in the united states district court for the western...

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

NORTHERN DIVISION

DAVID A. HERR; PAMELA F. HERR,

Plaintiffs,

v.

UNITED STATES FOREST SERVICE; TOM VILSACK, Secretary of Agriculture; TOM TIDWELL, Chief of the United States Forest Service; KATHLEEN ATKINSON, Regional Forester for the Eastern Region of the United States Forest Service; ANTHONY SCARDINA, Forest Supervisor, Ottawa National Forest; NORMAN E. NASS, District Ranger, Watersmeet – Iron River Ranger Districts,

Defendants.

)))))))))))))))))))

Case No.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs, David A. Herr and Pamela F. Herr (collectively the “Herrs”), by and through

their undersigned attorney, hereby file this Complaint for Declaratory and Injunctive Relief

against the above-named Defendants and allege the following:

JURISDICTION AND VENUE

1. This Court has jurisdiction, pursuant to 28 U.S.C. § 1331, because the matter in

controversy arises under the Constitution and laws of the United States, including but not limited

to: (a) the Michigan Wilderness Act of 1987, Pub. L. No. 100-184, 101 Stat. 1274 (1987); and

(b) the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq.

Case 2:14-cv-00105-RAED Doc #1 Filed 05/13/14 of 31 Page ID#1

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2. This Court may grant the requested declaratory and injunctive relief under 28

U.S.C. §§ 2201–02, and 5 U.S.C. § 706 for Defendants’ unlawful actions.

3. Venue rests properly in this Court, pursuant to 28 U.S.C. § 1391(e), because a

“substantial part of property that is the subject of the action is situated” within this judicial

district. Venue is also proper under Rule 3.2 of the Local Rules of Practice and Procedure for the

United States District Court for the Western District of Michigan.

PARTIES

4. The Herrs, husband and wife, are U.S. citizens. David A. Herr is a resident of the

State of Michigan, residing at E21955 Crooked Lake Road, Watersmeet, Michigan 49969.

Pamela F. Herr is a resident of the State of Wisconsin, residing at 8224 17th Avenue, Kenosha,

Wisconsin 53143. Together, the Herrs own lakefront property on Crooked Lake in Watersmeet,

Gogebic County, Michigan. Most of Crooked Lake lies within the Sylvania Wilderness Area,

which is part of the Ottawa National Forest, but the Herrs’ property is located on the portion of

the lake outside of the Sylvania Wilderness Area boundaries.

5. Defendant United States Forest Service (“Forest Service”) is an agency within the

United States Department of Agriculture (“USDA”) responsible for administering National

Forest lands under the Forest Service Organic Act, 16 U.S.C. §§ 473–82, 551 (Organic Act”),

and the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., including the

Sylvania Wilderness Area, which was part of the Ottawa National Forest before its inclusion in

the National Wilderness Preservation System.

6. Tom Vilsack is the Secretary of the USDA. As Secretary of the USDA,

Defendant Vilsack oversees the agencies falling under the management of the USDA, such as the

Forest Service, 16 U.S.C. §§ 472, 524, 554. Defendant Vilsack is sued in his official capacity.


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7. Tom Tidwell is the Chief of the Forest Service. As Chief of the Forest Service,

Defendant Tidwell, under the direction of the Secretary of Agriculture, “administers the

formulation, direction, and execution of Forest Service policies, programs, and activities.” 36

C.F.R. § 200.1. Defendant Tidwell is sued in his official capacity.

8. Kathleen Atkinson is the Regional Forester for the Eastern Region of the Forest

Service, also known as Region 9. As Regional Forester, Defendant Atkinson “is responsible to

the Chief [of the Forest Service] for the activities assigned” to the Eastern Region, including the

Ottawa National Forest. Id. § 200.2(a). Defendant Atkinson is sued in her official capacity.

9. Anthony Scardina is the Forest Supervisor for the Ottawa National Forest. As

Forest Supervisor, Defendant Scardina is responsible to the Regional Forester for the

management of the Ottawa National Forest, as well as, the coordination of the ranger districts

within the Ottawa National Forest, including the Watersmeet and Iron River Districts. Id. §

200.2(a)(1). Defendant Scardina is sued in his official capacity.

