Citizens of Toledo approve the Lake Erie Bill of Rights

By Kolt Buchenroth and Matt Reese

The Lake Erie Bill of Rights was passed by the citizens of Toledo in a special election held on Tuesday, Feb. 26. According to the results from the Lucas County Board of elections, the measure was passed by a vote of 61.4% to 38.6% with only 8.9% of voters turning out to the polls.

There was a failed attempt to get this on the 2018 November ballot in Toledo. The effort to get LEBOR on the ballot was supported by out-of-state interests but it could have a very real in-state impact for a wide range of businesses. LEBOR opens up the possibility of thousands of lawsuits against any entity that could be doing harm to Lake Erie. This includes agricultural operations.

“Farm Bureau members are disappointed with the results of the LEBOR vote. Our concern remains that its passage means Ohio farmers, taxpayers and businesses now face the prospect of costly legal bills fighting over a measure that likely will be found unconstitutional and unenforceable,” said Adam Sharp, executive vice president, Ohio Farm Bureau Federation. “Nevertheless, Farm Bureau members remain committed to finding and implementing real solutions to the lake’s challenges.”

LEBOR grants rights to Lake Erie and empowers any Toledo citizen to file lawsuits on behalf of the lake. It gives Toledoans authority over nearly 5 million Ohioans, thousands of farms, more than 400,000 businesses and every level of government in 35 northern Ohio counties plus parts of Michigan, Indiana, Pennsylvania, New York and Canada. LEBOR was passed despite the prevailing legal opinion that many of its provisions are unconstitutional.

“It says the lake should be free of pollution and things that could harm the lake. It makes the lake act as a person almost who can bring charges against people for harming it,” said Leah Curtis, director of agricultural law for Ohio Farm Bureau. “There is a concern that agriculture would be one of those industries that would be charged or sued with these lawsuits that could potentially come out of this charter amendment. It could really apply to anyone —not just agriculture — anyone who does something that might end up harming the lake. It could be a leaky septic system or other industries that may have permits that put limitations on what they can and cannot do. The Lake Erie Bill of Rights also invalidates those permits if those permits allow for any harm to Lake Erie. It has wide reaching effects. It has issues for lots of areas.”

The day after LEBOR was approved by Toledo voters, Wood County farmer Mark Drewes filed a lawsuit challenging the constitutionality and legal status of the Lake Erie Bill of Rights. Drewes’ suit was filed in the Federal District Court for Northern Ohio.

Drewes Farm Partnership is a family crop operation in Custar with a significant history of being dedicated to improving water quality. Drewes is on the board of directors for The Ohio Corn and Wheat Growers Association and a long-time member of Ohio Farm Bureau.

“Mark’s farm is an example of the right way of doing things,” Sharp said. “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. We are proud that our member has stood up against this overreach, and his efforts will benefit all Farm Bureau members, farmers and protect jobs in Ohio.”

OFBF has historically engaged in precedent setting court cases that potentially affect its members. Farm Bureau will actively assist Drewes and his legal team throughout this litigation to ensure members’ concerns are heard. OFBF’s legal staff will monitor developments, lend agricultural expertise and provide supporting information about agriculture’s efforts to protect water quality.

Drewes is represented by the law firm Vorys, Sater, Seymour and Pease LLP, which has extensive experience fighting against onerous government action.

“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,” said Thomas Fusonie, a partner at Vorys and one of the counsel for Drewes. “The lawsuit seeks to protect the Drewes’ family farm from this unconstitutional assault.”

The suit argues LEBOR violates federal constitutional rights, including equal protection, freedom of speech and is unenforceable for its vagueness. A request for preliminary and permanent injunction was also filed seeking to prevent enforcement of the law.

“Farmers want and are working toward improving water quality, but this new Toledo law hurts those efforts. Mark Drewes understands this, and it’s Farm Bureau’s job to back his important actions on behalf of Ohio farmers,” Sharp said.