Herr v. U.S. Forest Serv.

865 F.3d 351

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.

No. 16-2126

United States Court of Appeals, Sixth Circuit.

Argued: June 15, 2017

Decided and Filed: July 26, 2017

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.^*

SUTTON, J., delivered the opinion of the court in which ZOUHARY, D.J., joined. DONALD, J. (pp. 359–61), delivered a separate dissenting opinion.

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. § 1133(c). "[W]here these uses have already become established," the Act provides that they "may be permitted to continue subject to such restrictions as the [Forest Service] deems desirable." Id. § 1133(d)(1).

In 1992, the Forest Service amended the management plan for the Ottawa National Forest. Through what became known as Amendment No. 1, the Service prohibited the use of sailboats and houseboats on all portions of Crooked Lake within the Sylvania Wilderness. In 1993, several landowners filed a lawsuit challenging the prohibitions, see Stupak–Thrall v. United States , 843 F.Supp. 327, 328–29 (W.D. Mich. 1994), ominously referred to as Stupak–Thrall I .

Stupak–Thrall I ended in a victory for the Forest Service but not for the law of this Circuit. By an equally divided vote, the en banc court affirmed the district court's decision to uphold Amendment No. 1, allowing the sailboat and houseboat restrictions to remain but leaving no controlling law in its wake. Stupak–Thrall v. United States , 89 F.3d 1269 (6th Cir. 1996) (en banc). Neither the concurring nor the dissenting opinions at the en banc stage, nor indeed the vacated panel decision in Stupak–Thrall I , agreed with the district court's rationale for upholding these restrictions. Compare Stupak–Thrall , 89 F.3d at 1271 (Moore, J., concurring), with id. at 1290 (Boggs, J., dissenting); Stupak–Thrall v. United States , 70 F.3d 881, 889 (6th Cir. 1995) (vacated).

The Forest Service issued another amendment to its plans for Crooked Lake in 1995. Known as Amendment No. 5, it prohibited the use of "any motor or mechanical device capable of propelling a watercraft by any means" on the wilderness portion of Crooked Lake. R. 49–4 at 1. This amendment came with an exception: one electric motor no greater than 24 volts in size or 48 pounds of thrust. Amendment No. 5 also prohibited the operation of any watercraft "in excess of a ‘slow-no wake speed,’ " defined as a maximum of five miles per hour. Id. ; R. 50–8 at 23. The Forest Service eventually incorporated these restrictions into the 2006 Forest Plan and a subsequent 2007 Forest Order, which subjected violators of Amendment No. 5 to criminal liability.

Kathy Stupak–Thrall, once again joined by the Gajewskis, filed a second lawsuit. See Stupak–Thrall v. Glickman , 988 F.Supp. 1055 (W.D. Mich. 1997) ( Stupak–Thrall II ). The property owners won this round, securing an injunction prohibiting enforcement of Amendment No. 5. The district court held that the motorboat restrictions interfered with Thrall's " ‘valid existing right’ to use gas motor boats on Crooked Lake" and thus fell outside the Forest Service's regulatory authority. Id. at 1062. It also held that Amendment No. 5, as applied to Thrall and the Gajewskis, effected a regulatory taking under the Fifth Amendment. Id. at 1064.

After this decision, the Forest Service "facilitate[d] the sale of the Gajewski property ... to a third-party conservation organization," The Conservation Fund, which agreed "to resell the property after encumbering it with a conservation easement" paid for by the Forest Service. R. 53–44 at 13. Because this development "substantially" reduced motorboat use on Crooked Lake, the Forest Service voluntarily dismissed its appeal. Id. That left the other piece of property involved in that case protected by the injunction. To this day, Kathy Stupak–Thrall (and her guests) remain the only people free to use motorboats, though not sailboats or houseboats, on all of Crooked Lake.

When the Amendment No. 5 regulations first went into effect, David and Pamela Herr were occasional visitors to Crooked Lake. In 2010, they made a commitment to the place, purchasing two waterfront lots on the lake's northern bay. The Herrs bought the land with the intention of using gas-powered motorboats. The seller confirmed these intentions, telling the Herrs that he had used motorboats in the past "without hindrance by the Forest Service." R. 4 at 11.

That turned out to be true for the Herrs as well, at first. The Forest Service not only allowed such use at the time but facilitated it for them and others. It regularly sold boating permits to visitors and residents—allowing them access to the lake—and allowed motorboat use through its public boat landing, located in a federally-owned portion of the northern bay just outside the wilderness area.

The Forest Service changed course in 2013. It stopped offering motorboat access at the landing dock and sent a letter to the Herrs informing them that it planned to "fully enforce" the existing motorboat restrictions on the federal wilderness portion of the lake, though not the private portion of the lake. R. 4–5 at 2. The Herrs sued the Forest Service under the Administrative Procedure Act (APA), seeking to enjoin it from enforcing the motorboat restrictions against them. See 5 U.S.C. § 702. Two environmental-protection organizations and two property owners (Tim Schmidt and Sylvania Wilderness Cabins) intervened to support the Forest Service.

At the Forest Service's urging, the district court dismissed the case. It held that the federal courts lacked subject matter jurisdiction over the dispute because the statute of limitations had run on any APA challenges to the 2007 Forest Order. We reversed. The limitations period, we explained, amounted to a claims-processing rule and did not create a limit on our subject matter jurisdiction. The limitations period had not lapsed anyway, we added, because the Herrs never had an opportunity to challenge the validity of the rule's application to them until 2010, when they bought the land, and the Service...