Stupak-Thrall v. Glickman

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 3, 2003
• Docket: 99-1666
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Stupak-Thrall, et al. v. Glickman, et al. No. 99-1666 ELECTRONIC CITATION: 2003 FED App. 0353P (6th Cir.) File Name: 03a0353p.06 Appellees. ON BRIEF: William Perry Pendley, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood, Colorado, for Appellants. Mark R. Haag, UNITED STATES UNITED STATES COURT OF APPEALS DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Elizabeth H. Schmiesing, William L. Underwood, FOR THE SIXTH CIRCUIT FAEGRE & BENSON, Minneapolis, Minnesota, for Amici _________________ Curiae.

KATHY STUPAK-THRALL , et X _________________ al., - OPINION Plaintiffs-Appellants, - _________________ - No. 99-1666 - v. > ALICE M. BATCHELDER, Circuit Judge. Plaintiffs- , Appellants, seeking a declaration that Crooked Lake is not - part of the Sylvania Wilderness area and therefore is not DANIEL GLICKMAN, et al., - within the regulatory authority of the United States Forest Defendants-Appellees. - Service, appeal the district court’s decision dismissing as - time-barred their claim against the United States. Because we N find that the plaintiffs’ claims are untimely and that the Appeal from the United States District Court government did not waive its right to raise a statute of for the Western District of Michigan at Marquette. limitations defense, we will AFFIRM the district court’s No. 98-00113—Robert Holmes Bell, Chief District Judge. grant of summary judgment.

Argued: August 10, 2001 I.

Decided and Filed: October 3, 2003 The plaintiffs are property owners holding certain riparian rights to the use of Crooked Lake, located in the Ottawa Before: KEITH, BATCHELDER, and MOORE, Circuit National Forest in Michigan’s Upper Peninsula. In 1987, Judges. Congress enacted the Michigan Wilderness Act (“MWA”), 101 Stat. 1274, which created the Sylvania Wilderness Area _________________ from portions of the Ottawa National Forest. As a federal Wilderness Area, the region fell under the rule-making COUNSEL authority of the United States Forest Service. The Forest Service began the process of amending the Land Resource ARGUED: Steven J. Lechner, MOUNTAIN STATES Management Plan (“LRMP”) for the Ottawa National Forest LEGAL FOUNDATION, Lakewood, Colorado, for to include regulation of the Sylvania area. The process Appellants. Todd S. Kim, UNITED STATES allowed for public meeting and public comment as provided DEPARTMENT OF JUSTICE, Washington, D.C., for by 16 U.S.C. § 1604 and 36 C.F.R. § 219. There is no dispute

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that the Forest Service followed the proper administrative case that Crooked Lake was not properly part of the Sylvania procedure in adopting the amendments to the LRMP. Wilderness Area. Although the district court in Stupak-Thrall II held that the Amendment No. 5 is invalid as applied to the On April 20, 1992, the Forest Service announced plaintiffs, the court’s decision is premised on the proposition “Amendment No. 1” to the LRMP, which dramatically that “[n]inety-five percent of Crooked Lake lies within the restricted certain activities on the portion of the lake lying boundaries of the Sylvania Wilderness.” Id. at 1058. The within the Wilderness Area. The amendment prohibited the appeal in Stupak-Thrall II is being held in abeyance pending use of sailboats, houseboats and disposable food and beverage resolution of this appeal. containers on the wilderness portion of the Lake. The plaintiffs filed suit in 1993 challenging Amendment No. 1. In the instant case, the plaintiffs claim for the first time that See Stupak-Thrall v. United States (“Stupak-Thrall I”), 843 Crooked Lake is not part of the Wilderness Area, and is F.Supp. 327 (W.D. Mich. 1994), aff’d 70 F.3d 881 (6th Cir. therefore beyond the scope of federal regulation. They seek 1995), vacated, 81 F.3d 651 (6th Cir.), aff’d by equally a permanent injunction requiring the Forest Service to divided en banc court, 89 F.3d 1269 (6th Cir. 1996). The exclude the lake from its official map of the area. After district court ruled against the plaintiffs on the issues of hearing argument on cross-motions for summary judgment, whether creation of the Wilderness Area was within the the district court held that the riparian owners’ claims are bounds of congressional power, and whether the government barred by the statute of limitations. On appeal, in an apparent had effected a taking by issuing rules governing use of the attempt to avoid a problem with the statute of limitations, the lake. The plaintiffs did not raise any contention in that case plaintiffs not only argue that Crooked Lake should not be part that the lake was not part of the Wilderness Area. The district of the wilderness, they focused their oral argument on the court’s decision was affirmed by an equally divided en banc Forest Service’s failure to complete the official map and legal court. description of the Sylvania Wilderness Area as required by Section 4 of the MWA. Because the map is not complete, the In 1995, again dramatically altering the riparian1 owners’ plaintiffs argue, their cause of action cannot be time-barred. use of Crooked Lake, the Forest Service adopted Under the Administrative Procedure Act (“APA”), plaintiffs “Amendment No. 5,” which prohibited the use of all gasoline- seek to compel the Forest Service to complete the map and powered motors on the lake, limited electric motors to four legal description of the Sylvania Wilderness Area, to exclude horsepower, and imposed a “no-wake” speed limit and other Crooked Lake from the Wilderness Area, and to finally limitations. The plaintiffs again filed suit challenging the determine the extent of the Forest Service’s regulatory regulation of Crooked Lake by the Forest Service. See authority over Crooked Lake. Stupak-Thrall v. Glickman, (“Stupak-Thrall II”), 988 F. Supp. 1055 (W.D. Mich. 1997), appeal pending. As was true in the II. first case, the plaintiffs raised no contention in this second We review a district court’s grant of summary judgment de novo, using the same standard under Rule 56(c) used by the district court, Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1 “[T]he nature of riparian ownership is such that each owner shares 1999) (en banc), and we consider the record as it stood before rights to the whole lake, so long as his or her land touches the lake the district court at the time of its ruling. Niecko v. Emro waters.” Stup ak-T hrall I, 70 F.3d at 883 (citing Rice v. Na imish, 8 Mich. Marketing Co., 973 F.2d 1296, 1303 (6th Cir. 1992). App. 698 , 155 N.W .2d 370, 373 (1967)). No. 99-1666 Stupak-Thrall, et al. v. Glickman, et al. 5 6 Stupak-Thrall, et al. v. Glickman, et al. No. 99-1666

