843 F.Supp. 327 (W.D.Mich. 1994), 2 93-CV-65, Stupak-Thrall v. United States

Docket Nº:2 93-CV-65
Citation:843 F.Supp. 327
Party Name:Stupak-Thrall v. United States
Case Date:January 25, 1994
Court:United States District Courts, 6th Circuit, Western District of Michigan

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843 F.Supp. 327 (W.D.Mich. 1994)

Kathy STUPAK-THRALL, Plaintiff,


UNITED STATES of America and Michael Espy, Secretary of Agriculture, individually and in his official capacity, Defendants.

Michael A. GAJEWSKI and Bodil Gajewski, husband and wife, Plaintiffs,


UNITED STATES of America and Michael Espy, Secretary of Agriculture, individually and in his official capacity, Defendants.

Nos. 2:93-CV-65, 2:93-CV-66.

United States District Court, W.D. Michigan, Northern Division.

Jan. 25, 1994

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Mark D. Tousignant, Mark D. Tousignant, P.C., Iron River, MI, J. Bushnell Nielsen, Hinshaw & Culbertson, Milwaukee, WI, William Perry Pendley, John G. Nelson, Todd S. Welch, Mountain States Legal Foundation, Denver, CO, for Kathy Stupak-Thrall.

Judd R. Spray, Asst. U.S. Atty., Michael H. Dettmer, U.S. Atty., Marquette, MI, for defendants.

Mark D. Tousignant, Mark D. Tousignant, P.C., Iron River, MI, for Michael A. Gajewski, Bodil Gajewski.


QUIST, District Judge.

Plaintiffs in these consolidated cases are owners of recreational and resort property on the northern shore of Crooked Lake in the Upper Peninsula of Michigan. Most of Crooked Lake is within the Sylvania Wilderness, which is administered by the Department of Agriculture Forest Service (the Forest Service). Plaintiffs' actions seek review of a decision by the Forest Service to regulate various activities on Crooked Lake promulgated in Amendment No. 1 to its Land Resource Management Plan. They also claim that the restrictions in Amendment No. 1 constitute an unconstitutional taking without formal condemnation or payment of compensation for an interest in plaintiffs' property in violation of the Fifth Amendment. Plaintiff Stupak-Thrall claims $10,000 in compensation for the taking; the Gajewskis claim $40,000.

The issues were bifurcated and the parties have filed cross-motions for summary judgment on the first claim only, not the taking claim. At issue in the motions is whether Amendment No. 1 unlawfully infringes on plaintiffs' riparian rights or exceeds the constitutional authority of Congress under the Property Clause.

Background Information

Crooked Lake, as described by the Forest Service and as apparent on a map of the Sylvania Wilderness Area, is made up of several relatively large irregularly shaped bays, connected by narrow channels. All of Crooked Lake is within the Sylvania Wilderness except the northern shore of the north-most bay, where plaintiffs' property is located. Approximately 95% of the lake's shoreline is within the Wilderness. Amendment No. 1 regulates activities within the Sylvania Wilderness and thus applies to all but the bay on which the plaintiffs' property is located. The Amendment restrictions to which plaintiffs object are regulations prohibiting the use of houseboats and sailboats and discouraging the use of electronic fish-finders, boom-boxes, and other mechanical or battery operated devices.

Riparian rights are the rights of owners on the banks of watercourses to the use of the water, including rights to fish, boat, sail, swim, water ski, and ice skate. The owners share in common the right to make reasonable use of the entire surface of the lake. Hall v. Wantz, 336 Mich. 112, 116, 57 N.W.2d 462, 464 (1953); Burt v. Munger, 314 Mich. 659, 661, 23 N.W.2d 117, 119-20 (1946).

