Mountain States Legal Foundation Logo

Active Cases

All Cases

Case Locations (click on the blue States to view the case list)

case-map.jpg 
Alaska California Idaho Nevada Montana Wyoming Utah Arizona Colorado New Mexico Texas Michigan New York Washington, D.C. Pennsylvania Arkansas North Dakota Ohio Oregon South Dakota Minnesota Wisconsin North Carolina Louisiana

Herr v. U.S. Forest Service

Why We Fight:

Just like any other property owner, the federal government may not interfere with its neighbors’ “valid existing [property] rights.”

Summary:

Michigan law allows an owner of lakefront property to use the entire surface of that lake.  Nonetheless, the U.S. Forest Service prohibited a family from using 95% of the lake that abuts their property.

Legal Question:

Whether the Forest Service has the authority to impair state-law created property rights?

Plaintiff:

David A. Herr and Pamela F. Herr 

Defendants:

United States Forest Service; Tom Vilsack, Secretary Of Agriculture; Tom Tidwell, Chief Of The United States Forest Service; Kathleen Atkinson, Regional Forester For The Eastern Region Of The United States Forest Service; Anthony Scardina, Forest Supervisor, Ottawa National Forest; Norman E. Nass, District Ranger, Watersmeet – Iron River Ranger Districts

Court:

U.S. Court of Appeals for the Sixth Circuit
A decision by the Sixth Circuit on whether to grant a rehearing
David A. and Pamela F. Herr own lakefront property on Crooked Lake near Watersmeet in Gogebic County in Michigan’s Upper Peninsula.  Crooked Lake is a large, inland lake, 95% of which lies within the Sylvania Wilderness Area, which is part of the Ottawa National Forest.  The area was added to the National Wilderness Preservation System in 1987 by the Michigan Wilderness Act, which preserved “valid existing rights.”  Under Michigan law those include the right of riparian owners to use an inland lake’s surface for recreational activities such as boating and fishing, so long as their use does not interfere with the reasonable use of the lake by other riparian owners.  There are ten other private lakefront properties on Crooked Lake.  

In Stupak-Thrall v. Glickman, 988 F.Supp 1055 (1997), in which MSLF represented Kathy Stupak-Thrall and Bodil and Michael Gajewski, owners of two other Crooked Lake properties, the district court ruled the Forest Service lacked authority to restrict the riparian owners from exercising their rights to use motorboats on Crooked Lake.  At issue was an attempt by the Forest Service to limit motorboat use to motorboats with electric motors with a maximum size of 24 volts or 48 pounds of thrust. 

In 2006, the Forest Service issued a new Ottawa National Forest Plan.  Despite the district court’s ruling in Stupak-Thrall, the plan provides, “[o]nly electric motors with a maximum of 24 volts or 48 pounds of thrust (4 horse-power equivalent) or less will be permitted on [Crooked Lake] within the Sylvania Wilderness.”  The agency says the ruling does not affect the Herrs.

On May 13, 2014, the Herrs sued the U.S. Forest Service and its officials in the federal district court for the Western District of Michigan, Northern Division.  On July 18, 2014, the Forest Service filed a motion to dismiss, based upon statute of limitations and exhaustion grounds.  On July 25, 2014, several environmental groups moved to intervene.  On August 12, 2014, the Herrs filed an opposition to the motion to intervene and, on their behalf, Steven J. Lechner of MSLF argued the motion on August 14, 2014.  On August 15, 2015, the district court granted the environmental groups permissive intervention.

On August 19, 2014, the Herrs filed an opposition to the motion to dismiss.  On September 2, 2014, the Forest Service and the intervenors filed replies with respect to the motion to dismiss.  On September 9, 2014, the Herrs filed a sur-reply.  On September 24, 2014, the district court dismissed the case for lack of subject-matter jurisdiction based upon the statute of limitations.  On October 27, 2014, the Herrs filed a timely notice of appeal.  On January 9, 2015, the Herrs filed their opening brief.  On March 13, 2015, the Forest Service and the intervenors filed their respective response briefs.  On March 30, 2015, the Herrs filed their reply brief.

On April 27, 2015, the Herrs filed a notice of supplementary authority, notifying the court of the Supreme Court’s decision in United States v. Wong, Nos. 13-1074, 13-1075 (Apr. 22, 2015), wherein the Court held that the limitations period in 28 U.S.C. § 2401(b) is not jurisdictional and is subject to equitable tolling.  On May 15, 2015, the Forest Service filed a response to the Herrs’ notice of supplemental authority.  On August 4, 2015, Mr. Lechner argued the appeal before the Sixth Circuit in Cincinnati, Ohio.  

