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Michigan Landowners’ Victory at Appeals Court Tested by Greens

Sep 11, 2017 | by William Perry Pendley

DENVER, CO.  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.  On July 26, 2017, a three-judge panel (2-1) reversed a June 13, 2016, ruling by a Michigan federal district court following oral arguments one month earlier.  David A. Herr 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 already 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. 

“It should not surprise anyone that environmental groups seek the most expansive reading of federal power, a reading that allows the seizure of rights guaranteed by Congress in part because landowners should know the federal government might seize their private property,” said William Perry Pendley of MSLF.  “The full court should quickly deny the petition.”

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 (W.D. Mich. 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 the lake.  At issue was the agency’s attempt to limit boaters to electric motors of 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.”  Thus, the Forest Service attempted to resurrect the same restrictions that the district court had set aside as applied to other riparian owners on Crooked Lake. 

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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