TOLEDO, Ohio — Farmers could be sued by Lake Erie, or more precisely, by any resident of Toledo who wants to speak for the lake and finds fault with the way they are farming or doing business.
It sounds incredible, and likely won’t become a reality, but the threat is real enough that Ohio Farm Bureau is engaged in the legal maneuvering.
Farm Bureau Policy Counsel Leah Curtis explains that a proposed amendment to the Toledo City Charter may be on the ballot during a special election Feb. 26. The measure would give Lake Erie and its watershed legal standing in court and allow any Toledo citizen to represent the lake and file lawsuits on its behalf.
The rights this measure would grant the lake include, “an ability to exist, flourish, be free from pollution” and other broadly described entitlements. Any farming practice that allegedly infringes on these rights presumably makes the farmer subject to a lawsuit. Farmers, individuals and businesses in the Lake Erie Watershed could be at risk of being sued.
“The way it’s written, it could be a homeowner with a septic system that’s not operating properly. It could be someone who doesn’t clean up their pet’s waste. It could be an industry or business. It really could be anyone or anything,” Curtis said.
Lake activists attempted this last fall, she said, but the board of elections refused to put it on the ballot based on court instructions. Since then, new legal precedent led the board of elections to allow the measure to go to a vote Feb. 26.
At press time, the Ohio Supreme Court was reviewing whether the proposal should be on the ballot. Ohio Farm Bureau has filed a friend of the court brief making a legal argument against it going to voters.
Farm Bureau cites common law that says once the Supreme Court has ruled (as it did in the fall), the issue cannot be reintroduced. Further, Farm Bureau makes the point that the city of Toledo cannot simply grant itself new legal powers that don’t exist.
“We’re making sure the court understands how unenforceable and problematic this is, (but) the fight can take time. It can take years and multiple appeals and it takes probably thousands or millions of dollars,” she said.
The issue potentially impacts all Ohioans as this case could establish law that applies statewide.
Regulation through litigation
The Lake Erie Bill of Rights is an example of a growing trend toward regulation through litigation. Aggrieved parties who have been unable to create public policy through the legislative process are turning to lawsuits as a means of getting their way. This tactic is also expensive, requiring additional time and legal fees for agricultural groups to counter in the courts.
“They’re hoping to get a friendly judge or jury to override lawmakers and rule writers,” said OFBF Senior Director of National and State Policy Jack Irvin.
“Bypassing the legislative process isn’t a thoughtful way to govern, but we’re seeing it more and more,” he said.
Policy Counsel Leah Curtis also offered sound advice.
“A good rule of thumb is when you’re presented with a petition from someone to sign, make sure you understand it, make sure you actually look at the language,” she said. “We hear from people all the time who say they didn’t know that’s what they were signing.”
— Ohio Farm Bureau Federation
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