Lake Erie Bill of Rights Thrown Out

Federal Court in Ohio Rules Lake's Bill of Rights Unconstitutional

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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A federal judge decided a Lake Erie bill of rights was unconstitutionally vague. (Photo by Jesse Allen and Robert Simmon; courtesy of Wikicommons)

OMAHA (DTN) -- A federal judge on Thursday invalidated Toledo, Ohio's, Lake Erie Bill of Rights approved by city voters in February 2019 and challenged by an Ohio farmer.

In a judgement handed down by the U.S. District Court for the District of Northern Ohio, Judge Jack Zouhary said the law was unconstitutional.

"Frustrated by the status quo, LEBOR supporters knocked on doors, engaged their fellow citizens, and used the democratic process to pursue a well-intentioned goal: the protection of Lake Erie," the ruling said.

"As written, however, LEBOR fails to achieve that goal. This is not a close call. LEBOR is unconstitutionally vague and exceeds the power of municipal government in Ohio. It is therefore invalid in its entirety."

Custer, Ohio, farmer Mark Drewes sued the city in March 2019 for passing the measure that would have affected thousands of farmers in the Lake Erie watershed. Drewes' lawsuit alleged the law violated his constitutional rights, and the state of Ohio intervened on behalf of Drewes.

If allowed to stand, the law would have exposed 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 granted rights to Lake Erie and empowered 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 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 gave Toledo residents authority over nearly 5 million Ohio citizens, thousands of farms, and more than 400,000 businesses in 35 northern Ohio counties, plus parts of Michigan, Indiana, Pennsylvania, New York and Canada.

In his eight-page ruling, the judge said the law already had caused harm.

"LEBOR has already injured the state: at least on paper, state laws, regulations, licenses, and permits are invalid in Toledo to the extent they conflict with LEBOR," the ruling said.

"The state could also be sued under LEBOR for failing to sufficiently protect Lake Erie or for violating LEBOR's guarantee of local self-government. Drewes Farms falls within LEBOR's crosshairs, too. The business spreads fertilizer on fields in the Lake Erie watershed, arguably infringing the watershed's right to 'exist, flourish, and naturally evolve' and the right of Toledoans to a 'clean and healthy environment.' The risk of suit under LEBOR is particularly high because enforcement does not depend on government prosecutors -- Toledo residents may file suit themselves."

In addition, the court said the law was unconstitutionally vague.

"What conduct infringes the right of Lake Erie and its watershed to 'exist, flourish, and naturally evolve?'" the judge wrote.

"How would a prosecutor, judge or jury decide? LEBOR offers no guidance. Because of this vagueness, Drewes Farms reasonably fears that spreading even small amounts of fertilizer violates LEBOR. Countless other activities might run afoul of LEBOR's amorphous environmental rights: catching fish, dredging a riverbed, removing invasive species, driving a gas-fueled vehicle, pulling up weeds, planting corn, irrigating a field -- and the list goes on."

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

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(AG/BAS)

Todd Neeley