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Michigan Landowners Urge Supreme Court to Reject Enviro’s Plea

May 07, 2018 | by William Perry Pendley

Mountain States Legal Foundation’s clients, who defeated an attempt by a federal agency and environmental groups to regulate their property contrary to State law, face another battle.

DENVER, CO.  After almost four years of litigation, two Michigan landowners today urged the Supreme Court of the United States to reject a plea by environmental groups to overturn their victory before the U.S. Court of Appeals for the Sixth Circuit.  Last July, the Sixth Circuit ruled that the U.S. Forest Service may not interfere with David Herr and Pamela Herr’s state-law created right to use a motorboat on the lake adjacent to their property. 

The Herrs, who own lakefront property on Crooked Lake in Michigan’s Upper Peninsula, challenged a Forest Service restriction that subjected them to criminal penalties for exercising their protected property rights on Crooked Lake—just as Congress intended.  Crooked Lake is a large, inland lake, 95% of that lies within the Sylvania Wilderness Area, which is part of the Ottawa National Forest.  Congress added the area to the National Wilderness Preservation System in 1987 when it passed the Michigan Wilderness Act but expressly preserved “valid existing rights.”  Under Michigan law those include the right of “riparian” property 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. 

“The Sixth Circuit’s decision was clear, correct, and legally and factually unassailable,” said Mountain States Legal Foundation staff attorney Christian Corrigan.  “The Court should deny the petition.”

“Notably, the U.S. Forest Service—the one with the ‘dog in this fight’—did not seek review because the agency knows the Sixth Circuit got it right,” said William Perry Pendley, president of Mountain States Legal Foundation.

Despite the clear words of Congress, environmental groups and the Forest Service have long sought to prevent anyone from enjoying Crooked Lake.  In fact, as the Herrs’ argued, a federal district court in Michigan already decided this precise issue decades ago.  In Stupak-Thrall v. Glickman, 988 F.Supp 1055 (W.D. Mich. 1997), in which Mountain States Legal Foundation represented owners of two other Crooked Lake properties, the district court ruled the Forest Service lacked authority to restrict the property 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 changed course and threatened to enforce the unlawful motorboat restriction against the Herrs, who purchased their lots in 2010, which prompted the Herrs’ lawsuit and led to the Herrs’ eventual victory at the Sixth Circuit. 

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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