Concurrence Opinion
concurring in the order.
It is unfortunate that after considerable expense of time and effort this case has resulted in no law of the circuit. Under such circumstances, there is undoubtedly little need to engage in lengthy debate in opinions lacking any precedential value. Nevertheless, I believe that due regard for Judge Boggs’s opposing view compels a brief explanation of the view favoring affirmance.
Throughout this litigation, we have assumed that the plaintiffs’ riparian rights may count as “valid existing rights” to which Forest Service regulations are “subject” under the wilderness acts.
Because we deal in this case with state-created property rights, it is appropriate to recognize that in certain instances, different states may define these rights by providing additional protection from government interference. For example, the government defendants here concede that Michigan has defined riparian rights in such a way that if the Forest Service or local government had attempted to deprive the plaintiffs of the ability to extract drinking water from the lake, the regulation would be invalid, even if it did not constitute a taking. See Thompson v. Enz,
Judge Boggs’s opposing view essentially takes “subject to valid existing rights” to mean “without affecting valid existing rights in any way.”
I doubt that even the opposing view would hold that the Forest Service’s sailboat and houseboat regulations constituted a taking, especially since the district court noted that plaintiffs had failed to produce any evidence that sailboats or houseboats have ever been used on Crooked Lake. See Stupak-Thrall v. United States,
The foregoing approach adopts the prior panel’s recognition that plaintiffs’ riparian rights have never included the right to be immune from reasonable regulation. Congress chose to “grandfather” private rights in the “subject to valid existing rights” phrase, but in doing so, it never intended that those rights be ossified against further regulation. In employing a takings inquiry, the foregoing approach also makes explicit a narrow limitation on the prior panel’s analysis to ensure that the police power is exercised within reasonable bounds. With this slight clarification, I would adheré to the panel opinion in its entirety, and I incorporate it herein by reference. See Stupak-Thrall v. United States,
MERRITT, C.J., and DAUGHTREY, J., concur in Judge MOORE’S opinion.
Notes
. The underlying constitutional, statutory, and regulatory background of this case is fully described in the | panel opinion, Stupak-Thrall v. United States,
. Michigan Wilderness Act, Pub.L. No. 100-184, 101 Stat. 1274; Wilderness Act of 1964, 16 U.S.C. § 1133(c). This assumption in favor of the plaintiffs' position properly allows the court to reach the critical issue in this case: the meaning of "subject to” valid existing rights.
. The phrase, “subject to valid existing rights,” is indeed ambiguous. The University of Kentucky’s Journal of Mineral Law & Policy, for instance, has devoted an entire 375-page issue to trying to untangle the phrase. See Symposium on Valid Existing Rights, 5 J. Min. L. & Pol'y 381 (1989-90). The fact that Judge Boggs’s interpretation of "subject to” contradicts a longstanding Interi- or Department interpretation, see Interpretation of Section 603 of the Federal Land Policy and Management Act of 1976 — Bureau of Land Management (BLM) Wilderness Study, 86 Int. Dec. 89, 116 (1978), and the fact that the court is so evenly divided on what it means to say "subject to” valid existing rights, would seem to indicate that the phrase is not the model of clarity Judge Boggs would have us believe.
. The Takings Clause states: "nor shall private property be taken for public use, without just compensation.” U.S. Const, amend. V.
. Judge Boggs responds that certain restrictions affecting valid existing rights, such as those requiring life preservers on sailboats, would not violate his interpretation of the "subject to” proviso, yet his explanation for this conclusion falls far short. He points out that there has never been a right "to sail without life preservers" under Michigan law, only a right to sail, and Amendment No. 1 "destroys the riparian right to sail in its entirety.” Dissenting opinion at 1287. The problem with this approach is that it takes each potentially permissible riparian use — “fishing, wading, bathing, swimming, washing sheep, watering cattle, pigs, and horses, washing vehicles and clothing, cutting ice, boating, sailing, etc.,” Dissenting opinion at 1297 n. 33 (citing People v. Hulbert,
. The dissent’s analogy to the seizure of Cincinnati’s Riverfront Stadium "or the tickets of season ticket holders” is completely inapt. Although activities at the stadium might reasonably be classified as "occasional and recreational,” they are also manifestly more than that. Such activities constitute the entire basis for owning Riverfront Stadium, or for investing in personal property like season tickets. In other words, Judge Boggs again errs by assuming the “denominator” of the entitlement to be whatever best suits his argument. In the instant case, no one disputes that sailboat use on Crooked Lake, if any, has been nothing more than a peripheral use of little moment. A far more appropriate analogy to this case, from a takings standpoint, would be government regulations prohibiting horse racing or gambling at Riverfront Stadium.
