Category Archives: Property

Farms, recreational activities and legal risk

With summer in full swing, Ohio’s poor planting season won’t dampen the desires of those who want to use farmland for recreational activities like fishing or riding ATVs.  And while we worry over the washouts in so many farm fields, an archaeological buff recently explained that those wash outs provide a good opportunity to find arrowheads and other relics.  The fact that a field wasn’t planted didn’t stop a hot air balloon operator from asking a farmer if he could land in the unplanted field recently.   Even when the land is not highly productive, Ohio farmland is always appealing to recreational enthusiasts for these and other types of recreational activities.

But what if a farmer doesn’t want recreational enthusiasts on the property or doesn’t want the risk of potential liability for a recreational user?  A few of our resources provide guidance for these situations, which we can address in two important questions:

  1. Do you not want people engaging in recreational activities on your farm? If so, then take a look at our law bulletin on The Do’s and Don’ts of Dealing with Trespassers on the Farm.  If you don’t give a person permission to come onto the farm for recreational purposes, the person is trespassing if he or she chooses to enter the property without your permission.  But be aware that a landowner can’t intentionally put a trespasser in harm’s way and in certain situations, can be liable for a trespasser who suffers harm on the property.  Know the legal rules for dealing with trespassers so that you can protect your property without risking liability.  We explain these rules and situations in the law bulletin.
  2. Are you okay with letting a person use your farm for recreational activities? If so, you’ll want to read our law bulletin on Okay to Play:  Ohio Recreational User Statute Limits Liability for Hunters, Snowmobilers, and More.  Ohio’s Recreational User Statute offers immunity to landowners for allowing recreational uses, but only if the landowner meets the four conditions of the law.  A landowner of nonresidential premises who gives permission to a person to engage in recreational activities without charging a fee doesn’t have the traditional legal duty to keep the recreational user safe from harm.  Our law bulletin explains each of the statute’s important conditions in detail so that a landowner can qualify for its liability protection.

Like the weather, managing the risk of recreational users and trespassers on the farm is a constant challenge for farmers.  But unlike the weather, a landowner can effectively control this type of risk.  When someone shows up to fish, ride ATVs, hunt arrowheads or land a balloon on the farm, be ready by having a good understanding of the laws that apply to recreational users and trespassers.

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Prevented planting, idle land and CAUV taxation

The decision on whether to take prevented planting is a tough one, but don’t let concerns about increased property taxes on idle land enter into the equation.  Ohio’s Current Agricultural Use Valuation program allows landowners to retain the benefit of CAUV tax assessment on agricultural land even if the land lies idle or fallow for a period of time.

Ohio’s CAUV program provides differential property tax assessment to parcels of land “devoted exclusively to agricultural use” that are ten acres or more or, if less than ten acres, generated an average gross income for the previous three years of $2,500 or more from commercial agricultural production.  Timber lands adjacent to CAUV land, land enrolled in federal conservation programs, and land devoted to agritourism or bio-mass and similar types of energy production on a farm also qualify for CAUV.

There must have been some farmers in the legislature when the CAUV law was enacted, because the legislature anticipated the possibility that qualifying CAUV lands would not always be actively engaged in agricultural production.   The law allows CAUV land to sit “idle or fallow” for up to one year and remain eligible for CAUV, but only if there’s not an activity or use taking place on the land that’s inconsistent with returning the land to agricultural production or that converts the land from agricultural production.  After one year of lying idle or fallow, a landowner may retain the CAUV status for up to three years by showing good cause to the board of revision for why the land is not actively engaged in agricultural production.