10. Norman E. Nass is the District Ranger for the Watersmeet – Iron River Ranger

Districts. As District Ranger, Defendant Nass is responsible to the Forest Supervisor for

supervising the areas designated as the Watersmeet and Iron River Districts within the Ottawa

National Forest, including the Sylvania Wilderness Area. Id. § 200.2(a)(2). Defendant Nass is

sued in his official capacity.

LEGAL BACKGROUND

A. THE FOREST SERVICE ORGANIC ACT.

11. In 1897, Congress passed the Organic Act. 16 U.S.C. §§ 473–482, 551.

12. The Organic Act established the purposes of the National Forests, which includes

“improv[ing] and protect[ing] the forest[s] within the boundaries,” “securing favorable


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conditions of water flows,” and “furnish[ing] a continuous supply of timber for the use and

necessities of citizens of the United States.” Id. § 475.

13. To effectuate the purposes of the National Forests, the Organic Act gave the

Secretary of Agriculture limited authority to “make such rules and regulations and establish such

service as will insure the objects of such reservations,” such as “to regulate their occupancy and

use . . . .” Id. § 551.

B. THE NATIONAL FOREST MANAGEMENT ACT.

14. In 1976, Congress passed the NFMA. 16 U.S.C. §§ 1600–14.

15. NFMA mandates that the Secretary of Agriculture “develop, maintain, and, as

appropriate, revise land and resource management plans of units of the National Forest System.”

Id. § 1604. These land and resource management plans are commonly known as forest plans.

C. THE WILDERNESS ACT.

16. In 1964, Congress passed the Wilderness Act, which established the National

Wilderness Preservation System. 16 U.S.C. §§ 1131–1136.

17. Only Congress has the power to designate federal lands as wilderness. See 16

U.S.C. § 1131(a). These congressionally designated wilderness areas are managed by the

department or agency having jurisdiction prior to the wilderness designation, unless otherwise

provided by Congress. Id. § 1131(b).

D. THE MICHIGAN WILDERNESS ACT OF 1987.

18. In 1987, Congress enacted the Michigan Wilderness Act of 1987 (“MWA”). Pub.

L. No. 100-184, 101 Stat. 1274 (1987).


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19. The MWA designated “certain lands in the Ottawa National Forest” as the

Sylvania Wilderness Area, which placed it within the National Wilderness Preservation System.

Id.

20. 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. . . .” Id. (emphasis added).

E. RIPARIAN RIGHTS UNDER MICHIGAN STATE LAW.1

21. In Michigan, riparian rights arise, by operation of law, as an incident to ownership

of property adjoining the banks of a body of water. People v. Hulbert, 91 N.W. 211, 213 (Mich.

1902).

22. “Riparian rights include rights to ‘fishing, wading, bathing, swimming, washing

sheep, watering cattle, pigs, and horses, washing vehicles and clothing, cutting ice, boating,

sailing, etc.’” Stupak-Thrall v. United States, 89 F.3d 1269, 1285 (6th Cir. 1996) (“Stupak-

Thrall I”) (divided en banc) (Boggs, J., dissenting) (emphasis in original) (quoting Hulbert, 91

N.W. at 211–12).

23. Riparian owners are entitled to use the entire surface of an inland lake for

recreational activities such as boating and fishing, so long as their use does not interfere with the

reasonable use of the lake by other riparian owners. Pierce v. Riley, 264 N.W.2d 110, 114

(Mich. 1978); Hall v. Wantz, 57 N.W.2d 462, 464 (Mich. 1953); Burt v. Munger, 23 N.W.2d

117, 119 (Mich. 1946).

1 Technically, these rights are littoral rights, because a lake is involved, not a river or stream. However, these rights are commonly known as riparian rights. As such, these rights will be referred to as riparian rights in this Complaint.


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24. Under Michigan law, riparian rights are constitutionally protected property rights.