Dissenting Opinion
dissenting.
That this case has been controversial is apparent from its effect of splitting our court right down the middle. That at times it involves intricate statutory analysis also cannot be gainsaid. However, as I shall endeavor to demonstrate, it is basically a very simple case.
Our usual practice in.a case such as this is to issue a simple order affirming the district court’s opinion by an equally divided court. The Supreme Court uses a similar practice. I recognize that by writing separately, I am breaking with the usual practice. However, the usual practice is in no sense binding as a rule of law. Examples of deviation from this practice abound. See, e.g., Biggers v. State of Tennessee,
Because most of the rest of this opinion, as well as most of the verbiage previously expended on this case, involves competing uses of terms such as “rights,” “privileges,” “authority,” “regulation,” and “delegation,” whose' concrete application can be rather amorphous, I think it is well at the outset to recognize the struggle of which this case is only a part. Some people, such as the plaintiffs, want to preserve their enjoyment and livelihood on Crooked Lake from those who would destroy them. Others, whether for their own enjoyment or to advance broader principles, wish to destroy the enjoyment and livelihood of the plaintiffs. This struggle has raged from local meetings to Congress to the Forest Service and now to the courts. Our decision fails to recognize that this part of the struggle was essentially lost in Congress by the destroyers. Our unsatisfactory resolution ensures that this struggle will go on, now with less guidance than ever, governed by a district court theory that not one member of this court has indicated agreement with. I therefore dissent.
I
I recount the facts of this case a bit differently than either the panel or the district court, as the treatment in neither opinion is complete in important particulars.
In 1966 the United States purchased the property surrounding the southern portion of Crooked Lake, located in Gogebic County in the upper peninsula of Michigan, just north of-the Wisconsin border. The government then made this land part of the Ottawa National Forest and it therefore came under the administration of the Forest Service. The Forest Service constructed a public boat landing at the northern end of Crooked Lake, thereby allowing access to and use of the lake by the general public. The United
Section 3(b) of the Wilderness Act of 1964 (“Wilderness Act”), Pub.L. 88-577, 78 Stat. 890 (1964), 16 U.S.C. § 1132(b), required the Secretary of Agriculture, within 10 years of its enactment, to review certain areas of predominantly federal land, determine their suitability for classification as wilderness, and report these findings to the President of the United States. Section 3(c) of the Wilderness Act, 16 U.S.C. § 1132(c), similarly directed the Secretary of the Interior to review all roadless areas of a certain size for possible inclusion in the federal wilderness system. Pursuant to these directives, the Forest Service undertook the first Roadless Area Review and Evaluation (“RARE I”). This effort failed prematurely as a result of a Tenth Circuit injunction against RARE I pending the completion of an environmental impact statement and compliance with the National Environmental Policy Act. Wyoming Outdoor Coordinating Council v. Butz,
In 1981, Michael and Bodil Gajewski purchased a six-cabin fishing resort on Crooked Lake catering to fishermen who use motor boats. The resort had been in operation since 1942. Around 1986, Kathy Stupak-Thrall purchased lakefront property from her father that had been in her family since 1939.
