March 30, 2015 – DENVER, CO. Two Michigan landowners in the Wolverine State’s Upper Peninsula today replied to a brief filed by federal lawyers with the U.S. Court of Appeals for the Sixth Circuit and again urged the appellate panel to reverse a ruling of a Michigan federal district court that dismissed their lawsuit against the U.S. Forest Service and its officials for barring use of waterfront property that they own. David A. and Pamela F. Herr of Watersmeet in Gogebic County contend—in a complaint filed in the federal district court for the Western District of Michigan, Northern Division—that the Forest Service illegally denies them use of Crooked Lake, a riparian right guaranteed by Michigan law. Plus, argue 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 filed and won by Mountain States Legal Foundation (MSLF) on behalf of Herrs’ neighbors. The Herrs vacationed on Crooked Lake annually since the 1990s and bought their property there in 2010.

“The Herrs acquired the right to file a lawsuit against the United States in 2010 and sued in 2014; the lawsuit is timely,” said William Perry Pendley, president of MSLF. “The Forest Service’s argument is without merit.”

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 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 interfere with the reasonable use of the lake by other riparian owners. There are ten other private lakefront properties on Crooked Lake.

In Stupak-Thrall v. Glickman, 988 F.Supp 1055 (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 Crooked Lake. At issue was an attempt by the Forest Service to limit motorboat use to motorboats with electric motors with a maximum size of 24 volts or 48 pounds of thrust.

In 2006, the Forest Service issued a new Ottawa National Forest Plan. Despite the district court’s ruling in Stupak-Thrall, the plan provides, “[o]nly electric motors with a maximum of 24 volts or 48 pounds of thrust (4 horse-power equivalent) or less will be permitted on [Crooked Lake] within the Sylvania Wilderness.” The agency says the ruling does not affect the Herrs.


Diane L. Patrick
Assistant to the President
MOUNTAIN STATES LEGAL FOUNDATION
2596 S. Lewis Way
Lakewood, CO 80227
303/292-2021, Ext. 27
mountainstateslegal.org

Mountain States Legal Foundation, founded 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.