Court sides with boaters in Mich. case
Amanda Reilly, E&E News reporter
January 4, 2018

A federal court rejected environmentalists' argument to rehear a split decision over boating rights at Crooked Lake in Michigan. Charles Dawley/Flickr

A federal court today rejected environmentalists' plea to reconsider a split decision finding that a Forest Service ban on motorboat use violated a Michigan couple's rights.

The 6th U.S. Circuit Court of Appeals issued an order denying a petition for rehearing filed by the Chicago-based Environmental Law & Policy Center, which is representing environmental groups in the case. The order said less than a majority of judges voted for rehearing the case en banc, or in front of the full court.

The case centers on the extent of the government's authority to police public lands.

David and Pamela Herr challenged the Forest Service's 2013 decision to enforce a motorboating ban on Crooked Lake within the Sylvania Wilderness. The couple, who in 2010 bought two waterfront lots on the north end of the lake with the intention of boating, argued they had valid "littoral rights," or the authority to use lakes on or adjacent to their property.

A lower court ruled twice in favor of the Forest Service, but the 6th Circuit in June overturned the latest decision, finding the Herrs obtained existing rights to use the water when they purchased their plots along Crooked Lake in 2010. Michigan has long recognized boating as "one stick in the bundle" of littoral rights, Judge Jeffrey Sutton, a George W. Bush appointee, wrote for the court (E&E News PM, July 26, 2017).

Judge Bernice Donald, an Obama appointee, dissented, finding that the federal government may impose "reasonable restrictions" on individuals' littoral rights "when expressly authorized by Congress to do so."

Howard Learner, executive director of the Environmental Law & Policy Center, in September asked for a rehearing in the case on behalf of environmental intervenors Sylvania Wilderness Cabins, Tim Schmidt, Friends of Sylvania and the Upper Peninsula Environmental Coalition.

The group argued the Forest Service has authority over the Sylvania Wilderness that's analogous to state police power and that authority is not contingent on whether Michigan has enacted a ban on gas-powered motorboats. ELPC also argued that the Forest Service's motorboat limits "are reasonable under Michigan law."

Donald, the judge who dissented, would have granted rehearing, according to today's court order. The environmental groups could still appeal the decision to the Supreme Court.

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