Case: 3:19-cv-00434-JZ Doc #: 63 Filed: 02/27/20 1 of 8. PageID #: 822

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Drewes Farms Partnership,

Case No. 3:19 CV 434
Plaintiff,

ORDER INVALIDATING
LAKE ERIE BILL OF RIGHTS

-andJUDGE JACK ZOUHARY
State of Ohio,
Intervenor,
-vsCity of Toledo,
Defendant.

INTRODUCTION
On a Saturday morning in August 2014, City of Toledo officials issued a warning to residents:
Don’t drink the water. The City water supply contained unsafe levels of a toxic substance, and
pollution in Lake Erie was the culprit.1 The water remained undrinkable for nearly three days.2
In response, Toledo residents began a multi-year campaign to add a Lake Erie Bill of Rights
(“LEBOR”) to the City Charter (Doc. 10-3 at ¶ 6). They collected over ten thousand petition
signatures, triggering a February 2019 special election under Article XVIII, Section 9 of the Ohio
Constitution (Doc. 41 at 37–38). LEBOR won about sixty percent of the 16,215 votes cast, so it
became part of the Charter the next month (id. at 38).

Emma G. Fitzsimmons, Tap Water Ban for Toledo Residents, N.Y. TIMES (Aug. 3, 2014),
https://www.nytimes.com/2014/08/04/us/toledo-faces-second-day-of-water-ban.html.
2
Michael Wines, Behind Toledo’s Water Crisis, a Long-Troubled Lake Erie, N.Y. TIMES (Aug. 4,
2014), https://www.nytimes.com/2014/08/04/us/toledo-faces-second-day-of-water-ban.html.
1

 Case: 3:19-cv-00434-JZ Doc #: 63 Filed: 02/27/20 2 of 8. PageID #: 823

Plaintiff Drewes Farms Partnership, which grows crops in four counties near Toledo, initiated
this lawsuit the day after the election (Doc. 1 at ¶¶ 18, 21). Intervenor State of Ohio joined a few
months later (Doc. 21). Both ask this Court to declare LEBOR invalid under Federal Civil Rule 12(c)
and 28 U.S.C. § 2201 (Docs. 34, 35, 52, 53, 59). Defendant City of Toledo opposes (Docs. 47, 48,
56, 60). The City contends neither Drewes Farms nor the State has a right to challenge LEBOR, and
it further contends LEBOR is valid. With agreement from both sides, this Court issued a Preliminary
Injunction last year (Doc. 9). The Injunction prevents enforcement of LEBOR until this lawsuit ends.
This Court heard oral argument at a recent Hearing (Doc. 61) and received an amicus brief from
Toledoans for Safe Water, Inc. (Doc. 51).
LAKE ERIE BILL OF RIGHTS
LEBOR declares that “Lake Erie, and the Lake Erie watershed, possess the right to exist,
flourish, and naturally evolve.” TOLEDO MUN. CODE ch. XVII, § 254(a). Additionally, the Charter
amendment grants Toledo residents “the right to a clean and healthy environment.” Id. § 254(b).
Under LEBOR, Toledoans also “possess both a collective and individual right to self-government in
their local community, a right to a system of government that embodies that right, and the right to a
system of government that protects and secures their human, civil, and collective rights.” Id. § 254(c).
LEBOR contains no definitions or other provisions that would clarify the meaning of these rights,
although it does indicate that the protected Lake Erie watershed includes “natural water features,
communities of organisms, soil [sic] as well as terrestrial and aquatic sub ecosystems.” Id. § 254(a).
“The City of Toledo, or any resident of the City,” may sue to enforce the three rights
enumerated in LEBOR. Id. § 256(b). Businesses and governments that infringe the rights “shall be
guilty of an offense and, upon conviction thereof, shall be sentenced to pay the maximum fine
allowable under State law for that violation.” Id. § 256(a). LEBOR applies to businesses and
2

