David A. and Pamela F. Herr own lakefront property on Crooked Lake near Watersmeet in Gogebic County in Michigan’s Upper Peninsula. It was their dream to own a lakefront home to share with their children and grandchildren. Michigan law allows an owner of lakefront property to use the entire surface of that lake. Nonetheless, the U.S. Forest Service prohibited boating on 95% of the lake that abuts their property. The government threatened this family with arrest if they did not comply. We believe the government is out of line and must respect the Herr’s rights to use the lake, and fulfill their dream of sharing this beautiful place with their family.
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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.
On May 13, 2014, the Herrs sued the U.S. Forest Service and its officials in the federal district court for the Western District of Michigan, Northern Division. On July 18, 2014, the Forest Service filed a motion to dismiss, based upon statute of limitations and exhaustion grounds. On July 25, 2014, several environmental groups moved to intervene. On August 12, 2014, the Herrs filed an opposition to the motion to intervene and, on their behalf, Steven J. Lechner of MSLF argued the motion on August 14, 2014. On August 15, 2015, the district court granted the environmental groups permissive intervention.
On August 19, 2014, the Herrs filed an opposition to the motion to dismiss. On September 2, 2014, the Forest Service and the intervenors filed replies with respect to the motion to dismiss. On September 9, 2014, the Herrs filed a sur-reply. On September 24, 2014, the district court dismissed the case for lack of subject-matter jurisdiction based upon the statute of limitations. On October 27, 2014, the Herrs filed a timely notice of appeal. On January 9, 2015, the Herrs filed their opening brief. On March 13, 2015, the Forest Service and the intervenors filed their respective response briefs. On March 30, 2015, the Herrs filed their reply brief.
On April 27, 2015, the Herrs filed a notice of supplementary authority, notifying the court of the Supreme Court’s decision in United States v. Wong, Nos. 13-1074, 13-1075 (Apr. 22, 2015), wherein the Court held that the limitations period in 28 U.S.C. § 2401(b) is not jurisdictional and is subject to equitable tolling. On May 15, 2015, the Forest Service filed a response to the Herrs’ notice of supplemental authority. On August 4, 2015, Mr. Lechner argued the appeal before the Sixth Circuit in Cincinnati, Ohio.
On October 9, 2015, the Sixth Circuit reversed and remanded. Herr v. U.S. Forest Serv., 803 F.3d 809 (6th Cir. 2015). The Sixth Circuit ruled that the statute of limitations in 28 U.S.C. § 2401(a) is not jurisdictional. The Sixth Circuit also ruled that the statute of limitations in 28 U.S.C. § 2401(a) did not begin to run until the Herrs had standing to sue, which did not occur until the Herrs acquired their relevant riparian property in 2010, making the filing of their case in 2014 comfortably within the six-year statute of limitations.
On January 29, 2016, the Forest Service filed its administrative record, and supplemented it on March 4, 2016. On April 1, 2016, the Herrs filed a motion for summary judgment. On April 22, 2016, the Forest Service and Intervenors filed their respective cross-motions for summary judgment. On May 13, 2016, the Herrs filed their response/reply. On May 27, 2016, the Forest Service and Intervenors filed their replies. On June 13, 2016, the district court ruled against the Herrs, holding that the motorboat restrictions were lawful.
On August 2, 2016, the Herrs filed their notice of appeal. On October 20, 2016, the Herrs filed their opening brief. On December 22, 2016, the Forest Service and Intervenors filed their response briefs. On January 10, 2017, the Herrs filed their reply brief. On June 15, 2017, the Herrs had their case argued before a panel of the U.S. Court of Appeals for the Sixth Circuit. On July 26, 2017, a Sixth Circuit three-judge panel (2-1) reversed the June 13, 2016, ruling by a Michigan federal district court. On September 11, 2017, environmental groups filed a motion for rehearing en banc. On November 22, 2017, the Sixth Circuit request a response to the petition from the Herrs. On December 1, 2017, the Herrs’ filed their response. On December 7, 2017, intervenors filed a reply in support of their petition. On January 4, 2018, the Sixth Circuit denied the petition.