to finally resolve land ownership in alaska a process that began with the statehood act and continued with the native claims settlement act both statutes that granted land to the state and native corporations to further economic development and self sufficiency for alaska and its people and milk a very carefully balanced conservation with those important goals mr fairlie can i ask just to very quick clarifying questions just so i understand what's at issue here you are argument applies to the navigable river is generally is that right in other words to the navigable rivers running through the federally own land as well as to those running through then in holdings i water activities within public lands within federal public lands can be making lead yes and those apply to all kinds of waters that are not navigable those apply to federal waters and what it says it says any waters in the jurisdiction of the united states it doesn't say navigable waters and there you know it would apply to both is what i'm saying what since it excludes navigable jim you turn back to the definition of public lands in the statute which makes clear for anything to be public lands the united states must hold title and there really is no dispute the united states does not hold title to the submerged lands or the now the waters so those now waters they are public land sea makes crystal clear they're not part of the park and they're not subject to regulation solely enacted manage parkland i wasn't sure but i i thought maybe they were suggesting that the navigational servitude in its reserved rights don't have to resolve that further question i mean and milka makes crystal clear that the federal government is not bereft of authority over now the waters e p a has authority corps of engineer has authority the specific issue here was you had pockets of part of the parks and we don't want to be subject to park regulation the idea was you weren't part of the park you weren't sub to the park regulation the day before an elk it was an acted and that status quo carries through after another suppose you have a regulation or a statute that's applicable federal park applicable or are not and you have to look at whether this is a regulation that was solely and acted to manage parkland the hovercraft regulation we have here it's crystal clear that's exactly the type of regulation of the park service made a judgment call about what it believes is appropriate or not appropriate to occur public land and if the park service is a park service regulation issued under the organic act and you read this code of federal regulations and the park service is saying we want fires here on public lands we want fires here  and leads to an incredibly good service all that frankly no but there's no evidence congress thought this is what was going to happen was that these islands of non federal land that were excluded from the parks under the ninth circuit's ruling they cannot take advantage of all of the rules in alaska that congress if occlusion for alaska parks you can camp in alaska parks you can hunt you can fish you can you snow machines you can fly the list goes on and on right under the ninth circuit ruling those relaxed rules they don't apply to the non federal land instead waters makes almost no sense to me i'm looking at a map attached to the petition of the state of alaska it's attached to the end of the brief and it seems like the  national parks are spread along the coast of alaska in a haphazard way meaning the national parks have jurisdiction over a small strip along the coast of alaska presumably you're not arguing that this agreement controls the us servitude of navigable waters around those streams and we're not claiming that section one of three sea trumps the n the words in in one of three c to mean the boating exception when it says in the jurisdiction of the united states waters in the jurisdiction you don't think marriage navigable waters are within the jurisdiction of the the navigable waters or you know other people are building in the dam or a fish or forget what they're called the corps of engineers can come in and say you can't do that and exactly under whatever it's authorities are i mean and that's exactly what i on top of everything and it says in the regulations look at the regulation it says the hovercraft regulation applies to water's subject to the jurisdiction of the united states this is water subject to the jurisdiction within the boundaries of the national park service that's a tougher part including navigable waters that's so the question i would think would be is this portion of the river within the boundaries of the national park service and my right so far it is within the outer boundaries of the park it is not part of the park pursue it well now you look at what they say about that and you get when they're defining the yukon charlie rivers national preserve it says that that national preserve which is the whole thing which includes the section of the river that we're talking about contains public lands it doesn't say it's identical with the public lands and then in another place it says only those lands within the portion which are publicly and she'll begin to be included your mind what i just quoted yes and then once you have that you have this regulation applying to this portion of this of the river so now we look at the statute to see if anything there takes away what the regulations seem to get and the only part of the statute though it's an important part that supports you is the second sentence but as i read that second sentence it says that the regulations that apply neatly to public lands within such unions you say are the ones that don't apply to the private land up in yukon charlie but i've just read you a regulation which one my reading of it regulation and does not apply sold to public lands within national park service units either in alaska or anywhere else and therefore the statute doesn't stop now that's that's an i want to i don't know if i can do this orally i just tried to which is to put the argument against you as best i could and i want to hear the reply and yes your honor thank you and you know this isn't the government makes the same argument their mind about things and i think that the question that justice breyer is putting to you is this question about what this provision means shall be