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  • Herr v. U.S. Forest Service

Scots-Irish Farmers: Feds Are Worse Than The King’s Men; Judge Tells Feds They Have No Authority To Regulate A Lake But They Issue Illegal Orders Anyway—So MSLF Fights Back!

Sep 15, 2014 | by William Perry Pendley

In 1808, a Scots-Irish family named McIlroy learned of the Louisiana

Purchase and farmland that was plentiful there, left their home in Tennessee,

and headed west. Across the Mississippi River, two hundred miles west of

Memphis, south of the Ozark Plateau’s Boston Mountains, and north of the

Arkansas River, the family homesteaded three parcels at Fly Gap, Beech

Grove, and Cass. Arkansas Territory was established in 1819; Arkansas won

statehood in 1836; and the million-acre Ozark National Forest—surrounding

the McIlroy farm, was decreed in 1908—100 years after the family arrived.


In 1933, a Civilian Conservation Corps (CCC) camp was placed in the

Ozark National Forest. After World War II, the CCC was discontinued, but in

1964 President Johnson created the Job Corps, modeled after the CCC, and

put a Job Corps camp in the Ozark National Forest near Cass.


Beginning in the late 1960s, W.C. McIlroy complained that Job Corps

students were trespassing on and littering his property, damaging his fences,

and destroying his hay; his objections went unanswered. In 1971, he died

and his son, W.L. McIlroy, took over the farm only to discover that the Forest

Service had drilled a well on his property. He protested, but Forest Service

officials said the well, used as a water source for Job Corps facilities, was on

federal land; it was not! Over the years, Job Corps directors, Forest Service

rangers, and Forest Service officials repeated that lie.


In 1973, unbeknownst to W.L. McIlroy, the Job Corps used its heavy

equipment to tear down a 100-year old levee built just upstream of the farm

at the confluence of Mulberry River and Fane’s Creek to protect the farm and

the Job Corps facility site. The result: flooding and erosion downstream, the

alteration of the bed of Mulberry River due to silting and deposits of eroded

rock, and the destruction of 10 acres of the farm. Subsequent actions by the

Forest Service, which included removing fill, laying culverts, and the pouring

of concrete, only exacerbated the problem, further flooding McIlroy’s farm.


In 1998, Matthew McIlroy, W.L.’s son, who had taken over the farm,

discovered part of his fence had been flattened, a sewage effluent line

installed over it and across 50-60 yards of the farm, and Job Corps sewage

effluent discharged from his property into Mulberry River. Subsequently, he

discovered the Forest Service installed a “temporary” water line that ran a

quarter mile across his land and blocked entry to his farm; continued to use

the water well—even though a federal survey proved the well was on the

farm; trespassed with heavy equipment onto the farm to blade dirt and drag

drainage ditches; built a service road across the farm to access the well and

the sewage effluent line and poured concrete on the road when it eroded;

used parts of the farm for heavy equipment training, digging down to creek

rock, causing serious erosion, destroying fences, and resulting in the loss

of escaping livestock; and, dumped concrete and construction waste on its

property near the farm, effluent from which washed onto the farm.


In January 2013, the Forest Service “document[ed] the encroachment

on [McIlroys’] property,” but refuses to pay damages or to get off their land.

With MSLF as their attorney, the family just sued in Arkansas federal court.


Meanwhile, 800 miles north, near Watersmeet in Michigan’s Upper

Peninsula, David and Pamela Herr are also in federal court suing the federal

government for barring them from exercising their rights as landowners. In

2010, they bought a waterfront cabin on Crooked Lake. They have other

neighbors in privately owned cabins on lots along the water’s edge, but the

largest landowning, waterfront-sharing neighbor is the Forest Service and its

Sylvania Wilderness. In fact, the wilderness area, created by the Michigan

Wilderness Act of 1987, surrounds 95 percent of Crooked Lake.


Under Michigan law, the Herrs hold riparian water rights, that is, they

own the right to use the entire surface of the lake for recreational purposes

so long as they do not interfere with their neighbors’ reasonable uses. The

Forest Service may be the biggest landowner, but it holds no greater rights

than any other neighbor. In fact, Congress explicitly protected “valid existing

rights.” The Forest Service, however, says it is not only a neighbor; it is also

the government that makes the rules as to what is reasonable.


That might be an arguable point, except for one thing. The Michigan

federal district court where the Herrs filed their lawsuit ruled in 1997 that
the right to use the surface of the lake was protected by Congress; in fact,
held the district court, the Forest Service has no authority to say otherwise.
The district court’s ruling shuts down the Forest Service. As the Supreme
Court ruled, “[A]n agency literally has no power to act … unless and until
Congress confers power upon it.... To permit an agency to expand its power
in the face of a congressional limitation on its jurisdiction would be to grant
to the agency power to override Congress.”

Incredibly, in June 2013, the Forest Service wrote that the district

court’s ruling applied only to the parties in the lawsuit and did NOT bind
the agency when it restricts the rights of other landowners. That assertion
is patently ridiculous. The district court did not just rule as to the riparian
rights of the landowners; it also ruled the Forest Service has zero authority
to restrict those rights. With MSLF as their attorney, the Herrs sued.


The McIlroys and Herrs should not have to sue to force federal officials

to obey the law, but they do. Thanks to your support, they are able to do so!

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