Lake Erie Bill of Rights: State failing to address ag run-off, brief says

A brief filed May 27 by three Toledo residents in Lucas County Common Pleas Court contends the Lake Erie Bill of Rights is needed because the state legislature and administrative agencies have been severely negligent in adequately addressing the problem of phosphorus run-off and the harmful algal blooms it causes in the lake.
Mike Ferner, Bryan Twitchell and John Durback are plaintiffs in a case against the State of Ohio.
“The state cannot claim to be the protector of Ohio waters and at the same time legalize the continued poisoning and destruction of Ohio waters and Lake Erie,” their brief says. “Ohio courts have the power to change this. The plaintiffs request that the courts use this power before it is too late.”
The LEBOR was approved by Toledo voters in February 2019 as an amendment to the city charter but was ruled invalid in another case in federal court a year later.
Ferner, Twitchell and Durback filed their case in common pleas court in June 2019, seeking a ruling that LEBOR was entirely enforceable under the Ohio Constitution. The case was dismissed in January 2020 but the three appealed to the Ohio Sixth District Court of Appeals, which ruled the lower court erred in its dismissal and said federal trial court decisions aren’t binding on state courts. The appeals court noted the three men had the standing necessary to seek declaratory relief and the case was remanded back to the common pleas court.
Since the appeals court ruling, the state has filed a motion for summary judgment in common pleas court.
“No matter how well intentioned it may be, the charter amendment cannot authorize the City of Toledo, or its residents, to exercise more authority than is allowed under Ohio’s constitution. It cannot nullify state law and permits. It cannot create new causes of action. And it cannot violate due process by establishing ambiguous criminal prohibitions that are enforceable by its entire citizenry. The charter amendment is invalid in its entirety. As a result, plaintiffs are not entitled to the relief they seek, whether declaratory, injunctive, or otherwise,” the state motion says.
The state is also arguing LEBOR would subject business entities, and even state and local governments, to potential criminal liability.
“For example, what does it mean to interfere with the right to ‘exist flourish, and naturally evolve’ when it comes to ‘all natural water features, communities of organisms, and soil’ of the lake and its watershed? Does it mean the state cannot issue an NPDES permit (authorized by the federal Clean Water Act and state law) for discharges into the lake or its tributaries…” the motion says. “Does fertilizing wheat crops interfere with the right of the ecosystem to ‘naturally evolve’ when a farmer cannot completely and unequivocally prevent all fertilizer run-off?”
Ferner, Twitchell and Durback argue in their response to the state’s motion that a section of the Ohio Revised Code known as the Declaratory Judgment Act gives the court broad powers to stop the state from continuing to harm the lake.
“Here, the court can order defendant State of Ohio to stop permitting new confined animal feeding operations until the state has created an enforceable total maximum daily load for phosphorus. This is a minimally adequate remedy given the enormous phosphorus loading from CAFOs into the Lake Erie watershed. The state must set an enforceable TMDL before reviewing permits for new phosphorus sources in the watershed,” the brief says.
The three men are representing themselves in the case.
In its reply to their brief, the state repeats its assertion that their argument isn’t legally sound.
“Plaintiffs make a lot of claims in their memorandum in opposition about how the state has harmed Lake Erie, but nevertheless, they have failed to assert any genuine issue of material fact that would entitle them to relief,” the reply says.