Gogebic County at the western end of Michigan’s Upper Peninsula is the last place one expects to find landowners who feel a kinship with the Sagebrush Rebels in the news across the West. David and Pamela Herr do, though. It’s not because the federal government is their landlord — controlling grazing and watering of their cattle, use of their ATVs, or the right to develop their energy leaseholds — but because it is their neighbor, and a bad one at that. Little wonder the Herrs filed a lawsuit against the U.S. Forest Service on May 13 in the U.S. District Court for the Western District of Michigan. The government’s response is pending.
Every summer since the 1990s, the Herrs traveled from their home in Wisconsin to Watersmeet — from whence the Ontonagon River flows north into Lake Superior, the Wisconsin River flows south into the Mississippi River, and the Paint River flows east into Lake Michigan — to a privately owned cabin at the edge of Crooked Lake in the midst of the million-acre Ottawa National Forest, with its spruce, balsam, maple, birch and aspen. In 2010, they bought the cabin. There are other privately owned cabins on lots along the water’s edge, but the largest landowning, waterfront-sharing neighbor is the U.S. Forest Service and its Sylvania Wilderness. In fact, the wilderness area, created by the Michigan Wilderness Act of 1987, surrounds 95 percent of Crooked Lake.
As owners of lakefront property, the Herrs hold riparian water rights — that is, they own the right to use the entire surface of the lake for recreational purposes so long as their use does not interfere with the reasonable use of their neighbors. The Forest Service may be the biggest landowner, but it holds no greater rights to the surface of Crooked Lake than do the Herrs and each of their neighbors. In fact, the federal law that created the wilderness area went out of its way to protect just those rights by preserving all “valid existing rights.” The Forest Service does not see it that way; instead, it argues not only that it is a neighbor with riparian rights, but also the government that makes the rules as to what is reasonable.
That might be an arguable point in need of resolution by a federal judge, except for one thing: The Michigan federal district court where the Herrs filed their lawsuit ruled already on which riparian rights were preserved and on whether those rights may be trumped by the Forest Service. In fact, the ruling came in 1997 in a lawsuit involving three of the Herrs’ neighbors, Kathy Stupak-Thrall, and Bodil and Michael Gajewski. The court ruled that, because the “valid existing rights” were preserved and because such rights include riparian recreational rights, the Forest Service has no authority to restrict landowners’ access.
Needless to say, in 2006, when the Forest Service issued an edict restricting the size of electric motors that may be used on Crooked Lake and further limiting “[a]ll watercraft” to “a slow no-wake speed,” the Herrs thought the district court’s ruling protected their rights. In June 2013, the Forest Service wrote that the district court’s ruling applied only to the parties in the lawsuit and did not bind the agency when it restricts the rights of other landowners.
The assertion is patently ridiculous. The district court did not just rule as to the riparian rights of the landowners; it also ruled the Forest Service had zero authority to restrict those rights.
The Forest Service is doing more than spurning the district court’s on-point ruling. It is thumbing its nose at the rebuke of the Supreme Court of the United States, which wrote in Louisiana Public Service Commission v. FCC in 1986: “[A]n agency literally has no power to act unless and until Congress confers power upon it … . To permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress.” This nation was meant to be one ruled by law and not by mankind’s caprice. In Michigan’s Upper Peninsula, it is not.
William Perry Pendley, a lawyer, is president of Mountain States Legal Foundation and author of “Sagebrush Rebel: Reagan’s Battle With Environmental Extremists and Why It Matters Today” (Regnery, 2013).