Herr Opposition To Motion To Dismiss

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

DAVID A. HERR and PAMELA F. HERR,
Plaintiffs,
v.
UNITED STATES FOREST SERVICE,
et al.,

Defendants.
)
)
)
)
)
)
)
)
)
)
)

Case No. 2:14-cv-00105-RAED

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DISMISS
(ORAL ARGUMENT REQUESTED)

Case 2:14-cv-00105-RAED Doc #30 Filed 08/19/14 Page 1 of 36 Page ID#248
ii

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................................................................... iv

INTRODUCTION ..................................................................................................... 1
ARGUMENT ............................................................................................................. 4

I. STANDARD OF REVIEW ........................................................................... 4

II. THE HERRS CLAIMS ARE NOT BARRED BY THE STATUTE
OF LIMITATIONS ........................................................................................ 5

A. The Six-Year Limitations Period In 28 U.S.C. 2401(a) Is Not
Jurisdictional ...................................................................................... 5

B. The Herrs Right Of Action First Accrued In 2010 ........................... 8

1. The Herrs right of action did not accrue until 2010,
when they purchased the property and acquired
standing to sue........................................................................ 8

2. Final agency action alone does not trigger the
limitations period ................................................................... 10

3. Notice alone does not trigger the limitations period .............. 12

4. The limitations period was not running against the
Herrs while their predecessor owned the property ................ 14

C. At A Minimum, The June 2013 Letter Started A New
Limitations Period Vis--Vis The 2006 Forest Plan And 2007
Forest Order ....................................................................................... 16

III. THE FOREST SERVICES JUNE 2013 LETTER IS SUBJECT TO
JUDICIAL REVIEW ..................................................................................... 18

IV. THE FOREST SERVICES EXHAUSTION ARGUMENT IS
UNAVAILING .............................................................................................. 20

A. The Exhaustion Requirement In 7 U.S.C. 6912(e) Is Not
Jurisdictional ...................................................................................... 21

iii

B. The Lawfulness Of The Motorboat Restrictions Was Exhausted
And Any Attempt By The Herrs To Exhaust Would Have Been
Impracticable And Futile ................................................................... 23

CONCLUSION .......................................................................................................... 25
CERTIFICATE OF SERVICE .................................................................................. 26

iv

TABLE OF AUTHORITIES
Page
CASES

Anderson v. Babbitt,
230 F.3d 1158 (9th Cir. 2000) ............................................................................. 22

Arbaugh v. Y&H Corp.,
546 U.S. 500 (2006) ............................................................................................. 6

Ashcroft v. Iqbal,
556 U.S. 662 (2009) ............................................................................................. 5

Association of American Railroads v. ICC,
846 F.2d 1465 (D.C. Cir. 1988) ........................................................................... 16

Avocados Plus Inc. v. Veneman,
370 F.3d 1243 (D.C. Cir. 2004) ........................................................................... 21, 23

Backcountry Hunters & Anglers v. U.S. Forest Serv.,
2013 WL 1191245 (D. Colo. 2013) ..................................................................... 18

Bartlett v. U.S. Dept of Agric.,
716 F.3d 464 (8th Cir. 2013) ............................................................................... 22

Basel Action Network v. Mar. Admin.,
285 F. Supp. 2d 58 (D.D.C. 2003) ....................................................................... 19

Bastek v. Fed. Crop Ins. Corp.,
145 F.3d 90 (2d Cir. 1998)................................................................................... 22

Bennett v. Spear,
520 U.S. 154 (1997) ............................................................................................. 19

Bowman v. Udall,
243 F. Supp. 672 (D.D.C. 1965) .......................................................................... 9

Cedars-Sinai Medical Center v. Shalala,
125 F.3d 765 (9th Cir. 1997) ............................................................................... 6, 7

Center for Biological Diversity v. Hamilton,
453 F.3d 1331 (11th Cir. 2006) ........................................................................... 6

Clymore v. United States,
217 F.3d 370 (5th Cir. 2000) ............................................................................... 6, 7

v

Crown Coat Front Co. v. United States,
386 U.S. 503 (1967) ............................................................................................. 8

Darby v. Cisneros,
509 U.S. 137 (1993) ............................................................................................. 20

Dawson Farms, LLC v. Farm Serv. Agency,
504 F.3d 592 (5th Cir. 2007) ............................................................................... 22

Day v. Shalala,
23 F.3d 1052 (6th Cir. 1994) ............................................................................... 24

Dingle v. Bioport Corp.,
388 F.3d 209 (6th Cir. 2004) ............................................................................... 17

Dunn-McCampbell Royalty Interest, Inc. v. Natl Park Serv.,
112 F.3d 1283 (5th Cir. 1997) ............................................................................. 1112

Friedman v. Estate of Presser,
929 F.2d 1151 (6th Cir. 1991) ............................................................................. 14

Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,
460 F.3d 13 (D.C. Cir. 2006) ............................................................................... 19

Gold Dollar Warehouse, Inc. v. Glickman,
211 F.3d 93 (4th Cir. 2000) ................................................................................. 22

Gonzalez v. Thaler,
132 S. Ct. 641 (2012) ........................................................................................... 6

Harris v. F.A.A.,
353 F.3d 1006 (D.C. Cir. 2004) ........................................................................... 8

Heimeshoff v. Hartford Life & Acc. Ins. Co.,
134 S. Ct. 604 (2013) ........................................................................................... 8

Hells Canyon Pres. Council v. U.S. Forest Serv.,
403 F.3d 683 (9th Cir. 2005) ............................................................................... 13

Hells Canyon Pres. Council v. U.S. Forest Serv.,
593 F.3d 923 (9th Cir. 2010) ............................................................................... 18

Henderson ex rel. Henderson v. Shinseki,
131 S. Ct. 1197 (2011) ......................................................................................... 7

vi

Hinton v. Udall,
364 F.2d 676 (D.C. Cir. 1966) ............................................................................. 9

HRI, Inc. v. EPA,
198 F.3d 1224 (10th Cir. 2000) ........................................................................... 20

I.C.C. v. Brotherhood of Locomotive Engineers,
482 U.S. 270 (1987) ............................................................................................. 20

Illinois Cent. Gulf R. Co. v. I.C.C.,
720 F.2d 958 (7th Cir. 1983) ............................................................................... 78

Irwin v. Dept. of Veterans Affairs,
498 U.S. 89 (2009) ............................................................................................... 56, 8

John R. Sand & Gravel Co. v. United States,
552 U.S. 130 (2008) ............................................................................................. 5, 6

Lone Star Indus., Inc. v. Horman Family Trust,
960 F.2d 917 (10th Cir. 1992) ............................................................................. 4

Los Angeles v. Lyons,
461 U.S. 95 (1983) ............................................................................................... 14

Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ............................................................................................. 9

Lujan v. Natl Wildlife Fedn,
497 U.S. 871 (1990) ............................................................................................. 10

Lyons v. U.S. Marshals,
840 F.2d 202 (3d Cir. 1988)................................................................................. 25

McBride Cotton & Cattle Corp. v. Veneman,
290 F.3d 973 (9th Cir. 2002) ............................................................................... 22

McDonald v. Centra, Inc.,
946 F.2d 1059 (4th Cir. 1991) ............................................................................. 22

Mendoza v. Perez,
754 F.3d 1002 (D.C. Cir. 2014) ........................................................................... 7

Minard Run Oil Co. v. U.S. Forest Serv.,
670 F.3d 236 (3d Cir. 2011)................................................................................. 19, 20, 25

vii

Munsell v. Dept of Agric.,
509 F.3d 572 (D.C. Cir. 2007) ............................................................................. 21

Nance v. United States,
92 Fed. Cl. 41 (Fed. Cl. 2010) ............................................................................. 6

Natl Black Media Coal. v. F.C.C.,
791 F.2d 1016 (2d Cir. 1986)............................................................................... 24

Natl Min. Assn v. U.S. Dept of Interior,
70 F.3d 1345 (D.C. Cir. 1995) ............................................................................. 16

