Appeals court hears lake rights case

Larry Limpf

Oral arguments were heard Wednesday in the Ohio Sixth District Court of Appeals in a case filed by three Toledo residents in support of the Lake Erie Bill of Rights, which was passed by voters in 2019 as an amendment to the city charter to give Lake Erie recognition as an ecosystem with the right to “exist, flourish and naturally evolve.”
Mike Ferner, Bryan Twitchell and John Durback filed the appeal after losing a decision in Lucas County Common Pleas Court in January 2020.
Addressing the appeals court last week, Ferner said volunteers spent thousands of hours with petitions to put the LEBOR on the ballot.
“We have tried to work within the system and found it painfully clear that the system works to protect the polluters. And while the state makes promises and spends millions of our tax dollars on more studies… and spends more millions on agricultural practices that haven’t worked… and the city pours more chemicals into our drinking water…the harm continues,” he said.
Ferner said special interests have used their influence to protect corporations from having to address pollution in the Lake Erie watershed.
“In Ohio’s 2019 biennial budget bill, a provision was inserted literally at the 11th hour, at the direct request of an Ohio Chamber of Commerce lobbyist, to prohibit any municipality from passing a law like the Lake Erie Bill of Rights, he said. “Also that year, a provision was added to the Ohio Revised Code (sec. 929-04), that eliminated what limited right citizens had to file a nuisance suit against agricultural corporations known as Concentrated Animal Feeding Operations.”
Other countries have rewritten their constitutions to recognize the rights of nature – Ecuador and Bolivia - and others, including New Zealand, Bangladesh, Colombia and India, have recognized the rights of nature in some cases, he said.
The three men had filed in the common pleas court in June 2019, seeking a declaration that LEBOR was entirely enforceable under the Ohio Constitution.
At the time, Ferner quoted from the Ohio Constitution, which says: “All men are, by nature, free and independent, have certain inalienable rights, among which are those enjoying and defending life and liberty…and seeking and obtaining happiness and safety.” He then rhetorically asked, “Why is the State of Ohio preventing the Lake Erie Bill of Rights, something that not only brings happiness to citizens, but also safety and life through the promise of fresh water, untainted by pollution?”
The court, however, approved the state’s motion to dismiss the case.
In a separate case in federal court, Judge Jack Zouhary ruled against the LEBOR in February 2020.
“This is not a close call. LEBOR is unconstitutionally vague and exceeds the power of municipal government in Ohio. LEBOR’s attempt to invalidate Ohio law in the name of environmental protection is a textbook example for what municipal government cannot do,” he wrote.
The judge approved motions filed by Drewes Farms Partnership and the Ohio Attorney General’s office to invalidate the charter amendment.


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