base number one six two one two six david a her and others versus united states for service and others and friends of sylvania and others arguments not to exceed fifteen minutes for the plaintiffs and fifteen minutes to be shared by defendants with five minutes for the intervenors mr lechner for the word saving clause i guess as a couple fact questions i just curious how many property owners are there left is it ten how many roughly and thirteen and thirteen in their teen lots and thirteen lots with perhaps not all thirteen separately on so that's why it could be ten already honors how many of them are businesses which you know rent out i know it least the lot the  not motor boat that's has an easement that disallows it right correct the forest service paid to burden that property with a servitude bands gas powered motor boat so one of the one of the other people that has not been involved in litigation are are they are they in all of this and it's just such a small lake small group of people and said twenty five years of litigation i didn't say were the other right case is just mostly the harris versus four service and so the others are just all you know is it's roughly ten families or so and we know where three or four of those families stand but that's it wrecked and there's only two to your knowledge that are in business one of the interviewers and kathy stupak are all right but no other businesses that's not that i know i'm sorry your honor and the hairs are not in business no the just a vacation destination one of the principal parts of your argument is your urging us to incorporate the non binding holding in stupid  too as applied to the heirs and i just wonder why we should do that since the court went to great lengths to to narrow that holding and  seem to suggest that we do just the opposite of what you're urging can you talk about that little bit well i firmly judge bill's decisions do not throw all to that issue the injunction allowing and dismissed their appeal but after doing that the four service didn't go back after judge bell said the five words savings clauses on a big of a subject about existing rights means you can infer infringe on about existing rights harris did not own any property during the the two thousand and six forced play and planning process they purchased in two thousand and ten however the public pro to comment letter the forest service says look you got to go back and look at the motorboat restrictions judge bill's ruling was very authoritative and if you don't go back and look at it again you're going to be subject to further litigation but they in revising the play and they said motorboat you some crooked lake was not a compelling it compelling issue even though they just lost in front of judge bell and they said it was only you know only a limit it's only applies to one landowner now because we bought the were purchased to server two for the good you skis therefore we're not going to look at it again but there were still the remaining other repair ins and now they're the hairs and they should have at least reconsider their interpretation of the savings clause they didn't so the four service really doesn't have any current interpretation of the savings clause that would be entitled to any difference all we know is what department of justice thinks the savings cause mean the forest service has not interpreted it since one thousand nine hundred five when they denied stupak thralls appeal of amendment five and there they said oh we can do this because judge quist said we could do it but no member on this on boquet panel agree with judge quist ruling in stupak throw lawn regarding sailboats and house boats so this morning what are the one or two that you believe that we really need to understand about this case to get it right how simple it is we're talking about five words saving clause subject to valid system rights it's a simple case of statutory interpretation for service essential he concedes that the harris riparian rights are valid existing rights so now we're down to two words subject to plain meaning of subject to is subordinate to therefore the four service authority to manage the wilderness is that i understand your position with all of that with respect to a complete ban that makes sense to me but how would this case look if instead of the complete ban what they'd said and i don't know how michigan law works and motorboats but let's just say i'm making it up let's just say it's traditional to have things like no wake zone is within one hundred hundred fifty feet of the shoreline and so they you know you have to have like preserver so they they do things that are very conventional and very typical for lakes this size in michigan whether owned by the force service or not but they do it through a rules so it in that sense it's just like this case but i would call it a lot more reasonable and i think you would agree it's a lot more reasonable would your position still be that's just not how it works that they they have no rule making authority when it comes to this subject to valid  rights if they don't like what the hairs are doing they have to go to state court and say they're interfering with our right parian rights ours being for services is that so how does it how would it work with my  hypothetical that it's not a ban and just motor both and just like i'll just make it up one hundred fifty feet from the shoreline and let's just call that normal and i'm not as i don't know that it is but just to be concrete how would that case work well michigan does regulate the waters of michigan they put in restrictions the case issue in this case is not what the state of michigan do can do