N. Cnty. Cmty. Alliance, Inc. v. Salazar,
573 F.3d 738 (9th Cir. 2009) ............................................................................... 11

Nuchols v. Berrong,
141 Fed Appx. 451 (6th Cir. 2005) .................................................................... 4

Oppenheim v. Campbell,
571 F.2d 660 (D.C. Cir. 1978) ............................................................................. 11

P & V Enterprises v. U.S. Army Corps of Engineers,
516 F.3d 1021 (D.C. Cir. 2008) ........................................................................... 6

Palazzolo v. Rhode Island,
533 U.S. 606 (2001) ............................................................................................. 14, 15

Portland Gen. Elec. Co. v. Bonneville Power Admin.,
501 F.3d 1009 (9th Cir. 2007) ............................................................................. 24

Public Citizen v. Nuclear Regulatory Commn,
901 F.2d 147 (D.C. Cir. 1990) ............................................................................. 16

Sackett v. EPA,
132 S. Ct. 1367 (2012) ......................................................................................... 20

Scheuer v. Rhodes,
416 U.S. 232 (1974) ............................................................................................. 4

Schmidt v. United States,
933 F.2d 639 (8th Cir. 1991) ............................................................................... 7

Sebelius v. Auburn Regl Med. Ctr.,
133 S. Ct. 817 (2013) ........................................................................................... 6, 7

viii

Sendra Corp. v. Magaw,
111 F.3d 162 (D.C. Cir. 1997) ............................................................................. 16

Shawnee Coal Co. v. Andrus,
661 F.2d 1083 (6th Cir. 1981) ............................................................................. 24

Shiny Rock Min. Corp. v. United States,
906 F.2d 1362 (9th Cir. 1990) ............................................................................. 13

Sierra Club v. Slater,
120 F.3d 623 (6th Cir. 1997) ............................................................................... 11

Soriano v. United States,
352 U.S. 270 (1957) ............................................................................................. 5

Spannaus v. U.S. Dept. of Justice,
824 F.2d 52 (D.C. Cir. 1987) ............................................................................... 8

State of Ohio v. EPA,
838 F.2d 1325 (D.C. Cir. 1988) ........................................................................... 17

Stupak-Thrall v. United States,
843 F. Supp. 327 (W.D. Mich. 1994) .................................................................. 1

70 F.3d 881 (6th Cir. 1995) ................................................................................. 1

81 F.3d 651 (6th Cir. 1996) ................................................................................. 1

89 F.3d 1269 (6th Cir. 1996) ............................................................................... 1

Stupak-Thrall v. Glickman,
988 F. Supp. 1055 (W.D. Mich. 1997) ................................................................ passim

Stupak-Thrall v. Glickman,
346 F.3d 579 (6th Cir. 2003) ............................................................................... 13

Supermail Cargo, Inc. v. United States,
68 F.3d 1204 (9th Cir. 1995) ............................................................................... 8

Touby v. United States,
500 U.S. 160 (1991) ............................................................................................. 12

ix

U.S. ex rel. Dingle v. BioPort Corp.,
270 F. Supp. 2d 968 (W.D. Mich. 2003) ............................................................. 17

United States v. Backlund,
689 F.3d 986 (9th Cir. 2012) ............................................................................... 12

United States v. Mendoza-Lopez,
481 U.S. 828 (1987) ............................................................................................. 12

United States v. Ritchie,
15 F.3d 592 (6th Cir. 1994) ................................................................................. 4

Utu Utu Gwaitu Paiute Tribe v. Dept of Interior,
766 F. Supp. 842 (E.D. Cal. 1991)....................................................................... 9

Warth v. Seldin,
422 U.S. 490 (1975) ............................................................................................. 9

Whitman v. Am. Trucking Assns, Inc.,
531 U.S. 457 (2001) ............................................................................................. 19

Whitmore v. Arkansas,
495 U.S. 149 (1990) ............................................................................................. 13

Wilcox v. Plummers Exrs,
29 U.S. 172 (1830) ............................................................................................... 8

Wind River Min. Corp. v. United States,
946 F.2d 710 (9th Cir. 1991) ............................................................................... 11, 12, 15

Woodford v. Ngo,
548 U.S. 81 (2006) ............................................................................................... 22

Zipes v. Trans World Airlines, Inc.,
455 U.S. 385 (1982) ............................................................................................. 7, 8

CONSTITUTIONAL PROVISIONS

U.S. Const. art. III ...................................................................................................... 9, 13, 14

STATUTES

Administrative Procedure Act (APA), 5 U.S.C. 551 et seq. .............................5, 10, 12, 18, 20

5 U.S.C. 551(4) ................................................................................................. 19

x

5 U.S.C. 551(13) ............................................................................................... 18

5 U.S.C. 702 ...................................................................................................... 10

5 U.S.C. 703 ...................................................................................................... 12

5 U.S.C. 704 ...................................................................................................... 10, 20

7 U.S.C. 6912(e) ..................................................................................................... 20, 21, 22

Michigan Wilderness Act (MWA), Pub. L. No. 100-184 (1987) .......................... passim

28 U.S.C. 2401(a) ................................................................................................... passim

28 U.S.C. 2409a(g) ................................................................................................. 13, 14

28 U.S.C. 2501 ........................................................................................................ 6

RULES

Fed. R. Civ. P. 8(c) .................................................................................................... 7

Fed. R. Civ. P. 12(b)(1).............................................................................................. 3, 4

Fed. R. Civ. P. 12(b)(6).............................................................................................. 3, 4, 5, 7, 22

REGULATIONS

36 C.F.R. Part 215 (2006) ......................................................................................... 21

36 C.F.R. 217 (2000) ................................................................................................. 21

36 C.F.R. 219.14(e) (2005) ..................................................................................... 21

1

INTRODUCTION
In 1987, Congress passed the Michigan Wilderness Act (MWA), Pub. L. No. 100-184,
First Amended Complaint (FAC) 18 (Doc. 4). The MWA designated certain lands in the
Ottawa National Forest as the Sylvania Wilderness, which placed it within the National
Wilderness Preservation System. Id. 19. Approximately 95% of Crooked Lake is within the
boundaries of the Sylvania Wilderness.
1
Id.; Stupak-Thrall v. United States, 843 F. Supp. 327,
328 (W.D. Mich. 1994), affd, 70 F.3d 881 (6th Cir. 1995), vacated 81 F.3d 651 (6th Cir. 1996),
affd by an equally divided en banc court, 89 F.3d 1269 (6th Cir. 1996) (Stupak-Thrall I).
Section 5 of the MWA provides: [s]ubject to valid existing rights, each wilderness area
designated by this Act shall be administered by the Secretary of Agriculture in accordance with
the provisions of the Wilderness Act of 1964 . . . . FAC 20. [T]he plain and unambiguous
meaning of [subject to] valid existing rights in Section 5 of the MWA protects from invasion or
disparagement: (1) property rights (2) officially sanctioned by state law (3) in existence on the
date the MWA was enacted. Stupak-Thrall I, 89 F.3d at 1288 (Boggs, J., dissenting).
In Stupak-Thrall v. Glickman, 988 F. Supp. 1055, 1058 (W.D. Mich. 1997) (Stupak-
Thrall II), the plaintiffs, riparian landowners on Crooked Lake, challenged Forest Service
motorboat restrictions, which, inter alia, prohibited the use of gas-powered motorboats on the
portion of Crooked Lake within the boundaries of the Sylvania Wilderness. In analyzing the
plaintiffs claims, Judge Bell recognized that under well-established Michigan law, riparian
landowners share in common the right to use the entire surface of the lake for boating and
fishing, so long as they do not interfere with the reasonable use of the waters by the other
riparian owners. Id. at 1062. This valuable property right includes the right to use gas-powered

