6th Circuit Revives Lake Boat Ban Lawsuit

     (CN) – Lakefront homeowners in Michigan’s Upper Peninsula can sue the U.S. Forest Service over a rule barring gas motorboats on lakes in protected wilderness areas, the Sixth Circuit ruled.
     David and Pamela Herr bought waterfront property on Crooked Lake in the Upper Peninsula of Michigan in 2010. Ninety-five percent of the three-mile long lake is located in the federally protected Sylvania Wilderness Area, and it is one of 36 interconnected glacial lakes, according to the ruling.
     The Herrs filed a lawsuit last year challenging a 2007 U.S. Forest Service rule prohibiting the use of gas-powered motorboats on the wilderness portion of the lake, claiming they bought their property with the intent of using their boat on the whole lake.
     The married couple own land on the sliver of lakeshore that lies outside the protected wilderness area, and used their gas-powered motorboat for three years on the entire surface of the lake without a problem, the ruling states.
     That changed in 2013, when the Herrs receive a letter informing them that local Forest Service personnel would start enforcing the motorboat restrictions against them within the wilderness section of the lake.
     A federal judge dismissed the Herrs’ lawsuit as untimely, ruling that the six-year statue of limitations began when the rule was issued in 2007.
     But the Sixth Circuit revived the Herr’s case Friday, based primarily on the Supreme Court’s intervening decision in U.S. v. Kwai Fun Wong.
     “Kwai Fun Wong held that a statute saying late claims against the United States ‘shall be forever barred’ did not create a jurisdictional limitation,” Judge Jeffrey Sutton wrote for a three-judge panel.
     The Cincinnati-based appeals court noted that its jurisdictional decision creates a 4-3 circuit split, but said that none of the other circuits have yet considered the impact of Wong.
     After establishing its jurisdiction, the panel found that the Herrs have easily shown the timeliness of their case.
     “September 2010. That is when the Herrs purchased their waterfront property on Crooked Lake,” Sutton wrote. “The Herrs thus could not have become ‘aggrieved’ by the Forest Service’s invasion of that property right until they became property owners on the lake – until they purchased their waterfront real estate in September 2010.”
     Since the Herrs could not show injury without owning property on the lake, the limitations period began in 2010 and their complaint was filed well before the six-year deadline, according to the 17-page ruling.

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