       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Stupak-Thrall, et al. v. Glickman, et al.   No. 99-1666
    ELECTRONIC CITATION: 2003 FED App. 0353P (6th Cir.)
                File Name: 03a0353p.06                    Appellees.     ON BRIEF:        William Perry Pendley,
                                                          MOUNTAIN STATES LEGAL FOUNDATION, Lakewood,
                                                          Colorado, for Appellants. Mark R. Haag, UNITED STATES
UNITED STATES COURT OF APPEALS                            DEPARTMENT OF JUSTICE, Washington, D.C., for
                                                          Appellees. Elizabeth H. Schmiesing, William L. Underwood,
              FOR THE SIXTH CIRCUIT                       FAEGRE & BENSON, Minneapolis, Minnesota, for Amici
                _________________                         Curiae.

KATHY STUPAK-THRALL , et          X                                          _________________
al.,                               -
                                                                                 OPINION
           Plaintiffs-Appellants, -                                          _________________
                                   -   No. 99-1666
                                   -
             v.                     >                        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
DANIEL GLICKMAN, et al.,           -                      within the regulatory authority of the United States Forest
          Defendants-Appellees. -                         Service, appeal the district court’s decision dismissing as
                                   -                      time-barred their claim against the United States. Because we
                                  N                       find that the plaintiffs’ claims are untimely and that the
        Appeal from the United States District Court      government did not waive its right to raise a statute of
     for the Western District of Michigan at Marquette.   limitations defense, we will AFFIRM the district court’s
No. 98-00113—Robert Holmes Bell, Chief District Judge.    grant of summary judgment.

                Argued: August 10, 2001                                                 I.

          Decided and Filed: October 3, 2003                 The plaintiffs are property owners holding certain riparian
                                                          rights to the use of Crooked Lake, located in the Ottawa
 Before: KEITH, BATCHELDER, and MOORE, Circuit            National Forest in Michigan’s Upper Peninsula. In 1987,
                    Judges.                               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
                       COUNSEL                            authority of the United States Forest Service. The Forest
                                                          Service began the process of amending the Land Resource
ARGUED: Steven J. Lechner, MOUNTAIN STATES                Management Plan (“LRMP”) for the Ottawa National Forest
LEGAL FOUNDATION, Lakewood, Colorado, for                 to include regulation of the Sylvania area. The process
Appellants. Todd S. Kim, UNITED STATES                    allowed for public meeting and public comment as provided
DEPARTMENT OF JUSTICE, Washington, D.C., for              by 16 U.S.C. § 1604 and 36 C.F.R. § 219. There is no dispute

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No. 99-1666        Stupak-Thrall, et al. v. Glickman, et al.              3    4     Stupak-Thrall, et al. v. Glickman, et al.      No. 99-1666

that the Forest Service followed the proper administrative                     case that Crooked Lake was not properly part of the Sylvania
procedure in adopting the amendments to the LRMP.                              Wilderness Area. Although the district court in Stupak-Thrall
                                                                               II held that the Amendment No. 5 is invalid as applied to the
  On April 20, 1992, the Forest Service announced                              plaintiffs, the court’s decision is premised on the proposition
“Amendment No. 1” to the LRMP, which dramatically                              that “[n]inety-five percent of Crooked Lake lies within the
restricted certain activities on the portion of the lake lying                 boundaries of the Sylvania Wilderness.” Id. at 1058. The
within the Wilderness Area. The amendment prohibited the                       appeal in Stupak-Thrall II is being held in abeyance pending
use of sailboats, houseboats and disposable food and beverage                  resolution of this appeal.
containers on the wilderness portion of the Lake. The
plaintiffs filed suit in 1993 challenging Amendment No. 1.                        In the instant case, the plaintiffs claim for the first time that
See Stupak-Thrall v. United States (“Stupak-Thrall I”), 843                    Crooked Lake is not part of the Wilderness Area, and is
F.Supp. 327 (W.D. Mich. 1994), aff’d 70 F.3d 881 (6th Cir.                     therefore beyond the scope of federal regulation. They seek
1995), vacated, 81 F.3d 651 (6th Cir.), aff’d by equally                       a permanent injunction requiring the Forest Service to
divided en banc court, 89 F.3d 1269 (6th Cir. 1996). The                       exclude the lake from its official map of the area. After
district court ruled against the plaintiffs on the issues of                   hearing argument on cross-motions for summary judgment,
whether creation of the Wilderness Area was within the                         the district court held that the riparian owners’ claims are
bounds of congressional power, and whether the government                      barred by the statute of limitations. On appeal, in an apparent
had effected a taking by issuing rules governing use of the                    attempt to avoid a problem with the statute of limitations, the
lake. The plaintiffs did not raise any contention in that case                 plaintiffs not only argue that Crooked Lake should not be part
that the lake was not part of the Wilderness Area. The district                of the wilderness, they focused their oral argument on the
court’s decision was affirmed by an equally divided en banc                    Forest Service’s failure to complete the official map and legal
court.                                                                         description of the Sylvania Wilderness Area as required by
                                                                               Section 4 of the MWA. Because the map is not complete, the
   In 1995, again dramatically altering the riparian1 owners’                  plaintiffs argue, their cause of action cannot be time-barred.
use of Crooked Lake, the Forest Service adopted                                Under the Administrative Procedure Act (“APA”), plaintiffs
“Amendment No. 5,” which prohibited the use of all gasoline-                   seek to compel the Forest Service to complete the map and
powered motors on the lake, limited electric motors to four                    legal description of the Sylvania Wilderness Area, to exclude
horsepower, and imposed a “no-wake” speed limit and other                      Crooked Lake from the Wilderness Area, and to finally
limitations. The plaintiffs again filed suit challenging the                   determine the extent of the Forest Service’s regulatory
regulation of Crooked Lake by the Forest Service. See                          authority over Crooked Lake.
Stupak-Thrall v. Glickman, (“Stupak-Thrall II”), 988 F. Supp.
1055 (W.D. Mich. 1997), appeal pending. As was true in the                                                     II.
first case, the plaintiffs raised no contention in this second
                                                                                 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.
    1
      “[T]he nature of riparian ownership is such that each owner shares       1999) (en banc), and we consider the record as it stood before
rights to the whole lake, so long as his or her land touches the lake          the district court at the time of its ruling. Niecko v. Emro
waters.” Stup ak-T hrall I, 70 F.3d at 883 (citing Rice v. Na imish, 8 Mich.   Marketing Co., 973 F.2d 1296, 1303 (6th Cir. 1992).
App. 698 , 155 N.W .2d 370, 373 (1967)).
No. 99-1666        Stupak-Thrall, et al. v. Glickman, et al.             5    6     Stupak-Thrall, et al. v. Glickman, et al.    No. 99-1666