1
A Forest Service map depicting the Sylvania Wilderness and Crooked Lake is attached hereto
as Exhibit 1.
2

motorboats. Id. More importantly, because the Forest Services authority to manage the
Sylvania Wilderness is subject to valid existing rights, Judge Bell ruled that the Forest Service
lacked authority to restrict the plaintiffs riparian right to use gas-powered motorboats on the
surface of Crooked Lake within the Sylvania Wilderness. Id. at 106264. Accordingly, Judge
Bell declared the Forest Services motorboat restrictions unlawful and permanently enjoined the
Forest Service from enforcing its restrictions against the plaintiffs. Id. at 1064, 106566. In so
doing, Judge Bell noted that his ruling did not affect the general right of the Forest Service to
make regulations concerning the publics use of the Sylvania Wilderness. It applies only to one
lake in the Sylvania Wilderness and to the few private riparian landowners who have historically
used their private establishments for fishing and boating on Crooked Lake. Id. at 1065 (all
emphasis added).
After the Forest Service voluntarily dismissed its appeal of Judge Bells decision, it
inserted the same motorboat restrictions in its 2006 Forest Plan. Compare FAC 41 with
Stupak-Thrall II, 988 F. Supp. at 1058, n.2. In 2007, the Forest Service issued an order (2007
Forest Order) criminalizing violations of its motorboat restrictions. FAC 5052, 67. Perhaps
recognizing that the motorboat restrictions could not be applied to riparian landowners, the
Forest Service never sought to enforce the motorboat restrictions against riparian landowners
until 2013. FAC 44, 47, 5455.
In 2010, Plaintiffs, David A. Herr and Pamela F. Herr, purchased riparian land on
Crooked Lake with the intention to exercise their concomitant riparian rights, including the right
to use gas-powered motorboats over the entire surface of Crooked Lake, just as their predecessor
had done since the 1970s. FAC 4347; Doc. 4-2, Page ID 77. After their purchase, the Herrs
used gas-powered motorboats over the entire surface of Crooked Lake from 20102012, with the
3

full knowledge of the Forest Service and without any objection or interference from the Forest
Service. FAC 4749.
In June 2013, the Forest Service sent a letter to the Herrs stating that it would begin
enforc[ing] the 2007 Forest Order against the Herrs and the other riparians (June 2013
Letter). FAC 5051; Doc. 4-5, Page ID 9899. Because the June 2013 Letter placed the
Herrs at risk of criminal penalties for the exercise of their valid existing rights (see FAC 51
52), the Herrs initiated this case against the Forest Service and others. See FAC 510.
Specifically, the Herrs seek: (1) declaratory relief that the motorboat restrictions in the 2006
Forest Plan, the 2007 Forest Order, and the June 2013 Letter are unlawful as applied to the
Herrs; and (2) injunctive relief barring the Forest Service from enforcing the motorboat
restrictions in the 2006 Forest Plan, the 2007 Forest Order, and the June 2013 Letter against the
Herrs. FAC 5778; id., Prayer for Relief.
In an apparent effort to avoid having to defend its unlawful actions, the Forest Service
has moved to dismiss this case under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) for lack of
jurisdiction and/or failure to state a claim. Docs. 12, 13. Specifically, the Forest Service argues
that: (1) the Herrs claims against the motorboat restrictions in the 2006 Forest Plan and the
2007 Forest Order are barred by the six-year limitations period in 28 U.S.C. 2401(a); (2) the
June 2013 Letter is not reviewable agency action; and (3) the Herrs failed to exhaust
administrative remedies with respect to the 2006 Forest Plan. Doc. 13, Page ID 12829.
As demonstrated below: (1) the Herrs timely filed this case within the six-year
limitations period because they did not purchase their property until 2010; (2) at a minimum, the
June 2013 Letter started a new limitations period vis--vis the 2006 Forest Plan and the 2007
Forest Order; (3) the June 2013 Letter is final agency action that is subject to judicial review; and
4

(4) the Forest Services exhaustion argument is unavailing because any attempt by the Herrs to
exhaust would have been impractical and futile. Accordingly, this Court should deny the motion
to dismiss and allow this case to proceed to the merits.
ARGUMENT

I. STANDARD OF REVIEW.

Motions to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)
fall into two general categories: facial attacks and factual attacks. United States v. Ritchie, 15
F.3d 592, 598 (6th Cir. 1994). A facial attack is a challenge to the sufficiency of the pleading
itself. Id. (emphasis in original). On such a motion, a court must accept all well pleaded factual
allegations in the complaint as true and must construe those allegations in the light most
favorable to the nonmoving party. Id.; see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (In
reviewing a Rule 12(b)(1) motion, [t]he issue is not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to support the claims.).
A factual attack, on the other hand, is not a challenge to the sufficiency of the
allegations, but a challenge to the factual existence of subject matter jurisdiction. Ritchie, 15
F.3d at 598 (emphasis in original). In considering such an attack, a court may look at evidence
outside of the pleadings. Id. That a court considers evidence outside the pleadings for the
purpose of deciding whether it has jurisdiction does not mean that any findings are binding in
future proceedings. Id.
Motions to dismiss under Rule 12(b)(6) are disfavored and rarely granted. Nuchols v.
Berrong, 141 Fed Appx. 451, 453 (6th Cir. 2005) (unpublished); Lone Star Indus., Inc. v.
Horman Family Trust, 960 F.2d 917, 920 (10th Cir.1992) (A motion to dismiss for failure to
state a claim is viewed with disfavor, and is rarely granted.) (quotations omitted)). To survive a
5

motion to dismiss under Rule 12(b)(6), a plaintiff need only allege sufficient factual matter,
[which is] accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id. Determining whether a complaint states a
plausible claim is a context-specific task that requires this Court to draw on its judicial
experience and common sense. Id. at 679.
II. THE HERRS CLAIMS ARE NOT BARRED BY THE STATUTE OF
LIMITATIONS.

A. The Six-Year Limitations Period In 28 U.S.C. 2401(a) Is Not
Jurisdictional.

The Herrs claims are brought under the Administrative Procedure Act, 5 U.S.C. 551 et
seq. FAC 2629, 61, 72. The six-year limitations period for civil actions brought against the
United States in 28 U.S.C. 2401(a) applies to most actions brought under the APA. This
section provides, in relevant part, every civil action commenced against the United States shall
be barred unless the complaint is filed within six years after the right of action first accrues. 28
U.S.C. 2401(a) (emphasis added).
Statutes of limitations generally fall into two broad categories: affirmative defenses that
can be waived and so-called jurisdictional statutes that are not subject to waiver or equitable
tolling. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 140 (2008) (Stevens, J.,
dissenting). Traditionally, statutes of limitations in suits against the Government were . . .
placed in the latter category on the theory that conditions attached to a waiver of sovereign
immunity must be strictly observed and exceptions thereto are not to be implied. Soriano v.
United States, 352 U.S. 270, 276 (1957). Id. (parallel citations omitted). In Irwin v. Dept. of
6

Veterans Affairs, 498 U.S. 89, 9596 (2009), however, the Court moved away from the
traditional practice when it ruled that the same rebuttable presumption of equitable tolling
applicable to suits against private defendants should also apply to suits against the United
States. In light of the ruling in Irwin, there is now a presumption that statutes of limitations vis-
-vis the federal government are not jurisdictional. See Arbaugh v. Y&H Corp., 546 U.S. 500,
510 (2006 ) ([I]n recent decisions, we have clarified that time prescriptions, however emphatic,
are not properly typed jurisdictional. (quotation omitted)); Gonzalez v. Thaler, 132 S. Ct. 641,
648 (2012) (cautioning courts to be hesitant to find a limitations provision jurisdictional);
Sebelius v. Auburn Regl Med. Ctr., 133 S. Ct. 817, 824 (2013) (Characterizing a rule as
jurisdictional renders it unique in our adversarial system.). Thus, a statute of limitations should
not be held jurisdictional unless Congress has clearly state[d] that the limitations provision is
jurisdictional.
2
Arbaugh, 546 U.S. at 515.
The circuits are split on whether 28 U.S.C. 2401(a) is jurisdictional. See John R. Sand
& Gravel, 552 U.S. at 145 (Ginsburg, J., dissenting) (comparing Center for Biological Diversity
v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006) (jurisdictional), with Cedars-Sinai Medical
Center v. Shalala, 125 F.3d 765, 770 (9th Cir. 1997) (non-jurisdictional)); Clymore v. United
States, 217 F.3d 370, 37475 (5th Cir. 2000) (non-jurisdictional); P & V Enterprises v. U.S.
Army Corps of Engineers, 516 F.3d 1021, 102627 (D.C. Cir. 2008) (questioning, but not
deciding, the continuing viability of circuit precedent that 28 U.S.C. 2401(a) is jurisdictional in

