Tuesday, October 13, 2015

David Herr v. U.S. Forest Service

<> David Herr v. U.S. Forest Service - 10/9/15. In the U.S. Court of Appeals, Sixth Circuit, Case No.14-2381. Herr bought waterfront property on Crooked Lake in the Upper Peninsula of Michigan and planned to use their gas-powered motorboat on it; however, the U.S. Forest Service threatened to enforce a regulation that bans non-electric motorboats from the ninety-five percent of the lake that falls within a National Wilderness Area. 

     Herr sued seeking to enjoin enforcement of the regulation on the ground that the relevant federal statute preserves their state-law property right to use all of the lake.       The district court held that a six-year time bar on the action was jurisdictional and that the Herr had waited too long to file this lawsuit. The Appeals Court reversed saying it  based its decision "in large part on a Supreme Court decision handed down after the district court's decision." [See United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015).]

State of Ohio v. U.S. Army Corps of Engineers

<> State of Ohio v. U.S. Army Corps of Engineers - 10/9/15. In the U.S. Court of Appeals, Sixth Circuit, Case Nos.15-3799/3822/3853/3887 involving many other states, including Michigan, challenge the validity of a Final Rule adopted by respondents U.S. Army Corps of Engineers and U.S. EPA, "the Clean Water Rule" (i.e. WOTUS rule).
     The 18 petitioner states are: OH, MI, TN, OK, TX, LA, MO, GA, WV, AL, FL, IN, KS, KY, NC, SC, UT, & WI. The respondent-intervenors include environmental groups and the states of NY, CT, HI, MA, OR, VT, WA and the District of Columbia.
     The Appeals Court ruled in a split decision, ". . .on due review of the relevant considerations in light of the briefs filed by petitioners, respondents and intervenors, and in the exercise of our discretion, we GRANT petitioners' motion for stay. The Clean Water Rule is hereby STAYED, nationwide, pending further order of the court."

      The dissenting judge said, "I believe that it is not prudent for a court to act before it determines that it has subject-matter jurisdiction. . . If we lack jurisdiction to review the Rule, then we lack jurisdiction to grant a stay."