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Herr v. Forest Service

ELR Citation: 47 ELR 20096
Nos. 16-2126, (6th Cir., 07/26/2017)

The Sixth Circuit held that the Forest Service's rules regarding recreational boating on Crooked Lake in Michigan's Sylvania Wilderness exceeded the agency's power as applied to private property owners. 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 prohibiting gas-powered motorboats and limiting electrically powered motorboats to no-wake speeds throughout the wilderness area. In 2010, a family bought land on the lake with the intention of using gas-powered motorboats. The seller told the family that he had used motorboats in the past without hindrance by the Forest Service. The Service allowed the family to use the motorboats until 2013, when it stopped offering motorboat access at the landing dock and sent a letter to the family informing them that it planned to “fully enforce” the existing motorboat restrictions on the federal wilderness portion of the lake. The family sued in enjoin the Forest Service from restricting use of the boat. The district court held that the family did not have rights to use Crooked Lake because its right did not exist at the time the Michigan Wilderness Act was enacted. The appellate court disagreed, stating that rights run with the land and the family inherited the rights of the previous owner. Further, the court stated that until the state says otherwise, littoral property rights include the right to reasonable use of the water’s surface for recreational motorboating. The ruling was reversed.