Plaintiffs claim that the restrictions in Amendment No. 1 interfere with their riparian rights and violate the Michigan Wilderness

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Act of 1987 (MWA) which provides that administration of the wilderness areas designated by the MWA shall be subject to "valid existing rights." They also argue that, even if the Forest Service acted within its authority under the Wilderness Act of 1964 (Wilderness Act) and the MWA in implementing Amendment No. 1, its action exceeds the government's constitutional authority under the Property Clause of the Constitution, Art. IV, § 3, cl. 2, because the Forest Service seeks to regulate plaintiffs' property, not property belonging to the United States, and is acting for a purpose not recognized under the Property Clause.

Plaintiffs appealed the decision to adopt Amendment No. 1 to the Regional Forester, who affirmed the decision on October 26, 1992. The Chief of the United States Forest Service affirmed the administrative decision on January 7, 1993. The Forest Service determined that Amendment No. 1 is authorized by the MWA and the Wilderness Act. The MWA, which designated the Sylvania Wilderness under the authority of the Wilderness Act, provides:

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 the Act as wilderness areas.

Pub.L. No. 100-181, 101 Stat. 1274, 1275-76 (1987). The Wilderness Act, in turn, provides:

Except as specifically provided for in this Act [16 USCS §§ 1131 et seq.], and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act [16 USCS §§ 1131 et seq.] and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act [16 USCS §§ 1131 et seq.] (including measures required in emergencies involving the health and safety of persons within the area), 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.A. § 1133(c). The Wilderness Act specifically provides that "the use of aircraft or motorboats, where these uses have already become established, may be permitted to continue subject to such restrictions as the Secretary of Agriculture deems desirable." 16 U.S.C.A. § 1133(d)(1). The Secretary thus has discretion to permit the use of motorboats on Crooked Lake, but has not been given discretion under the Wilderness Act to permit other motorized equipment or mechanical transport on the lake.

The Forest Service does not dispute that plaintiffs are riparian owners and have riparian rights to use the surface water of Crooked Lake under Michigan law. It argues that the "valid existing rights" language in the MWA does not protect plaintiffs' riparian rights because it refers only to subsurface mineral rights in the Nordhouse Dunes area and does not include riparian rights. The Forest Service also asserts that, if riparian rights are protected by the MWA or the Wilderness Act, the Forest Service is authorized to regulate them under the Property Clause and the reasonable use doctrine.

Standard of Review

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Plaintiffs and defendant agree that the facts in this case are not disputed and that the issues before the Court are purely issues of law.

In evaluating the decision of an administrative agency of the federal government, a court may set aside a regulation only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 41, 103 S.Ct. 2856, 2865, 77 L.Ed.2d 443 (1983). The factors to consider when a court reviews an agency's construction of a statute are set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984):

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When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

No deference need be shown to an agency decision when the issue is whether the agency acted within its authority and power or when the constitutionality of its action is questioned. See Borlem S.A.-Empreedimentos Industriais v. United States, 913 F.2d 933, 937 (Fed.Cir. 1990) ("deference should not apply when the issue is the legal scope of an agency's authority") (citing Social Sec. Bd. v. Nierotko, 327 U.S. 358, 369, 66 S.Ct. 637, 643, 90 L.Ed. 718 (1946)); Rydeen v. Quigg, 748 F.Supp. 900, 905 (D.D.C.1990), aff'd, 937 F.2d 623 (D.C.Cir. 1991), cert. denied, 502 U.S. 1075, 112 S.Ct. 974, 117 L.Ed.2d 138 (1992) ("when reviewing constitutional challenges to agency decisionmaking, courts make an independent assessment of the facts and the law") (citing Pickering v. Board of Educ. of Township High School Dist. 205, Will County, 391 U.S. 563, 578-79 n. 2, 88 S.Ct. 1731, 1739-40 n. 2, 20 L.Ed.2d 811 (1968)).

"Valid Existing Rights"

The Forest Service first justifies its regulation on the basis of statutory interpretation. It asserts that, under the MWA and the Wilderness Act, riparian rights are not included within the rights protected by the "valid existing rights" language. It notes that the MWA does not define the term "valid existing rights" and that the only instance in which the phrase is given substance in the MWA or in its legislative history is in connection with privately-owned mineral rights in the Nordhouse Dunes...

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