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Herr v. United States Forest Service

United States Court of Appeals, Sixth Circuit

July 26, 2017

David A. Herr; Pamela F. Herr, Plaintiffs-Appellants,
v.
United States Forest Service; Sonny Perdue, Secretary of Agriculture; Tom Tidwell, Chief of the United States Forest Service; Kathleen Atkinson, Regional Forester for the Eastern Region of the United States Forest Service; Linda Jackson, Forest Supervisor, Ottawa National Forest; Tony Holland, District Ranger, Watersmeet - Iron River Ranger Districts, Defendants-Appellees, SWC, LLC; Timothy A. Schmidt; Friends of Sylvania; Upper Peninsula Environmental Coalition, Intervenors-Appellees.

          Argued: June 15, 2017

         Appeal from the United States District Court for the Western District of Michigan at Marquette. No. 2:14-cv-00105-R. Allan Edgar, District Judge.

         ARGUED:

          Steven J. Lechner, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood, Colorado, for Appellants.

          Mark R. Haag, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

          Howard A. Learner, ENVIRONMENTAL LAW & POLICY CENTER, Chicago, Illinois, for Intervenors.

         ON BRIEF:

          Steven J. Lechner, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood, Colorado, for Appellants.

          Mark R. Haag, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

          Howard A. Learner, ENVIRONMENTAL LAW & POLICY CENTER, Chicago, Illinois, Robert L. Graham, JENNER & BLOCK, LLP, Chicago, Illinois, for Intervenors.

          Before: SUTTON and DONALD, Circuit Judges; ZOUHARY, District Judge. [*]

          OPINION

          SUTTON, Circuit Judge.

         David and Pamela Herr bought lakefront property on Crooked Lake in the Upper Peninsula of Michigan, hoping to use the lake's waters for recreational boating and fishing. The United States Forest Service had other plans. Most of Crooked Lake lies in the federally owned Sylvania Wilderness yet some of it remains under private ownership. Congress gave the Forest Service authority to regulate any use of Crooked Lake and nearby lakes "subject to valid existing rights." The Forest Service promulgated two regulations, one prohibiting gas-powered motorboats, the other limiting electrically powered motorboats to no-wake speeds throughout the wilderness area. Both regulations exceed the Forest Service's power as applied to the Herrs and the other private property owners on the lake. Under Michigan riparian-rights law, in truth littoral-rights law, lakeside property owners may use all of a lake, making the Herrs' right to use all of the lake in reasonable ways the kind of "valid existing rights" that the Forest Service has no warrant to override.

         I.

         Crooked Lake stretches three miles from one end to the other connected by a series of meandering channels and bays. Nestled within an old growth forest, the lake offers a variety of outdoor activities for public and private visitors from kayaking to bird watching to hiking along its shore. Fishing apparently attracts a lot of visitors as well, as the glacier lakes in the area contain "world-class smallmouth bass fisheries." Herr v. U.S. Forest Serv., 803 F.3d 809, 813 (6th Cir. 2015). Ninety-five percent of the land surrounding the lake belongs to the federally protected Sylvania Wilderness, a nature preserve open to the public. The remaining five percent, positioned in the northern bay, belongs to approximately ten private landowners who own the property under state law.

         The United States first purchased land in the area in 1966, about 14, 000 acres surrounding the southern portion of Crooked Lake, to supplement the Ottawa National Forest. In 1987, Congress enacted the Michigan Wilderness Act, 101 Stat. 1274, dedicating these and other lands to the National Wilderness Preservation System as part of the Sylvania Wilderness, an area encompassing over 18, 000 acres and 36 lakes.

         "Subject to valid existing rights, " the Michigan Wilderness Act directs the Forest Service to administer this area "in accordance with the provisions of the Wilderness Act of 1964." Pub. L. No. 100-184, § 5, 101 Stat. 1274, 1275-76 (1987). The Wilderness Act of 1964 provides that the Forest Service, a branch of the Department of Agriculture, "shall be responsible for preserving the wilderness character" of the land. 16 U.S.C. § 1133(b). It also addresses motorboat use, explaining that "subject to existing private rights . . . there shall be . . . no use of . . . motorboats" within any wilderness area. Id. ยง 1133(c). "[W]here these uses have already become established, " the Act provides ...


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