Finally, in 1987, Congress passed the Michigan Wilderness Act (“MWA”). Pub.L. No. 100-184, 101 Stat. 1274 (1987). The MWA created ten new wildernesses, including the Sylvania Wilderness Area, as they were proposed in the RARE II survey. See Section 6 of the MWA. Most of Crooked Lake was included within the wilderness area. Only the small, northernmost bay of this lake remains outside the Sylvania Wilderness. The MWA incorporated the Sylva-nia Wilderness and its portion of Crooked Lake into the federal wilderness system cre
Private landowners like Kathy Stupak-Thrall and the Gajewskis became aware of Forest Service proposals to ban motorboat-ing on Crooked Lake, something they believed would violate their riparian rights under Michigan law. Kathy Stupak-Thrall asked her congressman to make inquiries of the Forest Service in an attempt to put pressure on the regulators and gain more information about the agency’s intentions. In response to one such inquiry from Congressman Robert Davis, the local Forest Supervisor, Dave Morton, partially allayed concerns over proposed restrictions concerning use of the surface of Crooked Lake by writing to Davis:
Congressional hearings and testimony leading to the passage of the [Michigan] Wilderness Act indicated strong support for and recognition of motorized use on these lakes.... [T]his motor boat use is a pre-existing right and may be allowed to continue.... [W]e may find ... that there may be a need to regulate it ... [hjowever, this may also require some change in State of Michigan rules/regulations governing use of motors.... Our feeling is that some sort of compromise will be needed. Without the original Congressional compromise of accepting established pre-existing valid right of motorized use on Crooked, Big Bateau, and Devils Head lakes, we feel that we would not have a Sylvania Wilderness today.
(Emphasis supplied.) This letter eventually became part of the administrative record.
Despite assurances like these, in January 1990, the Forest Service began to consider substantial amendments to the regulations governing the land in the Ottawa National Forest. On April 20, 1992, the Forest Service released the final version of its changes to the Forest Management Plan, called Amendment No. 1. Among other things, Amendment No. 1 prohibited the use of sail-powered watercraft, watercraft designed for or used as floating living quarters and the use of nonburnable disposable food and beverage containers.
On June 4, 1992, Thrall filed an administrative appeal with the Forest Service, challenging Amendment No. 1 under 36 C.F.R. § 217.3(a)(1), (b) (permitting appeal to Forest Service of Forest Management Plans or amendments). She appealed on two grounds: First, she argued that her riparian rights on Crooked Lake constituted “valid existing rights” within the meaning of the MWA and that the Amendment unlawfully destroyed those rights. Second, Thrall argued that Amendment No. 1 constituted a “taking” of her property contrary to the Fifth Amendment. On October 23, 1992, the Regional Forester issued a decision denying Thrall’s appeal based on his conclusion that the “valid existing rights” language in the MWA referred only to privately-held subsurface mineral rights, and perhaps only to mineral rights in the Nordhouse Dunes Wilderness Area.
On December 8, 1992, the Chief of the Forest Service accepted discretionary review of the decision of the Regional Forester pursuant to 36 C.F.R. § 217.17. On January 7, 1993, he rendered his decision. He upheld the Regional Forester’s interpretation of the ‘Valid existing rights” language as intending to protect only subsurface mineral rights in the Nordhouse Dunes Wilderness Area. He went on to argue that even if the riparian rights claimed by Stupak-Thrall were valid existing rights, the Forest Service could restrict these rights, so long as such restrictions did not rise to the level of a taking. He rested this argument on precedent interpreting the same phrase, ‘Valid existing rights,” in the Federal Land Policy and Management Act of 1976 (“FLPMA”). Stupak-Thrall’s administrative remedies were then exhausted.
On March 5, 1993 Kathy Stupak-Thrall filed suit in federal district court to enjoin Amendment No. 1 from interfering with her riparian rights on Crooked Lake and seeking damages for an uncompensated regulatory taking. The same day, the Gajewskis filed a complaint seeking identical relief. The district court denied a government motion to dismiss the Gajewskis’ suit for failure to exhaust their administrative remedies and consolidated their action with Kathy Stupak-
After cross-motions for summary judgment were filed, the district court granted summary judgment to the government on January 25, 1995. Stupak-Thrall I,
A panel of our court affirmed the district court’s grant of summary judgment to the government, but on different grounds. Stupak-Thrall II,
We do not agree that the “reasonable use” doctrine governs the federal government’s actions in this case. Although the Thompson [v. Enz,379 Mich. 667 ,154 N.W.2d 473 (1967) ] decision is important here because it shows that the riparian rights of private citizens are not absolute under Michigan law, the “reasonable use” doctrine itself only makes sense when one riparian owner challenges another’s use as unreasonable and the court makes a subsequent determination of reasonableness. It is inapplicable when one riparian proprietor unilaterally decides to ban certain uses of others, whether or not the uses- themselves are unreasonable, and whether or not the banning proprietor actually has the power to do so. Indeed, the federal government’s ability to impose the restrictions does not*1277 stem from its status as a fellow riparian proprietor; it stems from its status as a sovereign. Its authority to regulate cannot come from a state law doctrine that merely balances the property rights of private owners vis-a-vis one another.