The law would play out as follows.  When the auditor sends the next CAUV reenrollment form for a parcel that qualifies for CAUV but was not planted this year due to the weather, a landowner must certify that the land is still devoted to agricultural production and return the CAUV form to the auditor.  The auditor must allow the land to retain its CAUV status the first year of lying idle or fallow, as long as the land is not being used or converted to a non-agricultural use.  If the land continues to be idle or fallow for the following year or two years, the auditor could ask the landowner to show cause as to why the land is not being used for agricultural production.  The landowner would then have an opportunity to prove that the weather has prevented plans to plant field crops, as intended by the landowner.  After three years, the landowner would have to change the land to a different type of commercial agricultural production to retain its CAUV status if the weather still prevents the ability to plant field crops on the parcel.  Other agricultural uses could include commercial animal or poultry husbandry, aquaculture, algaculture, apiculture, the production for a commercial purpose of timber, tobacco, fruits, vegetables, nursery stock, ornamental trees, sod, or flowers, or the growth of timber for a noncommercial purpose, if the land on which the timber is grown is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use.

Being forced out of the fields due to rain is a frustrating reality for many Ohio farmers today.   One positive assurance we can offer in the face of prevented planting is that farmers won’t lose agricultural property tax status on those fields this year.  Read Ohio’s CAUV law in the Ohio Revised Code at sections 5713.30 and 5713.31.

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The Ag Law Harvest

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

Here’s our latest gathering of agricultural law news that you may want to know:

Congress considers bankruptcy code changes with Family Farmer Relief Act of 2019.  Senator Grassley and Representative Delgado introduced companion bills in their respective chambers of Congress that would modify the definition of “family farmer” in the federal bankruptcy code.  The change would raise the operating debt limit for a family farmer from $3.2 million as listed in the U.S. Code to $10 million.  Sometimes a small change can make a big difference.  In chapter 12 of the bankruptcy code, a “family farmer” has special options that other chapters do not offer, such as the power to determine a long-term payment schedule and pay the present market value of the asset instead of the amount due on the loan.  Many farmers had not been able to take advantage of the special bankruptcy provisions because of the low debt limit, but that may change.  For more information on the bills, click HERE for S.897 and HERE for H.R. 2336.

Congress also considers changing the number of daily hours a driver may transport livestock.  The Transporting Livestock Across America Safely Act would instruct the Secretary of Transportation to amend the rules governing drivers who transport certain animals.  The changes would loosen restrictions on the number of hours that drivers may drive, and increase the types of activities that are exempt from counting toward the maximum time.  Travel under 300 miles would be exempt from the hours of service (HOS) and electronic logging (ELD) requirements.  Both chambers of Congress are considering this bill, and both companion bills are currently in committee.  For more information on the bills and to learn about the changes proposed, click HERE for S.1255 and HERE for H.R. 487.

It’s not too late to submit comments to the FDA about its potential cannabidiol rulemaking.  Electronic or written comments can be sent to the FDA until July 2nd, although the deadline to request to make an oral presentation or comment at tomorrow’s hearing has passed.  Click HERE for more information from the Federal Register about the May 31st hearing and submitting comments.

Meatpackers face second class-action lawsuit, and R-CALF refiles.  In our last edition of The Harvest, we talked about a new class-action lawsuit filed in Illinois federal court by a number of cattle ranchers, including R-CALF, against the nation’s largest meatpacking companies.  Now, another lawsuit has been filed in Minnesota federal court also alleging a price fixing conspiracy by the meatpackers.  The second lawsuit is being brought by a cattle futures trader, rather than a rancher.  After the second suit was filed, R-CALF voluntarily dismissed its case in Illinois to refile it in Minnesota.  This refiling allows the lawsuits to be heard by the same court.

Tyson sues the USDA’s Food Safety and Inspection Service.  Tyson, which is named as a defendant in the class action suits we just mentioned, is a plaintiff in a case against the USDA’s Food Safety and Inspection Service.  The company alleges that a FSIS inspector falsified an inspection of 4,622 hogs, which were intermingled with another 8,000 carcasses, at one of its Iowa facilities in 2018.  The company claims that the false inspection required it to destroy all of the carcasses, and cost nearly $2.5 million in total losses and expenses.  The complaint, which is available HERE, alleges four counts: negligence, negligent inspection, negligent retention, and negligent supervision.  The lawsuit is based on the legal principle that an employer is liable for the actions of its employee.


