Herr v. U.S. Forest Serv.

Decision Date09 October 2015
Docket NumberNo. 14–2381.,14–2381.
Citation803 F.3d 809
PartiesDavid A. HERR ; Pamela F. Herr, Plaintiffs–Appellants, v. UNITED STATES FOREST SERVICE, et al., Defendants–Appellees, SWC, LLC, et al., Intervenors.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED:Steven J. Lechner, Mountain States Legal Foundation, Lakewood, Colorado, for Appellants. Mark R. Haag, United States Department Of Justice, Washington, D.C., for Appellees. Jennifer E. Tarr, Environmental Law & Policy Center, Chicago, Illinois, for Intervenors. ON BRIEF:Steven J. Lechner, Mountain States Legal Foundation, Lakewood, Colorado, for Appellants. Mark R. Haag, United States Department of Justice, Washington, D.C., for Appellees. Jennifer E. Tarr, Howard A. Learner, Environmental Law & Policy Center, Chicago, Illinois, Robert L. Graham, Chicago, Illinois, for Intervenors.

Before: SUTTON and DONALD, Circuit Judges; ZOUHARY, District Judge.*


SUTTON, Circuit Judge.

David and Pamela Herr bought waterfront property on Crooked Lake in the Upper Peninsula of Michigan and planned to use their gas-powered motorboat on it. That plan was dashed when the U.S. Forest Service threatened to enforce a regulation that bans non-electric motorboats from the ninety-five percent of the lake that falls within a National Wilderness Area. The Herrs responded with this lawsuit, seeking to enjoin enforcement of the regulation on the ground that the relevant federal statute preserves their state-law property right to use all of the lake. The district court held that a six-year time bar on the action was jurisdictional and that the Herrs had waited too long to file this lawsuit. We reverse based in large part on a Supreme Court decision handed down after the district court's decision. See United States v. Kwai Fun Wong, ––– U.S. ––––, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015).


Nestled in old-growth forest 120 miles from Marquette, Crooked Lake is three miles long and is one of thirty-six interconnected glacial lakes that offer all manner of activities for those who appreciate the outdoors. Most of Crooked Lake rests in the federally protected Sylvania Wilderness Area, which the U.S. Forest Service oversees under the Michigan Wilderness Act of 1987, 101 Stat. 1274. A National Wilderness Area like Sylvania “preserv[es] the wilderness character of [an] area” by minimizing human impact. 16 U.S.C. § 1133(b). One way the Act advances this goal is by prohibiting motorized vehicles in the area except those permitted by the Forest Service. Id. § 1133(c), (d)(1).

That rule would seem to bar gas-powered motorboats from Crooked Lake, and for the most part that is true. See 36 C.F.R. § 293.6. But a sliver of the lake—the northern part of the northernmost bay—falls outside the Sylvania Wilderness and thus beyond the Forest Service's reach. On the northern shore of that bay sits the only private property on Crooked Lake: approximately ten privately owned lots. For some time, the owners have used gas-powered motorboats on the lake's waters.

No one protests the use of these motorboats on the part of the lake outside the wilderness. But inside the protected zone, the Forest Service says, the landowners, like the general public, must abide by all restrictions on motorized boats. One restriction, found in the Forest Service's 2006 forest-management plan for the Sylvania Wilderness, bans motorboats from the wilderness portion of Crooked Lake except for those powered by electric motors with less than four horsepower. U.S. Forest Serv., Final Environmental Impact Statement for 2006 Ottawa National Forest Plan 3–48 (2006). The agency may punish violations of the requirement with a fine of up to $5,000 or a prison sentence of up to six months (or both). See 16 U.S.C. § 551 ; 18 U.S.C. §§ 3559(a)(7), 3571(b)(6).

When this restriction went into effect, David and Pamela Herr, a married couple, were occasional visitors to Crooked Lake, having vacationed there at various times since 1979. In September 2010, they became landowners, buying two of Crooked Lake's waterfront lots. One reason the couple bought the property was to “use gas-powered motorboats” on the lake. R. 4 at 11. That would not pose a problem, the seller said, because he had boated “on the entire surface of Crooked Lake without hindrance by the Forest Service.” Id.

At first no problems arose after the Herrs bought the property. “Each summer from 20102012,” the couple bought “a pass from the Forest Service ... to use the Forest Service boat landing on Crooked Lake” as lake access for “their gas-powered motorboat.” Id. They used “the entire surface of Crooked Lake” during that time, and the Forest Service never stopped them. Id.

Things changed in 2013. The Forest Service informed the Herrs by letter that local “Forest Service personnel [would start] fully enforc[ing] the motorboat restrictions against them (and others) “within the wilderness portion of Crooked Lake.” R. 4–5 at 2. Until this letter, so far as the pleadings show, the Forest Service had not enforced the 2007 forest order against private landowners.

