City quietly drops appeal of Lake Erie Bill of Rights ruling

By Tom Henry, The Toledo Blade,

With little explanation, the city of Toledo has withdrawn its appeal of U.S. District Judge Jack Zouhary’s Feb. 27 ruling to invalidate the Lake Erie Bill of Rights.

In his eight-page ruling, Judge Zouhary said his decision to invalidate LEBOR was “not a close call.”

The ruling came on the one-year anniversary of a special February 2019, a special election which drew only 9 percent of the city’s registered voters. Of those, 61 percent approved a citizen-led referendum that called for amending the city’s charter.

Judge Zouhary said in his ruling the measure “is unconstitutionally vague and exceeds the power of municipal government in Ohio.”

A U.S. Sixth Circuit Court of Appeals filing on May 5, signed by Sarah K. Skow of the Spengler Nathanson law firm in Toledo, with names of other attorneys defending the city in the LEBOR case, asked justices to “enter an Order voluntarily dismissing this appeal,” which the appellate court promptly did.

Ms. Skow declined to comment.

Through a statement issued by Toledo Mayor Wade Kapszukiewicz’s spokesman, Ignazio Messina, city Law Director Dale Emch said the city “has aggressively defended this charter section but is not appealing these complicated legal matters during this time of budgetary constraints.”

“The city continues to advocate for state and federal regulations that will promote a clean Lake Erie,” according to Mr. Emch’s statement.

Toledo was sued by a consortium of agricultural interests, which claimed the measure was unconstitutional and impeded their right to farm.

The city was targeted because LEBOR amended the city’s charter.

Ohio Gov. Mike DeWine’s administration was later allowed by Judge Zouhary to be a co-plaintiff.

But the activist group that gathered signatures for the referendum and campaigned for its passage, Toledoans for Safe Water, had its request to be a co-defendant denied by the judge.

The city appealed Judge Zouhary’s decision shortly after it was made.

Toledoans for Safe Water issued a statement Monday that the city’s decision to back out of the appeal strips Lake Erie of some important protections outside of normal regulations.

“This decision by the city is unacceptable. Not only is it short-sighted from a public health and safety perspective, it is another signal that democracy by the people is not a priority of the government. This should be an alarm bell for everyone, people should be outraged,” Hilary Tore, one of the activist group’s members, said.

The group said unconventional protections for Lake Erie are more important now than they were just a few months ago, given that the Trump Administration has announced the U.S. Environmental Protection Agency will reduce enforcement of some water quality programs in response to the coronavirus pandemic.

The global threat — the world’s most lethal virus in 102 years — also has effectively put at least a one-year hold on plans that Governor DeWine had for launching his much-ballyhooed H2Ohio program.

Most of the first-year funding was for Lake Erie. The DeWine administration recently acknowledged the H2Ohio program is one of many victims of steep budget cuts needed in response to the virus but said it is still committed to the program once the threat subsides.

“LEBOR has exposed the reality that no branch of government is willing to protect Lake Erie. If we want to seriously protect the watershed and our community, it is obvious we must do it ourselves,” Cindy Matthews, another Toledoans for Safe Water member, said. “If people are worried about jobs now, imagine how many will be lost when Lake Erie completely succumbs to the algae problem. Without clean water, there will be no city or community.”

LEBOR attempted to give ordinary residents the right to sue polluters on behalf of Lake Erie on the grounds that the lake has a right as an ecosystem to exist and flourish. The action was modeled after similar “rights of nature” around the world, many of which came in response to a controversial ruling from another judge several years ago who claimed corporations have rights akin to citizens.

“It is clear the future of Lake Erie and the health of the community is up to us. The people have two choices: Continue to watch the slow death of the lake that sustains all life in this city or take action to protect her and our future,” Crystal Jankowski of Toledoans for Safe Water said.

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