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Michigan Landowners Appear at Appeals Court in Land Case

Jun 15, 2017 | by William Perry Pendley

DENVER, CO.  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.  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.  David A. and Pamela F. Herr of Watersmeet in Gogebic County contend—in a complaint filed in the federal district court for the Western District of Michigan, Northern Division—that the Forest Service illegally denies them use of Crooked Lake, a riparian right guaranteed by Michigan law.  Plus, argue the Herrs, the federal district court in which they filed their lawsuit ruled on this issue, holding the Forest Service may not deny riparian owners their rights on Crooked Lake, a lawsuit won by Mountain States Legal Foundation (MSLF) on behalf of Herrs’ neighbors.  The Herrs vacationed on Crooked Lake annually since the 1990s and bought their property there in 2010.  MSLF Vice President and Chief Legal Officer Steven J. Lechner argued the case on behalf of the Herrs. 

“The ‘valid existing rights’ clause of the Michigan Wilderness Act protects the Herrs’ right to use their property.  Moreover, the argument, by federal lawyers, that the U.S. Forest Service may act as if it is Michigan or Gogebic County in limiting the Herr’s rights is asinine and must be rejected wholeheartedly,” said William Perry Pendley of MSLF.

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. 

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

For more information:  Herr v. U.S. Forest Service

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