subject to the regulations a political so the public lands i mean solemnly is a very purpose of word you know i mean congress drops lots of words but so you put solely in a sentence when you mean so only and this does not apply solely to public lands because the regulation never should have been allowed to reach out to the public  objection here to have a craft regulation as promulgated in one nine hundred eighty three was a regulation probably dated solely to manage parkland what one of three c says it was a permanent barrier to taking that regulation and extending you know the fact that they did it in one thousand nine hundred six and the fact if they've gotten away with it for over twenty years does not suddenly make the regulation i don't understand why the statute the justice brar focusing on the part of the statute applies just to park regulations and not to managed parkland you ask about the word solely the reason that it's there if you were to take a did it but it it talked about regulations apical so we took public lands but it's this is that all forest service regulation is are you saying that that's the same as forest service regulations or is that what you're saying and for service regulations are also soley enacted to manage those public lands to answer your question if you take the word because maybe maybe you can explain that to me but it seems to me that if you took it out of the statute what you would have was to something that says no private lands shall be subject to the regulations clickable to public lands and that's what you should want if it said that no private lands should be subject to the regulations the public lands you wouldn't be here you would have won your case already but it doesn't say that it says no private land shall be subject to the regulations solely exclusively only the public lands right and again no however you take of the word solely of not only i suppose a message certainly but you have a lot of in holding owners that would be happy to know they're not subject to the clean water act the clean air act the voting rights act or anything else when that's what that word is there to do if there's any doubt about that and i think seventy nine senator or make so you're saying that the word solely distinguishes between statutes like the clean air act and parkland statutes yes absolutely that was i understand why congress might have wanted to distinguish between the clean air act and park statutes but putting the word solely in i got to say this is not do that for me it may not have been the perfect way for congress to go out and do it but tell me the imperfect way and well so i want to know how does that i have no seriously had is that distinguish between two different kinds of generally applicable statutes one generally applicable and applying to parklands and not parklands and another generally applicable in the sense of applying to both public and private lands within parks read that sentence in context with both the first sentence of section one of the three c and the third sentence and then read in context of the purpose of the statute the first sentence says these lands are not part of the park the second sentence is doing its best to make clear these lands won't be regular just so they were and the third sentence makes clear that if the federal government or the perp service excuse me wants to regulate these lands want them to be part of the park they have to go out required there would be any purpose that third sentence of the federal government persecutes me the park service already had authority of those damn public lands and if you take a step back and you look at the overall purpose of the statute again one hundred one de at the statute makes clear that this is a balancing statute this is not just a conservation statute so read in context that's that what that line is silly is trying to dog draw again i would direct you to if if there's any doubt look at the one thousand seven hundred center jurisdiction under an oak congress provided in anelka that alaska would lose over one hundred million acres of land but at the same time congress provided concrete protection against further encroachments on the lands and waters that alaska did retain this court should reject the park services attempt to redefine the federal state balance that congress chose we know from the milkha that congress intended to provide unique management rules for  alaska and there are good reasons for that this was the continuation in a trilogy of legislation that began with the alaska seed hood act and the alaska native claims settlement act and this he's of legislation furthered the goals of those private predecessors one purpose of the statute was to provide adequate opportunity for the satisfy faction of the economic and social needs of the state of alaska and its people and congress explicitly balance that goal with conservation goals and the goals of completing the land selections within the city and that means that the national parks services authority in other states or in other parks are not the baseline here the starting point is the power that congress gave to the national parks service and other land management agencies in regulating and milk of parks and what congress did in section one hundred three c was to set aside the in holdings the federal the state private and native corporation lands that might be surrounded by the parks but should not be regulated as though they were in fact part of and by holdings you include these submerged lands that were somehow become publicly i mean i understand their argument here to say well section one hundred three c doesn't apply to the waters because those are in fact not alaska's waters but that is completely wrong your hon navigation to the park service as part of a park service regulation and i think even the park service isn't asserting that it has so the so that right which you said i didn't quite hear it or understand it i'm sorry say it again honor congress has the power to control navigation in these waters through exercise of the navigational servitude congress hasn't given that power to the national park service and i don't even believe they're asserting that happens so that's not what's at issue parks sets the ground rules for what authority the national park service happens so you're not i'm sorry you're not saying that