David Herr v. United States Forest Serv.

DISSENT

I agree with the majority that the Herrs have valid existing rights to which any regulation by the Forest Service must be subservient. I agree also that the district court erroneously concluded that the Herrs’ rights were not “existing” because the Herrs purchased their land after the Forest Service passed Amendment No. 5. Where I disagree, however, is with the majority’s conclusion that a federal agency, in the same manner as a state, may not impose reasonable restrictions on littoral and riparian rights, when expressly authorized by Congress to do so.

First, as the Supreme Court has…