alaska as though they were part of a park unit and it provides that the park service may not regulate nonfederal land in alaska under the guise of protecting federal park land now in elko structure purpose and history help explain why this is a supreme court recognized in this case anelka really had to stated goals the first was to provide sufficient protection for environmental values and the second to quote provide adequate opportunity for satisfaction of the economic and social needs of the state of alaska and its people the fundamental premise of mr church's claim has always been that anelka in adding over one hundred million acres of lands in the national parks and reserves in alaska went to great lengths to ensure that non federal lands and waters within these new parks would not be part of the parks and would not be subject to regulation as though they were this is a real concern because it's a supreme court also recognize know you want us to hear you and your voice drops i don't know why of streams tributaries all of many of those being federal the river running through it is frankly a very narrow slice the idea with you contrarily was to protect the entire watershed and the park service has plenty of tools that it's a veil billeted regulate federal land and the park service is not bereft of authority over now the waters it can work with the state and cooperative agreements and the federal government is still not without authority over now big waters in alaska per congress cause per the navajo servitude and so issues of dumping fuel in the water that's illegal under the clean water act the issue here is that the park service can't throw its hat into the ring over now the waters that are within the you know can see us use and it comes down to that fundamental point of when the statute was being debated and look what happened with an ok when it's resolving the land claims that started with the statehood act continued with the native point settlement act and culminated in anelka and is this something that not just the supreme court in this case recognized the supreme court amoco v gamble it was resolving the long running land use claims and the supreme court in gamble's pacifically recognize that the key florida dates we're debating what land goes in the conservation system units for preservation what land is left open for stated that the yukon chaddy rivers national preserve was created to maintain the environmental integrity of the river is left in the park and to pick can't have it it fish wildlife including moose however is the regulatory authority over the nation of ivar not necessary to accomplish to purposes of the national preserve reserves water rights are not a springboard for regulatory authority reserve water rights exist to either have use of water or prevent others from using water and an example in alaska it would be there is no can talks about the interest  preserving the water flow through the preserve what that would give the park service let's say somehow a dam is permitted on the yukon river somehow the corps of engineers the e p a and all the other federal agencies think this will be a good idea what are the reserve water rights gets the park service in this instance is one thing the idea to go and issue an enforcement action saying please allow enough water food stand to flow through the preserve to protect fish and wildlife what those reserve water rights do not then do is give the park service actual regulatory authority to regulate the waters and say what type of boats can be on the waters what you have to wear when you're on the boats in the waters that's not reserve water rights to do cap or the united states supreme court decision about that little pool in nevada with the  all the reserve water rights game the park service in that case was the right to say to the neighboring ranch please don't pump your ground water to the point where you're lowering the pool where the pump fish can't breed it did not give the park service regulatory authority over those private groundwater settle the ranchers what type of fertilizer they could use to worry about water crowd or anything like that it's an issue of the use of water not authority to regulate water i think you do raise a good point that reserve water rights seems to not be a perfect fit for this sort of situation but as such nelson pointed out we're not exactly writing on a clean slate because we had katie john one on the books and it it talked designation that was deemed acceptable by the court is much broader than just salif a substance use how do you address that you just you still go back the regulations that are being upheld in katie john three were ultimately looking at which waters those united states are reserve water rights and there's a point even there some of those waters were private waters and to expand katy john the way the park service is asking you to do here which is take it outside of the universe of title eight import it into the rest of the statute you're making these private waters part of the parks subject to park service regulation and yet the federal government has done nothing to acquire them i think this be a surprise to the owners of the private waters katie john exists within title eight which by itself has its own universe within it is the only title in the entire statute that has its own preamble that goes to a great length the importance of subsistence and it is the only provision in the entire statute that specifically invokes congress's co power and so there is plenty of authority the utility or regulatory group the recent supreme court decision there is authority for saying if you're looking at a specific definition you can take it in context to assess the fix section of the act and even the supreme court and gamble and footnote fifteen which is supreme court again it's another decision looking at an ok said we decline to look at the term public lands outside the specific context of the statute and so the term public lands in title eight as interpreted by this court in katie john m is simply a different matter than expanding that outside of title eight in town the park service congratulations all the state waters all of these nonfederal land that were supposed to be excluded from these c e o s who is all this non federal land where the idea behind  let's preserve the status quo for all of this land the park service didn't have regulatory authority over any of these state rivers or any of the state private or native lands before nokia we're not supposed to have any regulatory authority pursuant to the park service  general applicability and if it does why doesn't the park service regulation isn't it an example of such a regulation and what one of three does and three sentences in the first sentence it says of this nonfederal land is not part of the park the second sentence says if it's nonfederal and the park service cannot regulate it pursuant to its general management regulations which is what this hovercraft regulation it's purely issued under the