Ohio Intervenes in Farmer Lawsuit

OMAHA (DTN) -- The state of Ohio is trying to intervene in a farmer lawsuit filed against the city of Toledo and its Lake Erie bill of rights (LEBOR), which was approved by voters.

Since the lawsuit was filed by Custer, Ohio, farmer Mark Drewes in February, claiming the LEBOR violates his constitutional rights, the U.S. District Court for the Northern District of Ohio issued a preliminary injunction against the law.

If allowed to stand, the law could expose thousands of farmers in the region to lawsuits, challenging their use of fertilizers.

The measure came about after a toxic algae bloom in Lake Erie in August 2014 contaminated Toledo drinking water supplies. Residents were warned not to drink water during a three-day period. Questions were raised about the cause of the bloom, and the finger was pointed at nutrient runoff from farms as a culprit.

The new law essentially grants rights to Lake Erie and empowers Toledo citizens to file lawsuits on behalf of the lake, potentially threatening farmers who operate in states bordering the lake, as well as in Canada.

On Friday, the state of Ohio filed a motion to intervene in the case.

"The city of Toledo charter amendment contradicts the state of Ohio's multifaceted statutory, regulatory, and civil and criminal enforcement programs that control water pollution in the state of Ohio," the state said in its court motion. "This includes Ohio's environmental, agricultural and natural resources regulatory programs affecting Lake Erie and the waters feeding it. Any ruling by this court adverse to those laws would hinder the state's ability to enforce Ohio law."

On Aug. 6, 2018, the Toledo City Council received a petition proposing an amendment to the city charter to include the new bill of rights. On Dec. 4, 2018, the council passed an ordinance declaring it had received enough petition signatures to submit the proposal to voters.

The measure gives Toledo residents authority over nearly 5 million Ohio citizens, thousands of farms, more than 400,000 businesses in 35 northern Ohio counties, plus parts of Michigan, Indiana, Pennsylvania, New York and Canada.

FARMER CONCERNS

Drewes' lawsuit argued the bill of rights violates federal constitutional rights, including equal protection and freedom of speech and is unenforceable for its vagueness. He asked for a preliminary and permanent injunction to prevent enforcement of the law.

In addition, Drewes argued if his farm is forced to stop fertilizing crops, it could "place Drewes Farms in breach of leases and contracts and deprive it of the benefits of its leases and contracts that are dependent upon ongoing fertilization."

The state argued in its motion that the Toledo law violates the state's constitution because it conflicts with Ohio law.

"The charter amendment seeks to establish the Lake Erie ecosystem as its own legal identity and extend its authority to Lake Erie generally," the state said.

"This conflicts with years of precedent and the Ohio revised code. The Ohio Supreme Court has long recognized that the state holds ownership of the waters of Lake Erie and its subaqueous land within the boundaries of Ohio as trustee for the protection of public rights. Ohio's public trust over Lake Erie is indisputably the law in Ohio. And any application and enforcement of the charter amendment conflicts with this law of general application."

VETO POWER

The state also argues Toledo's charter amendment would provide veto power over state permitting decisions.

"Not only is this counter to the doctrine of state pre-emption, but it also creates uncertainty and confusion about the rights and responsibilities of current or prospective permitees in the Lake Erie watershed. Thus, the charter amendment could potentially be used to claim that facilities permitted by either Ohio EPA or the Department of Agriculture are damaging the 'Lake Erie Ecosystem.'"

Even though the court approved an injunction against the law, Toledoans for Safe Water, Inc., attached the "Lake Erie Ecosystem" as a co-plaintiff in a motion to also intervene filed in the case on March 18.

"The ecosystem derives standing from its existence and claims rights to exist, flourish and naturally evolve, as recognized in a recent initiated amendment to the charter of the city of Toledo entitled 'The Lake Erie Bill of Rights,'" the motion to intervene said.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(BAS/CZ)

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