The following article was written by Charlotte Toogood*, Kupai Marx**, Sophia Radday***, J. Michael Angstadt****
*Environmental Studies graduate (’24), Colorado College, **Environmental Studies graduate (’24), Colorado College, ***Environmental Studies graduate (’24), Colorado College, ****Assistant Professor of Environmental Studies (Environmental Law & Policy), Colorado College
Translating Guardianship: From Philosophical to Legal
In the context of environmental ethics, the concept of guardianship transcends ownership or protection of natural resources. Environmental guardianship represents a broader conception of stewardship: care for the natural world, appreciation of its inherent value, and a human-environment relationship rooted in respect and reciprocity. However, operationalizing environmental guardianship remains challenging. This is particularly true in Western environmental law contexts, including the United States, where environmental law has frequently reinforced and reflected a system that foregrounds property rights and human-centered considerations. This article acknowledges the inherent challenges to expanding environmental guardianship in the United States, while simultaneously exploring two cases which suggest opportunities for hope and next steps.
As a philosophical concept, environmental guardianship reflects certain understandings and values. In many ways, it reinforces insights informed by traditional ecological knowledge and Indigenous epistemologies that acknowledge the intrinsic and fundamental rights of more-than-human nature. By empowering individuals and communities to represent the interests of the ecosystems they inhabit, environmental guardianship acknowledges reciprocal relationships of responsibility by providing space for ecosystems to be considered as living entities with intrinsic, fundamental rights.
At the same time, the philosophical underpinnings of environmental guardianship imply certain provisions and steps. Guardianship for the environment requires that individuals or groups be appointed and empowered to act on behalf of natural entities or resources, ensuring their interests are represented. In practical terms, environmental guardians can insulate difficult environmental decision-making from elected and appointed offices, where these values must be balanced with frequently conflicting economic and political priorities.
As a result, legal guardianship of the environment has been advocated by multiple emergent approaches and responses to Western environmental law, including Earth Law, Earth system law, and rights of nature. While the core emphases of these discourses differ, they each contest the deep anthropocentrism of Western environmental law and urge new responses. Despite the potential benefits of environmental guardianship, many headwinds have limited its broader adoption in the US context. Nevertheless, we see two fascinating recent examples that illustrate incremental opportunities to more broadly establish environmental guardianship in the US.
Nederland, CO: Guardianship of Boulder Creek
In July 2021 the town of Nederland, CO adopted a rights of nature resolution that recognized and implemented “the inherent legal rights of Boulder Creek and the Boulder Creek Watershed.” While rights of nature protections are proliferating globally, Nederland was Colorado’s first community to pass a resolution recognizing the rights of a body of water and among its first to acknowledge the rights of nature more broadly. Nederland’s resolution extended rights to Boulder Creek and its watershed and urged the state of Colorado to embrace higher-level recognition of rights for creeks and watersheds. Significantly, it also detailed how Boulder Creek’s interests might be represented, requiring an annual report that evaluated the health of the creek, obligated the community to consider its rights in decision-making, and authorized the creation of a “legal guardianship body” or other similar means to represent the interests of the creek. In January 2024, the resolution was further operationalized as two Nederland residents, Rich Orman and Alan Apt, were designated as the first guardians of Boulder Creek. Orman and Apt were tasked with preparing Boulder Creek’s annual reports and recommending steps to improve water quality, wildlife habitats, and wetlands protection. In a recent article, Orman was quoted as saying that people have already brought environmental issues to his attention.
Fascinatingly, Nederland’s rights of nature provisions for Boulder Creek were short-lived. Amidst a proposed dam construction, the resolutions, which were already inherently non-binding, were repealed and the accompanying guardian positions were absolved in spring 2024. While many of the reasons for repeal were arguably place- and context-specific, we believe that they raise broader questions regarding how rights of nature precepts will be interpreted in the United States context.
Simultaneously, we believe that Nederland’s brief, limited appointment of guardians should be viewed as a hopeful development in American environmental law that bears both symbolic and incremental significance. First, we believe that Orman and Apt’s appointment held symbolic importance, enabling the town to underscore its commitment to safeguarding Boulder Creek. In referencing their relationship to citizens and the local government, Apt was quoted as saying, “we’re not really trying to enforce anything… just trying to keep channels of communication open.” As the passionate conversations surrounding the resolutions’ repeal underscore, this discursive significance far outstripped any direct, legal effect of the provisions.
Second, we believe that a more limited operationalization of the concept of guardianship, like that witnessed in Nederland, can possess incremental significance. Local, nonbinding introductions of environmental guardianship can provide a toehold for a broader and deeper embrace of environmental guardianship. Additional communities throughout the United States, including Ridgway, Colorado, are simultaneously navigating the considerations that accompany efforts to operationalize environmental guardianship. In doing so, their debates can lay the groundwork for broader acceptance of binding ordinances that afford guardians greater authority and support the contemplation of state and federal-level guardianship provisions.
