89 F.3d 1269 (6th Cir. 1996), 94-1863, Stupak-Thrall v. United States

Docket Nº:94-1863.
Citation:89 F.3d 1269
Party Name:Kathy STUPAK-THRALL, Michael A. Gajewski, and Bodil Gajewski, Plaintiffs-Appellants, v. UNITED STATES of America and Daniel R. Glickman, Secretary of Agriculture, individually and in his official capacity, Defendants-Appellees.
Case Date:July 23, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1269

89 F.3d 1269 (6th Cir. 1996)

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

Gajewski, Plaintiffs-Appellants,

v.

UNITED STATES of America and Daniel R. Glickman, Secretary

of Agriculture, individually and in his official

capacity, Defendants-Appellees.

No. 94-1863.

United States Court of Appeals, Sixth Circuit

July 23, 1996

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

Todd S. Welch, Mountain States Legal Foundation, Denver, CO, 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 the U.S. Attorney, 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 the U.S. Attorney, Marquette, MI, for Michael Espy.

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

Before MERRITT, Chief Judge, and BROWN, KENNEDY, MARTIN, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, and COLE, Circuit Judges.

ORDER

The en banc court is equally divided in this case. Seven members favor affirmance of the judgment of the District Court, and seven favor reversal. Hence, as is customary under such circumstances, the judgment of the District Court is affirmed by an equally divided vote.

The mandate will not issue for fourteen (14) days from the date of this order so that members of the court may file any separate opinions they wish to. [*]

MOORE, Circuit Judge, concurring in the order.

It is unfortunate that after considerable expense of time and effort this case has resulted in no law of the circuit. Under such circumstances, there is undoubtedly little need to engage in lengthy debate in opinions lacking any precedential value. Nevertheless, I believe that due regard for Judge Boggs's opposing view compels a brief explanation of the view favoring affirmance. 1

Throughout this litigation, we have assumed that the plaintiffs' riparian rights may count as "valid existing rights" to which Forest Service regulations are "subject" under the wilderness acts. 2 The Chief of the Forest

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Service made this assumption when he ruled that the sailboat and houseboat prohibitions at issue in Amendment No. 1 were reasonable regulations that did not constitute a taking and therefore did not violate the "subject to" portion of the "subject to valid existing rights" language of the wilderness acts. Admin. R. 819-20. Even if deference to this interpretation of an ambiguous phrase were not appropriate under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), I would still hold that it was the correct interpretation. 3 All authorities are in agreement that the "subject to valid existing rights" language was essentially designed to restrain agencies from effecting a taking. See Utah v. Andrus, 486 F.Supp. 995, 1010 (D.Utah 1979); Adams v. United States, 3 F.3d 1254, 1259 (9th Cir.1993) (citing Utah v. Andrus 's holding with approval); Symposium on Valid Existing Rights, 5 J. Min. L. & Pol'y 381 (1989-90); Jan G. Laitos & Richard A. Westfall, Government Interference with Private Interests in Public Resources, 11 Harv. Envtl. L.Rev. 1 (1987). Congress, of course, can always take property, provided it pays just compensation (and provided it does not violate due process), 4 but Congress here has instructed the Forest Service not to do so. As a result, the remedy for an overreaching Forest Service regulation, rather than compensation, is an injunction. In other words, the "subject to valid existing rights" language appears to be Congress's "promise" to private property owners that, at a minimum, it will not take their property, even with just compensation.

Because we deal in this case with state-created property rights, it is appropriate to recognize that in certain instances, different states may define these rights by providing additional protection from government interference. For example, the government defendants here concede that Michigan has defined riparian rights in such a way that if the Forest Service or local government had attempted to deprive the plaintiffs of the ability to extract drinking water from the lake, the regulation would be invalid, even if it did not constitute a taking. See Thompson v. Enz, 379 Mich. 667, 154 N.W.2d 473, 483 (1967). On the other hand, the actual regulations in this case clearly do not infringe upon any of plaintiffs' core property interests under state law. Therefore, under this approach--a "takings plus" approach that accounts for both state-law property protections and a takings analysis as the federal, minimum standard of protection--there is no basis for invalidating the Forest Service's regulations.