On October 9, 2015, the Sixth Circuit reversed and remanded.  Herr v. U.S. Forest Serv., 803 F.3d 809 (6th Cir. 2015).  The Sixth Circuit ruled that the statute of limitations in 28 U.S.C. § 2401(a) is not jurisdictional.  The Sixth Circuit also ruled that the statute of limitations in 28 U.S.C. § 2401(a) did not begin to run until the Herrs had standing to sue, which did not occur until the Herrs acquired their relevant riparian property in 2010, making the filing of their case in 2014 comfortably within the six-year statute of limitations.  

On January 29, 2016, the Forest Service filed its administrative record, and supplemented it on March 4, 2016.  On April 1, 2016, the Herrs filed a motion for summary judgment.  On April 22, 2016, the Forest Service and Intervenors filed their respective cross-motions for summary judgment.  On May 13, 2016, the Herrs filed their response/reply.  On May 27, 2016, the Forest Service and Intervenors filed their replies.  On June 13, 2016, the district court ruled against the Herrs, holding that the motorboat restrictions were lawful. 

On August 2, 2016, the Herrs filed their notice of appeal.  On October 20, 2016, the Herrs filed their opening brief.  On December 22, 2016, the Forest Service and Intervenors filed their response briefs.  On January 10, 2017, the Herrs filed their reply brief. On June 15, 2017, the Herrs had their case argued before a panel of the U.S. Court of Appeals for the Sixth Circuit.  On July 26, 2017, a Sixth Circuit three-judge panel (2-1) reversed the June 13, 2016, ruling by a Michigan federal district court.  On September 11, 2017, environmental groups filed a motion for rehearing en banc.

  • Michigan Landowners Urge Affirmance of Their Victory at Appeals Court

    Dec 1, 2017
    Two Michigan landowners in the Wolverine State’s Upper Peninsula who were victorious at the U.S. Court of Appeals for the Sixth Circuit over the U.S. Forest Service and its officials for barring them from using their state-law created property rights today responded to environmental groups’ motion for en banc review of the ruling.
  • Michigan Landowners’ Victory at Appeals Court Tested by Greens

    Sep 11, 2017
    Two Michigan landowners in the Wolverine State’s Upper Peninsula who won a huge victory at the U.S. Court of Appeals for the Sixth Circuit against the U.S. Forest Service and its officials for barring them from using their waterfront property learned today that environmental groups seek en banc review of the ruling.
  • Michigan Landowners Win Huge Victory at Appeals Court in Land Case

    Jul 26, 2017
    Two Michigan landowners in the Wolverine State’s Upper Peninsula won a huge victory today at the U.S. Court of Appeals for the Sixth Circuit when a three-judge panel (2-1) reversed a June 13, 2016, ruling by a Michigan federal district court.
  • Michigan Landowners Appear at Appeals Court in Land Case

    Jun 15, 2017
    Two Michigan landowners in the Wolverine State’s Upper Peninsula had their case argued today at the U.S. Court of Appeals for the Sixth Circuit asking it to reverse a June 13, 2016, ruling by a Michigan federal district court.
  • Michigan Landowners Counter Argument by Federal Lawyers in Land Case

    Jan 10, 2017
    Two Michigan landowners in the Wolverine State’s Upper Peninsula today filed their reply brief with the U.S. Court of Appeals for the Sixth Circuit asking it to reverse a June 13, 2016 ruling by a Michigan federal district court.
  • Michigan Landowners Urge Appeals Court to Reverse Erroneous Ruling

    Oct 20, 2016
    Two Michigan landowners in the Wolverine State’s Upper Peninsula today filed their opening brief with the U.S. Court of Appeals for the Sixth Circuit asking it to reverse a June 13th ruling by a Michigan federal district court. Previously, in October of 2015, a panel of the Sixth Circuit reversed an earlier ruling by the district court and reinstated the couple’s lawsuit against the U.S. Forest Service and its officials for barring use of their waterfront property.
  • Michigan Landowners File Notice of Appeal

    Aug 2, 2016
    Two Michigan landowners in the Wolverine State’s Upper Peninsula today filed their notice of appeal to the U.S. Court of Appeals for the Sixth Circuit after suffering defeat before a Michigan federal district court; thus, they return to the Sixth Circuit where they, in October of 2015, won a victory over an earlier ruling by the district court and had their lawsuit against the U.S. Forest Service and its officials for barring use of waterfront property that they own reinstated.
  • Michigan Landowners Suffer Defeat; Will Return to Appeals Court

