The first of what could be multiple lawsuits challenging the legitimacy of Toledo’s newly passed Lake Erie Bill of Rights was filed Wednesday morning in U.S. District Court.
In a 28-page complaint, attorneys representing Drewes Farms Partnership of Custar, Ohio, are asking for the successful ballot initiative to be thrown out on the grounds it is “unconstitutional and unlawful.”
“Courts have routinely invalidated similar governmental overreaches across the country, including many backed by some of the same groups behind LEBOR,” the document states. “Despite this, a member of the Toledo City Council and proponents of LEBOR have publicly stated that LEBOR was enacted to send a message.”
The councilman was not identified by name in the complaint. But the document cites a New York Times article from earlier this month in which Councilman Nick Komives was quoted saying he initially went along with other councilmen in opposing the measure because it is “probably unconstitutional.”
But Mr. Komives also said in that same article that he is a strong proponent of Lake Erie and — as an activist — believes it is sometimes important to send a message.
The lawsuit claims that Drewes Farms Partnership, a fifth-generation business operated by Mark and Tyler Drewes, is being exposed to “massive liability” and financial risk because, even as a recognized leader for agricultural practices, it “can never guarantee that all runoff will be prevented from entering the Lake Erie watershed.”
“If Drewes Farms cannot fertilize its fields, it will be unable to survive economically,” the lawsuit states. “Drewes Farms must soon begin fertilizing its fields in March or April for this growing season.”
The suit names the city of Toledo as the defendant, in care of City Law Director Dale R. Emch.
“We are still reviewing the lawsuit, so I’m not in a position to comment on it specifically,” Mr. Emch said in a statement to The Blade. “Everyone involved knew the charter amendment would be the subject of litigation eventually. We will defend the City as the legal process takes its course.”
The suit was filed by the Columbus-based law firm of Vorys, Sater, Seymour and Pease.
The law firm said it was not making its two attorneys assigned to the case, Thomas Fusonie and Daniel Shuey, available for interviews on Wednesday.
But a statement issued by the firm’s spokesman, Jennifer House, quoted Mr. Fusonie as saying he believes the Lake Erie Bill of Rights is “unconstitutional and unlawful assault on the fundamental rights of family farms in the Lake Erie watershed.”
The Lake Erie Bill of Rights was passed by a 61-39 percent margin in a special election on Tuesday night. It calls for Toledo’s city charter to be amended in a way that it recognizes Lake Erie — as a natural resource used for drinking water by 12 million U.S. and Canadian citizens, including Toledo’s — has a right to carry less of an environmental burden that it has for decades.
Legal experts are still unsure exactly how that new approach will be carried out.
Ken Kilbert, a University of Toledo law professor and UT’s Legal Institute of the Great Lakes director, said he expects to see a flurry of lawsuits and counter-suits in response to the Lake Erie Bill of Rights because it doesn’t clearly define its parameters.
Taken literally, the measure could force arguments over whether state and federal discharge permits should be invalidated - and about how far local government can go toward arguing Lake Erie and all of the watersheds flowing into it must be free of pollution well beyond the city of Toledo’s jurisdiction.
“This is turning it on its head,” Mr. Kilbert said of conventional permit-issuing regulation. “That certainly is a different way of doing things.”
He said the lake’s new bill of rights is “meant to disrupt the system.”
“What this does is eliminate the reasonable balancing part,” Mr. Kilbert said. “This doesn't draw any lines. This is a blunt instrument. My view is this - while a well-intentioned document, is legally flawed.”
The potentially far-reaching aspects of the Lake Erie Bill of Rights also has concerned Frank Merritt, a UT professor of law emeritus and longtime ecology director for Boy Scouts of America programs.
In a Feb. 23 Facebook post, three days before the election, Mr. Merritt said the bill is unusual in that it defies a longstanding norm for municipalities to limit their reach to their own borders.
“It was recognized before the American Revolution that no one had right to poison his neighbor’s waters or stream. It has also been long recognized that regulations and prohibitions have to be sufficiently definite so that reasonable persons can determine what is prohibited and how to conduct themselves,” Mr. Merritt wrote. “Voting for this provision will make you feel good, but it will do nothing to clean up Lake Erie. To the extent that that City has to spend money defending the law, it will simply be a waste of needed public funds.”
Supporters disagree, contending the measure puts into effect a new way of looking at - and protecting - one of the world’s greatest bodies of fresh water.
The bill was put before voters by a grassroots group of activists called Toledoans for Safe Water. With help from another group, Advocates for a Clean Lake Erie, more than enough signatures were gathered for a citywide referendum on the November ballot.
But Toledo City Council and the Lucas County Board of Elections initially balked, citing concerns over enforcement. They eventually had a change of heart, with the Ohio Supreme Court upholding the right of the groups to put the ballot question before voters in Tuesday’s special election.
Markie Miller, Toledoans for Safe Water organizer, said at her group’s victory party Tuesday night it anticipates multiple legal challenges in the coming months - but is not going to be dissuaded.
“We expect this effort to bring about discussions and challenges — but hopefully ones inspired by the desire to create positive and meaningful changes and not ones based on fear and misunderstanding,” she added on Wednesday morning.
Sandy Bihn, Lake Erie Waterkeeper executive director - one of northwest Ohio’s best-known, longest-serving, and most award-winning environmentalists - said in a Feb. 23 letter published by The Blade that the time has come for the agricultural industry to be “held accountable” for billions of dollars it has received to reduce the flow of manure and commercially made fertilizer from area farms when there is heavy rain.
On Wednesday, she said it “would be a Lake Erie win” for everyone if passage of the Lake Erie Bill of Rights inspire more people to come together on a comprehensive plan for combating algae, instead of resorting to more litigation.
First Published February 27, 2019, 3:41 p.m.
