Herr v. U.S. Forest Serv.

• Decision Date: 13 June 2016
• Docket Number: Case No. 2:14–cv–105
• Citation: 212 F.Supp.3d 720
• Parties: David A. HERR and Pamela F. Herr, Plaintiffs, v. UNITED STATES FOREST SERVICE, Tom Vilsack, Tom Tidwell, Kathleen Atkinson, Anthony Scardina, and Norman E. Nass, Defendants, v. SWC, LLC, d/b/a Sylvania Wilderness Cabins, Timothy A. Schmidt, Friends of Sylvania, Upper Peninsula Environmental Coalition., Intervenors–Defendants.
• Court: U.S. District Court — Western District of Michigan

212 F.Supp.3d 720

David A. HERR and Pamela F. Herr, Plaintiffs,

v.UNITED STATES FOREST SERVICE, Tom Vilsack, Tom Tidwell, Kathleen Atkinson, Anthony Scardina, and Norman E. Nass, Defendants,

v.SWC, LLC, d/b/a Sylvania Wilderness Cabins, Timothy A. Schmidt, Friends of Sylvania, Upper Peninsula Environmental Coalition., Intervenors–Defendants.

Case No. 2:14–cv–105

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

Signed June 13, 2016

Steven J. Lechner, Mountain States Legal Foundation, Lakewood, CO, for Plaintiffs.

Ryan D. Cobb, U.S. Attorney, Grand Rapids, MI, for Defendants.

OPINION

HON. R. ALLAN EDGAR, UNITED STATES DISTRICT JUDGE

The waters of Crooked Lake in the western portion of Michigan's Upper Peninsula bear the seeds of endless litigation. See Stupak–Thrall v. United States , 843 F.Supp. 327 (W.D. Mich. 1994), affirmed , 70 F.3d 881 (6th Cir. 1995), rehearing en banc granted and opinion vacated , 81 F.3d 651 (6th Cir. 1996), affirmed en banc by an equally divided court , 89 F.3d 1269 (6th Cir. 1996), cert. denied , 519 U.S. 1090, 117 S.Ct. 764, 136 L.Ed.2d 711 (1997) ( " Stupak–Thrall I "); see also Stupak–Thrall v. Glickman , 988 F.Supp. 1055 (W.D. Mich. 1997) (" Stupak–Thrall II "). The story begins with Congress' enactment of the Wilderness Act of 1964 (Wilderness Act), which established the Natural Wilderness Preservation System. See 16 U.S.C. § 1131 –1136. In 1987 Congress enacted the Michigan Wilderness Act (MWA), which created the Sylvania Wilderness Area (Sylvania) from portions of the Ottawa National Forest. Sylvania is managed by the U.S. Forest Service. Ninety-five percent of the land surrounding Crooked Lake lies within the Sylvania Wilderness Area, while five percent, located at the north end of the lake, is privately owned. The Plaintiffs in this case, David and Pamela Herr, purchased property within this five percent section in 2010. Their claim is that the Forest Service lacked authority to promulgate an amendment (Amendment Five) to the area's forest plan, beginning in 1996. The amendment states that:

Beginning April 1, 1996, only electric motors with a maximum size of 24 volts or 48 pounds thrust (4 horsepower equivalent) or less will be permitted on Big Bateau, Crooked, and Devil's Head Lakes within the Sylvania Wilderness. All watercraft on these lakes are restricted to a slow no-wake speed.

Stupak–Thrall II , 988 F.Supp. at 1058 n.2 (quoting Amendment Five). Amendment Five applies to the portion of the Lake that is within the Sylvania Wilderness Area (the ninety-five percent). See Stupak–Thrall I , 843 F.Supp. at 333. Plaintiffs seek to enjoin the Forest Service from enforcing the motorboat restrictions against them, their guests, licensees, and successors. The case is now before the court on cross-motions for summary judgment, as well as the motion by Defendant–Intervenors for summary judgment.¹

I.

