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Action Update


Sep 15, 2017 | by William Perry Pendley

Days ago, Mountain States Legal Foundation (MSLF) won an enormous victory before the U.S. Court of Appeals for the Sixth Circuit on behalf of two Michigan property owners who were besieged by a federal agency, covetous political appointees, and the scores of federal lawyers at their beck and call.

David and Pamela Herr own a cabin on Crooked Lake in Michigan’s Upper Peninsula, near Watersmeet, and wish to do what Michigan law, ever since 1874, has guaranteed them they have the right to do.  That is, they wish to use the surface of Crooked Lake so long as it does not unreasonably interfere with the “reasonable use” of their neighbors.  That means, and has always meant, the right to take their motorboat out on the lake.   

The problem for the Herrs is one of the couple’s neighbors is notorious for being “the world’s worst neighbor.”  That is the label MSLF assigns to the federal government as a result of its experience over the last four decades of fighting back against its agencies, officials, and lawyers.  In Watersmeet, the neighbor is the U.S. Forest Service; it owns 95% of the land around the lake.

Even worse, the Forest Service says it is not just a neighbor.  It says it is a sovereign and thus stands in the shoes of Michigan and Gogebic County and can issue rules defining “reasonable use.”  Therefore, it says it can ban all of its neighbors from using motorboats on Crooked Lake!

If this sounds familiar, it should.  In 1993, the Forest Service did this very thing, on Crooked Lake, to Kathy Stupak-Thrall when she sought to use her grandfather’s cabin.  With MSLF as her lawyer, she sued and, in 1997, won a key ruling from a Michigan federal district court that the agency lacks authority to bar her “valid existing rights” to use her property.  Case closed!

In 2006, however, the Forest Service issued rules identical to the ones Kathy Stupak-Thrall defeated in her lawsuit.  In 2010, the Herrs bought their cabin and used their motorboat with no interference from the Forest Service; but, in 2013, its officials threatened the Herrs with criminal citations.

The Herrs replied that, under Stupak-Thrall, they could motorboat on Crooked Lake; the agency ignored them.  So MSLF sued, but a federal judge threw the case out; however, the Sixth Circuit quickly reinstated it.  After the judge ruled the agency could limit the Herrs’ motorboat use, MSLF appealed and won its huge victory for property owners.  Justice at last prevailed!     

There are three conclusions to draw from this nearly quarter century battle by MSLF against the federal government for Michigan landowners:
  • The United States as a property owner is truly the world’s worst neighbor—it is obstinate, imperious, and cold-blooded;
  • The federal government, which owns the “world’s largest law firm,” is relentless in its litigation against citizens—cost is irrelevant; and
  • Only MSLF can afford the decades-long legal battles necessary to prevail against so great and unrelenting a foe of property rights.

Take MSLF’s client Marvin Brandt who owns land his father and mother worked long and hard for in a vast forest in rural Wyoming.  They built a mill, a town, and a home on property for which they received a patent (title) from the federal government.  No title is more secure than a federal patent; that is, until the Forest Service wanted part of that land for a trail.  The Forest Service’s lawyers told Mr. Brandt, in so many words:  “You’ve got it; we want it; and we are going to get it if we have to take your case all the way to the Supreme Court of the United States.”  That is when Mr. Brandt called MSLF. 

Federal lawyers got to the Supreme Court, but they were in for a big surprise.  The Court (8-1) held that the land belonged to Mr. Brandt and the federal government knew it:  “[N]othing in the text of the [law] supports [the federal government’s] improbable (and self-serving) reading.”  Mr. Brandt got his land back, but the case took eleven years, required appearances at five different federal courts—often more than once each—and cost hundreds of thousands of dollars.  Only MSLF could have waged this unending war!

Take the Scots-Irish family, the McIlroys, who settled in what became northwestern Arkansas long before it became a state and 100 years before the Forest Service became its neighbor.  In the 1960s, that neighbor, unlike private landowner neighbors, refused to observe boundary lines and, over the decades, trashed, trod across, and committed torts upon the McIlroys’ land.  Outrageously, the Forest Service ignored the family’s complaints, so MSLF sued.  Days before the trial began, the Forest Service settled and paid for decades of damages.  Again, only MSLF could have done this!

Recently, William Perry Pendley delivered the opening address at a property rights meeting in Bryson City, North Carolina in rural Swain County where the federal government owns 75% of the land.  Speakers bemoaned the arrogant refusal of federal officials to recognize residents’ property rights and worst yet, their uncivil treatment of neighbors whose kin settled the land hundreds of years earlier.  It was heartbreaking, but comes as no surprise.

It is a good thing MSLF can represent Kathy Stupak-Thrall, the Herrs, the McIlroys, and other landowners because this problem will not be solved by a president, his officials, or Congress.  Sadly, they all look the other way when a covetous federal agency wars against a landowner.  That war must be won, courtroom by courtroom, by the unique organization that is MSLF.  Thank you for your support of MSLF’s heroic defense of property rights!

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