Drewes Farm

By: Evin Bachelor, Wednesday, May 15th, 2019

Lawsuits can be a long and drawn out process, and the Lake Erie Bill of Rights (LEBOR) lawsuit has demonstrated that.  Two and a half months after the complaint in Drewes Farm Partnership v. City of Toledo was filed by the farm, which parties will be allowed to participate in the lawsuit is becoming somewhat clearer, but it might not be over yet.  However, a conference call between the court and the current parties scheduled for the end of this week may signal that some substantive action is on the horizon.

The State of Ohio is now a party.  Judge Zouhary granted Ohio Attorney General Yost’s motion to intervene, making the State of Ohio a party to the lawsuit.  The procedural rules for federal courts permit non-parties to ask a court to allow them into a lawsuit either as of right or at the judge’s discretion.  As of right means that a statute, rule, or case gives a non-party a right to enter into a lawsuit as a party.  In contrast, a discretionary intervention allows a judge to grant a motion to intervene at his or her discretion so long as the person or entity seeking to intervene has a “common question of law or fact” with a current party to the lawsuit.  Non-parties often argue both in order to cover all of their bases, which is what the Ohio Attorney General did in this case.  Judge Zouhary focused his analysis on discretionary intervention, and found that the state has asserted the same question as the plaintiff, Drewes Farms, in that Ohio’s constitution, statutes, and administrative regulations preempt the LEBOR amendment to Toledo’s city charter.  The court also noted that the City of Toledo did not oppose the state’s intervention.  Based on these points, the court granted the motion to intervene.  The State of Ohio may now make arguments and participate in the lawsuit as a full party.

Lake Erie Ecosystem and Toledoans for Safe Water are denied party status.  Days after allowing the Ohio Attorney General’s intervention, Judge Zouhary decided that neither Lake Erie nor Toledoans for Safe Water will be allowed to intervene as parties.  Much like the Ohio Attorney General, these non-parties made arguments to support both forms of intervention.  Judge Zouhary believed that neither Lake Erie nor Toledoans for Safe Water met the requirements for either form of intervention.  As for Toledoans for Safe Water, the court found that it had no right to intervene since it does not have a substantial interest in defending the charter amendment.  Just being the group that put LEBOR on the ballot is not enough.  Further, since the group recognized that its arguments about the rights of nature are novel and not currently recognized in U.S. law, allowing the party to intervene and make these arguments would cause undue delay.  As for Lake Erie, Judge Zouhary noted that the only basis for intervention cited in the motion was LEBOR itself, and that LEBOR only gave Lake Erie the right to enforce its rights in the Lucas County Court of Common Pleas.  Therefore, neither Lake Erie nor Toledoans for Safe Water will be able to participate in the lawsuit at this time.

But Lake Erie Ecosystem and Toledoans for Safe Water still want in.  Shortly after their motions to intervene were denied, Lake Erie and Toledoans for Safe Water filed two documents with the court: a motion to stay pending appeal and a notice of appeal.  First, the motion to stay pending appeal asks the court to pause the proceedings while the non-parties ask an appellate court to review Judge Zouhary’s decision.  Their hope is that no decisions would be made in their absence should the appellate court decide that their intervention should be granted.  Drewes Farm has already filed a brief in opposition to the motion to stay, which asks the court to continue the case as quickly as possible.  Second, the notice of appeal is a required notice to the court and the parties that an appeal of a judge’s decision has been made to the U.S. Sixth Circuit.  An appeal of this sort, especially one involving a discretionary act, imposes a high burden on the appellant in order to succeed.

Conference call set for Friday, May 17th regarding a Motion for Judgment on the Pleadings.  On May 7th, Judge Zouhary issued an order stating that the parties must submit letters in a joint filing regarding a Motion for Judgment on the Pleadings.  Our case law updates often talk about motions for summary judgment, but motions for judgment on the pleadings are less frequently discussed.  Motions for judgment on the pleadings are requests for the court to make a decision after a complaint and answer (and, when allowed, a reply) have been filed.  The court can make a decision at this stage only if it finds that there is no real dispute about the facts.  The parties essentially agree about what happened, and all the court has to decide is how the law applies to the facts in the pleadings.  A motion for summary judgment generally involves the presentation of additional facts that were not included in the pleadings, but makes a similar request.  The court can grant a motion for judgment on the pleadings in part, which means that some of the case will be resolved and some will continue, but these motions can also be used to end the entire case.

