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E-M:/ Sylvania Spin cycle at work again

Enviro-Mich message from anne.woiwode@sfsierra.sierraclub.org

An AP article about a very significant court case regarding takings in a
wilderness area in Michigan's western Upper Peninsula appeared in the Lansing
State Journal and other papers around Christmas Day proclaiming that "Woman
Finally Gets a Ruling on Her Side." The trouble is, such a claim
significantly overstates the actual ruling, and actually misrepresents the
most fundamental and important aspects of that decision. One can only guess
that a reporter simply picked up the pre-spun press release of the proponent
and did little to verify the claims.  The Forest Service, which was contacted,
gave the standard "we're looking at it" answer, which based on the gag order
imposed internally on Forest Service staff regarding talking to the press
about this issue is about all that could be done.

So what really happened?  The plaintiff, Kathy Stupak-Thrall, is an owner of
property on Crooked Lake, which is about 90% within the Sylvania Wilderness in
the Ottawa National Forest.  Congress drew a line through the northern most
bay of this very long, narrow lake when they passed the Michigan Wilderness
Heritage Act in 1987. After vociferous complaints of Stupak-Thrall about
designation of this spectacular area as wilderness, a line was draw to exclude
a small portion of the lake with private cabins on it from official wilderness
designation.   In addition, Congressional intent called for the continuation
of preexisting motor boat usage on the lake as long as it was consistent with
the wilderness values.  Only two of the handful of owners on the lake had ever
used motorized boats, one of which was Stupak-Thrall.

The Forest Service, in the course of discharging its duties to manage both the
wilderness and other lands under its jurisdiction, has over the past ten years
implemented a variety of regulations, including on camping, carrying of
disposable containers into the wilderness, and boat usage.  The first
regulation relating to boats on Crooked Lake (and other lakes) was to prohibit
sailboats and houseboats.  Extensive public input went into the decision, but
Stupak-Thrall and one neighbor chose to challenge this decision in federal
court, filing in Marquette.  The judge ruled in that case that the Forest
Service does indeed have the right to prohibit such boats on this or other
lakes in their lands, and he was upheld through appeals: in simple terms Ms.
Stupak-Thrall definitively lost that first case.

Unbowed, she and her compatriot filed suit in Grand Rapids federal court
(forum shopping?) over the second regulation relating to boats on Crooked Lake
and others.  This regulation addressed the level and usage of motorized boats.
The claims made by the plaintiffs were three-fold: the Forest Service has no
right to regulate motorboat usage on this or other lakes because a) motorboat
usage for a riparian owner is a property right, and they must be compensated
if the right is taken away; b) only the state can regulate boat usage on a
lake; and c) the plaintiffs had a preexisting use of motorboats on this lake
and that could not be terminated.

Judge Bell in Grand Rapids ruled on December 15th on this case.  Generally
when one loses two of the main counts and is supported only in the weakest of
the three, it is at best a "split decision", and on the fundamental legal
principles supposedly being pursued, this was an outright loss for
Stupak-Thrall.  Judge Bell rejected the plaintiffs claims that the motorboat
usage was a property right and that the Forest Service was not allowed to
regulate boat usage, both of which upheld the decisions in the previous court
ruling.  What Judge Bell concluded, however, was that the preexisting use of
motorboats by these two families on the lake did effectively grandparent in,
under the Michigan Wilderness Heritage Act, their ability to continue to use
the boats as they had been used prior to the Wilderness designation. However,
no one else who did not have such a preexisting use can begin using
motorboats, the two families cannot pass on that right after they sell their
properties, and they cannot increase their motorized uses above the
established uses.

The Forest Service is pondering whether to appeal the portion of the decision
relating to the preexisting uses, but in reality won the vast majority of this
issue.  The plaintiffs won in the narrowest sense of the word in this ruling:
They and they alone can continue to destroy the quiet and peace of this
beautiful place by using their motorboats.  But when they move on, the lake
will in fact be protected from motorized boats for good.

NOTE: The Upper Peninsula Environmental Coalition has been involved in filing
briefs on this case, and deserves a lot of credit for hanging in there for
many years on it!!

Anne Woiwode
Sierra Club

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