Kathy Stupak-Thrall v. Daniel Glickman

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0353P (6th Cir.)
File Name: 03a0353p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KATHY STUPAK-THRALL, et
al.,
Plaintiffs-Appellants,
v.
DANIEL GLICKMAN, et al.,
Defendants-Appellees.
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No. 99-1666
Appeal from the United States District Court
for the Western District of Michigan at Marquette.
No. 98-00113—Robert Holmes Bell, Chief District Judge.
Argued: August 10, 2001
Decided and Filed: October 3, 2003
Before: KEITH, BATCHELDER, and MOORE, Circuit
Judges.
_________________
COUNSEL
ARGUED: Steven J. Lechner, MOUNTAIN STATES
LEGAL FOUNDATION, Lakewood, Colorado, for
Appellants. Todd S. Kim, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
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Appellees. ON BRIEF: William Perry Pendley,
MOUNTAIN STATES LEGAL FOUNDATION, Lakewood,
Colorado, for Appellants. Mark R. Haag, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees. Elizabeth H. Schmiesing, William L. Underwood,
FAEGRE & BENSON, Minneapolis, Minnesota, for Amici
Curiae.
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OPINION
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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
within the regulatory authority of the United States Forest
Service, appeal the district court’s decision dismissing as
time-barred their claim against the United States. Because we
find that the plaintiffs’ claims are untimely and that the
government did not waive its right to raise a statute of
limitations defense, we will AFFIRM the district court’s
grant of summary judgment.
I.
The plaintiffs are property owners holding certain riparian
rights to the use of Crooked Lake, located in the Ottawa
National Forest in Michigan’s Upper Peninsula. In 1987,
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
authority of the United States Forest Service. The Forest
Service began the process of amending the Land Resource
Management Plan (“LRMP”) for the Ottawa National Forest
to include regulation of the Sylvania area. The process
allowed for public meeting and public comment as provided
by 16 U.S.C. § 1604 and 36 C.F.R. § 219. There is no dispute

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

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

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

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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.

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