 Case: 3:19-cv-00434-JZ Doc #: 63 Filed: 02/27/20 3 of 8. PageID #: 824

governments “in or from any jurisdiction,” id. § 256(c), and “implementing legislation shall not be
required,” id. § 254(d). State laws, regulations, permits, and licenses are declared invalid in Toledo
to the extent they conflict with LEBOR. Id. §§ 255(b), 257(b). LEBOR also purports to supersede
federal permits and licenses. Id. § 255(b). The full Charter amendment is attached to this Order.
STANDING
Before analyzing LEBOR, this Court must determine whether Drewes Farms or the State has
a right to bring this lawsuit. The relevant doctrine is called standing. Litigants have standing to sue
only if they “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016). Standing ensures that federal courts do not issue advisory
opinions, which the United States Constitution forbids. See Sierra Club v. Morton, 405 U.S. 727, 732
n.3 (1972). Federal courts adjudicate live disputes only. See FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 237 (1990). This lawsuit may proceed if either Drewes Farms or the State has standing,
even if one or the other does not. See Janus v. AFSCME, Council 31, 851 F.3d 746, 748 (7th Cir.
2017) (citing Vill. of Oakwood v. State Bank & Trust Co., 481 F.3d 364, 367 (6th Cir. 2007)), rev’d
on other grounds by 138 S. Ct. 2448, 2486 (2018).
The central dispute here concerns the injury-in-fact requirement. An injury in fact is an injury
that is “concrete and particularized[,] and actual or imminent, not conjectural or hypothetical.” Susan
B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citation and internal quotation marks omitted).
“An allegation of future injury may suffice if the threatened injury is certainly impending, or there is
a substantial risk that the harm will occur.” Id. (citation and internal quotation marks omitted). Likely
targets of a law need not wait for prosecution to challenge its validity. See id.

3

 Case: 3:19-cv-00434-JZ Doc #: 63 Filed: 02/27/20 4 of 8. PageID #: 825

Drewes Farms and the State satisfy the injury-in-fact requirement. LEBOR has already
injured the State: at least on paper, State laws, regulations, licenses, and permits are invalid in Toledo
to the extent they conflict with LEBOR. See Maine v. Taylor, 477 U.S. 131, 136–37 (1986). The
State could also be sued under LEBOR for failing to sufficiently protect Lake Erie or for violating
LEBOR’s guarantee of local self-government. Drewes Farms falls within LEBOR’s crosshairs, too.
The business spreads fertilizer on fields in the Lake Erie watershed (Doc. 1 at ¶¶ 18, 24, 51), arguably
infringing the watershed’s right to “exist, flourish, and naturally evolve” and the right of Toledoans
to a “clean and healthy environment.” TOLEDO MUN. CODE ch. XVII, §§ 254(a), (b). The risk of suit
under LEBOR is particularly high because enforcement does not depend on government
prosecutors -- Toledo residents may file suit themselves. See Driehaus, 573 U.S. at 164.
Drewes Farms and the State also satisfy the other two standing requirements: traceability and
redressability. Their LEBOR-related injuries are traceable to the City -- LEBOR is part of the City
Charter. True, LEBOR was enacted by voters rather than legislators, but the City is a proper
defendant in this lawsuit nevertheless. See, e.g., Romer v. Evans, 517 U.S. 620, 623 (1996);
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 462–64 (1982); Equal. Found. of Greater
Cincinnati v. City of Cincinnati, 128 F.3d 289, 291 (6th Cir. 1997). Additionally, a court order
invalidating LEBOR would redress the alleged injuries, meaning Drewes Farms and the State satisfy
the third standing requirement. Having demonstrated their right to bring this lawsuit, both litigants
are entitled to an adjudication of their claims. This Court therefore analyzes LEBOR next.
DUE PROCESS
The Fourteenth Amendment to the United States Constitution protects the right to due process.
An “essential” element of due process is clarity of the laws. Roberts v. United States Jaycees, 468
U.S. 609, 629 (1984) (citation omitted). If a law is so vague that “persons of common intelligence
4

