(Posted by Trent Dougherty, OEC Director of Legal Affairs)
Earlier this week, the Ohio House of Representatives (on ALMOST a party-line vote) approved version 2.0 of the Ohio Implementation of the Great Lakes Compact. This version of the Compact Implementation, HB473, is far better than the bill that Governor Kasich rightfully vetoed this past summer when the vetoed the bill. However, as some of our previous posts point out, there are serious flaws in the bill.
The biggest flaw by far, at least from a public-interest lawyer’s point of view, is the significant limitation on standing for users of the waters of the basin to appeal a permit. Unless it is proven that a person “has a direct economic or property interest that is or may be adversely affected by a decision or order of the chief,” the doors to judicial review are barred.
No current Ohio statute slams the door on otherwise impacted parties by qualifying appellate standing on purely adverse effects on economic or property interests. According to a decision by Southern Ohio’s 4th District Court of Appeals in Yost v. Jones, “In order to establish standing, a party must show that the challenged action has caused, or will cause, the party an injury in fact, be it economic or otherwise.” However, that is not to say that the “adversely affected” requirement allows outside parties to bring actions for any arguable grievance. Personal distaste or a lack of confidence in a particular agency’s ability or willingness to enforce a specific provision is not enough to satisfy the legal concepts of “adversely affected” or “aggrieved” for the purposes of standing. In order to get standing to appeal most agency decisions, showing that the agency action caused injury to a parties economic or property interests is sufficient, but in no case is it necessary. Requiring such would be inconsistent with Ohio’s statute on administrative procedure and leave many aggrieved parties without judicial recourse.
The questions surrounding the logic of this limitation on basic common law understanding of aggrieved person abound:
Q. What makes water withdrawal permits from 1/3 of the state so special that only a select class of aggrieved person’s can appeal?
Q. Why can’t the Franklin County Court of Common Pleas or any of the County Courts in the Basin be trusted to determine standing under the common law definition of “aggrieved person?”
A. No reason – these courts hear administrative appeals under Ohio’s Administrative Procedures Act (ORC 119) on a regular basis.
Q. Will the number of permit appeals gum-up the judicial system?
A. Not at all. In fact, I was informed by ODNR that, if implemented in 2011, this Bill would have resulted in just 6 permits for the year – not a very daunting docket even in the highly unlikely event that all permits were appealed.
Q. Is there a cottage industry of trial lawyers waiting in the weeds to make money filing frivolous appeals?
A. Of course not.
The answer to each of these questions is obvious — there is no logic to it.
Such patent distaste and distrust for the legal system and for the judicial branch as made certain in this Draconian limitation on access to the court cannot be permitted to remain law. The proposed limitation on standing for recreational anglers, subsistence fishers, boaters, and other users of the Lake and its tributaries is UNFAIR, UNJUSTIFIED, and UNPRECEDENTED.
Thankfully, HB 473 moves to the Ohio Senate next week to continue the discussion on how to make this bill better and at the very least unlock the courthouse door.