Summary judgment is proper if “the pleadings, depositions, We find this latter contention to be a disingenuous answers to interrogatories, and admissions on file, together argument made by the plaintiffs in an attempt to circumvent with the affidavits, if any, show that there is no genuine issue the district court’s finding that their claims are time-barred. as to any material fact and that the moving party is entitled to The complaint does not seek to compel any agency action, let a judgment as a matter of law.” FED . R. CIV . P. 56(c). We alone the completion of the map and the legal description. view the evidence, all facts, and any inferences that may be Before the district court, the plaintiffs sought injunctive relief drawn from the facts in the light most favorable to the against the Forest Service to prohibit the Forest Service from nonmoving party. Matsushita Elec. Indus. Co. v. Zenith acting, relief that is wholly outside the scope of 5 U.S.C. Radio Corp., 475 U.S. 574, 587 (1986). To withstand § 706(1) and entirely contrary to their intention—as presented summary judgment, the non-movant must present sufficient during oral argument— to compel the Forest Service to act. evidence to create a genuine issue of material fact. Klepper Moreover, if the plaintiffs were truly claiming that their cause v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). A mere of action arises from the Forest Service’s failure to act, they scintilla of evidence is insufficient; “there must be evidence would lack standing to bring this claim. Failure to establish on which the jury could reasonably find for the [non- standing is a jurisdictional defect. See Lewis v. Casey, 518 movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, U.S. 343, 349 n.1 (1996). To satisfy the requirements of 252 (1986). Entry of summary judgment is appropriate Article III standing, “a plaintiff must, generally speaking, “against a party who fails to make a showing sufficient to demonstrate that he has suffered ‘injury in fact,’ that the establish the existence of an element essential to that party’s injury is ‘fairly traceable’ to the actions of the defendant, and case, and on which that party will bear the burden of proof at that the injury will likely be redressed by a favorable trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). At the outset, we must clearly articulate what we believe to It is not the government’s failure to complete the mapping of be the essence of the plaintiffs’ claims in this case. From the the Sylvania Wilderness Area that causes the injury of which complaint filed with the district court and the briefs before plaintiffs complain, it is the inclusion of Crooked Lake in the this court, it is clear that the plaintiffs seek redress for a wilderness area. Plaintiffs’ dispute with the government is perceived injury arising from the inclusion of Crooked Lake that the Lake cannot lawfully be included in the wilderness, within the Sylvania Wilderness Area. However, the plaintiffs and even if we were to order the Forest Service to complete raise in their briefs, and stressed during oral argument, that the mapping process, our order would not redress the their injury also grows from the Forest Service’s failure to plaintiffs’ injury. Accordingly, we will decide this case by complete the official map and legal description, invoking addressing the plaintiffs’ claim that Crooked Lake should not 5 U.S.C. § 706(1) of the APA.2 be included in the Sylvania Wilderness Area and will presume that the Forest Service’s failure to complete the official map is simply evidence that the plaintiffs present to support their 2 position that their claim is not time-barred, rather than the “ T o the extent necessary to d ecision and w hen presented, the reviewing court shall decide a ll relevant questions of law, interpret claim of actual injury for which they seek redress in this case. constitutional and statutory provisions, and determine the meaning or applicability of the terms o f an agency action. T he reviewing court shall Congress has enacted a general statute of limitations for – suits against the government at 28 U.S.C. 2401(a), which (1) compel agency action unlawfully withheld or unreasonably delayed.” provides: 5 U.S.C. § 706 (1). No. 99-1666 Stupak-Thrall, et al. v. Glickman, et al. 7 8 Stupak-Thrall, et al. v. Glickman, et al. No. 99-1666

