Lake rights case remanded back to common pleas court

Larry Limpf

The legal dispute over the Lake Erie Bill of Rights has taken a turn with the Ohio Sixth District Court of Appeals ruling a lower court erred in dismissing a complaint filed by three Toledo residents.
Mike Ferner, Bryan Twitchell and John Durback filed the complaint in Lucas County Common Pleas Court in June 2019 while another case filed by Drewes Farms Partnership and joined by the State of Ohio as an intervener against the LEBOR and City of Toledo was being contested in federal district court.
The three had alleged the state violated LEBOR and the Ohio Constitution by bringing suit in federal court to challenge its validity. In addition, they asked for a determination the state’s policies fail to abate widespread pollution of the lake and LEBOR is valid and enforceable.
The state countered the three lacked standing to file the lawsuit and they failed to cite any concrete harm caused by the state’s participation in the Drewes Farms case.
The common pleas court in January 2020 granted the state’s request to dismiss the lawsuit, finding that the three didn’t present a claim “that presented a justiciable controversy, and sought only an advisory opinion on the validity of LEBOR.”
The decision by the appeals court last month notes the lower court didn’t address the allegations the state violated LEBOR and Ohio Constitution by filing in federal court with Drewes Farms Partnership.
The federal court ruled in February of this year in favor of Drewes Farms and the state, calling the LEBOR unconstitutional and outside the city’s right to local self-government.
But the appeals court decision says federal trial court rulings aren’t binding on state courts and “provide only persuasive authority.” However, the federal court decision to grant standing to the state in the Drewes Farms case was noted by the appeals court.
“While we do not consider the Drewes Farms decision to be controlling in this matter, we find the federal court’s ruling regarding standing persuasive in the general sense, and in this instance, the federal court decision lends support to a finding that appellants (Ferner, Twitchell and Durback) have standing to seek declaratory relief. Appellants sought the same review in the trial court that appellee (the state) sought in federal court, which was review of the validity of LEBOR and consideration of the same tensions between the state’s authority and LEBOR’s broad prescriptions,” the appeals court wrote.
The case was remanded back to the common pleas court.
Twitchell said the appeals court ruling is a “vindication of what we have been saying, and what has been obvious to anyone who lives near the lake. The state has abandoned its duty to defend the public good in favor of selling out to agricultural lobbyists and factory farms, with predictability disastrous results.”
Voters in the city approved the LEBOR as a ballot initiative to amend the city charter in February 2019. Drewes Farms filed its lawsuit the next day.


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