Peterman v. State Dept. of Natural Resources, 521 N.W.2d 499, 508 (Mich. 1994); Stupak-

Thrall v. Glickman, 988 F. Supp. 1055, 1064–65 (W.D. Mich. 1997) (“Stupak-Thrall II”).

F. THE ADMINISTRATIVE PROCEDURE ACT.

25. The APA provides that “[a] person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof.” 5 U.S.C. § 702.

26. The APA provides that “[a]n agency action made reviewable by statute and final

agency action for which there is no other adequate remedy in a court are subject to judicial

review. A preliminary, procedural, or intermediate agency action or ruling not directly

reviewable is subject to review on the review of the final agency action.” Id. § 704.

27. The APA defines “agency action” as “the whole or a part of an agency rule, order,

license, sanction, relief, or the equivalent or denial thereof, or failure to act . . . .” Id. § 551(13).

28. The APA further requires that the reviewing court “shall decide all relevant

questions of law, interpret constitutional and statutory provisions, and determine the meaning or

applicability of the terms of an agency action,” and shall “hold unlawful and set aside agency

action, findings, and conclusions found to be — (A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or

immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory

right . . . .” Id. §§ 706(2)(A)-(C).

FACTUAL BACKGROUND

29. On January 27, 1931, President Herbert Hoover proclaimed certain lands, in the

western end of Michigan’s Upper Peninsula, as the Ottawa National Forest. Since then, the


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Ottawa National Forest has been expanded and now includes land in Baraga, Gogebic,

Houghton, Iron, Marquette, and Ontonagon Counties in Michigan.

30. The Forest Service is responsible for managing the Ottawa National Forest, which

is currently done locally by five ranger districts: Bessemer, Iron River, Ontonagon, Kenton, and

Watersmeet.

31. As previously noted, the passage of the MWA in 1987 designated parts of the

Ottawa National Forest as the Sylvania Wilderness Area.

32. The Forest Service, as administrator of the Ottawa National Forest prior to any

wilderness designation, now manages the Sylvania Wilderness Area.

33. In accordance with NFMA, the Forest Service developed the first land and

resource management plan for the Ottawa National Forest in 1986 (“1986 Forest Plan”).

34. On May 31, 1995, the Forest Service adopted Amendment No. 5 to the 1986

Forest Plan. Effective April 1, 1996, Amendment No. 5 prohibited the use of all gas-powered

motors on the portion of Crooked Lake within the Sylvania Wilderness Area, encompassing

approximately 95% of Crooked Lake. Further, Amendment No. 5 restricted the use of electric

motors by only allowing electric motors with a maximum of 24 volts or 48 pounds of thrust, or

less, on Crooked Lake. Amendment No. 5 also restricted use of all watercraft to a slow no-wake

speed. Stupak-Thrall II, 988 F. Supp. at 1058 n.2.

35. There are approximately ten private properties existing on the northern shore of

Crooked Lake. These properties are outside of the Ottawa National Forest. Approximately 29

acres of Crooked Lake are not included in the Sylvania Wilderness Area.


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36. On or about March 13, 1996, Kathy Stupak-Thrall and Bodil and Michael

Gajewski filed suit against the Forest Service in this Court, challenging Amendment No. 5. At

the time, Stupak-Thrall and the Gajewskis both owned private property on Crooked Lake.

37. On December 16, 1997, this Court entered judgment in favor of Stupak-Thrall and

the Gajewskis and declared Amendment No. 5 invalid as applied because it went beyond the

scope of authority granted to the Forest Service under the MWA. Stupak-Thrall II, 988 F. Supp.

at 1065–66. This Court held that the Forest Service exceeded its authority when it promulgated

Amendment No. 5, because Stupak-Thrall and the Gajewskis had valid existing rights to engage

in motorboating on the entire surface of Crooked Lake. Id. at 1064. This Court noted that its

holding did not affect the Forest Service’s authority to issue regulations regarding the public’s

use of Crooked Lake. Id. at 1065. Thus, this Court’s holding applied to Crooked Lake and the

“private riparian landowners who have historically used their private establishments for fishing

and boating on Crooked Lake.” Id.