Ohio Case Law Update

Plaintiff must prove that a defendant wedding barn operator’s breach of a duty caused her harm.  Conrad Botzum Farmstead is a privately operated wedding and event barn located in the Cuyahoga Valley National Recreation Area and on lease from the National Park Service.  The plaintiff in the case was attending a wedding at the barn, where she broke her ankle while dancing on a wooden deck.  The jury trial found that the barn operator was 51% at fault for her injuries, and awarded the plaintiff compensation.  However, the barn operator appealed the decision and won.  The Ohio Ninth District Court of Appeals found that the plaintiff did not introduce sufficient evidence to prove that any act or breach of duty by the barn operator actually or proximately caused the plaintiff to fall and break her ankle.  The case raises standard questions of negligence, but it is worth noting in the Ag Law Blog because the court did not base its decision on Ohio’s agritourism immunity statute.  The case is cited as Tyrrell v. Conrad Botzum Farmstead, 2019-Ohio-1874 (9th Dist.), and the decision is available HERE.

Ohio History Connection can use eminent domain to cancel Moundbuilders Country Club’s lease.  A Licking County judge ruled in early May that the Ohio History Connection, formerly the Ohio Historical Society, can reclaim full ownership of land that it had leased to a country club.  The Moundbuilders County Club has operated a golf course around prehistoric Native American earthworks for decades under a long-term lease with the state.  The Ohio History Connection sought to have the lease terminated in order to give the public full access to the earthworks as part of a World Heritage List nomination.  The judge viewed the request as sufficiently in the public interest to apply Ohio’s eminent domain laws.

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Here comes the sun: considerations for leasing farmland for solar development

We haven’t seen much sun in Ohio lately, but that hasn’t stopped an increase in solar development.  In the past two years, the Ohio Power Siting Board has approved six large scale solar projects with generating capacities of 50MW or more, and three more projects are pending approval.   These “solar farms” require a large land base, and in Ohio that land base is predominantly farmland.   The nine solar energy facilities noted on this map will cover about 16,500 acres in Brown, Clermont, Hardin, Highland and Vinton counties. About 12,300 of those acres were previously used for agriculture.

We’re hearing that solar energy developers are on the lookout for more land in these and several other counties across the state.  As the markets fluctuate and weather continues to prevent planting, leasing farmland to a solar energy developer might look pretty appealing.  But we always urge caution and due diligence for any leasing situation, and solar energy is no exception.

What should you do if an energy developer wants to discuss leasing your farmland for a large scale solar energy facility?  Our best advice is not to jump too quickly.  Instead, take the time to fully understand what you’re getting into.  A typical solar lease can last for 30 years and thus can have long term legal, financial and social implications for a farmland owner.  An important initial question is how does this type of land use fit into your future vision for your land, your farm operation, and your family?  If you don’t yet know much about large scale solar development and what it means for your land, give a listen to this webinar from our partner, the National Agricultural Law Center.

In this post, we’ll focus on the beginning of the solar leasing legal process.   The large scale solar projects in Ohio range from 600 to 3,300 acres of land, so a developer first has to assemble the land base once it identifies an area for a solar development project.   Leasing the land is the typical mechanism used for the solar projects in Ohio.  If a developer is interested in leasing your land, the first documents you may receive from the developer are a letter of intent and/or an option to lease.  These documents are the precursors to a solar lease but, like a lease, are written in favor of the developer and establish legal rights for the developer.  Careful review is critical, as these documents can tie up the land and the landowner for several years or more.

The letter of intent Some developers use a written letter of intent to notify a landowner of the developer’s interest in a parcel of land.  The purpose of the letter is to begin the process of considering the land for a long term solar lease.   Note, however, that a letter of intent might also contain a confidentiality clause that would prevent the landowner from talking with other developers about the land or sharing details of the developer’s interest with anyone.   Be aware that courts will generally enforce a signed letter of intent as a legally binding contract if the developer has offered the landowner a payment or similar benefit for signing the letter.   By signing confidentiality provisions in a letter of intent, a landowner can be foreclosed from considering other solar leasing opportunities.

