70 F.3d 881 (6th Cir. 1995), 94-1863, Stupak-Thrall v. United States

Docket Nº:94-1863.
Citation:70 F.3d 881
Party Name:Kathy STUPAK-THRALL, Michael A. Gajewski, and Bodil Gajewski, Plaintiffs-Appellants, v. UNITED STATES of America and Daniel R. Glickman, [1] Secretary of Agriculture, individually and in his official capacity, Defendants-Appellees.
Case Date:November 29, 1995
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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70 F.3d 881 (6th Cir. 1995)

Kathy STUPAK-THRALL, Michael A. Gajewski, and Bodil

Gajewski, Plaintiffs-Appellants,

v.

UNITED STATES of America and Daniel R. Glickman,

1 Secretary of Agriculture,

individually and in his official

capacity, Defendants-Appellees.

No. 94-1863.

United States Court of Appeals, Sixth Circuit

November 29, 1995

Argued Oct. 19, 1995.

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Todd S. Welch (argued and briefed), William P. Pendley, Mountain States Legal Foundation, Denver, CO, for Kathy Stupak-Thrall.

Todd S. Welch, Mark D. Tousignant, Iron River, MI, for Michael A. Gajewski, Bodil Gajewski.

Peter A. Appel (argued and briefed), U.S. Dept. of Justice, Land & Natural Resources Div., Washington, DC, Judd R. Spray, Office of U.S. Atty., Marquette, MI, for U.S.

John A. Bryson, Peter A. Appel, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, DC, Judd R. Spray, Office of U.S. Atty., Marquette, MI, for Michael Espy.

Walter Kuhlman (briefed), Boardman, Suhr, Curry & Field, Madison, WI, amicus curiae for Upper Peninsula Environmental Coalition.

Before: BROWN, NELSON, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

The extent and validity of federal power under the Wilderness Act of 1964 and the Michigan Wilderness Act of 1987 form the central issues of this appeal. Plaintiffs are possessors of surface rights to a lake, held in common with the United States. They challenge certain United States Forest Service restrictions on activities on the lake, claiming that they are beyond the Forest Service's statutory and constitutional authority. The district court upheld the restrictions, finding them to be within the power granted by the Property Clause of Article IV, Section 3, Clause 2, and finding that plaintiffs' property rights were subject to reasonable regulation under Michigan law. Because we conclude that the Property Clause gives Congress the power to regulate the lake, that Congress has delegated authority to the Forest Service to regulate the lake, and that regulation of the lake does not exceed the wilderness acts' express limitations deferring to state law property rights, we affirm.

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I

Plaintiffs own land on the northern shore of Crooked Lake, in Michigan's Upper Peninsula near the Wisconsin border. Because of their ownership, plaintiffs possess "riparian," or "littoral," rights under Michigan law--i.e., common property interests in Crooked Lake's surface. 2 Plaintiffs have the right to make reasonable use of the entire surface, which includes, at core, those uses "absolutely necessary for the existence of the riparian proprietor and his family, such as to quench thirst and for household purposes." Thompson v. Enz, 379 Mich. 667, 154 N.W.2d 473, 483 (1967). Additional, though less fundamental, riparian uses include "those which merely increase one's comfort and prosperity ... such as commercial profit and recreation." Id., 154 N.W.2d at 484. The United States is also a riparian owner. In fact, the vast majority of Crooked Lake's shoreline, about 95%, lies within the Sylvania Wilderness Area, a national wilderness administered by the Forest Service, and private riparian ownership such as plaintiffs' exists only along a tiny bay jutting out to the north of the wilderness. Nevertheless, the nature of riparian ownership is such that each owner shares rights to the whole lake, so long as his or her land touches the lake waters. Rice v. Naimish, 8 Mich.App. 698, 155 N.W.2d 370, 373 (1967).