38. On September 18, 2003, the Forest Service published a notice of intent to revise

the 1986 Forest Plan. 68 Fed. Reg. 54707 (Sept. 18, 2003).

39. Despite receiving several public comments opposing the proposed motorboat

restrictions in the Sylvania Wilderness Area (See Final Environmental Impact Statement, pp. J-

47–J-49 (Mar. 2006)), the Forest Service brazenly enacted a motorboat restriction nearly

identical to Amendment No. 5 to the 1986 Forest Plan.

40. In March 2006, the Forest Service issued its Record of Decision (“ROD”),

thereby finalizing the new Forest Plan (“2006 Forest Plan”), which replaced the 1986 Forest

Plan. Chapter 3 of the 2006 Forest Plan contains the management prescription for the Sylvania

Wilderness Area, and, despite this Court’s ruling in Stupak-Thrall II, provides that “[o]nly


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electric motors with a maximum size of 24 volts or 48 pounds of thrust (4 horsepower equivalent)

or less will be permitted on Big Bateau, Crooked, and Devil’s Head Lakes within the Sylvania

Wilderness. All watercraft on these lakes are restricted to a slow-no wake speed.” (2006 Forest

Plan, p. 3-48) (all emphasis added).

41. Accompanying the 2006 Forest Plan was a Final Environmental Impact Statement

(“FEIS”), which provided responses to public comments in Appendix J. In response to the

public comments on motorboat restrictions in the Sylvania Wilderness Area, the Forest Service

suggested that this Court’s permanent injunction in Stupak-Thrall II, applied to Stupak-Thrall,

the Gajewskis, and their guests, but not to the other riparian owners on the northern shore of

Crooked Lake. Further, it was the Forest Service’s position that the permanent injunction

prohibiting the agency from infringing upon Stupak-Thrall’s and the Gajewskis’ riparian rights

now only pertained to one riparian landowner, Stupak-Thrall. FEIS, pp. J-47 – J-49. This was

because the Gajewskis sold their private property and the purchaser entered into an agreement

with the Forest Service agreeing to not use motorboats on Crooked Lake. Id. at J-49.

42. In 2010, the Herrs purchased Lots 10 and 11 of Borland’s Plat on Crooked Lake,

located on the north shore of Crooked Lake, Gogebic County, Michigan (“Herr Property”), from

Richard Eugene Bowman (“Mr. Bowman”). A Warranty Deed was subsequently filed in the

Recorder’s Office for Gogebic County. A true and accurate copy of this deed is attached hereto

as Exhibit 1. Though the property was purchased in 2010, the Herrs have vacationed on

Crooked Lake every summer since before this Court’s 1997 decision in Stupak-Thrall II. As

vacationers and members of the public, the Herrs used gas motorboats on the entire surface of

Crooked Lake. The Herrs purchased their property from Mr. Bowman with the specific intent of

continuing their use of gas motorboats on the entire surface of Crooked Lake. Since purchasing


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their property, the Herrs have continued to use gas motorboats on the entire surface of Crooked

Lake each year.

43. On August 12, 2006, Mr. Bowman recorded an affidavit in the Recorder’s Office

for Gogebic County. A true and accurate copy of this affidavit is attached hereto as Exhibit 2.

Mr. Bowman’s affidavit provides that he and his wife used 3, 5, and 9.9 horsepower gas

motorboats on Crooked Lake from the 1970s until August 11, 2006. Mr. Bowman stated “we

continue to use gas motors and enjoy Crooked Lake as we always have. Forest Service

personnel are fully cognizant of our use and never approach us regarding it.” Exhibit 2.

44. Upon information and belief and after an opportunity for further investigation and

discovery, Mr. Bowman continued to use gas motorboats on Crooked Lake from August 11,

2006 until the day he conveyed the Herr Property to the Herrs.