The option to leaseMore commonly, the first document a solar developer will ask a landowner to sign is an option to lease.  Don’t be fooled by the name of this document and think that it’s not a legally binding agreement.  While an option is not the same as a lease, it can have the same legal effect of tying up the land for a certain period of time and might also dictate many of the terms of the lease if the developer decides to move forward on the project.

An option to lease grants the solar developer rights to explore the possibility of using the land for a solar project, but the developer may choose not to lease the land or develop the project.  The option period, typically up to five years, gives the developer time to conduct due diligence on the property, assemble other land parcels, secure financing, and obtain government approval for the project.  At the end of the option period, the developer should decide whether or not to proceed with the project.  An option also can give the developer the right to terminate and back out of the option at any time prior to the end of the option period.

On the other hand, a landowner doesn’t have an option to back out once he or she signs an option to lease.  The landowner is bound for the entire option period.   Like a letter of intent, an option can contain confidentiality and “exclusive dealing” provisions that prevent the landowner from sharing details or entering into leasing opportunities with other developers during the option period.  The option might also require the landowner to cooperate with the developer’s due diligence and help the developer obtain approvals and permits.  Many options also include language that allows the developer to assign the option to another solar developer.

Be aware that an option can also contain significant leasing terms that carry over if the developer proceeds with the project.  For example, in addition to allowing the developer to consider the land for a project, the option to lease could also include provisions for the period of the actual long term solar lease, the lease payment amount, easement rights, and landowner obligations.  Landowners might think that such terms could be negotiable later if the parties sign an “official” solar lease, but the option language may bind the landowner to the leasing terms that are presented in the option.  Sometimes, the option itself becomes the lease.  The net effect:  a landowner who thinks he or she is just signing a five year option agreement might also be committing to a 30 year solar lease and a predetermined lease payment.

What about crop production during the option period?  An option might contain language stating that the landowner may continue managing and operating the property in the same way after agreeing to the option.  But the option might also allow the developer to enter the property and proceed with the project at any time, including when crops are in the ground, although the option might not provide the landowner payment for the lost production.  In that case, the landowner simply loses out on the crop if the option doesn’t contain provisions for lost production.

As for payment for the option, a landowner usually receives an initial payment for signing the option, perhaps several thousand dollars or more.  During the option period, the landowner also typically receives an annual payment that is based on number of acres, perhaps $20 dollars per acre or more.

Should you have an attorney review an option to lease?  Yes.  Option language can vary and we surely haven’t addressed all potential issues in this post.   A close examination by an attorney shouldn’t take much time or cost a lot and will ensure that you fully understand the legal implications of entering into the option to lease.

Are the terms of an option negotiable?  That’s up to the landowner and the developer, but don’t assume that the developer won’t negotiate.  If you’re faced with an option to lease and don’t like the terms, try negotiating.  An attorney can be helpful here, also.

In our next solar leasing post, we’ll review the terms of a solar lease and consider how the lease can impact agricultural landowners over the typical 30 year lease period.  Watch also for our upcoming Ohio Farmland Owner’s Guide to Solar Leasing, due out in the next month, which will provide a detailed examination of the solar leasing process.

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Ohio Ag Law Blog — Case Watch: The Lake Erie Bill of Rights Lawsuit

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

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.

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Navigating Ohio’s Line Fence Law

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

Here at the OSU Extension Farm Office, we get questions about all sorts of topics, but one topic in particular shows up in our inbox rather frequently.  Line fence laws regulate those fences, sometimes called partition fences, that are located on a property boundary between adjacent parcels of land.  Ohio has had laws on this topic for well over a hundred years, and these laws represent an important piece of history in the development of property rights in our state.  While one might hope that by now all the kinks and questions would be resolved, there are still some misunderstandings and gray areas about the law that we grapple with to this day.