Id. at 889 (citation omitted). Instead, the panel concluded that Amendment No. 1 was a valid exercise of the powers possessed by the federal government under the Property Clause of the Constitution. In essence, the panel held that Congress had delegated regulatory powers to the Forest Service coextensive with the police powers possessed by local governments in the State of Michigan. Id. at 889-91. This court vacated the panel’s opinion on April 11, 1996 and heard oral argument in the case en banc on June 12, 1996.
II. THE PROPERTY CLAUSE AND CONGRESS’S AND THE FOREST SERVICE’S ABILITY TO DESIGNATE AND MANAGE PARTLY PRIVATE PROPERTY AS WILDERNESS
Stupak-Thrall contends that Amendment No. 1 is invalid for two groups of reasons that can be treated together and dispensed with rather easily. First, she argues that Amendment No. 1 is outside the bounds of Congress’s Property Clause authority because the riparian rights at issue are not entirely publicly-owned. On the same basis, although it is a bit unclear, Stupak-Thrall argues either that Congress lacks the ability to designate partly private areas as wilderness or that the Forest Service lacks the authority to regulate partly private areas as wilderness.
A. Property Clause
As the district court and the panel correctly held, the Property Clause
B. Congress’s and the Forest Service’s Classification Authority
1. Designation of Federally-Owned Areas as Wilderness under the Wilderness Act
Stupak-Thrall’s argument that the Forest Service has no authority to classify part of Crooked Lake as wilderness should be dealt with in the same way as her Property Clause argument. To support her contention, Stu-pak-Thrall points to Section 2(a) of the Wilderness Act, which provides as follows: “[The] National Wilderness Preservation System [is] to be composed of federally owned areas designated by Congress .... and no Federal lands shall be designated as “wilderness areas’ except as provided for in this Act or by a subsequent Act.” 16 U.S.C. § 1131(a). Section 2(a), says Stupak-Thrall, clearly denies the Forest Service the authori
Perhaps sensing this difficulty, Stupak-Thrall at times claims that provisions like Section 2(a) of the Wilderness Act prevent the Forest Service from managing a non-federally owned area as wilderness. This is a bit of wishful thinking on Stupak-Thrall’s part — Section 2(a) speaks only of the designation of wilderness areas, not of their management by the Forest Service. See Stupalo-Thrall II,
2. RARE II and Its Incorporation into the MWA
Stupak-Thrall places emphasis on two statements in RARE II that she claims establish that Congress could not have intended for areas with any kind of private ownership to be managed as wilderness areas. Both of these statements were set forth in Section I, at p. 11. Neither leads to the conclusion either that partly private areas, such as Crooked Lake, cannot be designated or classified as wilderness or, more importantly, that the Forest Service cannot manage as wilderness any area, public, private, or mixed, that is designated or classified by Congress as wilderness. It is true that Section 6 of the MWA incorporates RARE II, but the statements Stupak-Thrall points to in RARE II do not support her argument.