the issues in the cases what did congress allow the forest service to so your view would be is this for a subject a valid existing rights there's nothing for the forest service to do they they don't like what the hares are doing they have to go to state court and  is to go to federal or it but the key is it would be state law and they'd be asserting their rights as a corrupt pairing and they couldn't do this the rulemaking even rulemaking that you're probably in the hairs would ultimately think was reasonable in the sense of being similar to the way the state has regulated comparable lakes i think because we're complying with michigan law the forest service thinks that the hares use is under reasonably interfering with the for applied challenge i got just the hairs we didn't facially challenge the regulations so presumably those regulations can be applied against the general public so to that extent they can regulate the general public they just can't apply to the hairs in light over a making as to other ripe ariens are no rulemaking as to other ripe ariens to co write perry and that would be your position that it that is my it i mean what's with the bad thing that happens if we allow the forest service to pass regulations that applied not just the general public but to  long as it was consistent with what michigan has done and similarly sized lakes well congress didn't say that congress didn't say subject to value just in rights as those rights may be regulated under state law it's subject develop existing rights if the forest service can get away with what they're doing in this case it has wide implications because the savings clause subject about existing rights is used in hundreds of statutes mostly federal land management statutes and out in the west that's serious business so if they could come in and create a wilderness on top of a mining claim and create subject to valid existing rights the mining claim gives the right to exhaust all the minerals if they can come in and say well we're going to make you leave ninety five percent of the gold in the ground and we say what about savings cos i mean they would not get away with doing that out west telling some minor leave ninety five percent of the gold in the ground here their toe they're basically taking away ninety five percent of the hairs riparian rights because their motorboat ban applies to ninety five percent  can you give me a hand on the practical look back with respect to the no way could be limited are they in effect not able to motor boat well they can't go over a no wake is like one to five miles per hour so with their electric trolling motor if they're in the southern reaches of the lake in a storm comes on it takes them an hour to get home with the electric motor gas powered ten fifteen minutes it seriously infringes on their ability to get anywhere on the lake and there's no evidence that the harris are unreasonably using their gas powered motor boat or anything to that extent they're they respect michigan law or most of the owners vacationers part time any permanent year round residents these ten to thirteen  don't know i've you might have to ask the interveners the stupak thralls they're not up there in the winter i don't think last i knew if there are no further questions i i like to reserve the remainder of my time ok thank you very much thank you so hearing from the forest service first  how would this work and i'm trying to figure out if well if you were listening you heard what i was saying well i guess the mining claim example that mr  and the importance of the valid existing rights provision is something that i guess and sometimes i do agree with there are hundreds of wilderness areas in the united states and many national parks and almost all of the statutes that create those areas include the phrase subject to valid existing rights or something like that and in other contacts they aren't they usually referring to state law  yes but i think typically the concern that's reflected is with mineral rights subsurface mineral rights but i guess the point i wanted to make is that if that phrase is interpreted to mean that there's no regulatory authority that whatever the situation was when the wilderness or the national park was created created that's it for all time t hat that's an an extremely broad view of the impact and it really hamstrings the federal government's authority to manage its land which it has the authority to manage under the under the property clause and under the applicable statutes but it's not for all time i mean things change people by easements on property that changes state law make change right that that's a lot of things to change so i don't i don't quite get the point you the point i'm making is that the phrase valid existing rights has to be balanced against the will of the overall wilderness purposes or national park purposes and i'm making that as a general matter i'm stating that as a general matter put the case in context here the issue i partly agree with mr lacker and the issue is what is the scope of the hairs right parry and rights under michigan law and what we argue in our brief is that those rights are limited rights and that the but they're not limited by the federal government that's where i'm so puzzled how you think you get to decide what's reasonable for them that well it's  i don't think reasonable this isn't isn't the key issue here we looked at the michigan wilderness act excuse me so we're just so on the same page reasonableness comes from the norm of r state law one of them being the reasonable use doctrine of michigan law as a way of figuring out what is the content what is the scope of the hairs