At issue are certain management prescriptions of the Forest Service relating to the portion of Crooked Lake lying within the Sylvania Wilderness Area. Amendment No. 1, adopted by the Forest Service in 1992 to amend its national forest land and resource management plan governing the Sylvania Wilderness, prohibits, among other things, the use of "sail-powered watercraft," "watercraft designed for or used as floating living quarters," and "[n]onburnable disposable food and beverage containers" in the wilderness. (Admin.Rec.36, 38.) Land and resource management plans are prepared under the guidelines of 16 U.S.C. Sec. 1604 and 36 C.F.R. Sec. 219, which provide for notice and opportunity to comment on proposed plans and amendments, and Amendment No. 1 was properly adopted pursuant to this framework. Notably, Amendment No. 1 has no effect on the small bay outside the wilderness area on which plaintiffs' properties lie. But because plaintiffs have riparian rights in the whole surface of Crooked Lake, they claim that Amendment No. 1's restrictions on sailboats, houseboats, and food containers are an unauthorized infringement of their rights to unrestricted use of the entire lake. According to plaintiffs, both the Wilderness Act of 1964 ("Wilderness Act"), 16 U.S.C. Secs. 1131-1136, which established the National Wilderness Preservation System, and the Michigan Wilderness Act of 1987 ("MWA"), Pub.L. No. 100-184, 101 Stat. 1274, which specifically established the Sylvania Wilderness, expressly limit the power of the federal government to regulate in the face of private property rights. The Wilderness Act states:

Except as specifically provided for in this chapter, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this chapter and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this chapter ... there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area.

16 U.S.C. Sec. 1133(c) (emphasis added). The MWA, incorporating the Wilderness Act by reference, states:

Subject 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 of 1964 governing areas designated by that Act as wilderness areas....

Pub.L. No. 100-184, Sec. 5, 101 Stat. 1274, 1275-76 (1987) (emphasis added). Because

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of this "subject to existing rights" language, plaintiffs argue that the Secretary of Agriculture (and hence the Forest Service) is sharply limited in regulating the Sylvania Wilderness insofar as such regulation affects plaintiffs' "existing" rights in Crooked Lake. Plaintiffs contend that, absent clear authorization by Congress, the Forest Service may only impose restrictions on property that is exclusively federal. They assert that property that is owned jointly by individuals and the government, such as the surface of Crooked Lake, must be deemed "non-federal" for purposes of Forest Service regulations. In plaintiffs' view, the Forest Service may not limit the ability of riparian owners to navigate Crooked Lake's surface in their watercraft of choice.

Plaintiff Kathy Stupak-Thrall initially challenged the promulgation of Amendment No. 1 with the Forest Service, in accordance with the appeal procedures of 36 C.F.R. Sec. 217. The Regional Forester denied Thrall's first-level appeal, finding that "valid existing rights" in the MWA referred only to mineral rights in a different Michigan wilderness. 3 The Regional Forester also noted that even if riparian rights were "valid existing rights," the Forest Service could still regulate them pursuant to the Wilderness Act and the Property Clause. The Chief of the Forest Service exercised discretionary review of the Regional Forester's decision, affirming it in all respects. Thrall then sought review in the U.S. District Court for the Western District of Michigan, appending a claim of taking without just compensation. At the same time, plaintiffs Michael Gajewski and Bodil Gajewski filed suit in the same court, also challenging Amendment No. 1 and raising a taking claim. Although the United States moved to dismiss the Gajewskis' action, based on their failure to exhaust administrative remedies, the district court consolidated the case with Thrall's. Both sides moved for summary judgment, there being no material facts at issue. The district court disagreed with the Forest Service's determination that riparian rights were not "valid existing rights" under the MWA, 4 but it nonetheless granted a partial summary judgment for the United States on the issue of the validity of Amendment No. 1. Stupak-Thrall v. United States, 843 F.Supp. 327 (W.D.Mich.1994). The court observed that the Property Clause and Wilderness Act gave broad authority to the Forest Service to regulate "nonfederal as well as federal property" in order to protect the latter. Id. at 331-32. In addition, the court held that the regulations were permissible under Michigan law under the "reasonable use" doctrine. Id. at 333-34. Plaintiffs moved to dismiss the remaining taking claim without prejudice, so that an immediate appeal might be taken of the summary judgment. The motion was granted, and plaintiffs timely filed a notice of appeal.

II

We review a district court's award of summary judgment de novo. City Management Corp. v. U.S. Chemical Co., 43 F.3d 244, 250 (6th Cir.1994). In other words, we review the Forest Service's decision to adopt Amendment No. 1 under the same standards employed by the district court itself. As an initial matter, we are faced with the question of the Forest Service's constitutional authority to regulate Crooked Lake. The constitutionality of an agency's action is subject to plenary review. 5 U.S.C. Sec. 706(2)(B).

The Forest Service's authority is grounded in Congress's authority under the Property Clause, which declares that "The Congress shall have Power to dispose of and make all

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needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Const. art. IV, Sec. 3, cl. 2. Contrary to plaintiffs' apparent assertions, Congress's inherent authority...

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