## Facts

- Crooked Lake lies largely within the federally owned Sylvania Wilderness in Michigan, but some shoreline parcels remain privately owned.
- David and Pamela Herr purchased a Crooked Lake waterfront lot in 2010 to use the lake for boating and fishing.
- Motorboat use on Crooked Lake had occurred for decades before federal wilderness designation.
- Congress designated the Sylvania Wilderness in 1987 and authorized the Forest Service to regulate certain waters, including Crooked Lake, “subject to valid existing rights.”
- The Forest Service adopted a 1995 forest-plan amendment and later a 2007 order that prohibited gas-powered motorboats on Crooked Lake and limited electric motors to no-wake speeds, with criminal penalties for violations.
- The Forest Service historically allowed motorboat use on the lake after adopting these restrictions and continued allowing it for at least one property owner.
- In 2013, the Forest Service informed the Herrs it would enforce the restrictions against them, barring their gas-motor use and limiting electric-motor use.

## Issues

1. Whether the Forest Service’s gas-motor ban and no-wake electric-motor limit on Crooked Lake exceed statutory authority as applied to private shoreline owners, given the statutory limitation “subject to valid existing rights.”
2. Whether Michigan riparian rights held by Crooked Lake shoreline owners qualify as “valid existing rights” that constrain federal wilderness-water regulations, including for successors who acquired property after the federal restrictions were adopted.

## Decision

- The Sixth Circuit reversed the district court and remanded.
- The court held that, as applied to private shoreline owners on Crooked Lake, the gas-motor prohibition and no-wake electric-motor restriction exceeded the Forest Service’s statutory authority because they conflicted with “valid existing rights” grounded in Michigan riparian law.
- The court rejected the government’s position that only rights held by owners at the time of the 1990s regulations qualify as “valid existing rights.”
- The court limited its holding to an as-applied ruling, leaving the restrictions potentially enforceable in circumstances not implicating conflicting private riparian rights.

## Legal Principles

- When Congress authorizes federal regulation “subject to valid existing rights,” the agency’s authority is substantively limited and may not override qualifying, state-created property rights absent clear congressional authorization.
- Under Michigan law, riparian rights on inland lakes generally include reasonable use of the entire surface of the lake, subject to coequal rights of other riparian owners.
- Riparian rights typically run with the land; successors in title may assert the same appurtenant rights held by prior owners, including against later enforcement actions.
- In an APA challenge, a regulation or order may be unlawful as applied where its enforcement exceeds statutory authority in the specific context presented, even if the rule is not invalid on its face.

## Conclusion

The Sixth Circuit concluded that Michigan riparian rights constituted “valid existing rights” protected by the Sylvania Wilderness statute’s savings clause, and that the Forest Service therefore lacked authority to enforce its Crooked Lake motorboat restrictions against private shoreline owners to the extent those restrictions conflicted with those state-law rights.


Herr v. U.S. Forest Serv., 865 F.3d 351 (6th Cir. 2017)