right parry and rights why not i mean mr lechner made a important concession you can read rule me you can do rulemaking you can say to the public no motorboats but i guess i'm struggling with why it's not fair to say ok if it's to write parents are having trouble the answer isn't passing the rule and saying we when the answer is going to federal or state court and then figuring out how state rep here in law works here and what's the reasonable compromise was that i said that a pretty legitimate approach now would be one approach that's open to the government but when congress created one congress and acted the michigan wilderness act it said manage this area as wilderness so i picked a valid existing rights so to the extent that the foreign services management decisions don't unlawfully limit the hare's right parry and use parian rights which we assume are valid existing rights the forest service can exercise that regulatory authority so it's a question is what is the scope of the hairs right parry and rights how are we to know we know by looking at you don't think you get ever in deference to that point no we were not but and i think that the phrase the phrase as a general proposition the phrase valid existing rights is not self defining of this scope of what that covers but here we accept the proposition that that that valid existing rights includes property rights under michigan law right parian rights are property rights the question is how broad are the hairs right parian rights and you a determine what the rights are well the forest service always has the when we whenever if a federal agency one of the federal government is doing something that impacts property the federal government looks to state property law to define the scope of those property rights that's what the court did in burlington i guess what you would say is the analogy would be all we wanted to under state law we wanted to look at the title of all ten property owners to see if perchance there was an easement which prohibited motor boat use because if there was there be no problem turns out there's only one with that and then the next point is well ok now we're going to make a state law gas in our state law gas is a ban is ok that's the way we look at it and it's our call now whether that's an accurate assessment of state law almost like an eerie point is that in the us mostly yes ok so if i'm  then the problem i have is everything we have in front of us doesn't make this look like what michigan would do in the bay none of the co co right parents in the bay where they would experience the motor boat use the most are complaining about this right everyone agrees that in the bay it's ok because and that's controlled by michigan law you're not regulating that five percent and then suddenly the other ninety five percent complete ban as opposed to saying don't go over twenty miles an es that valid existing rights means whatever the status quo was whatever anybody could do whatever was not regulated before cannot be regulated now and i think the word ri doesn't just mean i mean i have a right to drive fifty five miles on the highway when the speed limit goes down to forty two i did not take my right there's a difference between up right which in this case we're talking about property rights v the national fish and wildlife service regulations on a wildlife refuge the united states title to the refuge was acquired with an easement subject to the use of this easement this court held that the federal government's authority to condition the exercise of that he's meant was permissible is within the fish and wildlife services authority the fact that somebody has to simply say what we have right parry and rights does not define what the scope of those rights are the motor boat regulation here is not a it's not a complete ban on motorized use to ban on gasoline motors and a speed limit to suggest that congress would create a wilderness area and then say to the forest service but you can you can't set create a wilderness area and invite people in to recreate on that area but say first use you don't have the authority to set a speed limit law allows in this case these facts and with the phrase we're we're talking about how can one allow to force others to do that far the forest service has authority under the michigan wilderness act and will be sacked of sixty four multiple use act national forest management act to manage federal property and this court in perl and and the supreme court have eyes that to police power property to regulate federal property or protect protect everyone agrees they have power to regulate but it's not a limit and it's and it's not unlimited here then we adjustment based on the contacts that we also know that under michigan positive law the state and the counties have broad authority to limit to completely eliminate motorboats on some l s or to establish no wake speed zones or electric only motors so what that tells us is that right parian rights are right it's a use right that is subject to being conditioned and the forest service here is conditioning the exercise of those rights in the same way that would happen if they could pass the rule i mean if it has a department of natural resources both say it does and it passed a rule that specifically said motor boat use on all of crooked lake is allowed just don't go more than twenty miles an hour and stay on fifty feet from the shoreline least if you have a week and  sort of a standard conflicts analysis you would look at whether the brake elated person could comply with the federal law and state law and the fact that the states it's a higher speed limit than the federal whose i don't know how