Lawsuit: Lake Rights Deny Farmer Rights

Toledo's New Law May Threaten Use of Fertilizer for Thousands of Producers

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
Connect with Todd:
Custer, Ohio, farmer Mark Drewes sued the city of Toledo for passing a measure that could hurt thousands of farmers in the Lake Erie watershed. (Photo by Jesse Allen and Robert Simmon; courtesy of Wikicommons)

OMAHA (DTN) -- A day after voters in Toledo, Ohio, passed a so-called Lake Erie "bill of rights" in a special election on Tuesday, Custer, Ohio, farmer Mark Drewes filed a lawsuit alleging the measure violates his constitutional rights.

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.

"Thus, this vague and standard-less charter amendment exposes farmers to massive liability for the use of any fertilizer or chemicals, even when the application of fertilizer or chemicals would otherwise be lawful under state and federal regulation, comports with best practices, and meets scientifically recommended levels," the lawsuit alleged.

"As a result, Drewes Farms' fertilizer applicator certificate issued by the Ohio Department of Agriculture may be deemed invalid to the extent it is found to violate LEBOR," the lawsuit stated. "Further, by invalidating state and federal permits, state laws, and rules by state agencies, LEBOR could deprive Drewes Farms of its sources of manure and fertilizer to the extent such permits, laws, and rules had permitted the sale and provision of manure and fertilizer to Drewes Farms."

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.

When contacted by DTN, Drewes' attorney, Thomas Fusonie, offered the following statement: "The charter amendment is an unconstitutional and unlawful assault on the fundamental rights of family farms in the Lake Erie watershed -- like the Drewes' fifth-generation family farm. The lawsuit seeks to protect the Drewes' family farm from this unconstitutional assault."

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.

"Mark's farm is an example of the right way of doing things," Adam Sharp, executive vice president of the Ohio Farm Bureau, said in a statement. "He's employing a variety of conservation practices, water-monitoring systems, water-control structures and uses variable-rate-enabled equipment and yet he's vulnerable to frivolous lawsuits."

DREWES' LAWSUIT

The lawsuit argued the bill of rights violates federal constitutional rights, including equal protection and freedom of speech and is unenforceable for its vagueness.

Drewes has asked for a preliminary and permanent injunction to prevent enforcement of the law.

In addition, Drewes argued that 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."

"LEBOR purports to divest corporations, such as Drewes Farms, of their constitutional right to petition the government for redress of grievances in that it strips corporations of their status as 'persons' under the law; their power to assert that state or federal laws preempt LEBOR; their power to assert that the city of Toledo lacks the authority to adopt LEBOR," the lawsuit said.

"LEBOR purports to target any conduct by a corporation that impacts the 'irrevocable rights for the Lake Erie ecosystem to exist, flourish and naturally evolve,'" the lawsuit said. "The terms 'exist,' 'flourish,' and 'naturally evolve' are undefined in LEBOR. LEBOR provides no standards for determining what activity would violate these undefined rights."

The preamble of the measure indicates it is targeting "large-scale agricultural practices" for "runoff of noxious substances." Yet, the terms "large-scale agricultural practices," "runoff," and "noxious substances" are not defined.

"Even with state-of-the-art technology and best-management practices to reduce and minimize runoff, such as those utilized by Drewes Farms, the use of fertilizer unavoidably results in some runoff from agricultural fields," the lawsuit said.

"As a direct and proximate cause of the city's adoption of LEBOR and its creation of vague, undefined criminal offenses, farmers such as Drewes Farms may face unconstitutional and unlawful enforcement proceedings, resulting in the imposition of fines and penalties set forth in LEBOR, based on even nominal or potential runoff from farming activities.

"Depending on the weather, planting season for wheat will likely begin in late March and for the rest of the crops in April," the lawsuit said. "Fertilization will need to begin at that time in order to successfully operate Drewes Farms' farming operations and to meet Drewes Farms' various contracts."

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

Follow him on Twitter @toddneeleyDTN

(AG/BAS)

Todd Neeley