Summary judgment is proper if “the pleadings, depositions,                       We find this latter contention to be a disingenuous
answers to interrogatories, and admissions on file, together                  argument made by the plaintiffs in an attempt to circumvent
with the affidavits, if any, show that there is no genuine issue              the district court’s finding that their claims are time-barred.
as to any material fact and that the moving party is entitled to              The complaint does not seek to compel any agency action, let
a judgment as a matter of law.” FED . R. CIV . P. 56(c). We                   alone the completion of the map and the legal description.
view the evidence, all facts, and any inferences that may be                  Before the district court, the plaintiffs sought injunctive relief
drawn from the facts in the light most favorable to the                       against the Forest Service to prohibit the Forest Service from
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith                        acting, relief that is wholly outside the scope of 5 U.S.C.
Radio Corp., 475 U.S. 574, 587 (1986). To withstand                           § 706(1) and entirely contrary to their intention—as presented
summary judgment, the non-movant must present sufficient                      during oral argument— to compel the Forest Service to act.
evidence to create a genuine issue of material fact. Klepper                  Moreover, if the plaintiffs were truly claiming that their cause
v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). A mere                  of action arises from the Forest Service’s failure to act, they
scintilla of evidence is insufficient; “there must be evidence                would lack standing to bring this claim. Failure to establish
on which the jury could reasonably find for the [non-                         standing is a jurisdictional defect. See Lewis v. Casey, 518
movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,                      U.S. 343, 349 n.1 (1996). To satisfy the requirements of
252 (1986). Entry of summary judgment is appropriate                          Article III standing, “a plaintiff must, generally speaking,
“against a party who fails to make a showing sufficient to                    demonstrate that he has suffered ‘injury in fact,’ that the
establish the existence of an element essential to that party’s               injury is ‘fairly traceable’ to the actions of the defendant, and
case, and on which that party will bear the burden of proof at                that the injury will likely be redressed by a favorable
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).                   decision.” Bennett v. Spear, 520 U.S. 154, 162 (1997) (citing
                                                                              Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
  At the outset, we must clearly articulate what we believe to                It is not the government’s failure to complete the mapping of
be the essence of the plaintiffs’ claims in this case. From the               the Sylvania Wilderness Area that causes the injury of which
complaint filed with the district court and the briefs before                 plaintiffs complain, it is the inclusion of Crooked Lake in the
this court, it is clear that the plaintiffs seek redress for a                wilderness area. Plaintiffs’ dispute with the government is
perceived injury arising from the inclusion of Crooked Lake                   that the Lake cannot lawfully be included in the wilderness,
within the Sylvania Wilderness Area. However, the plaintiffs                  and even if we were to order the Forest Service to complete
raise in their briefs, and stressed during oral argument, that                the mapping process, our order would not redress the
their injury also grows from the Forest Service’s failure to                  plaintiffs’ injury. Accordingly, we will decide this case by
complete the official map and legal description, invoking                     addressing the plaintiffs’ claim that Crooked Lake should not
5 U.S.C. § 706(1) of the APA.2                                                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
    2                                                                         position that their claim is not time-barred, rather than the
      “ T o the extent necessary to d ecision and w hen presented, the
reviewing court shall decide a ll relevant questions of law, interpret        claim of actual injury for which they seek redress in this case.
constitutional and statutory provisions, and determine the meaning or
applicability of the terms o f an agency action. T he reviewing court shall      Congress has enacted a general statute of limitations for
–                                                                             suits against the government at 28 U.S.C. 2401(a), which
(1) compel agency action unlawfully withheld or unreasonably delayed.”        provides:
5 U.S.C. § 706 (1).
No. 99-1666       Stupak-Thrall, et al. v. Glickman, et al.          7    8       Stupak-Thrall, et al. v. Glickman, et al.          No. 99-1666