to think the conflict those are inconsistent but i well but but that's but that's different than saying it's not possible to comply with both if you mean that hypothetical makes it much no not necessarily i mean i partly because the i mean that the existing valid rights are state law rights existing state sovereign telling us what their rights under existing rights the existing refers to what the i'm not i'm not sure what the answer to that is your honor i think that the the focus of the harris argument has been we had the right to do this because our predecessor had the right to do it in  to the on bach dissent in the sailboat's case judge biogs dissent where early on in the opinion he says this regulation is invalid because it takes away  the right to sailboat which is part of their right parry and rights if the foreign service had simply adopted a regulation that said you have to have life preservers on your cell but that would be within the forest services authority because the right to motor boat without life preservers is not part of the bundle of right perry and rights and we are in that distinction here with a line drawing here is about is the right to use a gasoline powered motor property right under michigan law or is it just the limitation on gasoline motors just conditioning right perry and right to the core of which is a right to access a right to use the whole surface of the lake a right to drive drinking water from the late conditioning it by saying you can't go above a certain speed you can't use a certain kind of motor in order to protect the federal property that congress has designated as a wilderness and which is the highest level of protection for federal land that's that's where we're drawing the line here many other examples other lakes where it works like this were some percentage of the shoreline on private property i mean i n twenty eight j letter where the federal government's ownership involved in holdings or easements or there are some private interests in the firm federal governments land ownership and the federal government needs the authority to condition the exercise of those uses in order to be able to carry out congress's intent overall intent of protecting the area that's been designated as a park or as a point is that there isn't a property right to use gasoline powered motor boats at whatever speed they choose just because the state has not previously limited it but i'm think they're saying whatever speed they choose  their positional be but i'll ask them i don't think it's as fast as they want to go biggest vote possible that if it is i don't think they have conceded that they would be subject to horse power limits and  wake speed limit here is important because of the need to protect the federal resource the nast's wild rice pads general erosion the fact that this area is now being used by  ironic statement in the record about how you can now hear motorboats at crystal silence light even though crystal silence like is not one of the likes to which the motor boats have access to prove i'm sensitive your point i wish all of the cord we invite you to come up and it's a beautiful beautiful place interveners happened veyron mental recreational and business interests they include two of the less than ten because someone doesn't want in the bay because at this point in time the federal government has issued what we believe to be a legal appropriate talking about the bay they don't regulate the bay than underpay perhaps our clients are not as your honor and our clients are not people who are going to spend twenty five years of their lives to litigation the force on this lake is allowed to deny that to just in this last twenty five years in my view your honor they seem to prefer it to bird watching canoeing fishing well the other lovely things you can do up there your honor interveners own a business the sylvania wilderness cabins they work to keep the wilderness pristine they've explained in mr schmitz deposition i'm sorry declaration that loud and fast motorboat use harms his business interests customers people are discouraged from coming because the motorboats disrupt their wilderness experience while they fish and canoe and kayak and try to enjoy the quiet of the outdoors allowed high speed gas powered motor boats just drop it or out right hereon rights lawyer michigan allows us to favor a group that doesn't want anything motorized versus a group that wants motorized fishing boats so they can fish the whole lake first of all managed to understand why what what allows us to prioritize one group of the other it goes to three things first let's talk about michigan la secondly let's talk about i should let me back up let's talk about the wilderness act for a minute your honour's asked what's the authority of the federal government to restrict and limit the use of motor boats it's addressed at page eight of our brief restrictions that's at page eight of our brief that's federal law and the property clause clubby you're referring to the other this other piece of legislation which refers to use is that which are for into the wilderness act of one nine hundred sixty four is then incorporated into the michigan wilderness act of one nine hundred eighty seven that specifically authorizes the forest service the secretary of agriculture to impose restrictions michigan state law as we point out at pages thirty five to thirty seven of our brief sixteen counties have completely banned motor boat use on over forty lakes in michigan and what percentage of those lakes are lakes that their own by the federal government those are owned by the state or owned by counties they're not owned by the federal government