Ohio farmer says Lake Erie Bill of Rights is unconstitutional

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Fishing on Lake Erie
A group of people fishing on Lake Erie.

(Developing story. Expect updates; updated 11:15 a.m.)

SALEM, Ohio — A controversial measure intended to give Lake Erie its own legal standing is being challenged in federal court, one day after Toledo city voters approved its passage.

Known as the Lake Erie Bill of Rights, or LEBOR, the policy was approved Feb. 26 by a 9,867 to 6,211 margin, with a voter turnout of about 9 percent of those registered.

As it stands, LEBOR gives citizens of Toledo the right to sue polluters on behalf of the lake and its right to exist in a healthy condition. However, city council members and area farmers have expressed concern over whether such a measure is constitutional, and how exactly the bill of rights might be implemented.

Taking issue

Wood County grain farmer Mark Drewes filed suit in the Federal District Court for Northern Ohio, arguing that LEBOR is unconstitutional and oversteps the legal rights of Toledo residents.

Drewes is represented by the law firm Vorys, Sater, Seymour and Pease.

“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, attorney with the law firm Vorys, Sater, Seymour and Pease. “The lawsuit seeks to protect the Drewes’ family farm from this unconstitutional assault.”

The constitutionality of the action was also publicly voiced by Toledo-area leaders, including some of those who voted in favor of its passage. Members of the Lucas County Board of Elections and Toledo City Council all voiced concerns about constitutionality.

Lengthy battle

Farmers and non-farmers have battled the water quality issue the past several years, stepping up the efforts to keep nutrients in place and improve water quality.

Lake Erie continues to be at the center of disussions, because of issues related to harmful algal blooms, which feed off of phosphorus and threaten the safety of the water for drinking and recreational use.

In 2018, the state declared portions of the lake impaired, and there was a push by former Gov. John Kasich to have eight northwestern watersheds declared in distress. Farmers and some conservation leaders, however, said progress was still being made and argued that the rule package that coincided with Kasich’s order was too onerous.

Since taking office in January, Gov. Mike DeWine and his administration have set a plan of stakeholder input and listening sessions, before putting together his own water quality proposal.

Under review

Newly appointed ag director, Dorothy Pelanda, said Feb. 26 that the rules developed by the Kasich administration have been “put on pause,” so that stakeholders can give additional input and a workable solution can be reached.

The rule package was heard before the Joint Committee on Agency Rule Review in December, but the committee voted to send the rules back to the ag department for further review and re-filing, because of concerns with the cost and staffing needs, and the effect on agriculture and business.

The suit by Mark Drewes is supported by Ohio Farm Bureau Federation, which said Drewes is an exemplary farmer who is employing new methods of monitoring and controlling nutrient flow. The Farm Bureau has supported new research and farming practices in the area, including demonstration farms that test and display the results of new farming practices.

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

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