2
In John R. Sand & Gravel, the Court held that the limitations provision in 28 U.S.C. 2501
was jurisdictional based upon stare decisis principles. 552 U.S. at 13639. Thus, contrary to the
Forest Services suggestion, Nance v. United States, 92 Fed. Cl. 41 (Fed. Cl. 2010) is inapposite.
See Doc. 13, Page ID 135 and n.4.
7

light of recent Supreme Court decisions.).
3
Yet, a review of the language of 28 U.S.C. 2401(a)
reveals that Congress did not intend for it to be jurisdictional.
First, 28 U.S.C. 2401(a) does not mention jurisdiction, it merely provides that a claim
shall be barred unless . . . filed within six years after the right of action first accrues. See
Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1204 (2011) (noting the absence of
the word jurisdiction suggests the limitations provision is not jurisdictional); Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 394 (1982) (same); see also Cedars-Sinai Med. Ctr., 125
F.3d at 770 (interpreting the language 28 U.S.C. 2401(a) as erect[ing] only a procedural bar,
not a jurisdictional bar); Clymore, 217 F.3d at 374 (28 U.S.C. 2401(a) is a garden variety
limitations statute). Second, that Congress expressly provided for tolling of the limitations
period for persons under legal disability or beyond the seas, 28 U.S.C. 2401(a), suggests that
Congress did not intend for the provision to be jurisdictional.
Accordingly, because there is no clear statement in 28 U.S.C. 2401(a) that Congress
intended for it to be jurisdictional, this Court should rule that it is not jurisdictional.
4
Sebelius,
133 S. Ct. at 817. Such a ruling means that this Court must review the Forest Services statute of
limitations argument through the lens of Fed. R. Civ. P. 12(b)(6). More importantly, such a
ruling also means that this Court may consider, at the merits stage, arguments, such as waiver,
estoppel, and equitable tolling, in determining whether the Herrs claims are timely.
5
See Zipes,

3
Contrary to the Forest Services suggestion, Mendoza v. Perez, 754 F.3d 1002, 1018, n.11
(D.C. Cir. 2014) did not rule on whether 28 U.S.C. 2401(a) was jurisdictional because it found
that the claim was filed within the six-year limitations period.
4
Because 28 U.S.C. 2401(a) is not jurisdictional, whether the limitations periods ran is an
affirmative defense upon which the Forest Service has the burden of proof. See Fed. R. Civ. P.
8(c); Schmidt v. United States, 933 F.2d 639, 640 (8th Cir. 1991).
5
Another argument is that the federal government should not be allowed to promulgate an
unlawful restriction, seek to enforce it for the first time only after the limitations period has run,
and, when the restriction is then challenged, argue that the challenge is time-barred. See Illinois
8

455 U.S. at 393; see also Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir.
1995) (the applicability of equitable tolling is generally not amendable to resolution at the
motion to dismiss stage).
B. The Herrs Right Of Action First Accrued In 2010.

1. The Herrs right of action did not accrue until 2010, when they
purchased the property and acquired standing to sue.

Regardless of whether 28 U.S.C. 2401(a) is jurisdictional, the six-year limitations
period begins running when the right of action first accrues. A right of action first accrues
for purposes of 28 U.S.C. 2401(a) when a person can file and maintain a civil action against
federal agencies or officials in federal court. Crown Coat Front Co. v. United States, 386 U.S.
503, 50709 (1967); Spannaus v. U.S. Dept. of Justice, 824 F.2d 52, 56 (D.C. Cir. 1987) (A right
of action accrues for purposes of 28 U.S.C. 2401(a) as soon as (but not before) the person
challenging the agency action can institute and maintain a suit in court.) (emphasis added);
6
see
Heimeshoff v. Hartford Life & Acc. Ins. Co., 134 S. Ct. 604, 610 (2013) (As a general matter, a
statute of limitations begins to run when the cause of action accruesthat is, when the plaintiff
can file suit and obtain relief. (quotation omitted)); Wilcox v. Plummers Exrs, 29 U.S. 172,
181 (1830) (establishing when a right of action accrues by declaring: [w]hen might this action
have been instituted, is the question; for from that time the statute [of limitations] must run.).

Cent. Gulf R. Co. v. I.C.C., 720 F.2d 958, 961 (7th Cir. 1983) (refusing to apply a time limit on
judicial review where no one had any reason to challenge the decision at the time it was made).
Indeed, not enforcing the motorboat restrictions against the riparian landowners for over six
years would necessarily lull the riparian landowners into believing that the Forest Service
intended the restrictions to apply only to the general public. See Stupak-Thrall II, 988 F. Supp.
at 1065 (noting the motorboat restrictions may be lawful as to the general public); see also,
Irwin, 498 U.S. at 96 (indicating that equitable tolling may apply if the defendant induced the
plaintiff to not file sooner).
6
Elsewhere in Spannaus, the D.C. Circuit stated that 28 U.S.C. 2401(a) is jurisdictional. 824
F.2d at 55. That statement has been called into doubt in light of the Supreme Courts decision in
Irwin. Harris v. F.A.A., 353 F.3d 1006, 1013, n.7 (D.C. Cir. 2004).
9

In order to file and maintain a civil action against federal agencies in federal court, a
plaintiff must be able to satisfy the case or controversy requirement of Article III of the U.S.
Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (Article III limits the
judicial power to deciding cases and controversies). [A]n essential and unchanging part of the
case-or-controversy requirement of Article III is the doctrine of standing. Id. at 560. The
bedrock requirements of standing are injury, causation, and redressability. Id. at 56061.
The Herrs could not have challenged the Forest Services motorboat restrictions as
unlawfully infringing on their riparian rights until they purchased real property to which riparian
rights are attached. Indeed, without an ownership interest in riparian property on Crooked Lake,
the Herrs could not claim an injury arising from the Forest Services actions. Bowman v. Udall,
243 F. Supp. 672, 67778 (D.D.C. 1965), affd sub nom. Hinton v. Udall, 364 F.2d 676 (D.C.
Cir. 1966) (holding that grazing permittees lacked standing to challenge decision to restore
subsurface mineral rights to tribal ownership because permittees had no property interest in the
overlying surface estate); see Warth v. Seldin, 422 U.S. 490, 499 (1975) (A federal courts
jurisdiction . . . can be invoked only when the plaintiff himself has suffered some threatened or
actual injury resulting from the putatively illegal action . . . . (quotation omitted)). Without an
Article III injury, any attempt by the Herrs to challenge the Forest Services actions would have
been dismissed for lack of standing. Accordingly, the statute of limitations in 28 U.S.C.
2401(a) did not begin to run until 2010, when the Herrs purchased their riparian property. Utu
Utu Gwaitu Paiute Tribe v. Dept of Interior, 766 F. Supp. 842, 84647 (E.D. Cal. 1991)
(recognizing that a right of action does not accrue until a person has standing to sue).