to the best of my knowledge we re site them in footnote but but we we also know there are plenty of lakes in michigan that allow motor boat use i mean where are the wakes in michigan that allow motorboat use but your honor's question is under michigan law can the state ban or restrict motor boat use i as a part of the right parian rights and yes they can they've done that they can but the best evidence of michigan law and co write parian use would be what's begun going on in the northern bay of this very lake why isn't that the best and thus far michigan has not acted on that five percent but under both clappy in the burlington decision that was referred to under the property clause the federal government can take action on the five percent however that's not what the case is about the kurds want to go beyond the five percent of the ninety five percent and the ninety five percent is under the wilderness act and as wilderness under the one nine hundred sixty four wilderness act in the one nine hundred eighty seven well then there's this last point is really important i don't think it's what the federal government is arguing but you're saying this subject to valid existing ri doesn't it's really not about state law what it is about is it takes you up as far as the property clause allows the us government to go because that's the only reason you would be talking about those cases that allow the federal government to regulate land that is not theirs because of its effect on land that is there so is that the point you make that maybe the federal government's arguing that the property clause when you answer yes or no first and yes the property clause allows the federal government to  hundred sixty four in the michigan wilderness act of one nine hundred eighty seven and as a property clause has been interpreted described both in the brief for the federal government and in our brief it allows the federal government to restrict actions on adjacent areas in order to protect the federal side we understand how it works the question is whether they exercise that power here that's the that's the subsidiary question the federal government i think i the subject of valid existing rights is proof it's not going as far as it can go because that's a limit and the limit is state law rights and so and where that we and where we disagree with the federal government as your honor snow and where the district court agreed with us is on the second piece of the district court's decision pages eleven and twelve for that existing the word existing you can talk about that but it's not just doesn't bear on the point you were just making the point you were just making is about how far the congress had tried to go here one possibility is they have tried to exercise all of the property clause power they have which asked us to deal with a very different issue because some people would say the power the federal government has to deal with private land only goes to nuisance all right you know you can have a hard time winning nuisance with motor boat use for fishing all right that's not likely to win but if you want to deal with that argument we can i did not think that argument was in the in the case even in your brief your honor we misting one is in the brief and i'm happy to hear that but your honor we make two separate arguments the first argument goes to the balance and reasonableness of the federal government's action in seeking to balance among different interests of right parian landowners and in terms of trying to protect the wilderness this was created by congress as a wilderness the highest level of protection the federal government has regulatory authority under section eleven thirty three in exercising that regulatory authority they developed a record hundred ninety five and ninety six in two thousand and six and seven they appropriately balanced interests they did not ban all motor boats they limited it to four horsepower electric motor boat and shins and in so doing they were trying to protect the wilderness values they were recognizing other right perry and landowners they were trying to avoid invasive species as they said in two thousand and seven and they were trying to protect the wilderness experience that is authorized under the wilderness acts section eleven thirty three and that in our view was a reasonable exercise of regulatory authority balancing among competing and different interests a compromise if you will by the federal government that is also permissible under michigan law because sixteen counties have completely banned motor boat use on forty lakes that's at pages thirty five to thirty seven where we have a different view turning to a second argument that separate alter has the red lights if you want to in a minute or to make this point that it be fine but otherwise i make it a little and fair enough thank you your honor on the existing point of the word existing in the statute and this is a separate and independent ground for upholding the district court's decision has to mean something an existing just by its very definition has a temporal meaning but your client proves how existing could change you could have read parian rights and one of your clients pieces of property at the time of the wilderness act and the rights could change over time why because someone the federal government could pay for an easement that prohibited the property from being used for most would not a boat's so mean and another thing  also could reflect the fact that while federal law might not change at all after the wilderness act is in acted state law might change in fact you can use that today but all it's a lot of calories that have added you