The Lake Erie Bill of Rights was invalidated Thursday night by U.S. District Judge Jack Zouhary, who said in an eight-page ruling that his decision was “not a close call” because he believes the citizen-led referendum — though approved by a majority of Toledo voters in a special election last year — “is unconstitutionally vague and exceeds the power of municipal government in Ohio.”
Judge Zouhary’s ruling came exactly one year to the day since the lawsuit challenging the referendum’s successful passage was filed by an agricultural corporation called Drewes Farms, which is based 40 miles southwest of Toledo near the Wood County town of Custar, Ohio.
LEBOR, as the Lake Erie Bill of Rights is often called, was approved by Toledo voters at a special election on Feb. 26, 2019. Hours later, on the morning of Feb. 27, 2019, the lawsuit challenging its constitutionality was filed by the group of farms.
“This is not a close call,” Judge Zouhary wrote in his decision. “LEBOR is unconstitutionally vague and exceeds the power of municipal government in Ohio.”
The lawsuit targeted the city of Toledo because the measure became part of the city’s charter once voters approved it.
Dale Emch, Toledo city attorney, said it’s too early to say if the city might appeal.
“We defended the Lake Erie Bill of Rights and the charter amendment aggressively. We always knew this would be a difficult legal challenge,” Mr. Emch said. “We respect the court’s decision and will discuss our options.”
The city was represented in the case by Sarah K. Skow, an attorney with the Toledo-based Spengler Nathanson law firm. Several activists who fought to get LEBOR on last year’s ballot and approved by voters lauded her efforts at a pivotal Jan. 28 court hearing before Judge Zouhary.
“I think the city did a ... good job. I hope ... they will appeal,” Terry Lodge, the attorney representing Toledoans for Safe Water, the group behind the initiative, told The Blade on Thursday night.
The activist group’s request to be a co-defendant in the case was denied last May by the judge, though he ended up allowing the DeWine administration to be a co-plaintiff with the agricultural firm.
“The judge really lowered the boom,” Mr. Lodge said.
In his ruling, Judge Zouhary said Toledoans for Safe Water used language “that sounds powerful but has no practical meaning” when writing the Lake Erie Bill of Rights, and that the document’s purported right to self-governance is “an aspirational statement, not a rule of law.”
“Under even the most forgiving standard, the environmental rights identified in LEBOR are void for vagueness,” he wrote.
Modeled after several other “rights of nature” movements across the world, LEBOR tried to assert that Lake Erie is entitled to rights as an ecosystem. The movement is in response to a controversial court case several years ago in which a judge ruled corporations have rights akin to those of citizens.
Markie Miller, who led the pro-LEBOR campaign on behalf of Toledoans for Safe Water, said the group has been frustrated by the lack of progress for western Lake Erie since an algal toxin from the lake poisoned Toledo’s tap water for nearly three days the first weekend of August, 2014. That event made worldwide news and led to relief efforts by the Ohio National Guard. Nearly 500,000 people on the city’s water system were told they should not drink or even touch their tap water that weekend.
Ms. Miller also said her group put LEBOR on the ballot to expose a legal system that is “not designed to protect us.”
“LEBOR is about giving power back to the people,” she said. “I am feeling very angry. LEBOR is not to be written off as poetry.”
Thomas H. Fusonie, who argued the case in court on behalf of Drewes Farms, was pleased by the decision.
“We are happy the Court vindicated our client’s clear constitutional rights,” Mr. Fusonie, of Columbus-based Vorys, Sater, Seymour and Pease, wrote in an email. “As the Court told the City of Toledo in the opinion, it was not a close call.”
Spokesmen for Drewes Farms and Ohio Attorney General Dave Yost could not be reached.
During the Jan. 28 court hearing before Judge Zouhary, 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 was allowed to stand.
“The state has constitutionally protected rights, as well, because of its ownership of Lake Erie,” Ms. Ferguson said back then. “It would strip the state of its ownership of these waters.”
States have ownership of navigable water within the United States.
Mr. Fusonie said during that hearing he was particularly bothered by the open-endedness of LEBOR’s claim that Lake Erie has a right to “exist, flourish, and evolve.”
First Published February 28, 2020, 2:42 a.m.