 Case: 3:19-cv-00434-JZ Doc #: 63 Filed: 02/27/20 5 of 8. PageID #: 826

must necessarily guess at its meaning,” it is unconstitutional. Id. (brackets and citation omitted).
Heightened scrutiny applies to laws that impose criminal penalties, burden the exercise of
constitutional rights, or apply a strict-liability standard. Vill. of Hoffman Estates v. Flipside, Hoffman
Estates, 455 U.S. 489, 498–99 (1982). Vague laws are unconstitutional for at least two reasons: they
“may trap the innocent by not providing fair warning,” and they invite arbitrary enforcement by
prosecutors, judges, and juries. Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). The
clarity requirement also “ensures that [governmental] power will be exercised only on behalf of
policies reflecting an authoritative choice among competing social values.” Roberts, 468 U.S. at 629.
Federal courts have invalidated municipal legislation on vagueness grounds. For example, a
Cincinnati ordinance criminalized gathering on sidewalks “in a manner annoying to persons passing
by.” Coates v. City of Cincinnati, 402 U.S. 611, 611 (1971). The Supreme Court struck it down
because “[c]onduct that annoys some people does not annoy others.” Id. at 614. A Detroit-area
township regulated the use of machines that keep water near boats and docks free from winter ice.
Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 555 (6th Cir. 1999). These ice-free
areas could not exceed a “reasonable radius.” Id. The Sixth Circuit found the ordinance void for
vagueness, in part due to the “failure to include a definition of ‘reasonable.’” Id. at 558–59. A
Columbus gun-safety ordinance met the same fate. The ordinance banned forty-six specific guns, as
well as “other models by the same manufacturer . . . that have slight modifications or enhancements.”
Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250, 251 (6th Cir. 1994) (emphasis added)
(brackets omitted). The Sixth Circuit saw “no reasoned basis” for determining what changes qualify
as “slight,” so it invalidated the ordinance. Id. at 253–54.
LEBOR’s environmental rights are even less clear than the provisions struck down in those
cases. What conduct infringes the right of Lake Erie and its watershed to “exist, flourish, and
5

 Case: 3:19-cv-00434-JZ Doc #: 63 Filed: 02/27/20 6 of 8. PageID #: 827

naturally evolve”? TOLEDO MUN. CODE ch. XVII, § 254(a). How would a prosecutor, judge, or jury
decide? LEBOR offers no guidance. Similar uncertainty shrouds the right of Toledoans to a “clean
and healthy environment.” Id. § 254(b). The line between clean and unclean, and between healthy
and unhealthy, depends on who you ask. Because of this vagueness, Drewes Farms reasonably fears
that spreading even small amounts of fertilizer violates LEBOR. Countless other activities might run
afoul of LEBOR’s amorphous environmental rights: catching fish, dredging a riverbed, removing
invasive species, driving a gas-fueled vehicle, pulling up weeds, planting corn, irrigating a field -- and
the list goes on. LEBOR’s authors failed to make hard choices regarding the appropriate balance
between environmental protection and economic activity. Instead, they employed language that
sounds powerful but has no practical meaning. Under even the most forgiving standard, the
environmental rights identified in LEBOR are void for vagueness.
The right of Toledoans to “self-government in their local community” is impermissibly vague
as well. Id. § 254(c). At first blush, this provision seems to reiterate Article XVIII, Section 3 of the
Ohio Constitution, which grants municipalities “authority to exercise all powers of local selfgovernment.” Unlike the Ohio Constitution, however, LEBOR imposes a fine on any business or
government that violates the right. The amount of the fine is “the maximum . . . allowable under
State law for that violation.” Id. § 256(a). But Ohio law does not identify any fine for violating a
right to self-government. Additionally, this right includes “the right to a system of government that
protects and secures . . . human, civil, and collective rights,” but the nature of those human, civil, and
collective rights is anybody’s guess. Id. § 254(c). Like LEBOR’s environmental rights, this selfgovernment right is an aspirational statement, not a rule of law.