    Jun 13, 2016
    Two Michigan landowners in the Wolverine State’s Upper Peninsula today suffered defeat before a Michigan federal district court but plan to appeal to the U.S. Court of Appeals for the Sixth Circuit where they, in October of 2015, won a victory over an earlier ruling by the district court and had their lawsuit against the U.S. Forest Service and its officials for barring use of waterfront property that they own reinstated.
  • Michigan Landowners Dispute Federal Government’s Arguments

    May 13, 2016
    Two Michigan landowners in the Upper Peninsula, fresh from an October of 2015 victory at the U.S. Court of Appeals for the Sixth Circuit, which reinstated their lawsuit against the U.S. Forest Service and its officials for barring use of their waterfront property, today urged a Michigan federal district court to ignore arguments by the agency, its lawyers, and also intervenors.
  • Michigan Landowners, After Appeals Court Win, Seek Judgment

    Apr 1, 2016
    Two Michigan landowners in the Wolverine State’s Upper Peninsula, fresh from an October of 2015 victory at the U.S. Court of Appeals for the Sixth Circuit, which reinstated their lawsuit against the U.S. Forest Service and its officials for barring use of waterfront property that they own, today urged a Michigan federal district court to grant them summary judgment.
  • Michigan Landowners Win at Appeals Court in Land Rights Case

    Oct 9, 2015
    Two Michigan landowners in the Wolverine State’s Upper Peninsula today won their appeal before the U.S. Court of Appeals for the Sixth Circuit; a three-judge panel reversed a ruling of a Michigan federal district court dismissing their lawsuit against the U.S. Forest Service and its officials for barring use of waterfront property that they own.
  • Michigan Landowners Reply to Federal Lawyers in Land Rights Case

    Mar 30, 2015
    Two Michigan landowners in the Wolverine State’s Upper Peninsula today replied to a brief filed by federal lawyers with the U.S. Court of Appeals for the Sixth Circuit and again urged the appellate panel to reverse a ruling of a Michigan federal district court that dismissed their lawsuit against the U.S. Forest Service and its officials for barring use of waterfront property that they own.
  • Michigan Landowners Urge Reversal Of Property Rights Ruling

    Jan 9, 2015
    Two Michigan landowners in the Wolverine State’s Upper Peninsula today urged the U.S. Court of Appeals for the Sixth Circuit to reverse a ruling of a Michigan federal district court that dismissed their lawsuit against the U.S. Forest Service and its officials for barring use of waterfront property that they own.
  • Michigan Landowners Appeal Dismissal of Property Rights Case

    Oct 27, 2014
    Two Michigan landowners who own property in the Wolverine State’s Upper Peninsula today appealed the ruling of a Michigan federal district court that dismissed their lawsuit against the U.S. Forest Service and its officials for barring use of waterfront property that they own.
  • Michigan Landowners Suffer Dismissal Of Property Rights Case

    Sep 24, 2014
    Two Michigan landowners who own property in the Wolverine State’s Upper Peninsula today had their suit against the U.S. Forest Service and its officials for barring use of waterfront property they own dismissed.
  • Michigan Landowners Battle Attempt to Dismiss Property Rights Case

    Aug 19, 2014
    Two Michigan landowners who own property in the Wolverine State’s Upper Peninsula today filed a brief opposing an effort by federal lawyers to dismiss the lawsuit they filed against the U.S. Forest Service and its officials for barring use of their waterfront property.
  • Michigan Landowners Represented in Court in Property Rights Fight

    Aug 14, 2014
    Two Michigan landowners who own property in the Wolverine State’s Upper Peninsula today were represented in court to challenge the right of environmental groups to intervene in a lawsuit they filed against the U.S. Forest Service and its officials for denying them the right to use waterfront property.
  • Michigan Landowners Battle Enviro Entry In Property Rights Lawsuit

    Aug 12, 2014
    Two Michigan landowners who own property in the Wolverine State’s Upper Peninsula today challenged the right of environmental groups to intervene in a lawsuit they filed against the U.S. Forest Service and its officials for denying them the right to use waterfront property pursuant to Michigan law and a prior federal court ruling.
  • Michigan Landowners Fight Forest Service For Property Rights

    May 13, 2014
    Two Michigan landowners who own property in the Wolverine State’s Upper Peninsula today filed a lawsuit against the U.S. Forest Service and its officials for denying them the right to use their waterfront property in accordance with Michigan law and a prior federal court ruling.


Help protect constitutional liberties and private property rights, and promote limited and ethical government and the free enterprise system:

Donate Here