In order to help landowners better understand their rights and responsibilities, the OSU Extension Farm Office team has complied a number of resources about Ohio’s line fence laws on our website at farmoffice.osu.edu/our-library/line-fence-law.  When the Ohio General Assembly significantly changed the line fence provisions in the Ohio Revised Code in 2008, our director, Peggy Kirk Hall, wrote a number of fact sheets that provide an overview of the changes, summaries of key elements of the law, and also guides for townships.

The Ohio Line Fence Law Fact Sheet provides an in depth look at the 2008 changes.  It explains what a line fence is, how costs are allocated, the different types of line fences addressed, special rules for line fences containing livestock, procedures for building a fence, procedures for disputes between neighbors, and more.  A shorter summary of that same information is available in the fact sheet titled, A Summary of Ohio’s Line Fence Law.

In addition to the overviews of the law, there are also resources that explain particular aspects of the law more in depth, along with guides for township officials.  These include:

Over the course of the decade following the 2008 changes, a number of questions continued to be asked by landowners across the state, so we compiled a Frequently Asked Questions law bulletin.  Instead of only explaining what the law says, this law bulletin takes a question and answer approach that goes through questions associated with scenarios such as:

  • My neighbor wants to install a new fence on a never fenced boundary
  • My neighbor wants to permanently remove an existing fence
  • My neighbor wants to replace an old fence on our property boundary

The FAQ law bulletin also looks at the role of township trustees, and what the law says about fence construction and upkeep.

While these publications cover a lot of information, sometimes we get a new question that has yet to make it into one of our publications.  The following represent a few of those questions.

Right to access neighbor’s property applies to fence construction, not removal

Ohio Revised Code § 971.08 provides a landowner with a ten foot right to access his or her neighbor’s property in order to construct a new line fence or to maintain an existing fence.  If the landowner or the landowner’s contractor causes damage to his or her neighbor’s property, the landowner will be liable for that damage, including damage to crops.  However, as there is a separate statute for removing a line fence located at Ohio Revised Code § 971.17, the right of access to construct or maintain a fence does not clearly include a right to enter onto a neighbor’s property in order to remove a line fence.  Under this statute, a landowner who enters his or her neighbor’s land could be liable for trespass.

Written notice is required prior to removing a fence

Ohio Revised Code § 971.17 requires a property owner to give written notice to his or her neighbor at least 28 days in advance of removing a shared line fence.  If a landowner or the landowner’s contractor enters the neighbor’s property to remove a fence without sufficient notice, that could constitute a trespass under Ohio Revised Code § 971.17.  This notice requirement is intended to ensure that the landowner has a chance to protest the removal or at least discuss the terms of the removal.

Trees on the property line are the shared property of the neighboring landowners

One thing not specifically addressed in Ohio’s line fence laws is the issue of trees on the property line.  Ohio Revised Code § 971.33 requires landowners to keep all fence corners and a four foot strip along the entirety of a fence clear of brush, briers, thistles, and other noxious weeds.  However, this statute specifically says that it does not apply to the planting of vines or trees for use.  Because these are specifically excluded from this noxious weeds statute, the common law as made by courts will apply.

The common law provides that trees on the property line are owned by both landowners and do not have to be cleared from the fence row.  This means that if one landowner wants to remove a tree on the property line, that landowner must seek permission from his or her neighbor.  Even though the landowner owns half of the tree, the landowner cannot interfere with his or her neighbor’s property interest in the tree.  Without his or her neighbor’s permission, the landowner could be liable for removing the tree or even cutting it in a manner that causes the tree to die.  Because of Ohio’s reckless destruction of trees and crops statute in Ohio Revised Code § 901.51, a person who cuts, destroys, or injures a tree located on the land of another could be liable for up to three times the value of the tree.

If you have a question about Ohio’s line fence law, let us know, and we will try to find an answer.  Much like we tell students and those who attend our presentations, it is likely that someone else has the same question as you.  Stay tuned to the Ag Law Blog for more updates about questions we receive about Ohio’s line fence law.

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Case Watch: The Lake Erie Bill of Rights Lawsuit

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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