Major Property Rights Victory at Supreme Court

What if you had a dream, and one day the government showed up at your door and tried to crush that dream?

That’s precisely what happened to the Herr family.

David and Pamela Herr worked hard all their lives to afford their dream of owning a vacation home on the shore of a pristine lake in northern Michi-
gan. They wanted a place where they could relax, enjoy nature, fish, and operate a boat on the beautiful lake.

For the Herrs, the dream was all about family. Their lake house is, first and foremost, a place where their children and grandchildren can gather and create beautiful memories with their loved ones that will last a lifetime.

In 2010, David and Pamela finally were able to purchase their dream property 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.

Unfortunately for the Herrs, the government can be a very rude neighbor. Before long, they were caught in the middle of a generation-long battle over access to the lake. The battle between private landowners on the lake and the U.S. Forest Service threatened everything they had worked for.

One day the government sent them a letter, letting them know that they would no longer be able to use a motorized boat on the lake. In fact— they were told—doing so would be considered a federal crime!

Imagine if one day your next-door neighbor informed you that he owned the street in front of both your houses!

And then he told you that driving your car on the street in front of your own house was a crime!

That’s essentially what the government did to the Herrs.

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, and ultimately threatened them with arrest if they did not comply.

It was a battle that began over twenty-five years ago. Another Mountain States Legal Foundation client, Kathy Stupak-Thrall (a neighbor of the Herrs) fought for It was a battle that began over twenty-five years ago. Another Mountain States Legal Foundation client, Kathy Stupak-Thrall (a neighbor of the Herrs) fought for many years for the right to use the entire lake.

When the government came after the Herrs, MSLF was ready to step up on their behalf defense as well.

In 1997, 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.

But 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 the Forest Service could not restrict the Herrs’ “reasonable use” of the lake they share with the Forest Service.

The Herrs won their ultimate victory this October, when the U.S. Supreme Court turned down an effort by environmental groups to appeal the Sixth Circuit’s decision.

“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.”

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