Lakefront Property Owners Told, "Look, But Don't Touch."

Property owners on the shore of Crooked Lake in Michigan’s Upper Peninsula are wondering why they ever bought their land now that the federal government has told them they can look at the lake, but cannot use it.

What’s worse is that they may only be the first victims of an aggressive new move by the federal government to regulate even more private property on the grounds that it is "adjacent" to federal land. The United States Supreme Court, however, is considering addressing this problem, which may help clarify the limits of government power over private property.

Congress laid the foundation for this controversy in 1987 when it passed the Michigan Wilderness Act. The Act declared the ninety-five percent of the Crooked Lake shoreline owned by the federal government part of the Sylvania Wilderness Area. To meet the Act’s primary goal of preserving the pristine quality of the Area, the U. S. Forest Service (USFS) was charged with devising a forest management plan. Recognizing that property rights derive from state law, Congress expressly made the Act "subject to valid existing rights."

In Michigan, the ability to use a lake is a right that collectively belongs to all shoreline owners. Each owner has as much right as any other to make reasonable use of the lake, including boating on its entire surface. State law further says that one owner cannot ban another’s reasonable use. Naturally, people paid a premium for Crooked Lake shoreline with the understanding that Michigan law secured their right to use the lake.

What happened next illustrates why property owners should get nervous every time Congress makes seemingly harmless "designations" or "declarations." In 1992, unelected bureaucrats at the USFS promulgated "Amendment No. 1" to its forest management plan. Amendment No. 1 banned the use of sailboats, motorboats, and houseboats on Crooked Lake in direct defiance of the "valid existing rights" guaranteed by Michigan law and preserved under the Wilderness Act. While every community has its token neighbor who won’t mow his lawn or leash his dog, the federal government took the "bad neighbor" concept to a new extreme.

Dismayed property owners challenged Amendment No. 1 in a lawsuit with help from the Denver-based Mountain States Legal Foundation, a public interest legal center. A federal judge held that the regulation was valid, even though it strips shoreline owners of their ability to use Crooked Lake and takes property rights without just compensation, in violation of state law. In other words, the court said the federal government can constitutionally step into the shoes of the state and regulate private property simply because it is a landowning neighbor.

In this case, however, the federal government is doing more than merely regulating private property rights—it is extinguishing them. Not even the state may eviscerate private rights of property ownership with impunity. The Fifth amendment to the United States Constitution (applied to states via the Fourteenth Amendment) requires states to pay owners just compensation when it takes their land for any public use.

Prior Supreme Court decisions provide no justification for the Sixth Circuit’s ruling on appeal, which will stand if the Court refuses to hear the case. Unless the Supreme Court agrees to review the decision, it appears there may be no limit on the federal government’s power to regulate private property. And what is "good" for Michigan can easily be applied anywhere else.

For example, the federal government owns much of Washington, D.C. Should it therefore be able to tell owners of riverfront property in Virginia that they cannot traverse the Potomac, even though they have that right under Virginia law? Likewise, Western landowners such as cattle ranchers on land adjacent to land administered by the Bureau of Land Management could have their ranching operations eliminated if those activities "interfered" with the federal interest.

In short, a federal court has once again concocted an extraordinary new federal power over private land. In recent years, the Supreme Court has rendered several opinions strengthening the rights of private property owners against intrusive government regulation. This case provides the High Court with an excellent opportunity to take another stand against the continuing erosion of property rights not only in Michigan, but across the country.