10

2. Final agency action alone does not trigger the limitations period.

Although the Herrs could not sue before 2010, the Forest Service argues that the
limitation period in 28 U.S.C. 2401(a) begins to run under all circumstances upon final
agency action. Doc. 13, Page ID 133. In the Forest Services eyes, final agency action
occurred when the Forest Service issued the 2006 Forest Plan and, thus, the limitations period
expired in 2012. Id.
The Herrs do not dispute that the APA generally requires final agency action before a
suit may be initiated. See Lujan v. Natl Wildlife Fedn, 497 U.S. 871, 882 (1990) (When
judicial review is sought under general review provisions of the APA, the agency action in
question must be final agency action.) (citing 5 U.S.C. 704). Yet, final agency action
alone does not trigger the limitations period. To the contrary, for the limitations period to be
triggered there must be final agency action that adversely affects the plaintiff. 5 U.S.C.
702.
Under the APA, judicial review is limited to those who are adversely affected or
aggrieved by agency action within the meaning of a relevant statute . . . . 5 U.S.C. 702. To be
adversely affected within the meaning of a statute, the plaintiff must establish that the injury he
complains of (his aggrievement, or the adverse effect upon him) falls within the zone of
interests sought to be protected by the statutory provision whose violation forms the legal basis
for his complaint. Natl Wildlife Fedn, 497 U.S. at 883 (emphasis in original).
All Forest Service actions taken under the MWA are subject to valid existing rights.
FAC 33, 53, 63. In order to challenge the Forest Services motorboat restrictions as
exceeding this limitation, a putative plaintiff must own a valid existing right. The Herrs did not
acquire such a valid existing right until they purchased their property in 2010. Id. 43. Thus,
11

the Herrs could not have challenged the Forest Services motorboat restrictions until 2010,
because prior to that time they were not adversely affected . . . within the meaning of a relevant
statute. See Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir. 1997) (a plaintiff must be directly
affected to challenge agency action); cf. Dunn-McCampbell Royalty Interest, Inc. v. Natl Park
Serv., 112 F.3d 1283, 1287 (5th Cir. 1997) (It is a tautology that DunnMcCampbell may not
challenge the . . . regulations as applied until the Park Service applies the regulations to Dunn
McCampbell.). Therefore, the limitations period did not begin to run until 2010.
This conclusion is supported by the distinction between procedural or policy-based facial
challenges to agency action and substantive or as applied challenges. As explained by the Ninth
Circuit:
If a person wishes to challenge a mere procedural violation in the adoption of a
regulation or other agency action, the challenge must be brought within six years
of the decision. Similarly, if the person wishes to bring a policy-based facial
challenge to the governments decision, that too must be brought within six years
of the decision. . . .

If, however, a challenger contests the substance of an agency decision as
exceeding constitutional or statutory authority, the challenger may do so later
than six years following the decision by filing a complaint for review of the
adverse application of the decision to the particular challenger.

Wind River Min. Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991) (all emphasis added);
see also Oppenheim v. Campbell, 571 F.2d 660, 66163 (D.C. Cir. 1978) (ruling that the
limitation period in 28 U.S.C. 2401(a) did not prevent a challenge to a 1945 agency circular
that was first applied to the plaintiff when he retired in 1974); N. Cnty. Cmty. Alliance, Inc. v.
Salazar, 573 F.3d 738, 743 (9th Cir. 2009) (allowing challenge to 14-year-old agency action to
proceed where plaintiffs could not have known it would affect them until shortly before filing
suit); Dunn-McCampbell, 112 F.3d at 1287 (an agencys application of a rule to a party creates
12

a new, six-year [limitations period] to challenge . . . the agencys constitutional or statutory
authority).
The Herrs first became subject to the motorboat restrictions as riparian landowners in
2010 when they purchased their property. In other words, the motorboat restrictions were first
applied to them on that date. Because this was the first adverse application of the [challenged]
decision to the particular challenger[,] Wind River, 946 F.2d at 715, the Herrs timely filed
within the six-year limitations period.
7

3. Notice alone does not trigger the limitations period.

The Forest Service also argues that the right of action first accrues for purposes of 28
U.S.C. 2401(a) when the plaintiff knows or has reasons to know of the injury. Doc. 13, Page
ID 13336. As the challenged motorboat restrictions are in the 2006 Forest Plan, the Forest
Service surmises that the six-year limitations period expired in 2012 because the Herrs knew or

7
The weakness of the Forest Services statute of limitations argument is further revealed by its
suggestion that the Herrs could not challenge the motorboat restrictions in defending against
criminal charges. Doc. 13, Page ID 137. In support of its suggestion, the Forest Service cites
United States v. Backlund, 689 F.3d 986 (9th Cir. 2012). That case is distinguishable and is an
aberration. First, in Backlund, the Ninth Circuit stated that the criminal defendant could not
collaterally attack outside the statute of limitations an administrative factual finding. 689 F.3d at
99899. This issue in the instant case is not factual; the issue is whether the Forest Services
motorboat restrictions are ultra vires. Second, the Supreme Court has repeatedly noted that due
process would be denied if a criminal defendant could not challenge the lawfulness of the agency
action upon which a criminal charge is based. Touby v. United States, 500 U.S. 160, 170 (1991)
(Marshall, J., concurring) (Because of the severe impact of criminal laws on individual liberty, I
believe that an opportunity to challenge a delegated lawmakers compliance with congressional
directives is a constitutional necessity when administrative standards are enforced by criminal
law.); United States v. Mendoza-Lopez, 481 U.S. 828, 83738 (1987) (Our cases establish that
where a determination made in an administrative proceeding is to play a critical role in the
subsequent imposition of a criminal sanction, there must be some meaningful review of the
administrative proceeding.). Finally, the APA provides: [e]xcept to the extent that prior,
adequate, and exclusive opportunity for judicial review is provided by law, agency action is
subject to judicial review in civil or criminal proceedings for judicial enforcement. 5 U.S.C.
703. Thus, dismissal of this case would serve no purpose because the Herrs could raise their
ultra vires argument in defense to any criminal charges.
13

should have known of the restrictions since 2006. Id. In support of its syllogism, the Forest
Service cites Stupak-Thrall v. Glickman, 346 F.3d 579, 584 (6th Cir. 2003) (Stupak-Thrall III).
Doc. 13, Page ID 13334. The Forest Service reads too much into that case.
8

In Stupak-Thrall III, the plaintiffs challenged whether Crooked Lake was within the
Sylvania Wilderness. 346 F.3d at 58182. In contrast to the Herrs, the plaintiffs in Stupak-
Thrall III had owned riparian land on Crooked Lake since well before the MWA. Stupak-Thrall
II, 988 F. Supp. at 1059. In affirming the dismissal of the plaintiffs claim as barred by 28
U.S.C. 2401(a), the Sixth Circuit ruled that a right [of action] first accrues when the plaintiff
knows or has reason to know of the injury complained of.
9
Stupak-Thrall III, 346 F.3d at 584
(emphasis added). It is clear from the Sixth Circuits opinion that the injury complained of
had to be an Article III injury. Stupak-Thrall III, 346 F.3d at 58385 (explaining that the
plaintiffs Article III injury arose and the limitations period began running from the Forest
Services assertion of authority to regulate riparian rights).
Based upon Stupak-Thrall III, whether the Herrs may have had notice of the motorboat
restrictions in 2006 is irrelevant. Notice of facts that may give rise to the possibility of an injury
in the future is not an Article III injury. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (An

8
At this stage of the proceedings, there is no evidence regarding the occurrence of actual notice.
Moreover, the issue of notice, whether actual or constructive, for when a right of action may
have accrued is a fact-intensive inquiry the resolution of which is inappropriate at this stage. See
Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 691 (9th Cir. 2005) (Reversing
the granting of a motion to dismiss and remanding for further factual development because [t]he
question of when a claim accrues is a fact-intensive inquiry . . . .).
9
To the extent that the Sixth Circuits decision in Stupak-Thrall III suggests that constructive
notice may trigger the limitations period in 28 U.S.C. 2401(a), the Herrs respectfully disagree.
If Congress wanted that limitations period to be triggered by constructive notice, it would have
said so. Compare 28 U.S.C. 2401(a) with 28 U.S.C. 2409a(g) (Any civil action under this
section . . . shall be barred unless it is commenced within twelve years of the date upon which it
accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor
in interest knew or should have known of the claim of the United States. (emphasis added)); but
see, Shiny Rock Min. Corp. v. United States, 906 F.2d 1362, 1365 (9th Cir. 1990).
14

Article III injury must be concrete in both a qualitative and temporal sense.); Los Angeles v.
Lyons, 461 U.S. 95, 101102 (1983) (The complained of injury must be both real and
immediate, not conjectural or hypothetical. (internal quotation marks omitted)); see Friedman v.
Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991) (noting that the statute of limitations
inquiry focuses on the harm incurred, rather than the plaintiffs knowledge of the underlying
facts which gave rise to the harm. (emphasis added)). Because the Herrs Article III injury
arose, at the earliest, when they purchased the property in 2010, their challenge to the motorboat
restrictions is timely.
4. The limitations period was not running against the Herrs while their
predecessor owned the property.