were granted to the native corporations for economic development many of the over fifty million acres of these lands were suddenly surrounded by these new in the uk and look at the us use after the statute was passed and this is a real concern and during the passage of the preserve these native islands in the parks for economic development and to protect them from park service regulation that would render these lands absolutely worthless but i'm not sure that really answers the question the alaska and statehood act sceptically p governments longstanding authority to regulate navigable waters and so that's the question that still remains right i take it that your position is that  is close to these rivers is that your position it's the position of the rivers and with the lands that are insulated from park service regulation and again it's important the park service is not the government the government is still in it's a merge lands act retains authority under the dominant of the the absolute right to all they are now the waters and salt under them subject only to the right surrendered powers granted by the constitution to the federal government that's basically saying the states have complete control over the waters and everything  exceptions and those that are navigable servitude or any convert clause authority but again turning it around the federal government for all the arguments of the state can have titles of water all those arguments to establish the federal government certainly doesn't have title to the waters and then that brings back to the k t john is there only a hook to say we have an interest there in we have reserved water rights that suddenly renders all of these navajo waters public lands such that they're not part of the parks and subject to all national park service regulation which goes well beyond what section over lands within the boundaries of conservation system units in alaska it is a no cut must be discoursed starting point not the park service generalized authority in other parks in other states and the supreme court also recognized that congress intended to provide unique management rules for alaska in recognition of the state's uniqueness congress had a good reason to make these unique rules in recognition of the way that ordinary alaskans rely on our case alaska law permits different types of transportation on its rivers then the park service permits in other parks and the reason for that is because of the way that  many small villages that have no roads that are hundreds of miles away from roads and are isolated and the main transportation corridors the only transportation corridors are alaskan rivers so for the federal government to come in and say  you can't travel on this river in the way that you're used to in the way that allows you to travel to a bigger village to a city to get medical care to get food to have supplies and heating oil for the winter  are to be used and what congress did was balance the conservation interests of the national park service with the need for alaska to ensure they economic and social needs of the state and its people  i just i just didn't want you to miss the point the point isn't whether you can get you supplies things you need everybody knows in fact airplanes move them alaska just so most allowed him the argument carol so what do we do with the government's clear statutory authority to regulate boating and other activities within systems units including waters that fall within the jurisdiction of the united states what do you make that language i would say two things about that language your honor the first is that under one o three c these are not rivers that are within system units these are rivers that are not part of the system units they are merely within the boundaries and you know this court has held for example in city of england versus marsh as the supreme court did that congress didn't intend to bring everything within the geographical circle around an ecosystem into the unit so that's the first the control over the navigable waters is an absolute part of alaskan sovereignty there are numerous recent supreme court cases solid waste agency repond most terence these are cases that hold that state waters is an essential attribute of sovereignty and that congress must speak clearly in order to abrogate that and congress hasn't done that certainly the voting regulations that precede anelka haven't done that the supreme court has told us and milka is where we must look and anelka says in section one of the three c that there is a hard boundary and that alaska retains jurisdiction over parts that are not part of the although i have with that there's no hard boundaries as a matter of the second as a nation of river it issue runs through an end in national park lands that's true your honor and congress was aware that it was creating these islands of land and rivers that would be within the boundaries of the unit and that's why it was so careful in one of the three seed to make clear that in left the government can otherwise acquire though it may not regulate them as though they were part of the park this was part of the central promise and balance that congress gave to those who owned lands and waters inside these units that the compact that even after it was passed they would not lose control over their lands and waters that they had before merely because they were part of an ecosystem some of which became a national park the park services theory is going to eviscerate that balance and take away from the state of alaska from native corporation land owners that which congress wanted to preserve them and change the balance and this court case and the supreme court cases make clear that congress must speak even if i don't think there's a furious dispute about whether that constitutes a convey end i mean the cases use transfer language that's very similar to conveyance language even if the court is worried about that technical question what does is focuses on title i mean the definitions of the milk define look to whether the federal government has a title interest in lance or waters and under after the submerged lands act the federal government does not have that in these waters but that's where you run into the k v john cases the fact that we're sitting as a bleak judge panel that's right your honor and certainly with respect to subsistence keeping john in settled law in the circuit the state's not trying to disturb the subsistence fishing infrastructure that's in place but what we do seek is to have the court not expand to that beyond the context in which it rose when you look at the katy john case what's clear is that every judge who looked at it struggled and how to effectuate congress clear intent with with public lands law and how to integrate the touchstone for this court for any court looking at the statute is congress's intent and this is a situation where there is clear congressional intent to have a subsistence preference and the court felt they were in a place where the only way to