Michigan Family Wins 25-year Battle with Government Over Lake Access
Oct 02, 2018 | by William Perry Pendley
Lakewood, CO. – October 2, 2018 – A generation-long battle over access to a lake in northern Michigan between private landowners and the U.S. Forest Service ended Monday when the United States Supreme Court denied an appeal by environmental groups, who sought to restrict recreational use of the lake (Herr v. U.S. Forest Service).
In 2010, David and Pamela Herr purchased land on the shore of Crooked Lake in northern Michigan. Crooked Lake is a large, inland lake, 95% of which lies within the Ottawa National Forest.
Michigan law grants owners of lakefront property the right to access the entire surface of the lake. But the U.S. Forest Service attempted to stop the Herr family from operating a motorized boat on the lake, and ultimately sent them a letter threatening them with arrest if they did not comply.
“From our clients’ perspective, in declining to review the Sixth Circuit’s decision, the Supreme Court fortifies the principle that federal agencies cannot impair property rights guaranteed under state law without explicit congressional authorization.” said Mountain States Legal Foundation attorney Christian Corrigan, who represents the Herrs. “This is the culmination of decades of work by landowners and Mountain States Legal Foundation.”
“Our victory today owes much to the courage of Kathy Stupak-Thrall who challenged a 1992 plan by the Forest Service to illegally regulate her use of Crooked Lake,” said William Perry Pendley, president of Mountain States Legal Foundation.
In 1987, a Michigan federal district court ruled in favor of Ms. Stupak-Thrall and her neighbors, holding that the Forest service lacked authority to restrict her “valid existing rights.” “Kathy prevailed over the ultimate bad neighbor, the federal government,” Pendley concluded.
When the Herr family bought their land in 2010, the Forest Service attempted to argue that those “valid existing rights” did not transfer when a lot was purchased by a new owner.
In 2017, The U.S. Court of Appeals for the Sixth Circuit ruled in favor of the Herrs, holding that they held “valid existing rights.” The Sixth Circuit ruled further that the Forest Service could not restrict the Herrs’ “reasonable use” of the lake they share with the Forest Service.
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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