The thrust of the Forest Service argument is that the limitation period in 28 U.S.C.
2401(a) was running against the Herrs while their predecessor owned the property. Doc. 13,
Page ID 133. That argument cannot be squared with the plain language of 28 U.S.C. 2401(a),
which requires a plaintiff to commence a civil action within six years after the right of action
first accrues. Because a right of action does not accrue until the plaintiff can file and maintain a
suit, the Forest Services argument is devoid of merit. This is especially true considering that, if
Congress wanted the limitation period in 28 U.S.C. 2401(a) to run during the time a plaintiffs
predecessor could have filed and maintained a suit, it would have said so. Compare 28 U.S.C.
2401(a) with 28 U.S.C. 2409a(g) (an action to quiet title against the United States shall be
deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should
have known of the claim of the United States. (emphasis added)).
This conclusion is further supported by the Supreme Courts decision in Palazzolo v.
Rhode Island, 533 U.S. 606 (2001). In Palazzolo, a landowner claimed that a state land-use
regulation effectuated a taking for which just compensation was owed. Id. at 611. Because the
15

regulation was promulgated long before the landowner acquired the property, the state supreme
court rejected the taking claim, concluding that the landowner had notice of the offending
regulation when he acquired the property. Id. at 616. In rejecting the state supreme courts
ruling that a purchaser with notice could not challenge a pre-existing regulation as effectuating a
taking, the Supreme Court explained:
Were we to accept the States rule, the postenactment transfer of title would
absolve the State of its obligation to defend any action restricting land use, no
matter how extreme or unreasonable. A State would be allowed, in effect, to put
an expiration date on the Takings Clause. This ought not to be the rule. Future
generations, too, have a right to challenge unreasonable limitations on the use and
value of land.

Id. at 627.

Similarly, if this Court were to accept the Forest Services argument that the limitations
period was running against the Herrs while the property was owned by their predecessor, the
Forest Service would be absolved of its obligation to defend its motorboat restrictions, no
matter how extreme or unreasonable. Id. To make matters worse, the Forest Services
argument would work a critical alteration to the nature of property and secure a windfall for
itself simply because property was transferred. Id. In short, Congress did not intend for the
limitation period in 28 U.S.C. 2401(a) to be used by the Forest Service as a tool to extinguish
property rights simply because the land to which those rights were attached was sold. See Wind
River, 946 F.2d at 715 (The government should not be permitted to avoid all challenges to its
actions, even if ultra vires, simply because the agency took the action long before anyone
discovered the true state of affairs.).

16

C. At A Minimum, The June 2013 Letter Started A New Limitations
Period Vis--Vis The 2006 Forest Plan And 2007 Forest Order.

To the extent that the limitations period may have begun running before the Herrs
purchased their riparian property, the June 2013 Letter started a new limitations period. The
reopener doctrine allows judicial review where an agency haseither explicitly or implicitly
undertaken to reexamine its former choice. Natl Min. Assn v. U.S. Dept of Interior, 70
F.3d 1345, 1351 (D.C. Cir. 1995) (quoting Public Citizen v. Nuclear Regulatory Commn, 901
F.2d 147, 151 (D.C. Cir. 1990) (allowing challenge to a longstanding rule following agency
reconsideration and reaffirmation)); Sendra Corp. v. Magaw, 111 F.3d 162, 167 (D.C. Cir. 1997)
(If for any reason the agency reopens a matter and, after reconsideration, issues a new and final
order, that order is reviewable on its merits, even though the agency merely reaffirms its original
decision. . . . The new order is, in other words, final agency action and as such, a new right of
action accrues and starts the running of a new limitations period for judicial review.).
Here, the June 2013 Letter started a new limitations period for both the 2006 Forest Plan
and the 2007 Forest Order. Public Citizen, 901 F.2d at 150 (Under the reopener doctrine, the
crucial question . . . is whether an agency has in fact reopened an issue, explicitly or implicitly . .
. .); Association of American Railroads v. ICC, 846 F.2d 1465, 1473 (D.C. Cir. 1988) ([T]he
general principle [is] that if the agency has opened the issue up anew, even though not explicitly,
its renewed adherence is substantively reviewable.). Indeed, it can be inferred that an agency
has reopened an issue even when it merely explains its unchanged position. Public Citizen, 901
F.2d at 152 (In this case, the agency has reconsidered and reinstated its original policy. Such
action, we think, necessarily raises the lawfulness of the original policy, for agencies have an
ever[-]present duty to insure that their actions are lawful.).
17

By suddenly changing course and telling the Herrs that it intends to enforce the
motorboat restrictions against them, the Forest Service necessarily reconsidered both the 2006
Forest Plan and the 2007 Forest Order and somehow came to the conclusion that the motorboat
restrictions were lawful as applied to riparian landowners.
10
This is clear from Forest Services
explanation in the June 2013 Letter:
Motorboat use of Crooked Lake had been an issue that had received much
attention. That issue was resolved with a ruling by a federal district court and the
federal governments decision to request dismissal of its appeal. . . . The courts
ruling enjoined the Forest Service from implementing motorboat restrictions
against the Plaintiffs and their guests. The court ruling did not apply to anyone
else including other riparian owners or the general public. In order to protect
wilderness character to the fullest extent possible I am instructing Forest Service
personnel to fully enforce existing Forest Orders regarding the use of motorboats
within the wilderness portion of Crooked Lake except as limited by the courts
ruling.

Doc. 4-5, Page ID 98.

By trying to explain the purported legal basis for the motorboat restrictions and why they
must suddenly be enforced, the Forest Service reopened the issue regarding the lawfulness of the
motorboat restrictions. This is especially true considering that the Forest Service invited
questions from the Herrs (id. at Page ID 99), regarding its conclusions.
11
See State of Ohio v.
EPA, 838 F.2d 1325, 1328 (D.C. Cir. 1988) (noting that an agency may reopen an issue by
soliciting comments).

10
The timing of the June 2013 Letter is suspect considering that it was sent a little over six years
after the Record of Decision for the 2006 Forest Plan (ROD). A copy of the ROD is attached
hereto as Exhibit 2. This Court may take judicial notice of Forest Service documents. See U.S.
ex rel. Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003), affd sub nom.
Dingle v. Bioport Corp., 388 F.3d 209 (6th Cir. 2004).
11
The Herrs responded to the Forest Services invitation by explaining that, under Judge Bells
decision, the motorboat restrictions were unlawful as applied to them. Doc. 4-7, Page ID 105.
The Forest Service failed to even extend the courtesy of a reply. FAC 53.
18

Thus, at a minimum, the June 2013 Letter started a new limitations period for both the
2006 Forest Plan and the 2007 Forest Order. Therefore, this Court should reject the Forest
Services effort to dismiss this case as untimely.
12

III. THE FOREST SERVICES JUNE 2013 LETTER IS SUBJECT TO JUDICIAL
REVIEW.

The Forest Service seeks to dismiss the Herrs challenge to the June 2013 Letter by
arguing it is neither agency action nor final agency action. Doc. 13, Page ID 138140. These
arguments do not hold water.
First, the June 2013 Letter is agency action. As alleged by the Herrs, the Forest Service
never sought to enforce the restrictions in the 2006 Forest Plan or the 2007 Forest Order until
2013, when the Forest Service sent the June 2013 Letter to the Herrs and other riparian
landowners.
13
FAC 5055. By not enforcing the motorboat restrictions, the Forest Service
had a de facto policy to respect riparian rights, as Congress intended when it passed 5 of the
MWA. In other words, prior to 2013, it was as if the motorboat restrictions in the 2006 Forest
Plan and the 2007 Forest Service Order did not exist with respect to the Herrs.
Moreover, because the June 2013 Letter reflects a sudden change in policy by the Forest
Service to begin enforcing the 2006 Forest Plan and the 2007 Forest Order after many years of
non-enforcement, the June 2013 Letter is agency action under the APA. Under the APA,
agency action includes the whole or a part of an agency rule, order, license, sanction, relief,
or the equivalent or denial thereof, or failure to act. 5 U.S.C. 551(13). This list is expansive.

