ELR Citation: ELR 20001
No(s). 94-1863 (6th Cir. Jul 23, 1996)

The en banc court affirms by an equally divided vote a district court decision that upheld an amendment to a U.S. Forest Service land and resource management plan prohibiting the use of houseboats and sailboats and discouraging the use of electric fish finders, portable radios, and other mechanical devices on the portion of Crooked Lake that lies within the Sylvania Wilderness Area in Michigan. Because 95 percent of the shoreline of Crooked Lake lies within the wilderness area, while plaintiffs own the remaining five percent, plaintiffs are entitled under Michigan law to the use of the entire lake, including the area affected by the restrictions. The opinion concurring in the district court decision first notes that the Wilderness Act and the federal Michigan Wilderness Act prohibit the Forest Service from taking property that is "subject to valid existing rights," and that plaintiffs' riparian rights are valid existing rights under state law. The concurrence argues, however, that the amendment does not violate this prohibition, because it does not constitute a taking or otherwise violate state-law limits on police-power regulation. The concurrence also argues that the dissent's view that the prohibition means that the Forest Service may not affect valid existing rights in any way is unsupported. The dissent argues that the amendment exceeds the Forest Service's authority because boating is among the valid existing riparian rights that the Acts protect.

[The district court decision is published at 24 ELR 21180. The panel decision is published at 26 ELR 20225.]

Counsel for Plaintiffs
Todd S. Welch
Mountain States Legal Foundation
1660 Lincoln St., Ste. 2300, Denver CO 80264
(303) 861-0244

Counsel for Defendants
Peter A. Appel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

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