know no motorboats  so that's why existing is important it's not that but riparian rights run with the land you don't get to destroy this or that stick in the property rights bundle your honor and on that point i guess i never like to disagree with the judge but on this  we do existing in the statute as the district court found refers to people who at the time of the wilderness act in one nine hundred eighty seven were doing certain actions and if you look at stupid thrall to the court was very sensitive to judge bell too that there was a landowner there who had a preexisting use the plaintiffs in this case were not landowners at that time they were not innocent purchasers they have been in the lakes for about thirty years as visitors they've even received a ticket for using motor boats they knew of the limitation when they purchased their land the purpose of the word existing in the statute is to allow a transition the whole goal of the wilderness act is to create a wilderness protected experience the federal government might not be joining you in this argument is that it would create a regulatory taking and i'm going to make up some numbers but just to illustrate the point you could have a piece of property that's worth one hundred fifty thousand when you're allowed to use motorboats on the to which it's adjacent the minute you're not allowed to use motorboats it may go down to one hundred thirty thousand in terms of its value and your honor that's big that's that's a regulatory taking given that interpretation the word existing then you're enjoyment of being by a wilderness area where it's going to be quiet and peaceful and the wilderness experience and you've paid one hundred fifty thousand dollars and somebody who wasn't hundred eighty seven starts running large loud gas powered motor boats that disrupt your experience then your property value goes down and that's why rights operate on both sides here that's why existing from a temporal definition matters that's what i think that it would not be a taking is the point i was making that would be a taking because the property under that hadn't been using motorboats still is allowed to use and they just weren't using them and it's true it's really annoying the neighbors start doing something that other people don't like and they're allowed to do it you're right it might effectively lower your the value of the property but that's not a regulatory taking and that's why the action and that's why the forest service is which is allowed to impose restrictions after compiling a record here there was extensive balancing among and compromising among right parian owners interests didn't outright ban motor boats said no loud gas powered motor boats was a matter of safety as a matter of wilderness value if you were up in the lake and you were canoeing or kayaking and somebody came by at a fast speed on a motor boat there's a risk it was swapped or flip you over that's addressed in the after of your legs have multiple recreational users that's not unique in any way and  lakes in sixteen michigan counties have banned the use of gas powered motor boats it's reasonable to do one thing it's reasonable to do another thing you learn alan it's got your argument and i think we've been quite generous you ha i'll try to make it brief first the property cause is not at issue here we want to figure out the scope of the property cause of course that only gives congress the power whatever power property cause power congress has it didn't delegate it all before service because of the saving clause subject to ballot system rights so there's no reason to make a major constitutional issue make this case a major constitutional case about the scope of proper close second which is the the later and more specific act which controls of the general sixty four act moreover if you're going to look at the world in circus sixty four in section four see there's also a savings clause in there that protects private existing rights and for services today the errors are allowed to use your gas power motor boats at a reasonable speed in a reasonable manner that's michigan law the subject of the same clause does not say anything about subject to valid just your rights as they may be regulated by michigan's police power or under michigan's reasonable use doctrine these riparian rights are constitutionally protected rights are not second class rights whether you get into the natural in artificial use in fact they're probably more valuable today than the serious federalism concerns you shouldn't interpret a statute that creates federalism problems the traditional traditional ability of states to regulate land and water under the force or center potations you're infringing upon the state's traditional powers to manage those resources existing interveners existing argument for services named by that argument valid system rights  transferred with you don't lose any rights while you transfer them so it's a last question for you other courts that have reviewed this and similar issues have relied on snake spirit macbeth otis redding and his music you have any musical or literary references that you can help us with i'm not musically talented i'm sorry but i also want to mention in burleson the supplemental briefing thing and one less thing about  was no savings clause in burleson in the four services ownership was much stronger than it is here because here they share the rights with the hairs all right thank you tol three of you for your excellent briefs and excellent oral arguments really appreciate them it's a difficult case so thank you for all of your help will do our best to resolve the correctly the case will be submitted