It would be quite interesting to be a fly on the wall during the conference call scheduled for this Friday.  It seems likely that we will hear about it soon after.  However, this conference call does not necessarily mean that this case, or even LEBOR, will be over soon.  Stay tuned to the Ohio Ag Law Blog for more case updates.

By: Peggy Kirk Hall, Thursday, March 28th, 2019

The media storm that surrounded the controversial Lake Erie Bill of Rights (LEBOR) has quieted, but the federal lawsuit over LEBOR has heated up.  Just a month ago, Toledo residents voted to approve LEBOR.  The measure establishes rights within the City’s charter for the Lake Erie Ecosystem to “exist, flourish, and naturally evolve” as well as rights to self-government and a clean and healthy environment for the citizens of Toledo.  LEBOR states that corporations or governments that violate these rights can be liable for harm caused and also cannot use existing federal and state laws or permits in defense of the violations.   Drewes Farm Partnership filed a lawsuit in federal court the day after LEBOR passed.  The farm’s complaint asks a federal court to declare LEBOR unconstitutional on several grounds and also claims that LEBOR violates state laws.   Recent developments in the past week prompted us to provide this quick update on the lawsuit:

City of Toledo agrees to a preliminary injunction.  The court announced on March 18 that the City of Toledo agreed to the entry of a Preliminary Injunction Order.  Drewes Farm requested the injunction when it filed the lawsuit.  The court stated that the purpose of a preliminary injunction “is merely to preserve the relative positions of the parties until a trial on the merits can be held” and noted that the City of Toledo has not “commenced or initiated any action against Drewes Farms or others pursuant to LEBOR.”  Toledo therefore agreed to the injunction and to maintain its current position of not taking any action to enforce LEBOR. 

Lake Erie Ecosystem and Toledoans for Safe Water ask to join the lawsuit.    Also on March 18, two attorneys filed a motion asking the court to allow the Lake Erie Ecosystem and the Toledoans for Safe Water to “intervene” in the case as defendants.  Federal rules allow a party to file a motion to intervene and become a party to ongoing litigation as either a matter of right or with permission of the court.  The attorneys argue that the parties should be allowed to intervene as of right because they have significant legal interests that will be impaired by the case and that the City of Toledo can’t adequately represent those interests.  They also ask the court to allow permissive intervention because the parties have a claim or defense that share a common question of law or fact with the main action.  The court has asked Drewes Farm and Toledo to file briefs in response to the motion to intervene. Note that the two attorneys representing the Lake Erie Ecosystem and the Toledoans for Safe Water have worked with the Community Environmental Legal Defense Fund, the organization that assisted with the petition initiative that resulted in the adoption of LEBOR. 

Lake Erie Ecosystem and Toledoans for Safe Water file a motion to dismiss the lawsuit.  On the same day as filing a motion to intervene, the attorneys also filed a motion to dismiss the case on behalf of the Lake Erie Ecosystem and Toledoans for Safe Water.  The motion argues that Drewes Farm does not have legal “standing” to bring the case, which is based upon federal constitutional law that states that a federal court cannot have jurisdiction over a case unless the plaintiff demonstrates that he or she has suffered concrete and particularized “injury in fact” that is fairly traceable to the defendant’s conduct and that the requested remedies will redress the alleged injuries.  Lake Erie and the Toledoans for Safe Water argue that Drewes Farm has not stated a concrete injury or actual or imminent harm due to LEBOR and therefore cannot meet the standing requirement.

City of Toledo files its answer to the complaint.  Yesterday, the City of Toledo filed its answer to the complaint filed against it by Drewes Farm.  Toledo presents sixteen defenses to the farm’s allegations, which include a general denial of the complaint and other defenses based upon arguments that:  the farm does not have legal standing, has not stated a claim or stated actual or imminent harm and has based its harm on premature speculation; that the City itself is immune and has acted properly, in good faith, and as authorized or required by law to act; that the relief requested by the farm would violate the rights of the citizens of Toledo; that the farm has a duty to mitigate its damages; and that the farm failed to join necessary parties and has not stated a basis for the relief requested.   Toledo asks the court to dismiss the case and award all costs of the lawsuit to the City of Toledo.

What’s next? Now the parties must wait for the court to act on the motion to intervene, motion to dismiss, and/or the City of Toledo’s request to dismiss the case.  We’ll keep watching the case and will let you know when the court makes a ruling on any of these requests.

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