Trespass against

All wild waters have a different flavor. The North Fork of the Flathead River, the river near the off-grid cabin I stay at most often, is wide, and fast enough I wouldn’t risk trying to swim across it. Its headwaters are in Canada, and it has so far been saved from toxic selenium levels by an international agreement that turned its sister rivers, the Elk and then Fording Rivers, into a sacrifice zone for the waste of mountaintop removal coal mining in British Columbia. The saved river tastes of snow and rock, a little pine and something of the young otters I once watched playing in the rapids just off the opposite bank. The uncanny warmth of ice. A little-visited creek on the other side of the mountains where I search for caddisfly casings in late summer tastes of dirt, like fresh-planted geraniums, and the fireweed and kinnikinnick where its waters gather high up in the eastern portion of the Bob Marshall Wilderness. Caddisflies, like many macroinvertebrates, are a sign of a water’s health. They need water that runs, chortling and burbling along rocks and moss, well-aerated and low in pollution. Caddisfly larvae build tiny, nearly perfectly cylindrical casings out of various materials, usually gravel. They’re hard to spot, bits of washed-bright gravel clinging to similarly colored rocks under rushing water. I fell in love with caddisflies during my son’s fifth-grade field trip to a local wetland, less than 10 years ago. Although I grew up fishing Montana’s waters, and my mother is an expert fly fisherman, the kind of fishing I did involved worms rather than flies, and I was never taught much about the waters themselves, much less the tiny creatures that make up their vast ecosystems. I’d never seen a caddisfly before that hot spring day with my son’s class, learning about rescue birds of prey and macroinvertebrates at a hidden wetland sanctuary in the shadow of the ski mountain on the edge of town. Caddisflies fascinate me. Miniscule creatures! Maneuvering miniscule bits of rock to form perfect little temporary homes! What more does one need to be awed by creation? Learning about them and other macroinvertebrates from scientists near where I live, I learned about rivers, too—the level of cleanliness they need for health, the way their ecosystems spread underground, far beyond the borders of their visible shores. Architect and planner Dilip Da Cunha wrote a book I haven’t yet read called The Invention of Rivers. He wrote in the book’s introduction, of Alexander the Great’s military campaigns, that they were not just empire building projects, but “more fundamentally and necessarily to articulate an earth’s surface with a line separating land from water.” “. . . to articulate an earth’s surface with a line separating land from water.” I bought the book after hearing an interview with Cunha, floored by his obvious but revolutionary argument that of course rivers don’t have solid boundaries. How could they? Maps of rivers’ flow, length, shape, and course are deceptive. Rivers are living, breathing creatures. Expecting one to adhere to a mapped route is like expecting a toddler to fall in line with your expectations of behavior just because you read a seemingly smart book about parenting your spirited child. I was recently able to turn back to No Trespassing, the book I’ve been promising readers here for far too long, and came across a passage in Chapter 2—the chapter on water—that I ended up repurposing in an essay for the “Air” volume of The Center for Humans & Nature’s (https://humansandnature.org/elementals/) Elementals (https://humansandnature.org/elementals/) anthology (https://humansandnature.org/elementals/) : “Trespass is fluid. It’s a transgression. In the case of pollution, trespass is far more physical than simply breaking through somebody’s property line. If I sneak through my neighbor’s yard to get to the nature preserve on the other side I might annoy them, but if my neighbor burns a pile of tires in that same yard and I don’t go near it, his waste will trespass into my family’s bodies just the same. This form of trespass, though, is exactly what the law currently allows.” In the published essay, this passage is about what is carried through the air and into all living beings, contrasted with barbed wire fencing and No Trespassing signs that keep our physical bodies from wandering. In the unpublished chapter, though, it follows a section I wrote about Justice Neil Gorsuch’s dissent in a 2020 U.S. Supreme Court case involving decades of pollution from a mining company layered in the soil of Anaconda, Montana. The court’s opinion leaned on lack of jurisdiction, but Gorsuch’s dissent went straight to the issues residing deeper within legal history: the plaintiffs’ arguments, he wrote, relied on “ancient common law causes of action like nuisance and trespass.” The majority decision, he wrote, “strips away ancient common law rights from innocent landowners and ...