do that was to give  i would point to justice scalia's language in the utility air regulation group the presumption of consistent usage readily yields the context and the statutory term even one defined in the statute may take on distinct characters from association with the sink statutory objects calling for different implementation strategies that that is that is exactly what we have here your honor title eight is is a unique part of the milkha that has its own preamble its own purposes and it's only the implementation strategies about which congress was very specific the rest of anelka doesn't have that and she uses katie john as a springboard to to give the park service jurisdiction over  after the entire statute had been passed by both houses as a technical correction took away the park services authority to regulate in navigable waters that authority was granted by congress to the park service for regulation of navigable waters located we've been national park system units throughout the united states there's no question here whether when and no created additional national park system units congress gave the the park service the authority to regulate the navigable waters located within them because the law is that when lands are reserved as national park service units park service has evidence as his cause and this i was limited having here one of three see or agreement differs from the one rejected by the united states supreme court well the united states supreme court determined that section one hundred three c applies it is not limited to alaska specific regulations but it left three grounds for alternative grounds for affirming the district  complaint in this case because section one hundred three c also requires that the also applies where the lands are convey to the state or to others or where and does not limit yes location of regular ship regulations to public lands and does not limit the application of land of regulations that are not a political soley to public land so regulations that are applicable both to federal and nonfederal lands are not affected for those three reasons for any one of those three reasons this court can affirm the district court i want to focus on the navigable waters issue in part because i think many of the statements that have been made here today are incorrect  united states retains a dominant servitude over that navigable waters when lands when submerged lands become state lands on statehood the alaska statehood act provide that alaska should have the same rights under the submerged lands act as the other states in other states so national parks services authority granted by congress under the commerce claus applies to navigable waters located women in the national park service units there's nothing in a naka that says alaska is different in this regard let me ask this question and the reserve water rights doctrine reserves only that amount of water necessary to fulfill the purpose of the reservations no more that's a katie jones three yet the case before us does not involve any amount of water not at all your honor we get the analysis is because i think that's what such nelson was asking about that there are limits the reserve water rights doctrine that doesn't seem to fit this case now it may be that the panel decides that whatever flaws if any the cage on line of cases have that we're bound by its analysis of the swatters ass public land for purposes of anelka but there are limitations to the water rights well so does our water rights doctrine are there not there are limits in that only water is necessary to the purposes for which lands are reserves or reserves along with those lands that's anelka intended some navigable waters to be treated as public land and it left to the federal agencies to determine which waters those were and the federal agencies theory about determining waters in the federal government retained property interests in that would be sufficient to call them title or those in which federal reserve water rights would exist for purposes of the reserve la if that is the reason why the navigable waters including the nation river here have been designated as public lands in park service regulations those regulations have been ratified by congress as an appropriate deafen and appropriate interpretation of the definition of public lands and i might also add that in village of campbell the supreme court held that the definition of public lands that defines the scope of title  subsistence provisions applies to the rest of the statute as well so the argument that this is a limited kind of interpretation and interpretation applies only for one poor part of the statute has already been rejected by the supreme court what it limits to the federal government's ability to regulate under your theory an argument for the case i think the best reason for the for the government's ability to regulate the waters is that the united states has statutory authority to regulate navigable waters in federal in national park service units  units they are not part of the units and they need not be part of the units to be subject to the park services authority to regulate them where it is responsible for administering the surrounding lands congress specifically granted that authority to the to the park navigable waters within park service units and that there's no dispute about that the word barely appears in the statutes and is your answer that that the limits of the government's ability to regulate regulated by the united states or backed by the park service excuse me because on its face this court has held and not to provide that some navigable waters are public land subject of park service regulation other federal regulation the analysis is not without speech a controversy even among the members of this court that well the rationale was somewhat splintered but even the dissenting rights theory of which waters the ongoing court dissenting judges also said there's no dispute that the park service can regulate  waters here has nothing to do with whether they're public lands or not it has to do with the fact that they are located within federal parks in national park service units and the only question here is whether a regulation that applies across the federal parks is the u s national parks is the excuse me applies to the navigable waters that are located within those units waters well for two reasons because now the waters are not land they are not public lands and they are not owned the way lands are owned so now the waters are subject to the united states regulatory authority under the commerce cla service regulations are are implemented and that an authority that applies regardless of the ownership of the lance every car has a reserve right correct your honor those those any regulation that applies on public lands applies on those navigable waters that have been identified as public lands and that includes the nation river also so for that additional reason the district court's decision in this case can be a front each of