’t hear anything. Dierdorff shrugged. “There are some little blips once in a while,” he said.

As rights holders, natural objects have an obvious deficit: they cannot speak for themselves. Even if granted standing, they have to rely on people to plead their cause. And since it’s hard to pull together a jury of, say, jungles, it’s people who also have to decide their interests. Animals may in some way be able to convey their desires—or at least allow humans to believe that they can. But, apart from “some little blips,” a swamp doesn’t communicate much. Who can really claim to know its will?

“It is far from clear that it feels like anything to be an oak tree,” Mauricio Guim and Michael Livermore, both law professors, argue in “Where Nature’s Rights Go Wrong,” an article that appeared recently in the Virginia Law Review. “Nor does it feel like anything to be a rainforest ecosystem, even if it is teeming with birds who have some form of subjective experience.”

The objection that streams and forests cannot have standing because streams and forests cannot speak was, in Stone’s view, easily addressed. “Corporations cannot speak either,” he observed. “Nor can states, estates, infants, incompetents, municipalities or universities.” And yet these entities were amply represented—some might say overrepresented—in the courts.

“We make decisions on behalf of, and in the purported interests of, others every day,” Stone wrote. “These ‘others’ are often creatures whose wants are far less verifiable, and even far more metaphysical in conception, than the wants of rivers, trees, and land.” He envisaged a system of guardianships by which “a friend of a natural object,” perceiving it to be endangered, could apply to a court to represent it. The guardian could try to prevent, or demand redress for, injuries that had no quantifiable human cost, such as “the loss from the face of the earth of species of commercially valueless birds” or “the disappearance of a wilderness area.”

Start taking Stone seriously and it’s hard to stop. From a certain point of view, granting nature a say isn’t radical or new at all. For most of history, people saw themselves as dependent on their surroundings, and “rivers, trees, and land” enjoyed the last word. Only in the past few hundred years has it become possible—and come to seem normal—for people to mow down forests, fill in wetlands, and blast away mountains because it suits them. This way of operating has resulted in unprecedented, if unequally distributed, human prosperity. It has also brought melting ice sheets, marine dead zones, soaring extinction rates, and the prospect of global ecological collapse. As António Guterres, the Secretary-General of the United Nations, put it last week, when the latest international climate report was released, we are “firmly on track towards an unlivable world.”

There’s no way to get back to Eden, but it’s easy to get to Eden Bar, which advertises itself as “Central Florida’s most unique outdoor restaurant.” I arranged to meet up there one evening with Steven Meyers, the attorney working on Mary Jane’s lawsuit. He was nursing a glass of red wine when I arrived. He had just filed an eighty-page brief on behalf of the lakes and streams, a copy of which lay on the table.

“I’m a personal-injury lawyer,” he told me as soon as I sat down. Mostly he filed workers’-comp cases. He had got involved with O’Neal, he explained, because of a dead bear.

In 2015, Rick Scott, then Florida’s governor, had reinstituted bear hunting in the state. One night, while Meyers was working late, he came across a video of a black bear being shot in Canada. The gruesomeness of the images—the bear did not immediately die, but kept getting up and falling down again—shook him. He had read that O’Neal, whom he’d never met, had filed a lawsuit to try to prevent bear hunting in Florida. Suddenly, Meyers felt moved to get in touch with him.

“That night, I e-mailed Chuck,” Meyers recalled, “and I said, ‘I’m not an environmental lawyer or an animal-rights lawyer, but here’s a donation, and if I can help I’d love to.’ I thought I probably would never hear anything. Twenty minutes later, he sends me all the pleadings. He’s, like, ‘Welcome to the team.’ ”

Meyers ended up working, pro bono, on the bear-hunting case. He couldn’t get a judge to stop the hunt, though O’Neal did manage to persuade state wildlife officials to put an end to the shooting after three hundred and four bears were killed in two days. Meyers and O’Neal then worked together on an effort to block a hundred-and-twenty-acre warehouse development planned for a site near the headwaters of the Little Wekiva River. They lost that case and, as a part of the legal settlement, may have to pay three thousand dollars to help defray their opponents’ legal costs.

Their latest case, on behalf of Mary Jane et al., also seems likely to fail. As soon as the Orange County charter commission decided, in early June, 2020, to put the bill of rights for waterways on the ballot, business lobbyists in Tallahassee sprang into action. In a bill that mostly had to do with regulating septic systems, an amendment suddenly appeared prohibiting local governments from granting legal rights to any “part of the natural environment.” The state legislature passed the bill in mid-June, and it went into effect in July, meaning that by the time Orange County voted to approve the charter amendment, in November, it had already been preëmpted.

The developer, Beachline South Residential, is pushing to have Mary Jane’s case dismissed, arguing that the rights the lake is invoking do not—and cannot—exist. The state legislature could not have been “clearer in its intention to nullify” the Orange County charter amendment, papers filed by Beachline’s legal team note. For their part, the bodies of water, which is to say, Meyers and O’Neal, argue that the preëmption is itself invalid. In the words of the brief that Meyers brought to Eden Bar, it is “unconstitutional, unlawful, and inapplicable.”

“We’re realistic,” Meyers told me. “We’re trying to make new law, and that’s always hard. But it’s like Michael Jordan said: You miss a hundred per cent of the shots you don’t take.”

I had invited O’Neal to join us, and after a while he showed up at the bar. The conversation turned from Mary Jane’s lawsuit to infighting among her allies. The Florida Rights of Nature Network, a group founded in O’Neal’s living room, wanted to try to pass another amendment, this one to the Florida state constitution. The hope was to preëmpt the preëmption of laws like Orange County’s. O’Neal had one idea about how to word the proposed amendment; other members of the group had a different idea. The argument had become so heated that O’Neal had broken with the group and resigned as its president, chairman, and director-at-large, and also as chair of its political committee.

“One thing about Chuck is he gets along with everyone,” Meyers teased, rolling his eyes. It was impossible for me to know whether O’Neal’s pique was justified, but it occurred to me, and not for the first time, that a nature dependent on human collegiality was in deep trouble.

The next day, I got up early. It was my last day in Florida, and I wanted to pay Mary Jane another visit before I headed home. When I arrived at the park on her western shore, I had the place pretty much to myself. It was a lovely morning, with a blue sky and a light breeze. Mary Jane doesn’t really have a beach, so I sat down on a patch of more or less dry ground. Sticking out of the soggy grass was a sign that read “Alligators and snakes are common in this area” and, beneath that, “KEEP YOUR DISTANCE.”

A wood stork arrived and started poking its beak into the muck at the lake’s edge. More storks swooped down and similarly began poking. One of them bent its legs, dipped its white-and-black wings into the water, and then held them out, as if airing a blanket. Another stork did the same, and soon they were all rolling around in the water and stretching their wings. I wasn’t sure what, exactly, they were doing, but it looked like fun. I took off my shoes and waded in. As I approached, most of the storks flew away. The water, around my ankles, was the golden brown I had seen in Dierdorff’s exhibit. I spent a while listening. I didn’t hear any blips from Mary Jane; still, it seemed to me, the lake’s wishes were pretty clear, as were the wood storks’. What they really wanted was to be left alone. ♦