David Herr v. United States Forest Serv.
865 F.3d 351
| 6th Cir. | 2017Background
- Crooked Lake (Michigan) lies mostly within the federal Sylvania Wilderness; ~10 private littoral owners hold shoreline parcels in the northern bay.
- The Michigan Wilderness Act (1987) placed the area under Forest Service management "subject to valid existing rights," invoking the Wilderness Act framework.
- The Forest Service adopted Amendment No. 5 (and later orders) banning gas-powered motorboats and limiting electric motors and speed ("slow-no wake," ~5 mph) on the wilderness portion; Amendment No. 5 was later enforced with criminal penalties in a 2007 Order.
- Multiple rounds of litigation followed: earlier suits produced an injunction allowing one owner (Stupak-Thrall) to continue motorboat use; Herrs purchased waterfront lots in 2010 intending motorboat use and sued after the Forest Service sought to enforce the motorboat ban against them.
- The Sixth Circuit previously reversed a jurisdictional dismissal (Herr v. U.S. Forest Serv., 803 F.3d 809) and remanded; on remand the district court found the Herrs’ rights were not "existing" at the Act’s enactment; the present Sixth Circuit panel reverses on the merits.
Issues
| Issue | Plaintiff's Argument (Herr) | Defendant's Argument (Forest Service) | Held |
|---|---|---|---|
| Whether Forest Service motorboat ban and 5 mph limit on wilderness portion override private littoral rights reserved by the Michigan Wilderness Act | Littoral rights are "valid existing rights" under Michigan law that run with the land and include reasonable recreational motorboat use; the Act makes federal regulation "subject to" those rights | The Forest Service may regulate surface-water use to preserve wilderness character; limits are reasonable and within federal Property Clause authority delegated by Congress | Held for Herrs: the regulations, as applied, cannot nullify state-law littoral rights; Forest Service must respect pre-existing state-law rights. |
| Whether the Herrs’ littoral rights were "existing" when Congress enacted the Michigan Wilderness Act | Rights run with the land; prior owners had the rights in 1987 and they transferred to the Herrs when they bought the property | Forest Service/district court had argued Herrs’ rights weren’t "existing" because they acquired property after Amendment No. 5 | Held: "existing" refers to rights on the land at enactment; littoral rights run with land so Herrs possess existing rights. |
| Whether "valid existing rights" means state-law rights or rights subject to agency/federal reinterpretation | Plaintiff: phrase protects state-law property rights (Michigan littoral law) and precludes agency nullification | Defendant: federal regulation may impose reasonable limits analogous to state police power to preserve wilderness | Held: "valid existing rights" are determined by state law; Forest Service cannot override those state-law rights simply by declaring regulation desirable. |
| Whether motorboat use on Crooked Lake is unreasonable under Michigan law (so not a protected right) | Pre-existing, longstanding motorboat use and Michigan authorities treat recreational boating as a reasonable littoral use | Forest Service: bans are reasonable to protect wilderness character and are within police-like federal authority | Held: longstanding use and Michigan law support that recreational motorboating is a reasonable littoral right; the Forest Service failed to show it was unreasonable as a matter of state law. |
Key Cases Cited
- Kleppe v. New Mexico, 426 U.S. 529 (U.S. 1976) (Property Clause gives broad federal power over federal lands, but scope varies by context)
- Camfield v. United States, 167 U.S. 518 (U.S. 1897) (federal authority over its property does not grant unbounded control over private property)
- United States v. Alford, 274 U.S. 264 (U.S. 1927) (examples of federal regulation of private conduct that threatens federal lands)
- Stupak-Thrall v. United States, 89 F.3d 1269 (6th Cir. 1996) (prior en banc decision upholding some wilderness restrictions by divided court)
- Stupak-Thrall v. Glickman, 988 F. Supp. 1055 (W.D. Mich. 1997) (district court held motorboat restrictions interfered with "valid existing rights" and enjoined enforcement)
- Herr v. U.S. Forest Serv., 803 F.3d 809 (6th Cir. 2015) (prior Sixth Circuit opinion addressing jurisdictional limitations and timeliness)
- Bott v. Comm’n of Natural Resources of State of Mich. Dep’t of Natural Resources, 415 Mich. 45 (Mich. 1982) (Michigan littoral rule: bed ownership to thread/midpoint and shared right to reasonable use of water surface)
- Tennant v. Recreation Dev. Corp., 72 Mich. App. 183 (Mich. Ct. App. 1976) (recognizes recreational boating as a typical reasonable littoral use)