45. In June 2013, the Herrs received a letter dated June 19, 2013 (“June 2013 Letter”)

from Defendant Nass, District Ranger for Watersmeet – Iron River Ranger Districts. Defendant

Nass stated that this Court’s ruling in Stupak-Thrall II, permanently enjoining the Forest Service

from restricting motorboat use, only pertained to the named plaintiffs and their guests, and not to

other riparian owners on Crooked Lake or the public. Under that interpretation, Defendant Nass

stated he was “instructing Forest Service personnel to fully enforce existing Forest Orders

regarding use of motorboats within the wilderness portion of Crooked Lake except as limited by

the court’s ruling.” A true and accurate copy of the June 2013 Letter is attached hereto as

Exhibit 3.

46. Enclosed with the June 2013 Letter was a copy of a Forest Order, dated August

14, 2007 (“2007 Forest Order”). A true and accurate copy of the 2007 Forest Order is attached

hereto as Exhibit 4. Paragraph B(14) of the 2007 Forest Order prohibits entering the portion of


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Crooked Lake within the Sylvania Wilderness “while using or possessing any motor or

mechanical device capable of propelling a watercraft by any means. Except: one electric motor

with a maximum size of 24 volts or 48 pounds of thrust (4 horsepower) or less, per watercraft,

will be permitted . . . . 36 CFR 261.57(a)[.]”

47. The 2007 Forest Order further provides that a violation thereof is “punishable by

a fine of not more than $5,000 for an individual . . . or imprisonment for not more than 6 months,

or both (16 USC 551 and 18 USC 3559 and 3571)[.]”

48. Upon information and belief and after opportunity for further investigation and

discovery, the Forest Service has never enforced the alleged prohibitions found in the 2007

Forest Order against the Herrs or the Herrs’ predecessors in interest.

49. The Herrs intend to use gas-powered motorboats over the entire surface of

Crooked Lake, including that portion within the Sylvania Wilderness, this summer just as they

and their predecessors have done in the past. Yet, in light of the Defendants’ stated intention to

now enforce 2007 Forest Order, the Herrs face the threat of criminal prosecution for the exercise

of their constitutionally protected, riparian rights.

FIRST CLAIM FOR RELIEF (Unlawful Agency Actions)

(June 2013 Letter and the 2007 Forest Order) 50. The Herrs incorporate by reference each and every allegation set forth in the

preceding paragraphs as if fully set forth here.

51. “To be final, agency action must be ‘definitive,’ affect a plaintiff's day-to-day

activities, inflict an actual, concrete injury, or have the status of law or comparable legal force.”

Duval Ranching Co. v. Glickman, 965 F. Supp. 1427, 1439 (D. Nev. 1997); see Basel Action


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Network v. Mar. Admin., 285 F. Supp. 2d 58, 61 (D.D.C. 2003) (letter sent by EPA indicating

non-enforcement position constituted final agency action under APA).

52. On June 19, 2013, Defendant Nass sent the June 2013 Letter and 2007 Forest

Order to the Herrs.

53. The June 2013 Letter and 2007 Forest Order indicate that Defendants intend to

now enforce the gas-powered motorboat prohibition against the Herrs and other private riparian

landowners on Crooked Lake, except the named plaintiffs in Stupak-Thrall II.

54. The June 2013 Letter and the 2007 Forest Order are final agency actions within

the meaning of the APA.

55. The Herrs are “suffering legal wrong” and/or are “adversely affected or aggrieved

by” the June 2013 Letter and the 2007 Forest Order within the meaning of the relevant statute.

Accordingly, the Herrs are entitled to judicial review of both the June 2013 Letter and the 2007

Forest Order.

56. The MWA provides that the Forest Service’s management of the Sylvania

Wilderness Area is “subject to valid existing rights.” 101 Stat. 1274. The savings clause

“subject to valid existing rights” means that the Forest Service may not adversely affect “valid

existing rights” in its management of the Sylvania Wilderness. Stupak-Thrall II, 988 F. Supp. at

1061–64; Stupak-Thrall I, 89 F.3d at 1285 (Boggs, J., dissenting); see also Louisiana Public

Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“an agency literally has no power to

act…unless and until Congress confers power upon it . . . .”).

57. The Herrs’ riparian rights, including the right to use gas-powered motorboats over

the entire surface of Crooked Lake, are valid existing rights protected by the savings clause in

the MWA.