6

 Case: 3:19-cv-00434-JZ Doc #: 63 Filed: 02/27/20 7 of 8. PageID #: 828

SEVERABILITY
LEBOR contains a severability clause: “If any court decides that any . . . provision of this law
is illegal . . . such decision shall not . . . invalidate any of the remaining . . . provisions of the law.”
Id. § 259. Notwithstanding the clause, however, the unconstitutional parts of LEBOR are severable
from the rest only if “the severability will not fundamentally disrupt the statutory scheme of which
the unconstitutional provision is a part.” State v. Hochhausler, 76 Ohio St. 3d 455, 464 (1996);
accord Midwest Media Prop. v. Symmes Twp., 503 F.3d 456, 464 (6th Cir. 2007); State v. Dean, 170
Ohio App. 3d 292, ¶¶ 50, 52 (2007). “Are the constitutional and the unconstitutional parts capable
of separation so that each may be read and may stand by itself?” Hochhausler, 76 Ohio St. 3d at 464
(citations omitted). If not, the entire law must fall. Id.
No part of LEBOR can be saved under this standard. Once the three vague rights are stripped
away, the remainder is meaningless. The City urges this Court to at least leave in place LEBOR’s
preamble, but the preamble contains nothing to invalidate. TOLEDO MUN. CODE ch. XVII, § 253. It
merely declares certain values and findings; it does not purport to create legal rights or obligations.
To be clear, several of LEBOR’s other provisions fail on their own merits (see, e.g., Doc. 61
at 19–21). For example, LEBOR’s attempt to invalidate Ohio law in the name of environmental
protection is a textbook example of what municipal government cannot do. Lake Erie is not a pond
in Toledo. It is one of the five Great Lakes and one of the largest lakes on Earth, bordering dozens
of cities, four states, and two countries. That means the Lake’s health falls well outside the City’s
constitutional right to local self-government, which encompasses only “the government and
administration of the internal affairs of the municipality.” In re Complaint of Reynoldsburg, 134
Ohio St. 3d 29, ¶ 25 (2012) (citation omitted). Consequently, municipal laws enacted to protect Lake
Erie are generally void if they conflict with Ohio law. See Mendenhall v. City of Akron, 117 Ohio St.
7

 Case: 3:19-cv-00434-JZ Doc #: 63 Filed: 02/27/20 8 of 8. PageID #: 829

3d 33, ¶¶ 17–18 (2008). See also Pa. Gen. Energy Co. v. Grant Twp., 139 F. Supp. 3d 706, 720
(W.D. Pa. 2015) (invalidating part of local ordinance similar to LEBOR due to conflict with
Pennsylvania state law). LEBOR flagrantly violates this rule.
With careful drafting, Toledo probably could enact valid legislation to reduce water pollution.
For instance, a Madison, Wisconsin ordinance restricted the use of phosphorus-containing fertilizers
within city limits in 2004.

CropLife America, Inc. v. City of Madison, 432 F.3d 732, 733

(7th Cir. 2005). “[P]hosphorus . . . contributes to excessive growth of algae and other undesirable
aquatic vegetation in water bodies.” Id. (brackets, citations, and internal quotation marks omitted).
The ordinance survived a lawsuit like this one. Id. at 735. In contrast, LEBOR was not so carefully
drafted. Its authors ignored basic legal principles and constitutional limitations, and its invalidation
should come as no surprise.
CONCLUSION
Frustrated by the status quo, LEBOR supporters knocked on doors, engaged their fellow
citizens, and used the democratic process to pursue a well-intentioned goal: the protection of Lake
Erie. As written, however, LEBOR fails to achieve that goal. This is not a close call. LEBOR is
unconstitutionally vague and exceeds the power of municipal government in Ohio. It is therefore
invalid in its entirety. The Motions of Drewes Farms Partnership and the State of Ohio (Docs. 34, 35)
are granted, and the City of Toledo’s Cross Motions (Docs. 47, 48) are denied. The Preliminary
Injunction (Doc. 9), now unnecessary, is lifted.
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U.S. DISTRICT JUDGE
February 27, 2020
8