12
The Forest Services reliance on Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d
923, 93032 (9th Cir. 2010) and Backcountry Hunters & Anglers v. U.S. Forest Serv., 2013 WL
1191245, **1, 4, 68 (D. Colo. 2013) is misplaced because it does not appear that the reopener
doctrine was raised in either case and the plaintiffs in both cases misinterpreted the agency action
they were challenging.
13
At this stage of the proceedings, these factual allegations must be accepted as true.
19

It is meant to cover comprehensively every manner in which an agency may exercise its
power. Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 19 (D.C. Cir. 2006)
(quoting Whitman v. Am. Trucking Assns, Inc., 531 U.S. 457, 478 (2001)). Granted, agency
action does not include everything done by an agency, such as submitting budget proposals to
Congress. Fund for Animals, 460 F.3d at 1921. But agency action does include the whole
or a part of an agency statement of general or particular applicability and future effect designed
to implement, interpret, or prescribe law or policy . . . . 5 U.S.C. 551(4) (all emphasis added).
The June 2013 Letter reflects the Forest Services interpretation (albeit erroneous) of the MWA
and Judge Bells decision in Stupak-Thrall II. Doc. 4-5, Page ID 9899. The June 2013 Letter
also reflects the Forest Services intent to now implement its erroneous interpretation through
enforcement of the 2007 Forest Order against the Herrs. Id. Thus, the June 2013 Letter is
agency action because it reflects an 180-degree change in policyfrom non-enforcement to
enforcement. See Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 24749 (3d Cir. 2011)
(Forest Service statement that banned the exercise of property rights constituted agency action
because it effectuated a sea change in policy).
Second, the June 2013 Letter is final agency action. Only two conditions need to be
satisfied for there to be final agency action:
First, the action must mark the consummation of the agencys decisionmaking
process . . . . And second, the action must be one by which rights or obligations
have been determined, or from which legal consequences will flow[.]

Bennett v. Spear, 520 U.S. 154, 17778 (1997) (internal citations omitted). By its own terms, the
June 2013 Letter consummat[ed] the Forest Services decisionmaking process to begin
enforc[ing] the motorboat restrictions against the Herrs. Doc. 4-5, Page ID 98; cf. Basel
Action Network v. Mar. Admin., 285 F. Supp. 2d 58, 61 (D.D.C. 2003) (non-enforcement letter
20

was final agency action). In addition, legal consequences will flow from this sudden change in
policy because the Herrs face an intolerable choice: to either cede their riparian rights to the
Forest Service or risk criminal penalties. Doc. 4-6, Page ID 103 (listing penalties); Minard Run,
670 F.3d at 24749 (Forest Service statement that banned the exercise of property rights was
final agency action because it subjected property owners to future criminal penalties for
exercising their rights); Sackett v. EPA, 132 S. Ct. 1367, 1371 (2012) (EPA compliance order
constituted final agency action because it exposed the Sacketts to double penalties in a future
enforcement proceeding.); id. at 1373 (noting that the APA provides for judicial review of all
final agency actions, not just those that impose a self-executing sanction.). Therefore, the June
2013 Letter is final agency action subject to judicial review.
14
See HRI, Inc. v. EPA, 198 F.3d
1224, 1238, n.8 (10th Cir. 2000) (Because the EPAs letter represented an explicit change in
position it constituted a distinct final decision reviewable on its merits . . . .); cf. I.C.C. v.
Brotherhood of Locomotive Engineers, 482 U.S. 270, 278 (1987) (When [an agency] reopens a
proceeding for any reason and, after reconsideration, issues a new and final order setting forth
the rights and obligations of the parties, that ordereven if it merely reaffirms the rights and
obligations set forth in the original orderis reviewable on its merits. (emphasis added)).
IV. THE FOREST SERVICES EXHAUSTION ARGUMENT IS UNAVAILING.

For claims brought under the APA, exhaustion of administrative remedies is generally
required when mandated by statute or agency rule . . . . Darby v. Cisneros, 509 U.S. 137, 147
(1993) (citing 5 U.S.C. 704). Here, the applicable statute, 7 U.S.C. 6912(e), provides that a
person shall exhaust all administrative appeal procedures established by the Secretary [of

14
The Herrs submit that Sackett (because it is controlling) and Minard Run (because of its
factual similarity) adequately refute the outdated and distinguishable cases cited by the Forest
Service. See Doc. 13, Page ID 13840.
21

Agriculture] or required by law before the person may bring an action in a court of competent
jurisdiction against (1) the Secretary; (2) the Department [of Agriculture]; or (3) an agency,
office, officer, or employee of the Department [of Agriculture]. Because the Forest Service had
an administrative appeal process for the 2006 Forest Plan,
15
the Forest Service argues that the
Herrs challenge to the motorboat restrictions in the Plan should be dismissed for failure to
exhaust.
16
As demonstrated below, the Forest Services exhaustion argument fairs no better than
its statute of limitations argument.
A. The Exhaustion Requirement In 7 U.S.C. 6912(e) Is Not
Jurisdictional.

Like statues of limitations, exhaustion requirements may be jurisdictional or non-
jurisdictional. Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 124748 (D.C. Cir. 2004). Yet,
there is a presumption against jurisdictional exhaustion that may be overcome only if Congress
uses sweeping and direct statutory language indicating that there is no federal jurisdiction prior
to exhaustion. Munsell v. Dept of Agric., 509 F.3d 572, 580 (D.C. Cir. 2007) (quotation
omitted). Despite the presumption against jurisdictional exhaustion, the Forest Service cites a
few cases that suggest 7 U.S.C. 6912(e) is jurisdictional. Doc. 13, Page ID 13132. Yet, the
Forest Service itself acknowledges that the courts are split on this issue. Id. Importantly, the
weight of authority from the circuits demonstrates that 7 U.S.C. 6912(e) merely codifies an
exhaustion requirement and does not implicate this Courts jurisdiction. Munsell, 509 F.3d at

15
The Forest Service argues that the relevant appeal regulations are found at 36 C.F.R. Part 215.
Doc. 13, Page ID 140. That Part, which is currently reserved, previously governed appeals of
projects and activities implementing forest plans, not appeals of forest plans. See 36 C.F.R. Part
215 (2006). The 2006 Forest Plan was subject to the appeal procedures in 36 C.F.R. Part 217
that were in effect prior to November 9, 2000. See 36 C.F.R. 219.14(e) (2005); 36 C.F.R. Part
217 (2000); see also ROD at 3839; Appeal Decision for the 2006 Forest Plan (Appeal
Decision) at 1. A copy of the Appeal Decision is attached hereto as Exhibit 3.
16
The Forest Service has not made an exhaustion argument with respect to either the 2007 Forest
Order or the June 2013 Letter. See Doc. 13, Page ID 141.
22

