Stupak-Thrall v. Glickman

• Decision Date: 03 October 2003
• Docket Number: No. 99-1666.,99-1666.
• Citation: 346 F.3d 579
• Parties: Kathy STUPAK-THRALL, et al., Plaintiffs-Appellants, v. Daniel GLICKMAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

346 F.3d 579

Kathy STUPAK-THRALL, et al., Plaintiffs-Appellants, v. Daniel GLICKMAN, et al., Defendants-Appellees.

No. 99-1666.

United States Court of Appeals, Sixth Circuit.

Argued: August 10, 2001.

Decided and Filed: October 3, 2003.

COPYRIGHT MATERIAL OMITTED

ARGUED: Adam T. Reeves, Mountain States Legal Foundation, Denver, CO, Steven J. Lechner, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood, Colorado, for Appellants.

Todd S. Kim, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

ON BRIEF: William Perry Pendley, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood, Colorado, for Appellants.

Mark R. Haag, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Land & Natural Resources Division, Washington, DC, Robert I. Dodge, U.S. Attorney's Office for the Western District of Michigan, Grand Rapids, MI, Judd R. Spray, U.S. Attorney's Office, Marquette, MI, for Defendants-Appellees.

Elizabeth H. Schmiesing, William L. Underwood, FAEGRE & BENSON, Minneapolis, Minnesota, for Amici Curiae.

Before: KEITH, BATCHELDER, and MOORE, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Plaintiffs-Appellants, seeking a declaration that Crooked Lake is not part of the Sylvania Wilderness area and therefore is not within the regulatory authority of the United States Forest Service, appeal the district court's decision dismissing as time-barred their claim against the United States. Because we find that the plaintiffs' claims are untimely and that the government did not waive its right to raise a statute of limitations defense, we will AFFIRM the district court's grant of summary judgment.

I.

The plaintiffs are property owners holding certain riparian rights to the use of Crooked Lake, located in the Ottawa National Forest in Michigan's Upper Peninsula. In 1987, Congress enacted the Michigan Wilderness Act ("MWA"), 101 Stat. 1274, which created the Sylvania Wilderness Area from portions of the Ottawa National Forest. As a federal Wilderness Area, the region fell under the rule-making authority of the United States Forest Service. The Forest Service began the process of amending the Land Resource Management Plan ("LRMP") for the Ottawa National Forest to include regulation of the Sylvania area. The process allowed for public meeting and public comment as provided by 16 U.S.C. § 1604 and 36 C.F.R. § 219. There is no dispute that the Forest Service followed the proper administrative procedure in adopting the amendments to the LRMP.

On April 20, 1992, the Forest Service announced "Amendment No. 1" to the LRMP, which dramatically restricted certain activities on the portion of the lake lying within the Wilderness Area. The amendment prohibited the use of sailboats, houseboats and disposable food and beverage containers on the wilderness portion of the Lake. The plaintiffs filed suit in 1993 challenging Amendment No. 1. See Stupak-Thrall v. United States ("Stupak-Thrall I"), 843 F.Supp. 327 (W.D.Mich. 1994), aff'd 70 F.3d 881 (6th Cir.1995), vacated, 81 F.3d 651 (6th Cir.), aff'd by equally divided en banc court, 89 F.3d 1269 (6th Cir.1996). The district court ruled against the plaintiffs on the issues of whether creation of the Wilderness Area was within the bounds of congressional power, and whether the government had effected a taking by issuing rules governing use of the lake. The plaintiffs did not raise any contention in that case that the lake was not part of the Wilderness Area. The district court's decision was affirmed by an equally divided en banc court.