Judge Boggs's opposing view essentially takes "subject to valid existing rights" to mean "without affecting valid existing rights in any way." 5 A careful reading of his

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opinion, however, reveals that this view relies on nothing but his own novel interpretation of the Organic Act, 16 U.S.C. § 551, and the Michigan Wilderness Act. As I have already indicated, all authorities are to the contrary, and Judge Boggs's citations, though copious, are nonetheless almost wholly irrelevant. The opposing view also apparently misunderstands the prior panel's determination that Congress had delegated its police power under the Property Clause to the Forest Service in the Organic Act and wilderness acts. Judge Boggs quotes at length from part IV of the panel opinion in describing the analysis as a "non sequitur." Dissenting opinion at 1290-1291. It is little wonder that he thinks so, since the panel's actual analysis of this point appears in part III. In part IV, the panel simply held that state law, via the "subject to valid existing rights" language, imposed the same restrictions on the Forest Service's exercise of federal police power that it did on a local government's exercise of state police power. See Stupak-Thrall, 70 F.3d at 889-90. This is the "plus" in the "takings plus" approach.

I doubt that even the opposing view would hold that the Forest Service's sailboat and houseboat regulations constituted a taking, especially since the district court noted that plaintiffs had failed to produce any evidence that sailboats or houseboats have ever been used on Crooked Lake. See Stupak-Thrall v. United States, 843 F.Supp. 327, 334 (W.D.Mich.1994). Indeed, the opposing view's core discussion of the takings issue is devoted merely to complaining about the scarcity of courts that have been confronted with the issue, and to describing just how "exceedingly difficult" a takings analysis can be. Dissenting opinion at 1295-96. This case, however, does not even come close to presenting such hypothetical difficulties. Although plaintiffs now argue on rehearing, for the first time, that sailboats have been used on the lake, occasional and recreational use of the type suggested by plaintiffs is clearly not enough to establish a taking. 6 Furthermore, although Judge Boggs is correct that statutes are to be interpreted whenever "fairly possible" so as to avoid constitutional questions, United States v. X-Citement Video, Inc., --- U.S. ----, ----, 115 S.Ct. 464, 467, 130 L.Ed.2d 372 (1994), it is certainly not "fairly possible" to do so when the statute is designed to address a constitutional issue.

The foregoing approach adopts the prior panel's recognition that plaintiffs' riparian rights have never included the right to be immune from reasonable regulation. Congress chose to "grandfather" private rights in the "subject to valid existing rights" phrase, but in doing so, it never intended that those rights be ossified against further regulation. In employing a takings inquiry, the foregoing approach also makes explicit a narrow limitation on the prior panel's analysis to ensure that the police power is exercised within reasonable bounds. With this slight clarification, I would adhere to the panel opinion in its entirety, and I incorporate it herein by reference. See Stupak-Thrall v. United States, 70 F.3d 881 (6th Cir.1995), vacated, 81 F.3d 651 (6th Cir.1996).

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Because it is clear to me that Amendment No. 1 did not effect a taking or otherwise violate state-law limits on police power regulation, I believe without hesitation that the district court's judgment upholding the wilderness regulations is properly affirmed.

MERRITT, C.J., and DAUGHTREY, J., concur in Judge MOORE'S opinion.

BOGGS, Circuit Judge, dissenting.

That this case has been controversial is apparent from its effect of splitting our court right down the middle. That at times it involves intricate statutory analysis also cannot be gainsaid. However, as I shall endeavor to demonstrate, it is basically a very simple case. 1 By their interpretation of a statutory phrase embodying an obvious legislative compromise, the district court and the members of the panel that first heard the case, joined now by four other members of this court, rupture that compromise without support in the text of the statute, its legislative history, or the purposes that Congress could plausibly have been attempting to achieve when it enacted the legislation at issue. In the words of Macbeth, the district court and these seven members of our court make the statute's words "keep the word of promise to our ear, and break it to our hope." (Macbeth, act V, sc. 7, lines 50-51).

Our usual practice in a case such as this is to issue a simple order affirming the district court's opinion by an equally divided court. The Supreme Court uses a similar practice. I recognize that by writing separately, I am...

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