the coast guard couldn't come in and say no over crafts around the alaskan coast the coast guard could enact regulations to regulate navigation in the water the river and harbors act gives the coast guard that explicit but if they wanted to say in this out cold the  first the waters go with the submerged and if the submerged lands pass of the state of alaska then there are some lands that are going to be state owned together with the water column itself and what section one of three sea places limits on is the park service is the ability to regulate that in the same fashion it wants to regulate the res guard can do it the e p a can do it it's only the park service that can't do it or another land management agency that is regulating is attempting to regulate the lands and waters that are not part of the park as though they were part of the my question about this is i look at that map you know in that map of this in area has all this green land which green is represents real federal park land and there's a river that runs through it and and and you're saying that that river that runs through the parkland and nobody can do anything on the phone or the feds can't do anything on i mean this isn't the hoardings i can understand the argument with respect to the  rivers that are running through the end holdings but this is the rivers that are running through the parkland that seems to me a very strange thing that congress would have created federal lands in a federal park land but said that the federal park service can't have anything to do with the rivers the river should make an important part of the park aren't the rivers are an important part of park but the control over the rivers is alaska as is alaska by sovereign right and the clear statement he says of the court make clear that congress does not lightly or vaguely take that power away from the state  it can but it has not done so in this case and milk i does not talk about navigable waters it does not talk about the commerce clause to regulate navigation it is about the land management agencies ability to regulate parks and our position is that the  park the park management can't in compass state waters and lands and there are good reasons that congress made that choice alaska's waters are used in ways that are different from the lower forty eight in for example the yukon flats national wildlife refuge there are three villages of less than one hundred people that are hundreds of miles from any road and this is common in alaska so these rivers are the way that you would travel to get medical care or groceries or obtain schoolbooks for your children and alaska's ability to make choices about what sort of conduct is permissible on the rivers furthers its ability to provide economic and self sufficien people which was one of congress's primary goals in passing this legislation the the idea that the creation of a park somehow transforms alaska's waters into federal waters alaska lands into federal lands without a clear statement would dramatically change alaska's sovereign ability to control its property in a way that this court never has sanctioned and should not just when i read it as i read it it's complicated but in a sense it's simple yosemite has some private land within it and a lot of public you know there's some houses in yosemite owned by private people there are interior regs that apply to all of yosemite such as certain fireplace regs there are some that only apply to the park but not the private people but the statute says is the latter doesn't deprive apply to that land that you gave to alaska that's what the statute says and what the regs says is that our hovercraft reg applies to everything within yosemite if this were yosemite navigable waters whether the land around it is owned by james jones the private person or whether it's own whether it's part of yosemite park that's what it seemed to say to me now there are two problems with what i just read one is the third sentence and the word unit and the second problem is the n p s the national park service is it really all of you know somebody you know with with that private thing or is it just the public part now that's at least  sole and exclusive jurisdiction over park that's right that's not what we have here here we would look to it and specifically the limitations in section one hundred three c which tell of the park service in fact you cannot manage state and private lands mr chief justice and may it please the court when congress created new park units in alaska for the express purpose of protecting their waters their free flowing rivers and their fish it didn't simultaneously strip the park service of preexisting authorities to achieve those goals by regulating navigable waters i think it might make sense just to clarify urgent to first explain what those preexisting authorities are and why they left the park service before you get to that could we begin with what the ninth circuit decided you're entitled to defend the judgment on the ground that you like but that was presented below but the only issue we have to raise we have to reach is the correctness of the ninth circuit decision how i understand what the ninth circuit to have held to be this that the hovercraft rule is not barred by the second sentence of section one hundred three c of an elka because the hover craft rule does not apply only in alaska because it applies throughout the country is that that's a correct understanding of what they held i actually think they were saying two things i think you're right that they were saying the hovercraft rule isn't covered by that second sentence but i think they say this rule is out for two reasons one is that conservation specific unit and the other is and i direct you to it twenty four and twenty six say they talk about whether the regulation is generally a pluggable or not and i take that to be an essentially whether it applies only on public lands in which case it's out or whether it's the very limited class of rules that the park service is allowed to right in the way that justice breyer alludes to to apply to both public and private lands and so if i could just explain the park brief and as i read it you didn't get to the reason that the ninth circuit base its decision on until page forty nine and you devoted exactly a paragraph to it and why don't you just can see that it's wrong it's disagree with that and if so why we think public lands a slightly more expansive tha federal lands and federal lands it means lands which the title is held by the united states and then lands is defined in this is the critical portion for us lands as defined term clude not just lands and waters but also kind of stumbled in your argument because you're not claiming title to the submerged land it's clear that's in the state that's right you are lying in the reserve water right is that ever expressed as title as opposed to  that the river that the government holds title to the river it doesn't as you use a freak to rewrite in the river no it we're saying it is your order to collated it correctly that the united states holds title to an interest in the water that's different from holding title to the water i agree and the question is if we hold title to an interest in the water how broad is that interest and what does it let us regulate and the interest has been defined by regulation and consistent with the statements of what this land is being reserved for it's an interest that we hold over the entirety of the water and that permits us to regulate the water and i think one way you know that i'm sorry to pause pause there i understand would reserve water document is usually you know we need water to do this so we have a reserve right to forty percent of the water or the initial flow or whatever i've never thought of it as a basis for general regulatory authority so i think that move is made by a new look lands within the conservation unit that are public lands yet in the united states we write we only have authority to regulate the lands in which we have reserved water rights and those are well know that hovercraft rule only applies on public lands and so it doesn't apply in holdings and then then i'm completely wrong then what the right the then the i was totally wrong i thought that the argument was that we think that the navigable waters are not like john joins it's house we think they're federal lands but if your honor is to assume either way you say you will either they are federal lands and this is part of a reg that applies to federal lands or they're not federal in which case this rate applies to both federal and i mean non public lands and publicly so it's not within the second sentence is that your argument that is right and so if we could talk about what that means even assuming all men are in for that's right i mean it it's right because the question is do these things apply soley to public lands and you say well the second second sentence doesn't matter because we say they don't apply soley to public  protection for the holders i think it is and the reason is that we have very limited authority to regulate things that are in holdings and in particular we are acting here pursuant to express grant of authority to regulate waters within the parks well you know when you talk about waters and after this question i won't say anything more on this but it is the ninth circuit's holding limited to water so the state of alaska on page twenty and twenty one of their brief cite a notice in the federal register by the park service in which they defines the regulation federal gas activities on the basis of sturgeon on the ground that something more than just navigable waters that's right so i think the longstanding interpretation for twenty years said i didn't notice and comment regulation of what this provision means is that it only limits rules that are written solely to apply to public lands and as to what alluding to says if it's a rule that applies to both public and private lands then it's not covered by this provision and just to be clear we have very limited authority to regulate private lands so it's not a plan or regular this provision doesn't grant  prescribe such regulations necessary or proper for the use and management of system units including those concerning boating and other activities only here the c s use o park system units that's thirteen zero one three c as a result non federal holdings an ambiguously fall outside the scope of the of the secretar authority because of the first census only those lands within the boundaries of any conservation system unit which are public lands as such terms defined in this act shall be deemed to be included as a portion of such unit if it's not within the unit it's not within the the basic authority of the park service to issue regulations period so you have to show that i think the federal government hold holds title to the water rules that are necessary for the protection of the system you it's me in the parks and i agree that this is outside of that and as a result our authority to prescribe rules for this land is very limited ok you're conceding that the waters are outside of that i'm it well we have our first argument your honor is that no these are public lands but if just i think just as with premises what is our authority to regulate if they are not public lands ok and i want to focus on provision be ok and just the language of provision has always been understood to allow us to regulate waters that are within the boundaries of the parks regardless of who owns them and who owns them is always going to be the standard petitioners theory no matter where we are and just to focus on the language of it it's a very specific express because the tone of voice is the only way i could deal with this case watch imagine we have a value that's a public land and that valley vs the boundary of the unit yes some of it's inside and some of it's out those lands within the boundaries of any conservation system which are publicly within the boundaries of any conservation system which are public lands shall be deemed to be included as a portion of the unit yes so the only part of that valley that it's a portion of the unit is that part of the valley that within the boundaries of the union the part that's outside the boundary of the unit is not part of the union yes so is that what it does i thought it must mean something like that i doesn't mean something like that it means what does the scalia says and then there joe jones his house the indian reservation none of it is part of the unit but that can't be what it means canada so i think the you see what are you following it i think i think i am  g the statutes the congress is an active draw a distinction between land that is within the boundaries of the unit which includes private lands and land it makes clear if it makes clear that private lands like joe johns as house provision prohibits the park service from exercising that authority and or whether you and and so to answer that i think we look at the text and what does the text do and the text says you can't apply on lands that were conveyed to the state or to private lands whether they're public or private and if you look at the text it does and as a result this is not a regulation if you think that waters within the parks or private lands this is not the kind of regulation that's carved out by the text just giving meaning to the word solely that has to be correct and if you also look to other provisions of the statute it confirms it in two ways that you just focus on two of them the first is if you look at the management plan section of the statute of a new it expressly con service is going to be able to regulate private lands under some circumstances and it does that by saying you need your management plan to describe the activities that are occurring on private lands and to describe any method you're going to use the method you can use to control those activities including quote issuance or force meant of regulations and just the other thing i think and if in looking at the rate section i mean i would have thought that that was he to your argument because it says in these management plans what you need as a disk is a description of privately owned areas which are within such a unit so it's it's clearly contemplate in that there are these private areas that are within the unit and then as you say it goes on and says we want in these plans some idea of what regulations are going to be applying on those private lands within the unit that's right your honor and if i could just focus on the one other part of the statute that confirms that this reading is correct that the park service isn't being stripped of its preexisting authority to regulate rivers it's if you look at the other provisions of the statute that very clearly confirm the park service is going to have the authority to regulate rivers and let me just give two examples of those the first is when congress is setting aside land for parks and let me use the park here is an example it states it per its purposes so it says we are creating here the yukon charlie rivers preserve and our purposes waters within the parks still in place and just one other example of these provisions is the wild unseen at river act provisions that are in the statute and congress sets aside as a specific pressure type of conservation system unit wild and scenic rivers these are entirely composed the rivers and says purpose service you are supposed to protect those pursuant to your advantage act authority in these wild super of provisions what is your view would be on page twenty four and i think you mention the several times so you talk about this isn't a we can only regulate where there is some statute that authorizes us to regulate in holdings and do you think the statute that authorizes you you to regulate is the one that says the secretary shall prescribe such regulations as  the secretary considers necessary or proper we're going to be relying on the one right below that be well but do you rely on that one because if you rely on that one i don't see that it provides any protections at all so let me tell you how the how that first one has been interpreted and why it does provide protections so that first provision has been interpreted to allow the secretary to regulate private lands when doing so is necessary for the protection of the system units and so for example if the park service regulates some activity on private lands that is going to cause danger or harm to the system units that's their joints and that's the only circumstance in which authority to regulate when i injure danger or harm is that what it's limited to or could it be limited to in scenic environmental noise impacts we think it's clear that the park service can't simply treat in holdings as though they were public lands and the only case in which the park service has tried to use its authority to regulate in holdings under that provision is this case where there's going to be some kind of harm to the in holdings is quite limited so if you because of that's true and i don't know what then you disagree with the ninth circuit and the meaning that it gave gives to the solely phrase i think that we think this and we've said for twenty years in a regulation it's entitle to chevron deference that what the silly phrase does is it carves out the rules that are clickable so to public lands and because our authority is so limited that's most rules it's only under very narrow circumstances that we can write rules that apply to both public and private your authority is not limited if you get chevron deference if you get chevron deference undetermined what you think is necessary or proper the idea that that's a substantial  regulations i described a pervasive regulation there might be if we tried to interpret our authority under the section more broadly there might be a clear statement problem then but there's certainly no clear statement problem right thirty or interpret necessary and proper argue that your proposed regulations on oil contravene the intent of this provision so assuming we do how do you deal with that assuming some people do i don't i don't know that yet i think you're on is right that some people might say that that's not an appropriate regulation and they would be able to challenge it nationwide as not an appropriate exercise of our authority but what's never been disputed in this case is that in general under the  a gets around the first section of one of the three c this provision allows regulation of waters and with the service units but the first section as i read it says that nonpublic land within the boundaries of the c s u is not part of the c s u yes so i think the statutory authorization is actually slightly broader and just to read the language it's concerning boating or other activities on or relating to waters located within system units and that's always been understood to allow the regulation of all the waters in system units regardless of their ownership and i think that makes sense because you can't regulate or protect a river piecemeal fifty one is a general statute applies everywhere right and and thirty one zero three section one hundred three is specific to alaska isn't it yes isn't there a general rule that the specific governs the general yes and i think this general provision is limited by what the congress has said about alaska and that sentence says only those lands within the boundaries of any and he c s u which are public lands shall be deemed to be included as a portion of such unit yes and if you read that back into one hundred seven fifty one it seems to me the park service those members know it so we agree your honor that the specific governs the general and so the court has to give effect to that first sentence and what that first sentence says is they can't be treated they are not part of the union and so then we look to the park services authorities and we say does the park service authority depend on this water being part of the unit and the answer is no if you look at b it's an quote waters subject to the jurisdiction of the united states within the boundaries of the national park service yes and then the national park service somewhere has a definition that equates it with is this seems to take the private land the in holdings and say they're not part of the unit only the public lands are part of the units and then the hovercraft regulation applies only to the  is within the boundaries of the unit although the unit consists of just the public land yes rafted this is a clear there's never been anyone to be clear there's never been any dispute this is that the regulations are written to apply to these lands the only question this case is whether section one of the three strips that authority and your honor i would just ask the court again specific would over come the general so if congress passed a new statute it could limit or expand one of three as to chose caress and your honor just if i could leave the court with an interpretive section one of the three this provision that talks about rule soley apply coble to public lands and whether that removes the park service as preexisting authority to regulate waters in the parks or just ask the court to look to all of the other provisions of the statute that clearly contemplate of a new car the statute they clearly contemplate the park service is going to retain the authority to protect kirk's water let's say that they're part of a river is within  and and you read the statute to mean that the park service could regulate voting five hundred miles downstream from that part of the on that river because it's relating to waters that were are within the c s u the park service with this holding imaginary but the ninth circuit's wrong to the second circuit sentence does not bar this regulation three there are other possible arguments we send it back to reconsideration as to whether those arguments are good or bad  and then as to this first sentence which i don't think god focused on particularly we say go back and argue about who you are in this case could be sent back to address both that and to address the question of what is public lands which is a question that was interesting below it we think it would be sufficient to say as the second sentence doesn't as is the text clearly indicates the second sentence doesn't prohibit the application of those rules that are validly written to apply to both public and private lands within the parks and this regulation is a rule it's been written to apply regardless of who owns lands in the parks it's an exercise of our narrow authority and right you're winning if i think justice alito has been asking you this question from the beginning what do you think the ninth circuit meant and do you agree with its interpretation as he pointed out you spend forty nine pages of your brief arguing other things you know putting you to the test yes all right so what do you think  happens so we think there are we have to stronger arguments but we think that part of what the ninth circuit said was the second sentence only limits the rules that are specific to conservation system units and conservation system units as defined in the statute to the parks units in alaska and we think yes the plain text of this regulation only limits those kinds of rules we don't think the court needs to reach that but i think the ninth circuit was right yes so if there's a rule that applies to conservation when these new lands were at it thank you council mr fairlie you have two minutes remaining just in the two minutes can you address the very last point the solicitor general made please i'm yes and that's it simply backwards to what one of the three c was supposed to do  joe johns as host let's think about it differently let's think about this as a native corporations land allotment you have forty percent of their land allotments but they were given in the native claim settlement that land that was given to them in exchange for extinguishing their entire it's there for economic development it's about to be surrounded by these and old car parks it's worth taking a step back what is one section one of three c doing it is saying before an elk has passed you're not part of the park and you're not subject to park service regulation the day after it goes part excuse me the day after a no is passed you're still not part of the park and you're still not subject to park service regulation the government's position here they keep saying therefore it is limited to mr chief justice hit the nail on the head they're relying on the organic act which allows them to enact any regulations they feel necessary at any time they've already done that with nine b while in gas regulation seeking to apply those to and on federal land within alaska and the hits are going to keep on five seconds of the point there's a lot of discussion about whether i know her covers now but waters are not the clear statement rule cover sequester can and in that circumstance it's a question of is anything in the statute clearly saying we are taking away state authority over n le waters you will not find the term now but waters in the statute wants let's contrast this to other park enabling legislation and this is for a long think national park and we'll find this at sixteen u s c two fifty one and and here's what it says the statement thank you thank you council cases submitted