Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the October 20, 2015 mailing of "Constructive Notice":

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.


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.