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 you’re farming or doing business. While this might sound incredible, the threat is real. The Lake Erie Bill of Rights (LEBOR) is a proposal to amend the Toledo City Charter that will be on the Toledo Special Election Ballot on February 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. Lake activists attempted this last fall but were unsuccessful in getting it placed on the ballot. In early January many Ohio agriculture groups filed a second friend of the court brief making a legal argument against it going to voters. In the brief the groups pointed out that the city of Toledo cannot simply grant itself new legal powers that don’t exist. It is also important to note that no one has approved the actual language of this amendment. The Supreme Court has only ruled that the process for putting it on the ballot was correct.
The issue potentially impacts all Ohioans as this case could establish law that applies statewide. The Lake Erie Bill of Rights is an example of a growing trend toward regulation through litigation. Disgruntled parties who have been unable to create public policy through the legislative process are turning to lawsuits as a means of getting their way. While much of LEBOR is legally unsound, likely unenforceable and unconstitutional, it will take significant amounts of money in legal fees to invalidate its provisions. A law cannot be reviewed for validity until it is enacted. It will likely take multiple appeals before any ruling is final on LEBOR’s status, meaning not just one court battle, but multiple courts, multiple years and possibly millions of dollars.
Some considerations for protecting your farm from LEBOR include enrolling in an Agricultural District through your county auditor. The Ag District program provides an affirmative defense for farmers in certain types of nuisance lawsuits. While no one is sure this defense will apply in LEBOR cases, it is one of the best and most underutilized tools agriculture has. Share this information with other members and let them know they are at risk. Also check with your insurance provider to make sure you have adequate insurance coverage to address these types of issues.
Ohio agriculture groups are battling this issue and will continue to take every step to prevent LEBOR from being enacted. However, individals must also consider how to prepare as well. It is not possible to stop every lawsuit that could be filed. The use of litigation to advance activist agendas is not going away, and even if LEBOR is defeated, the ideas in it will likely come back again to challenge our industry. This information was developed with the Ohio Farm Bureau Federation.