Summary judgment is appropriate only if the moving party establishes that there is no genuine issue of material fact for trial and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322–323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant carries the burden of showing there is an absence of evidence to support a claim or defense, then the party opposing the motion must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. , 477 U.S. at 324–25, 106 S.Ct. 2548. The nonmoving party cannot rest on its pleadings but must present "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(e) ). The evidence must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, any direct evidence offered by the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v. Close , 379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v. Metiva , 31 F.3d 375, 382 (6th Cir. 1994) ). However, a mere scintilla of evidence in support of the nonmovant's position will be insufficient. Anderson , 477 U.S. at 251–52, 106 S.Ct. 2505. Ultimately, the court must determine whether there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505 ; see also Leahy v. Trans Jones, Inc. , 996 F.2d 136, 139 (6th Cir. 1993) (single affidavit, in presence of other evidence to the contrary, failed to present genuine issue of fact); cf. Moore, Owen, Thomas & Co. v. Coffey , 992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit concerning state of mind created factual issue).

II.

Plaintiffs claim that the Forest Service engaged in unlawful agency action by promulgating Amendment Five, which regulates motorboat usage on Crooked Lake. PageID.62–66. To succeed on their claim, Plaintiffs must demonstrate that the Forest Service's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In deciding whether an agency's action is arbitrary or capricious, the Court must follow a two-step analysis, as outlined in 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) :

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.

Chevron , 467 U.S. at 842–43, 104 S.Ct. 2778. "A court's review of an agency's action for arbitrary and capricious conduct is an extremely deferential one." Ukrainian Autocephalous Orthodox Church v. Chertoff , 630 F.Supp.2d 779, 784 (E.D. Mich. 2009) (citing Chevron , 467 U.S. at 844, 104 S.Ct. 2778 ). However, no deference to an agency's decision or action is necessary "when the issue is whether the agency acted within its authority and power or when the constitutionality of its action is questioned." Stupak–Thrall I , 843 F.Supp. at 330 (listing string cite). Notably, "an agency literally has no power to act ... unless and until Congress confers power upon it." Louisiana Pub. Serv. Comm'n v. F.C.C. , 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986).

A. Authority to Regulate

In determining whether Amendment Five should be upheld, the Court must first determine whether the Forest Service had the authority to regulate Crooked Lake. See Louisiana Pub. Serv. Comm'n , 476 U.S. at 374, 106 S.Ct. 1890 (noting Congress must give the agency power to act). Upon review of this issue, it is clear that the Forest Service is authorized to regulate Crooked Lake under the Wilderness Act of 1964 and the MWA, through the United States Constitution's Property Clause.

There is no doubt that Congress has the constitutional authority to regulate Crooked Lake pursuant to the Property Clause. U.S. Const. Art. IV, § 3, cl. 2. This Clause provides that "Congress shall have the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Id. (emphasis added). The Supreme Court has held that " ‘needful’ regulations ‘respecting’ government property will sometimes include the exercise of power over purely private property, in order to ensure adequate protection of the federal interest." Stupak–Thrall I , 70 F.3d at 885 (citing Camfield v. United States , 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260 (1897) (holding that Congress could prohibit fences on private property that blocked access to federal lands)); Kleppe v. New Mexico , 426 U.S. 529, 538, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976) (holding that Congress, under the Property Clause, may regulate wild animals on public land); United States v. Alford , 274 U.S. 264, 47 S.Ct. 597, 71 L.Ed. 1040 (1927) (upholding congressional laws that prohibit building fires on or near any federal property and the failure to extinguish them); see also Burlison v. United States , 533 F.3d 419, 432–33 (6th Cir. 2008) (finding that, under the Property Clause, Congress may impose regulations over public land that may affect private property rights in easements over the public land). The Forest Service's authority to regulate Crooked Lake is grounded in Congress's authority to do so under the Property Clause. See Stupak–Thrall I , 843 F.Supp. at 331–32.

In general, under the Property Clause, Congress has broad authority to decide what are "needful" regulations "respecting" federal property. See Kleppe , 426 U.S. at 536, 96 S.Ct. 2285 ("[W]e must remain mindful that, while courts must eventually pass upon them, determinations under the Property Clause are entrusted primarily to the judgment of Congress."). Here, Congress clearly used this broad authority when it enacted both the Wilderness Act of 1964 and the MWA. The regulatory objective of these two enactments is to "preserve the wilderness character" of designated wilderness areas, such as Sylvania. 16 U.S.C. § 1133(b) ; Pub. L. No. 100–184, 101 Stat. 1274(Dec. 8, 1987). Based on this objective, it is clear that Congress intended for the Forest Service to create rules and regulations to preserve Sylvania, even if those regulations affect private lands. See Burlison , 533...