On Monday, the U.S. Supreme Court denied certiorari in SWC, LLC v. Herr, ending a 25-year battle for property rights in Michigan’s Upper Peninsula.   The case concerned the U.S. Forest Service’s (“USFS”) criminal prohibition on motorboat use on Crooked Lake, where private landowners share the lake with a national wilderness.   At issue was whether Congress delegated the full scope of its Property Clause power in Article IV, Section 3 to the USFS when it passed the Michigan Wildness Act (“MWA”).  

Congress passed the MWA in 1987, designating lands as the Sylvania Wilderness and placing them in the National Wilderness Preservation System.  Section 5 of the MWA provides: “[s]ubject to valid existing rights, each wilderness area designated by this Act shall be administered by the Secretary of Agriculture in accordance with the provisions of the Wilderness Act ….” 101 Stat. at 1275–76.  The saving clause, “subject to valid existing rights,” is frequently used by Congress and the Executive Branch to protect existing rights and legitimate expectations from subsequent changes in the law. 

Approximately 95% of Crooked Lake is within the boundaries of the Sylvania Wilderness. There are approximately a dozen private lots along the north shore of the lake that are outside the wilderness.  Respondents David and Pamela Herr own two of these lots. 

The legal battle began in 1992 when the USFS prohibited the use of sailboats and houseboats on the portions of Crooked Lake within the Sylvania Wilderness.  Landowners sued, claiming that the restrictions infringed upon their littoral rights in violation of the saving clause, “[s]ubject to valid existing rights.”  Stupak-Thrall v. United States, 843 F. Supp. 327, 328–29 (W.D. Mich. 1994), aff’d, 70 F.3d 881 (6th Cir. 1995), vacated, 81 F.3d 651 (6th Cir. 1996), aff’d by an equally divided en banc court, 89 F.3d 1269 (6th Cir. 1996) (“Stupak-Thrall I”).  

In May 1995, while Stupak-Thrall I was pending, the USFS issued another rule, which prohibited the use of gas-powered motorboats on those portions of Crooked Lake within the wilderness.  In Stupak-Thrall II, the plaintiffs challenged those restrictions on the grounds that the restrictions also infringed on their littoral rights in violation of the saving clause.  Stupak-Thrall v. Glickman, 988 F. Supp. 1055 (W.D. Mich. 1997) (“Stupak-Thrall II”).  The district court recognized that, under Michigan law, littoral landowners “share in common the right to use the entire surface of the lake for boating and fishing, so long as they do not interfere with the reasonable use of the waters by the other riparian owners[,]” and that this right includes the right to use gas-powered motorboats.  Because the USFS’s authority to manage the wilderness is “subject to valid existing rights,” the court ruled that the USFS lacked the authority to restrict the plaintiffs’ ability to use gas-powered motorboats on Crooked Lake.  Accordingly, the court declared the restrictions invalid and permanently enjoined the USFS from enforcing its restrictions against the plaintiffs.  

But the saga would not end there.  

In 2010, David and Pamela Herr purchased two littoral lots on Crooked Lake with the specific intent to use gas-powered motorboats over the entire surface of Crooked Lake.  In 2013, however, the Herrs received a letter from the USFS stating that it planned to enforce the same motorboat restriction against them—a criminal penalty.  It claimed the Stupak-Thrall II ruling did not apply to the Herrs because they purchased the property in 2010.

The Herrs filed suit under the Administrative Procedure Act.  The district court granted summary judgment in favor the USFS and Intervenors.  Although the court recognized that the Herrs’ littoral rights granted them the right to use their gas-powered motorboat, it ruled that they were not protected by the saving clause, because the Herrs did not own those rights in 1987 when the MWA was enacted.

The Herrs appealed to the Sixth Circuit.  In a 2-1 decision, the Sixth Circuit reversed the district court and found that the motorboat restrictions violated the MWA’s saving clause because they infringed on the Herrs’ rights under well-established Michigan property law.  The Sixth Circuit found that “Michigan courts have repeatedly indicated” that recreational boating “amounts to a reasonable use.”  Moreover, those property rights run with the land and were thus transferred to the Herrs upon purchase.  

The U.S. Forest Service did not seek certiorari.  However, a coalition of environmental groups that had intervened in the case did.  Petitioners alleged that the Sixth Circuit’s opinion conflicted with the Supreme Court’s decisions in Camfield v. United States, 167 U.S. 518 (1897) and Kleppe v. New Mexico, 426 U.S. 529 (1976) because it was a direct challenge to Congress’s exercise of its Property Clause power.  Respondents argued that, unlike in Kleppe and Camfield, the Sixth Circuit’s decision had nothing to do with the constitutionality of a statute.  Rather, the crux of Herr was the MWA’s saving clause and littoral rights under Michigan law.  

In denying certiorari, the U.S. Supreme Court affirmed a huge property rights victory for Michigan landowners.  

Christian B. Corrigan is an attorney at Mountain States Legal Foundation, a nonprofit, public interest law firm which has represented Respondents David and Pamela Herr in their battle against the U.S. Forest Service.  He is a member of the Federalism and Separation of Powers Practice Group Executive Committee.