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Michigan Landowners Urge Affirmance of Their Victory at Appeals Court

Dec 01, 2017 | by William Perry Pendley

DENVER, CO.  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.  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 who own two lake-front lots on Crooked Lake in Gogebic County alleged—in a complaint filed in the federal district court for the Western District of Michigan—that the Forest Service unlawfully denies them use of Crooked Lake, a riparian right guaranteed by Michigan law.  Plus, argued 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 environmental groups raise an illusory constitutional issue, suggest conflicts with other decisions that do not exist, and rehash arguments that the panel majority thoughtfully rejected,” said William Perry Pendley of MSLF.  “Because they have not met their heavy burden of proof that rehearing en banc is warranted and especially because the U.S. Forest Service has not joined with them, their petition must be denied.” 

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 expressly 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 unreasonably interfere with the reasonable use by other riparian owners. 

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 ban gas-powered motorboats and limit electric motorboats to a no-wake speed. 

Following the district court’s order in Stupak-Thrall, the Forest Service facilitated the riparian owners’ use of Crooked Lake for many years.  In 2013, however, the Forest Service threatened to enforce the unlawful motorboat restriction against the Herrs.  This threat of enforcement prompted the Herrs’ lawsuit, which resulted in the panel’s ruling that the motorboat restrictions could not be applied against the Herrs because they infringe of the Herrs’ “valid existing rights” to use the entire surface of Crooked Lake for motorboating and fishing.

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.

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