[E]very civil action commenced against the United States issued under the standard rule-making procedure, including shall be barred unless the complaint is filed within six public notice and a public comment period. Accordingly, the years after the right of action first accrues. plaintiffs were on notice that the federal government claimed This court has held that a right “first accrues” when the jurisdiction over the lake at the time the Forest Service issued plaintiff knows or has reason to know of the injury Amendment No. 1. It is clear that the plaintiffs had actual complained of. Friedman v. Estate of Presser, 929 F.2d notice of the government’s intent to regulate the lake at this 1151, 1159 (6th Cir. 1991). The district court considered point in time because issuance of this amendment prompted setting the time for “first accrual” in 1987, when the Michigan the lawsuit in Stupak-Thrall I. We hold that because the Wilderness Act was passed. In the MWA, Congress instant complaint was not filed until May of 1998, it is barred specifically set forth “eighteen thousand three hundred and by the six-year statute of limitations of Section 2401(a). twenty-seven acres” referenced on a map, as the “Sylvania Even if the accrual date might somehow be tied to the Wilderness-Proposed.” The map includes about 95% of issuance of the map, the plaintiffs’ claims are still time- Crooked Lake. barred. As we have noted, the plaintiffs were clearly aware of The plaintiffs contend that the cause of action contesting the Forest Service’s promulgation of Amendment No. 1, and the inclusion of the lake within the wilderness did not accrue of the Forest Service’s intention to exercise dominion over until the spring of 1998, when they learned that the Forest the lake by promulgating that amendment. The plaintiffs Service had not yet issued the official map of the Sylvania were likewise on notice, through the MWA and the public Wilderness, as required by the MWA.3 The plaintiffs claim notice and comment period, that a map was to be filed and that they could not have been on notice that the lake was part that the Forest Service intended to include the lake in any of the wilderness because the official map, which would officially issued version of the Wilderness Area map. The provide them with that information, had yet to be published. lengthy litigation history of this case and the plaintiffs’ The plaintiffs fail to make any meaningful connection, participation in that litigation demonstrate beyond cavil that however, between the Forest Service’s failure to file a map, the plaintiffs knew that their riparian rights to the use of the and the lake’s inclusion in the Wilderness Area. The lake were impaired by the Forest Service when Amendment language of the MWA does not predicate existence of the No. 1 to the LRMP was issued.4 Wilderness Area on the promulgation of a map. Rather, it We also agree with the district court that the government imposes a duty to complete a map as soon as practicable. We did not waive its right to raise the statute of limitations as an echo the statement of the district court that the plaintiffs rely affirmative defense. The government did not file a responsive too heavily on the issuance of the map to establish the date of pleading to the amended complaint; rather, without objection accrual. from the plaintiffs, the government moved for summary Ultimately, the district court decided that the latest possible judgment raising, among other defenses, the statute of accrual date was April 20, 1992, when Amendment No. 1 to limitations. As the district court held, and as the record the LMRP was issued. We agree. This amendment was 4 The government raises the doctrine of claim preclusion as an 3 additional basis for granting summary judgm ent. Although we note the Section 4 of the MW A req uired that the Secretary of Agriculture gove rnment’s argum ents have merit, we, like the district court, express no shall file maps and legal descriptions of each Wilderness Area “as soon opinion on the gove rnment’s res jud icata arguments in light of our as pra cticable.” holding that the claims are barred by the statute of limitations. No. 99-1666 Stupak-Thrall, et al. v. Glickman, et al. 9

confirms, the plaintiffs were aware that the government intended to respond to the complaint by moving for summary judgment and to claim this affirmative defense. Notably, the plaintiffs never claimed they were prejudiced or unfairly surprised by the government’s failure to file a responsive pleading containing the affirmative defense. Because the plaintiffs had a fair opportunity to respond to the government’s statute of limitations argument, we find that the plaintiffs suffered no prejudice and, therefore, the government did not waive their defense. See Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997) (“Failure to raise an affirmative defense by responsive pleading does not always result in waiver. The purpose of Rule 8(c) of the Federal Rules of Civil Procedure is to give the opposing party notice of the affirmative defense and a chance to respond.” (internal citation omitted)). CONCLUSION For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment to the defendants and dismissing this action.