Michigan’s Upper Peninsula: Where Private Property and Federal Lands Intersect

by William Perry Pendley

On the banks of Crooked Lake, near Watersmeet, in Gogebic County in the Upper Peninsula of Michigan, live Ben and Kathy Thrall. Their tiny cabin lies a mile or so from the Wisconsin border to the south and less than 50 miles from Lake Superior to the north. Like much of the rest of this part of the Upper Midwest, the woodlands surrounding the Thrall’s cabin are dotted with small lakes that support an abundance of recreation.

In 1966, the U.S. Forest Service acquired property abutting the southern portion of Crooked Lake. Although the Government’s acquisition of the land aroused concerns, its commitment to recreation eased the minds of local residents. In the 1980’s, when the Forest Service recommended that federal land around Crooked Lake be designated as a wilderness area, local citizens were worried. Once again the Forest Service assured them that federal action would not affect private property rights, noting "valid existing private rights" and other language in the 1964 Wilderness Act and the Michigan Wilderness Act. In 1987, Congress designated the Sylvania Wilderness on the banks of Crooked Lake.

In 1992, the Forest Service changed its mind. It decided that Ben and Kathy Thrall could no longer use Crooked Lake as Michigan law said they could. Under Michigan law, an owner of lake front property—a "riparian"—owns the surface of a lake in common with all other riparians and shares an equal right to a reasonable use of the entire surface of the lake. Despite the clear provision of Michigan law that no owner may interfere with other owners’ reasonable use of the surface of their lake, the Forest Service adopted regulations restricting the right of the Thralls to use their property. In fact, before the Thralls could use Crooked Lake, they had to get permission. The Thralls sued.

Despite its assurances to local citizens, the Forest Service argued, in federal district court, that "valid existing private rights" only applied to mining claims. Though the Court rejected that argument, it ruled for the Forest Service: "It is within the power of Congress under the Property Clause to set aside federal land as wilderness and to protect, preserve and, if necessary, restore the wilderness quality of that land by regulating private as well as federal property on lakes within a wilderness area."

The U.S. Court of Appeals for the Sixth Circuit agreed, ruling that when it comes to regulating private property under the Property Clause the federal government stands in the shoes of local government, albeit with a different objective. In the words of the Court: "The federal government’s [limits on the Thralls’ use of their land] are similar to those of [local] townships in [various Michigan Supreme Court decisions], except that the ‘general public’ in [the Thrall] case is the nation at large instead of the local community, and the power now comes from a highly particularized source, the Property Clause, rather than from the state’s inherent powers."

The Court’s decision: 1) ignored the requirement of federal statute that only private property may be included in the Sylvania Wilderness; 2) rendered meaningless the phrase "valid existing rights," which is included in almost all federal land statutes; 3) held that the Property Clause of the Constitution gives the Forest Service authority over private property; and 4) ignored state property law, which is the basis upon which property rights have been determined for more than 200 years. Since this ruling the Thralls asked all the judges of the Sixth Circuit Court of Appeals to rehear the case. Although the full court did so, it divided evenly on the case, upholding the original district court’s opinion.

Kathy Thrall’s request that the U.S. Supreme Court hear the case was denied, despite supportive briefs from: Governor John Engler (filed by Pacific Legal Foundation); the States of Colorado, California, Alaska and South Dakota; a variety of national trade associations; and scores of local governments and grassroots groups (filed by Defenders of Property Rights).

However, in a classic bad news/good news, Ben and Kathy Thrall are back in court fighting new Forest Service regulations that restrict their right to use Crooked Lake. Already that court has enjoined the Forest Service from enforcing its new rules, holding that Congress specifically excluded the Thrall property from the Sylvania Wilderness and prohibited the Forest Service from regulating their property. On May 27, final arguments were held before the court; a decision is expected shortly.

It is not just the Thralls who are at risk from this case. Under the legal theory advanced by the Clinton Administration, the presence of federal land near private property gives federal agencies the power to regulate that property under the Property Clause, not to serve local citizens, but "the nation at large." As importantly, federal bureaucrats could ignore state law in deciding what is a property right protected by the Constitution. In fact, before the entire Sixth Circuit, one of Attorney General Reno’s lawyers argued that the only right Kathy Thrall possesses is to drink water from Crooked Lake!

Mountain States Legal Foundation (MSLF) has been serving as the Thralls’ attorney, pro bono, since the Thralls sued the Forest Service. Neither the Thralls nor MSLF will give up. This case is the nose of the camel under the tent. If the federal government wins in Crooked Lake, Michigan, no property owner near any federal land anywhere in the country will be safe and state property law will be all but irrelevant.

William Perry Pendley is president and Chief Legal Officer of Mountain States Legal Foundation in Denver, Colorado.