In 1995, again dramatically altering the riparian¹ owners' use of Crooked Lake, the Forest Service adopted "Amendment No. 5," which prohibited the use of all gasoline-powered motors on the lake, limited electric motors to four horsepower, and imposed a "no-wake" speed limit and other limitations. The plaintiffs again filed suit challenging the regulation of Crooked Lake by the Forest Service. See Stupak-Thrall v. Glickman, ("Stupak-Thrall II"), 988 F.Supp. 1055 (W.D.Mich.1997), appeal pending. As was true in the first case, the plaintiffs raised no contention in this second case that Crooked Lake was not properly part of the Sylvania Wilderness Area. Although the district court in Stupak-Thrall II held that the Amendment No. 5 is invalid as applied to the plaintiffs, the court's decision is premised on the proposition that "[n]inety-five percent of Crooked Lake lies within the boundaries of the Sylvania Wilderness." Id. at 1058. The appeal in Stupak-Thrall II is being held in abeyance pending resolution of this appeal.

In the instant case, the plaintiffs claim for the first time that Crooked Lake is not part of the Wilderness Area, and is therefore beyond the scope of federal regulation. They seek a permanent injunction requiring the Forest Service to exclude the lake from its official map of the area. After hearing argument on cross-motions for summary judgment, the district court held that the riparian owners' claims are barred by the statute of limitations. On appeal, in an apparent attempt to avoid a problem with the statute of limitations, the plaintiffs not only argue that Crooked Lake should not be part of the wilderness, they focused their oral argument on the Forest Service's failure to complete the official map and legal description of the Sylvania Wilderness Area as required by Section 4 of the MWA. Because the map is not complete, the plaintiffs argue, their cause of action cannot be time-barred. Under the Administrative Procedure Act ("APA"), plaintiffs seek to compel the Forest Service to complete the map and legal description of the Sylvania Wilderness Area, to exclude Crooked Lake from the Wilderness Area, and to finally determine the extent of the Forest Service's regulatory authority over Crooked Lake.

II.

We review a district court's grant of summary judgment de novo, using the same standard under Rule 56(c) used by the district court, Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc), and we consider the record as it stood before the district court at the time of its ruling. Niecko v. Emro Marketing Co., 973 F.2d 1296, 1303 (6th Cir.1992). Summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed R.Civ.P. 56(c). We view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To withstand summary judgment, the non-movant must present sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990). A mere scintilla of evidence is insufficient; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

At the outset, we must clearly articulate what we believe to be the essence of the plaintiffs' claims in this case. From the complaint filed with the district court and the briefs before this court, it is clear that the plaintiffs seek redress for a perceived injury arising from the inclusion of Crooked Lake within the Sylvania Wilderness Area. However, the plaintiffs raise in their briefs, and stressed during oral argument, that their injury also grows from the Forest Service's failure to complete the official map and legal description, invoking 5 U.S.C. § 706(1) of the APA.²

We find this latter contention to be a disingenuous argument made by the plaintiffs in an attempt to circumvent the district court's finding that their claims are time-barred. The complaint does not seek to compel any agency action, let alone the completion of the map and the legal description. Before the district court, the plaintiffs sought injunctive relief against the Forest Service to prohibit the Forest Service from acting, relief that is wholly outside the scope of 5 U.S.C. § 706(1) and entirely contrary to their intention — as presented during oral argument — to compel the Forest Service to act. Moreover, if the plaintiffs were truly claiming that their cause of action arises from the Forest Service's failure to act, they would lack standing to bring this claim. Failure to establish standing is a jurisdictional defect. See Lewis v. Casey, 518 U.S. 343, 349 n. 1, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). To satisfy the requirements of Article III standing, "a plaintiff must, generally speaking, demonstrate that he has suffered `injury in fact,' that the injury is `fairly traceable' to the actions of the defendant, and that the injury will likely be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). It is not the government's failure to complete the mapping of the Sylvania Wilderness Area that causes the injury of which plaintiffs complain, it is the inclusion of Crooked Lake in the wilderness area. Plaintiffs' dispute with the government is that the Lake cannot lawfully be included in the wilderness, and even if we were to order the Forest Service to complete the mapping process, our order would not redress the plaintiffs' injury. Accordingly, we will decide this case by addressing the plaintiffs' claim that Crooked Lake should not be included in the Sylvania...