Regulatory Challenge
Doesn't Run With the Land
Crooked Lake is a three-mile long lake in
the Upper Peninsula of Michigan.
Ninety-five per cent of the Lake lies within a federally protected Wilderness Area. Herr had been vacationing and boating at Crooked Lake
since 1979. In 2007, the U. S. Forest Service promulgated a regulation
prohibiting the use of motorized boats on the protected portion of the Lake. In
2010, Herr purchased property fronting on the small portion of the Lake outside
the Wilderness Area. In 2013, the Service informed Herr of its intention to
enforce the 2007 restriction.
Herr brought suit in 2014, alleging the
restriction was invalid pursuant to state law property rights explicitly
recognized in the federal Michigan Wilderness Act. The Service moved for
dismissal, citing the six-year statute of limitations under the Little Tucker
Act. The Federal District Court dismissed and the Sixth Circuit has now
reversed. Herr v. U. S. Forest Service, #14-2381 (U.S.C.A., 6th Cir., Oct 9, 2015).
The Service had argued 1) Herr’s right of
action had accrued when the regulation was promulgated in 2007, or 2) Herr’s
right stems from the one that accrued to the lots’ prior owner in 2007, which
“ran with the land” in the 2010 sale. The Court rejected both theories. Even if
Herr had a cause of action stemming from the earlier recreational use, the
right of action based on a deprivation of riparian rights didn’t accrue until the 2010 purchase. The Court
characterized Herr’s predecessors’ right of action as a chose in action which
was not automatically transferred by the deed to Herr.
Comment:
The Court contrasted the Tucker Act
statute of limitations with that found in the Quiet Title Act. The QTA
explicitly measures the bar from when the plaintiff or his predecessor in
interest knew or should have known of the claim. The opinion also gives a
detailed analysis of the circuit split concerning the jurisdictional nature of
the Tucker Acts’ respective statutes of limitation.