the three questions that the supreme court left open leads to the conclusion that the that the district court correctly dismissed the complaint here that navigable waters within park units in located and perhaps to be more clear park service units in alaska are subject to federal regulation under fifty four u s c you one hundred seven fifty one or however the  that they are also public lands under this court's precedent and in addition even if they were not the authority to the park service has a pl regardless of ownership that the broad organic act that the birdie applies where necessary to protect public lands or park lands and resources so there is there there are three separate ways in which this court could from a district court i think the most direct and the most and the simplest is to say it has that dettori authority to do it under the statute that amended the national parks  where lands are reserved and designated as national park service units within the lands that are subject to those units that are subject to another this court has the national park service has authority to regulate all federal lands went where it needs to and so any one of those three reasons would support mr cortes dismissal of the complaint in this case you indicated that the simplest way to get to win for the federal government is for line on one hundred seven fifty one b i think it is that gives the federal government the authority to regulate  activities navigable waters within the systems unit but if we were to go that route do we have to then still reconcile that with the milk us language that in holding shall not be subject to regulations soley to federal land what than c f use the well it's easy version came up with a different argument for that that seemingly possible the way you read what soley really park service units so where those lands are not federally owned the this regulation applies anyway that's noted in our supplemental brief but that the sure that i'm addressing the issues that were raised here today with respect to preserving the status quo and the clear statement regulate navigable waters within park service units to the park service so where it doesn't need lands and rivers for that matter there are there are units designated in anelka that are themselves rivers and wild and scenic river segments the park service has authority to regulate them it's i think maybe the one way to think about that is tricking guys that all throughout the united states in the grand canyon you know if the park service regulates the use of the colorado river not because arizona doesn't own the bed but because the united states administers the land surrounding it for their their protection different but no it doesn't have anything in it that says that there's not one single provision that says that the that the management or administration of navigable waters in alaska is different from that management elsewhere and  disagree to control over navigable waters implicate alaska fall into rights alleged to have sovereign authority to control navigable waters it's exercised concurrently with the united states throughout the state and where the park service has been granted explicit authority to promulgate and enforce regulations in waters those regulations are paramount to conflicting state regulations that's the rule throughout the united states that's how the submerged lands act works so given that you indicated but the state of alaska  quote waters does that require a clear statement from congress and if so where do you see the clear statement within the milk at south it would only require and a clear statement if there were a change and mr sturgeon is is arguing that there was a change that alaska is different but i left that does not that that the united states doesn't have the same authority in alaska because in alaska the park service does not regulate navigable water that's not in the statute and there's no need for a clear statement that the united states park service or the national park service does regulate w you because that's the law there's a statute to that effect on the books there are a number of provisions in the statutes that address the differences in alaska for example in  preserves there is there the statute requires that subsistence hunting and fishing and various activities including trapping are allowed that's discretionary in the secretary in the other parks in the united states that says it also requires the secretary to allow the use of motor boats airplanes snow machines for access to remote villages and home sites so the statute does take into account the differences in alaska and it doesn't say one word about navigable waters being subject to a different level or a different type of regulation  exclusively in the state not one work so it seems that if there's a clear statement will issue here our problem here is with the states argument the state is suggesting that in a technical correction congress eliminated a critical aspect of the park service is regulatory authority within the units that it administers and there's no evidence in the statute and no evidence in the legislative history to support that theory so in our view the district courts dismissal of the complaint in this case was correct for a number of reasons and for any one of the reasons on which this case was remanded from the supreme court this court cannot from i these in local parks if it's nonfederal water absolutely they can regulate it fully at their discretion and you heard the government say for nonfederal and of those in holdings any time the park service feels under their ghana caca need to regulate those land it can there's zero limiting principle to the national park service argument here about its authority to regulate not on federal land within these in the local parks and that does absolute violence to the language of one of the three c which went out of its way to make clear these non the other part of the park now the park service i'm sure wishes that language weren't there they wish they had the extent of the authority they had another parks that's not going to look at did and they keep trying to say section one hundred three c that's a technical correction that's simply misrepresentation of the legislative history the language that was one of the three see was introduced early on by representative sidling that was a ten seat of the house version it was in the house version of the bill all along there  authority over in holding center native plant settlement i feel senator stevens and senator udall had long discussions about that all that happened was at the end when both house and senate versions passed the house version fell out because they used the senate version and so they put one o receipt back in the staff are just part of the reconciliation process and the legislative history they're referring to that refers it was a technical action gives me a technical correction also states that there are more substantive provisions in there and sam out of time thank you very much