In May 2014, the Herrs filed this lawsuit under the Administrative Procedure Act to enjoin the Forest Service from enforcing the motorboat restriction against them. See 5 U.S.C. § 702. Their lawsuit turned on two legal premises—one state, one federal. Under state law, lakefront real estate owners have a property right to use the entire surface of the lake for boating and sailing. People v. Hulbert, 131 Mich. 156, 91 N.W. 211, 211–12, 218 (1902). Under federal law, the Forest Service's authority over Crooked Lake is [s]ubject to valid existing rights.” Michigan Wilderness Act, § 5, 101 Stat. 1274, 1275; see 36 C.F.R. § 293.3. Two environmental organizations and two other Crooked Lake property owners intervened to support the Forest Service. The private-party intervenors hope to preserve the peace and quiet of the area's [p]ristine glacial lakes”—with their accompanying “world-class smallmouth bass fisheries,” R. 15–1 at 1, often accessed by canoes, kayaks, or boats that run on small electric-powered motors. The district court dismissed the Herrs' 2014 complaint for lack of jurisdiction, reasoning that the limitations period governing this action was jurisdictional, that the six-year limitations clock started when the Forest Service issued the relevant order in 2007, and that the limitations period ended in 2013—one year before they filed the lawsuit.


The Herrs' appeal raises two questions: (1) Does the statute of limitations (28 U.S.C. § 2401(a) ) impose a jurisdictional barrier on the power of the federal courts to hear this case? And (2) did the six-year limitations period run before they filed this lawsuit?


Jurisdiction. For the last decade, the Supreme Court has been on a mission to rein in profligate uses of “jurisdiction,” a word with “many, too many, meanings.” Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). The meaning that counts here, and the one the Court has become disciplined about distinguishing from others, is subject-matter jurisdiction. Properly understood, subject-matter jurisdiction turns on whether a federal court has “statutory or constitutional power to adjudicate the case before it. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). The stakes of the inquiry are high. In the absence of subject-matter jurisdiction, a federal court must dismiss the lawsuit—no matter how far along the litigation has progressed (including to the last-available appeal), no matter whether the parties forfeitedthe issue, no matter indeed whether the parties have waived it. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434–35, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ; see Fed.R.Civ.P. 12(h)(3). That is strong medicine for litigants, attorneys, and judges alike. Before the courts will assume that Congress has imposed such a limit on its power, they require the legislature to “clearly state[ ] that a given statute implicates the judiciary's subject-matter jurisdiction. Sebelius v. Auburn Reg'l Med. Ctr., ––– U.S. ––––, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013) ; see also, e.g., Henderson, 562 U.S. at 435–36, 131 S.Ct. 1197 ; Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161–62, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) ; Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs, Cent. Region, 558 U.S. 67, 81, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009). Our court has picked up on the message. See Brentwood at Hobart v. NLRB, 675 F.3d 999, 1002–04 (6th Cir.2012) ; Hoogerheide v. IRS, 637 F.3d 634, 636 (6th Cir.2011).

Kwai Fun Wong, decided after the district court's decision in this case, applied this clear-statement rule to a neighboring statute of limitations that, like § 2401(a), governs lawsuits against the federal government. See 28 U.S.C. § 2401(b). Here is what that statute says: “A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” Id. Deploying “traditional tools of statutory construction,” the Court concluded that § 2401(b) was not jurisdictional. Kwai Fun Wong, 135 S.Ct. at 1632. The statute's text “does not speak in jurisdictional terms,” the Court noted, “or refer in any way to the jurisdiction of the district courts.” Id. at 1633. It merely “say[s] only what every time bar, by definition, must: that after a certain time a claim is barred.” Id. at 1632. The Court also observed that, when Congress enacted § 2401(b) as part of the Federal Tort Claims Act, it placed the Act's jurisdictional provisions apart from the statute of limitations. Id. at 1633. Congress's separation of a filing deadline from a jurisdictional grant...

To continue reading

Request your trial
53 cases
  • Island Creek Coal Co. v. Bryan
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 11, 2019
    ...EPA v. EME Homer City Generation, L.P. , 572 U.S. 489, 512, 134 S.Ct. 1584, 188 L.Ed.2d 775 (2014) ; Herr v. U.S. Forest Serv. , 803 F.3d 809, 822 (6th Cir. 2015). The law grants the courts of appeals adjudicative authority over "a final order of the Board," 33 U.S.C. § 921(c), and Island C......
  • Chance v. Zinke
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 6, 2018
    ...has been on a mission to rein in profligate uses of ‘jurisdiction,’ a word with ‘many, too many, meanings.’ " Herr v. U.S. Forest Serv. , 803 F.3d 809, 813 (6th Cir. 2015) (quoting Arbaugh v. Y & H Corp. , 546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ); see also, e.g. , Auburn......
  • Jafarzadeh v. Nielsen
    • United States
    • U.S. District Court — District of Columbia
    • August 6, 2018
    ...was derived from the Little Tucker Act, which once shared a statute of limitations with the Big Tucker Act, see Herr v. U.S. Forest Serv., 803 F.3d 809, 817 (6th Cir. 2015) —a law whose statute of limitations is jurisdictional, see John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 1......
  • Cole v. United States
    • United States
    • U.S. District Court — Western District of Tennessee
    • August 3, 2018
    ...Furthermore, even though the FTCA's "limitations period is not jurisdictional," it is nonetheless "mandatory." Herr v. U.S. Forest Serv., 803 F.3d 809, 818 (6th Cir. 2015); see Hawver v. United States, 808 F.3d 693, 694 (6th Cir. 2015) (explaining that the United States Supreme Court's opin......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT