SWC, LLC, et al. v. David A. Herr, et al.

A divided 2-1 Sixth Circuit panel reversed a district court decision upholding the Forest Service’s regulations to limit the use of loud and disruptive gas-powered motorboats on Crooked Lake in the Congressionally-designated Sylvania Wilderness. The Sixth Circuit decision held that the Forest Service could not adopt these wilderness protections, pursuant to the Property Clause of the United States Constitution and the Wilderness Act of 1964, because the State of Michigan had not previously acted to limit motorboat use on the small portion of the lake outside the wilderness boundary. The Sixth Circuit’s decision conflicts with this Court’s prior decisions and conflicts with the Eighth, Ninth and Eleventh Circuits’ decisions on the federal government’s authority under the Property Clause to limit harmful activities in the many National Wilderness Areas. The questions presented are:

1. Whether the United States Forest Service’s powers under the Property Clause of the United States Constitution to limit gas-powered motorboat use on lakes in Congressionally-designated wilderness areas are dependent upon and subservient to whether a state has first acted to restrict motorboat activities on the same lakes?

2. Whether prior existing uses of property near the many national wilderness areas are immunized from and ossified against regulations to achieve the Wilderness Act of 1964’s goal to protect wildernesses and keep them “unimpaired for future use and enjoyment as wilderness,” 16 U.S.C. § 1131(a)?