Hawai’i: Integrating Indigenous Values into a Guardianship Framework
Aloha ‘aina is a complex concept rooted in Hawaiian epistemology that transcends its simplistic translation as ‘love of/care for the land.’ It serves as a defining principle of the Hawaiian relationship to land as stewards, intertwining genealogy, rights, and duties, and framing Native Hawaiian law prior to European contact. This Indigenous ethos is a manifestation of the guardianship concept, codifying the connection between people, their ancestral knowledge, and the ecology of the Hawaiian islands. Integrating aloha ‘aina into legal precedent holds transformative potential for environmental justice in Hawai’i. In recognizing the cultural and spiritual implications of the imperative to aloha ‘aina, the legal system has the potential to foster a more harmonious relationship between people and the environment and align with Native Hawaiian values.
The potential impact of aloha ‘aina is currently unfolding in Hawaiian courts, where interpretations of the concept reflect the fraught balance between ideals and the bureaucratic reality in Hawai’i’s pursuit of legal frameworks that incorporate indigenous knowledge. The ongoing dialogue between aloha ‘aina and legal developments marks a critical juncture for the opportunities for meaningful environmental adjudication and environmental justice in Hawai’i.
In the groundbreaking 2019 ruling Ching v. Case, Hawai’i’s Supreme Court rejected the Department of Land and Natural Resources (DLNR)’s claim of no duty to monitor leased trust acreage, establishing a legal duty to aloha ‘aina. Judge Prescott emphasized this duty, endowing DLNR with affirmative monitoring responsibilities and setting a precedent for Indigenous-led restorative justice. The state’s unique public trust doctrine, which evolved from the declarations of Hawaiian monarchs, holds land and resources in trust for the benefit of Hawai’i’s people. As strengthened by precedent, it mandates safeguarding trust property, with the DLNR and other state agencies even obligated to monitor acreage leased to third parties. The Ching ruling, a landmark precedent, expands this duty to require DLNR to investigate potential harms, monitor lands, and ensure compliance with lease terms. These affirmative obligations emphasize the state’s active role in preserving trust property. More broadly, the legal milestone incorporates Indigenous-led restorative justice into Hawai’i’s legal fabric and paves the way for future environmental justice considerations in the state’s courts.
The legal duty to aloha ‘aina, as affirmed in Ching v. Case, seeks to transform a cultural value into a legally enforceable obligation for state and local decision-makers. This represents a paradigm shift as Indigenous values are integrated into Hawaiian environmental law. Beyond conventional legal discourse, Ching holds profound implications by recognizing the sacred link between land and stewards and paving the way for a holistic, culturally aligned approach to resource management. Acknowledging the limitations of legal formalism, contextual legal analyses rooted in legal realism to achieve restorative justice. As opposed to the status quo of punitive, reactionary rulings, restorative justice is crucial in addressing the impacts of colonization. It requires a comprehensive reevaluation of the current legal establishment, emphasizing self-governance, cultural restoration, and resource return.
We believe that Ching’s potential lies in ushering in a new era of resource management in an American context, recognizing sacred land leased to third parties as constituting real obligations of the public trust doctrine. However, truly operationalizing the duty to aloha ‘aina would require integrating contextual legal analysis and clear court interpretations aligned with Hawaiian epistemology and self-determination. For justices and decision-makers to engage meaningfully with restorative justice claims and transcend case-specific constraints, they must/should understand and embody the concept of aloha ‘aina, not simply acknowledge it. This will likely prove to be easier said than done, given the distance between aloha ‘aina as a conceptual framework for guardianship and its manifestation as a legal imperative. Nevertheless, the Ching ruling provides a strong legal foundation for the ambitious project of integrating Indigenous worldviews into Hawaiian law and expanding environmental guardianship throughout the US.
Environmental Guardianship in the U.S.: Challenges and Opportunities
Environmental guardianship, both as a philosophical concept and as a legal construct, presents opportunities and concomitant challenges for American environmental law. The two cases that we explored highlight differing views of how environmental guardianship might be operationalized in the US. In the first, Nederland appointed individuals as limited guardians for a watercourse. Doing so not only heightened public awareness of environmental rights but could also help to illuminate challenges that may accompany efforts to advance its eventual incorporation as a legally binding precept. In the second, Hawai’i endeavored to adopt aloha ‘aina as an overarching schema for guardianship as its state agencies seek to manage public trust obligations. This approach entrenches expansive conceptions of guardianship in a limited domain while providing a toehold for its broader recognition.
Despite the divergent paths, both examples clearly demonstrate increasing interest in considering how more-than-human considerations might be more directly acknowledged by American environmental law, despite the inherent challenges. Likewise, we believe that Nederland, CO and Hawai’i underscore the potential promise of incremental embrace of environmental guardianship within American legal frameworks and society.