  [E]very civil action commenced against the United States                issued under the standard rule-making procedure, including
  shall be barred unless the complaint is filed within six                public notice and a public comment period. Accordingly, the
  years after the right of action first accrues.                          plaintiffs were on notice that the federal government claimed
This court has held that a right “first accrues” when the                 jurisdiction over the lake at the time the Forest Service issued
plaintiff knows or has reason to know of the injury                       Amendment No. 1. It is clear that the plaintiffs had actual
complained of. Friedman v. Estate of Presser, 929 F.2d                    notice of the government’s intent to regulate the lake at this
1151, 1159 (6th Cir. 1991). The district court considered                 point in time because issuance of this amendment prompted
setting the time for “first accrual” in 1987, when the Michigan           the lawsuit in Stupak-Thrall I. We hold that because the
Wilderness Act was passed. In the MWA, Congress                           instant complaint was not filed until May of 1998, it is barred
specifically set forth “eighteen thousand three hundred and               by the six-year statute of limitations of Section 2401(a).
twenty-seven acres” referenced on a map, as the “Sylvania                    Even if the accrual date might somehow be tied to the
Wilderness-Proposed.” The map includes about 95% of                       issuance of the map, the plaintiffs’ claims are still time-
Crooked Lake.                                                             barred. As we have noted, the plaintiffs were clearly aware of
  The plaintiffs contend that the cause of action contesting              the Forest Service’s promulgation of Amendment No. 1, and
the inclusion of the lake within the wilderness did not accrue            of the Forest Service’s intention to exercise dominion over
until the spring of 1998, when they learned that the Forest               the lake by promulgating that amendment. The plaintiffs
Service had not yet issued the official map of the Sylvania               were likewise on notice, through the MWA and the public
Wilderness, as required by the MWA.3 The plaintiffs claim                 notice and comment period, that a map was to be filed and
that they could not have been on notice that the lake was part            that the Forest Service intended to include the lake in any
of the wilderness because the official map, which would                   officially issued version of the Wilderness Area map. The
provide them with that information, had yet to be published.              lengthy litigation history of this case and the plaintiffs’
The plaintiffs fail to make any meaningful connection,                    participation in that litigation demonstrate beyond cavil that
however, between the Forest Service’s failure to file a map,              the plaintiffs knew that their riparian rights to the use of the
and the lake’s inclusion in the Wilderness Area. The                      lake were impaired by the Forest Service when Amendment
language of the MWA does not predicate existence of the                   No. 1 to the LRMP was issued.4
Wilderness Area on the promulgation of a map. Rather, it                     We also agree with the district court that the government
imposes a duty to complete a map as soon as practicable. We               did not waive its right to raise the statute of limitations as an
echo the statement of the district court that the plaintiffs rely         affirmative defense. The government did not file a responsive
too heavily on the issuance of the map to establish the date of           pleading to the amended complaint; rather, without objection
accrual.                                                                  from the plaintiffs, the government moved for summary
  Ultimately, the district court decided that the latest possible         judgment raising, among other defenses, the statute of
accrual date was April 20, 1992, when Amendment No. 1 to                  limitations. As the district court held, and as the record
the LMRP was issued. We agree. This amendment was
                                                                              4
                                                                                The government raises the doctrine of claim preclusion as an
    3
                                                                          additional basis for granting summary judgm ent. Although we note the
      Section 4 of the MW A req uired that the Secretary of Agriculture   gove rnment’s argum ents have merit, we, like the district court, express no
shall file maps and legal descriptions of each Wilderness Area “as soon   opinion on the gove rnment’s res jud icata arguments in light of our
as pra cticable.”                                                         holding that the claims are barred by the statute of limitations.
No. 99-1666     Stupak-Thrall, et al. v. Glickman, et al.    9

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.