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58. The June 2013 Letter and 2007 Forest Order violate the Herrs’ valid existing

rights in contravention of the savings clause in the MWA.

59. Because the June 2013 Letter and 2007 Forest Order abrogate the Herrs’ valid

existing rights in violation of the savings clause in the MWA, they are: (a) “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law;” (b) “contrary to constitutional

right, power, privilege, or immunity;” and/or (c) “in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right[.]” See 5 U.S.C. § 706(2).

60. Accordingly, the Herrs are entitled to an order holding unlawful and setting aside

both the 2013 Letter and the 2007 Forest Order.

SECOND CLAIM FOR RELIEF (Unlawful Agency Action)

(2006 Forest Plan)

61. The Herrs incorporate by reference each and every allegation set forth in the

preceding paragraphs as if fully set forth here.

62. The 2006 Forest Plan provides: “[o]nly electric motors with a maximum size of 24

volts or 48 pounds of thrust (4 horsepower equivalent) or less will be permitted on Big Bateau,

Crooked, and Devil’s Head Lakes within the Sylvania Wilderness. All watercraft on these lakes

are restricted to a slow-no wake speed.” 2006 Forest Plan, p. 3-48 (all emphasis added).

63. The June 2013 Letter and 2007 Forest Order indicate that Defendants intend to

now enforce the 2006 Forest Plan motorboat prohibition on the Herrs and other private riparian

landowners on Crooked Lake, except the named plaintiffs in Stupak-Thrall II.

64. The 2006 Forest Plan is final agency action.

65. Because the June 2013 Letter and the 2007 Forest Order are both actions

implementing the 2006 Forest Plan motorboat prohibition, the Herrs are “suffering legal wrong”


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and/or are “adversely affected or aggrieved by” the 2006 Forest Plan within the meaning of the

relevant statute. Accordingly, the Herrs are entitled to judicial review of the 2006 Forest Plan.

66. The Herrs’ riparian rights, including the right to use gas-powered motorboats over

the entire surface of Crooked Lake, are valid existing rights protected by the savings clause in

the MWA.

67. The 2006 Forest Plan motorboat prohibition abrogates the Herrs’ valid existing

rights to use gas-powered motorboats over the surface of Crooked Lake within the Sylvania

Wilderness Area.

68. Because the 2006 Forest Plan motorboat prohibition abrogates the Herrs’ valid

existing rights in violation of the savings clause in the MWA it is: (a) “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law;” (b) “contrary to constitutional

right, power, privilege, or immunity;” and/or (c) “in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right[.]” See 5 U.S.C. § 706(2).

69. Accordingly, the Herrs are entitled to an order holding unlawful and setting aside

the 2006 Forest Plan motorboat prohibition.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, David A. Herr and Pamela F. Herr, respectfully request that

this Court:

1. Declare that the June 2013 Letter and 2007 Forest Order violate the Herrs’ valid

existing rights in contravention of the savings clause in the MWA;

2. Declare that the June 2013 Letter and 2007 Forest Order are: (a) “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law;” (b) “contrary to


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constitutional right, power, privilege, or immunity;” and/or (c) “in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right”;

3. Hold unlawful and set aside the June 2013 Letter and 2007 Forest Order;

4. Permanently enjoin Defendants from enforcing the June 2013 Letter and 2007

Forest Order against the Herrs;

5. Declare that the 2006 Forest Plan motorboat prohibition violates the Herrs’ valid

existing rights in contravention of the savings clause in the MWA;

6. Declare that the 2006 Forest Plan motorboat prohibition is: (a) “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law;” (b) “contrary to

constitutional right, power, privilege, or immunity;” and/or (c) “in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right”;

7. Hold unlawful and set aside the 2006 Forest Plan motorboat prohibition;

8. Permanently enjoin Defendants from enforcing the 2006 Forest Plan motorboat

prohibition against the Herrs;

9. Award the Herrs their costs and attorneys’ fees in accordance with law, including

the Equal Access to Justice Act, 28 U.S.C. § 2412; and

10. Award the Herrs such further relief as this Court deems just and equitable.

DATED this 13th day of May 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 [email protected] Attorney for Plaintiffs


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