575 (non-jurisdictional); Dawson Farms, LLC v. Farm Serv. Agency, 504 F.3d 592, 594 (5th Cir.
2007) (non-jurisdictional); Bartlett v. U.S. Dept of Agric., 716 F.3d 464, 472 (8th Cir. 2013)
(non-jurisdictional); McBride Cotton & Cattle Corp. v. Veneman, 290 F.3d 973, 980 (9th Cir.
2002) (non-jurisdictional); Bastek v. Fed. Crop Ins. Corp., 145 F.3d 90, 9495 (2d Cir. 1998)
(jurisdictional); Gold Dollar Warehouse, Inc. v. Glickman, 211 F.3d 93, 98 (4th Cir. 2000)
(jurisdictional). Moreover, there is lack of sweeping and direct statutory language in 7 U.S.C.
6912(e) indicating that Congress intended the exhaustion requirement to be jurisdictional.
Indeed, as explained by the Ninth Circuit:
Comparing the exhaustion requirement in this case with other exhaustion
requirements we have considered, we hold that 7 U.S.C. 6912(e) does not limit
the district courts subject matter jurisdiction over the plaintiffs claims. Nothing
in 6912(e) mentions, defines, or limits federal jurisdiction. Instead, 6912(e)s
requirement that a person shall exhaust all administrative appeal procedures
established by the Secretary or required by law before the person may bring an
action in a court of competent jurisdiction . . . is similar to the language which . .
. we [have] held was merely a codification of the exhaustion requirement.

McBride Cotton & Cattle Corp., 290 F.3d at 980 (internal citations omitted).
Accordingly, this Court should rule that 7 U.S.C. 6912(e) is not jurisdictional. See
Anderson v. Babbitt, 230 F.3d 1158, 1162 (9th Cir. 2000) (A statute that merely provides that
no action shall be brought . . . until such administrative remedies as are available are exhausted is
not a jurisdictional bar. (internal quotations and alterations omitted)). Such a ruling means that
this Court must review the Forest Services exhaustion argument through the lens of Fed. R. Civ.
P. 12(b)(6). More importantly, because 7 U.S.C. 6912(e) is not jurisdictional, this Court may
consider well established exceptions to the exhaustion requirement. Woodford v. Ngo, 548 U.S.
81, 103 (2006) (Breyer, J., concurring) (noting that these exceptions include, constitutional
claims, futility, hardship, and inadequate or unavailable administrative remedies); McDonald v.
Centra, Inc., 946 F.2d 1059, 1063 (4th Cir. 1991) (Exhaustion is not required where (1) the
23

dispute is a matter of statutory construction; (2) the utilization of administrative procedures
would cause irreparable injury; and (3) the resort to administrative procedures would be futile.
(emphasis added)). As demonstrated below, application of these exceptions, among others,
prove that this case should not be dismissed for failure to exhaust.
B. The Lawfulness Of The Motorboat Restrictions Was Exhausted And
Any Attempt By The Herrs To Exhaust Would Have Been
Impracticable And Futile.

The purposes behind exhaustion include: (1) giving an agency a chance to correct its
mistakes; and (2) allowing the agency to create a record adequate for judicial review. Avocados
Plus, 370 F.3d at 1247. These purposes are fully served in this case because the lawfulness of
the Forest Services motorboat restrictions was exhausted and the Forest Service will be able to
provide an administrative record for this Courts review.
As the Forest Service concedes, Kathy Stupak-Thrall, a plaintiff in Stupak-Thrall II,
administratively appealed the motorboat restrictions in the 2006 Forest Plan. Doc. 13-1, Page ID
14344. Other riparian landowners on Crooked Lake intervened in Stupak-Thralls appeal Id.,
Page ID 144. These riparian landowners included Dick Bowman, id., the Herrs predecessor.
FAC 4345; Docs. 4-1, 4-2. It is safe to assume that the lawfulness of the motorboat
restrictions were raised in Stupak-Thralls appeal. See Stupak-Thrall II, 988 F. Supp. at 1061
66. Demonstrating a lack of respect for Judge Bells decision in Stupak-Thrall II and ignoring its
binding effect, however, the Forest Service rejected those arguments. Appeal Decision,
Attachment 1 at 5 (I find no violation of law, regulation, or policy as it pertains to management
direction for motorboat use on Crooked Lake.).
Accordingly, the Forest Service had a chance to correct its mistake, but refused.
Therefore, because the lawfulness of the motorboat restrictions has been exhausted and the
24

purposes of exhaustion have been and will be served, this case should proceed to the merits. Cf.
Natl Black Media Coal. v. F.C.C., 791 F.2d 1016, 1021 (2d Cir. 1986) ([I]t is not always
necessary for a [plaintiff] to raise an issue, so long as the [agency] in fact considered the issue.);
Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d 1009, 1024 (9th Cir. 2007)
(noting that judicial review is available for any issue raised during the administrative
proceedings even if the issue is considered sua sponte by the agency).
The Forest Service argues that only those specific persons who file an administrative
appeal may later seek judicial review. Doc. 13, Page ID 141. Yet, acceptance of this argument
would abrogate the well-established exceptions to the exhaustion requirement:
Where pursuit of administrative remedies does not serve the purposes behind the
exhaustion doctrine, the courts have allowed a number of exceptions. Thus,
exhaustion is not required if administrative remedies are inadequate or not
efficacious, where pursuit of administrative remedies would be a futile gesture,
where irreparable injury will result unless immediate judicial review is permitted,
or where the administrative proceeding would be void . . . .

Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1093 (6th Cir. 1981) (internal citations omitted).
Here, the time to appeal the 2006 Forest Plan expired before the Herrs purchased their
property. See ROD at 39 (providing for a 90-day appeal period). Assuming the Herrs could
have appealed the 2006 Forest Plan, they had no reason to because they could not have sought
judicial review of the adverse decision. Exhaustion may be excused under such impractical
circumstances. See Day v. Shalala, 23 F.3d 1052, 1060 (6th Cir. 1994) (Enforcing the
exhaustion requirement in the context of this case would not serve the policies underlying
exhaustion, but would impose a logically impossible burden on claimants.). Moreover, because
the Forest Service denied Stupak-Thralls appeal, any administrative appeal filed by the Herrs
25

would have been futile.
17
This is especially true considering that the Forest Service believes it is
not subject to either 5 of the MWA or Judge Bells rulings, and no administrative appeal was
going to change its mind. See Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988)
(Exhaustion is not required if administrative remedies would be futile, if the actions of the
agency clearly and unambiguously violate statutory or constitutional rights, or if the
administrative procedure is clearly shown to be inadequate to prevent irreparable injury. (all
emphasis added)); see also, Minard Run, 670 F.3d at 256 (Forest Service ban on the exercise of
property rights constituted irreparable injury). Therefore, this Court should reject the Forest
Services exhaustion argument and allow this case to proceed to the merits.
CONCLUSION
For the forgoing reasons, this Court should deny the motion to dismiss.
DATED this 19th day of August 2014.
Respectfully submitted,
s/ Steven J. Lechner
Steven J. Lechner
Mountain States Legal Foundation
2596 South Lewis Way
Lakewood, Colorado 80227
Phone (303) 292-2021
Fax (303) 292-1980
lechner@mountainstateslegal.com

Attorney for Plaintiffs

17
The Forest Service also rejected Stupak-Thralls 1995 appeal of the motorboat restrictions.
Stupak-Thrall II, 988 F. Supp. at 105859, 106164. That the Forest Service twice denied
appeals of the motorboat restrictions further demonstrates that any administrative appeal filed by
the Herrs would have been futile. See Doc.12, Gajewski v. United States, No. 2:93-CV-066-GJQ
(W.D. Mich., Aug. 23, 1993) (ruling that exhaustion in Stupak-Thrall I would have been futile
for the Gajewskis in light of the adverse decision in Stupak-Thralls administrative appeal).
26

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 19th day of August 2014, I filed the foregoing
electronically through the CM/ECF system, which caused counsel for all parties to be served by
electronic means, as more fully reflected on the Notice of Electronic Filing.

s/ Steven J. Lechner
Steven J. Lechner


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