A downtown Toledo courtroom was filled to capacity Tuesday when U.S. District Judge Jack Zouhary heard arguments for two hours over whether Toledo’s Lake Erie Bill of Rights is constitutional or not.
A ruling is expected at a later date.
The plaintiffs, a Wood County agricultural corporation called Drewes Farms Partnership, of Custar, Ohio, argues the successful citizen-led ballot initiative which Toledo voters approved at a special election last February by a 61-39 percent margin is so vague and far-reaching that it has the potential to drive some northwest Ohio farmers out of business.
Their lawsuit, filed the day after that election, has been supported by the Ohio Farm Bureau Federation. Judge Zouhary allowed the state of Ohio months ago to serve as a co-plaintiff.
It targets the city of Toledo because the measure became part of the city’s charter once voters passed it.
“The Ohio Constitution limits their power to the city of Toledo,” Thomas H. Fusonie, one of several attorneys from the Columbus-based law firm, Vorys, Sater, Seymour & Pease, said in his opening statement on behalf Drewes Farms.
Sarah K. Skow, a Toledo attorney representing the city, said proven harm within the city — such as that caused by the algae-induced Toledo water crisis of August, 2014 — allows it to go outside of the city limits to hold polluters responsible.
She told the judge the Lake Erie Bill of Rights is a “social values statement passed by 61 percent of the voters at a special election ... reaffirming their rights under the Ohio Constitution for clean drinking water.”
Also known as LEBOR, the Lake Erie Bill of Rights is part of an international “rights of nature” movement that has gained worldwide attention.
In the case of LEBOR, supporters assert that Lake Erie has the right to exist, flourish, and evolve as an ecosystem. Such cases are in response to a lawsuit several years ago, in which a judge claimed that corporations have rights akin to those of citizens.
Although the measure was reluctantly put on the ballot by the Lucas County Board of Elections after that board itself had raised constitutionality concerns, LEBOR does not read like a typical piece of legislation passed by lawmakers, Judge Zouhary said.
He said there’s a lot left open for interpretation.
“Are you telling me I have to be more lenient?” Judge Zouhary asked Ms. Skow. “Are you telling me because of the good intentions of the people I need to look at this less seriously than legislation?”
According to Mr. Fusonie, LEBOR “allows for arbitrary enforcement” of both criminal and civil laws.
“It creates criminal liability,” he told the judge. “That alone warrants the highest scrutiny level under the Fifth Amendment.”
Amanda M. Ferguson, a lawyer in the Ohio Attorney General’s environmental enforcement section, said the state believes Toledo would assume too much power over Lake Erie if LEBOR is allowed to stand.
“The state has constitutionally protected rights, as well, because of its ownership of Lake Erie,” Ms. Ferguson said. “It would strip the state of its ownership of these waters.”
States have ownership of navigable water within the United States.
But even Ohio doesn’t own the whole lake. Michigan, Pennsylvania, and New York are part-owners as well, while the United States shares ownership with Canada at the international boundary.
Ms. Skow said that LEBOR grew out of citizen frustration over declining water quality, and the state’s inability to reverse toxic algal blooms.
“You do not have a constitutional right to fertilize, you do not have a constitutional right to pollute,” she told the judge.
Mr. Fusonie said he was particularly bothered by the open-endness of LEBOR’s claim that Lake Erie has a right to “exist, flourish, and evolve.”
“These words are malleable,” he said. “They’re twisted easily, based on whom they think is liable.”
Ms. Skow said it’s no different than debates over life, liberty, and the pursuit of happiness.
“Protecting Lake Erie is a legitimate interest,” she said.
Judge Zouhary questioned attorneys about the possibility of severing off parts of LEBOR and merging it with existing law.
None of them offered plans for a compromise.
As he was concluding the hearing shortly before noon, he told the capacity crowd of nearly 40 spectators that he appreciated them coming down to U.S. District Court for the proceeding.
“I don’t think any of us don’t want a clean Lake Erie,” he said. “That much we can agree on. I understand your frustration with what you think has been a slow process.”
Then, seconds after he pounded the gavel and spectators rose to leave, three or four random outbursts were directed at the judge.
“Lake Erie is not yours to take away!” yelled one spectator.
“Legalized pollution is not a First Amendment right!” yelled another.
Security was tight for the proceeding, with bailiffs heard discussing cutoff numbers. Several spectators were told they would be removed if there were any outbursts or use of electronic devices.
The hearing was a pivotal one for the future of LEBOR, which became part of the city charter following a special election held on Feb. 26, 2019. Only 9 percent of the city’s registered voters cast their ballots in that election.
The drive was pushed by Toledoans for Safe Water. Judge Zouhary ruled last May he would not allow that activist group to have a seat at the table as a co-defendant with the city.
At one point during Tuesday’s hearing, though, Judge Zouhary commented that it appeared Ms. Skow was too focused on process and not on the merits of the case.
Sitting in the courtroom with the spectators was Terry Lodge, the Toledoans for Safe Water attorney whom Judge Zouhary effectively kept off the case when he denied that group’s request to be a co-defendant.
The judge issued that decision about two weeks after Toledoans for Safe Water organizer Markie Miller and other members of her group returned from New York after being invited by the United Nations to give a special Earth Day presentation April 22.
Ms. Miller discussed her frustration about that decision again last Friday with The Blade, saying it has the patronizing feel of being told to “wait and be patient while the adults have a discussion.”
But she had nothing but admiration for Ms. Skow after the hearing.
“The city did a great job. Sarah was amazing to watch,” Ms. Miller said. “I think she did justice to what the people wanted.”
First Published January 28, 2020, 5:56 p.m.