3. Administrative Classification
Stupak-Thrall also argues that the Forest Service has admitted that Crooked Lake is not federal land. This purported admission exists in the Forest Service’s internal administrative coding of Crooked Lake for the purpose of making congressional reports and remitting payments to state governments and their subdivisions. Forest Service maps indicate five different kinds of ownership: (1) national forest system; (2) state; (3) county; (4) private; and, (5) “other.” Crooked Lake is classified as “other,” presumably because ownership rights in the lake are mixed. Even ignoring the most significant problem with considering this administrative coding evidence, that it is not contained in the record, it has absolutely no significance. It establishes only what is already clear under Michigan law — ownership rights in Crooked Lake are shared between the United States, Stupak-Thrall, and possibly the State of Michigan, depending on whether the lake is navigable. This administrative coding does not establish that Crooked Lake cannot be regulated because it is not purely federal land — the conclusion urged upon the court by Stupak-Thrall. Kathy Stupak-Thrall’s argument from a Forest Service official’s letter to her husband, Ben Thrall
There are other significant problems with Stupak-ThraU’s position on this issue, as well. The government asked at oral argument for the court to assume that Crooked Lake is navigable under state law. If this is a valid assumption
Given this scheme of ownership, it is clear that the federal government, as a fellow riparian of Stupak-Thrall, does have some ownership rights under Michigan law in the waters of Crooked Lake. Thus, Stupak-Thrall’s contention that the lake is private property must be rejected. Section 2(a) of the Wilderness Act does not deny the Forest Service the regulatory authority for Amendment No. 1.
Stupak-Thrall’s alternate • argument that the existence of some private rights in Crooked Lake’s waters precludes designating any portion of the lake as wilderness also must be rejected. Sections 4(d)(3) and 5(b) of the Wilderness Act clearly contemplate the exploitation of private, subsurface mineral rights in wilderness areas. 16 U.S.C. § 1133(d)(3) & 1134(b). Furthermore, Section 5(a) of the Wilderness Act 16, U.S.C. § 1134(a), and Section 9 of the MWA con
4. Non-Creation of Buffer Zones
Stupak-Thrall makes a final series of arguments for why a portion of Crooked Lake could not have been included in the Sylvania Wilderness that draw primarily on an admonition by Congress to avoid the creation of buffer zones:
Congress does not intend that-designation of wilderness area in the State of Michigan [will] lead to the creation of protective perimeters or buffer zones around each wilderness area. The fact that nonwilderness activities or uses can be seen or heard from areas within the wilderness shall not, of itself, preclude such activities or uses up to the boundary of the wilderness.
Section 7 of the MWA. So the obvious argument is as follows: Crooked Lake is private property and therefore it cannot be included within a wilderness area for the purposes of creating a buffer zone to protect the federally-owned land included in the wilderness from the sights and sounds of sailboating and houseboating on the lake. Stating the argument in this way serves to rebut it, for it really is a restatement of the arguments already refuted above. It is Congress and not the Forest Service that designated part of Crooked Lake as wilderness and the anti-buffer zone provision in Section 7 of the MWA, even if it applies in this situation, cannot thwart a contemporaneous act of Congress. Moreover, given that Crooked Lake is partly public and partly private, designating part of it as a wilderness area does not create a buffer zone at all, in the sense of a protective ring of purely private land (or waters) around a federally-owned wilderness area.
In the same breath as she cites the anti-buffer zone provision, Stupak-Thrall points to Section 5(c), 16 U.S.C. § 1134(c), of the Wilderness Act:
Subject to the appropriation of funds by Congress, the Secretary of Agriculture is authorized to acquire privately owned land within the perimeter of any area designated by this Act as wilderness if (1) the owner concurs in such acquisition of (2) the acquisition is specifically authorized by Congress.
Stupak-Thrall argues that she never consented to the acquisition of her rights on Crooked Lake and therefore it was unlawful for part of Crooked Lake to be designated a wilderness area. In point of fact, Section 5(c) itself is probably the most damning piece of evidence against such an argument. Section 5(c) specifically contemplates that privately owned land can be contained within the perimeter of a wilderness area. See also Section 5(b), 16 U.S.C. § 1134(b), which requires the Secretary of Agriculture to allow access to “surrounded” valid mining claims. Therefore, given Section 5(c), there is even more reason to conclude that Crooked Lake, which is only partly private, can be included within the perimeter of a wilderness area.
Despite Stupak-Thrall’s arguments, Congress undoubtedly has the constitutional power under the Property Clause to issue Amendment No. 1. Furthermore, there are no barriers in the MWA, the Wilderness Act, or the Forest Service’s administrative conduct to the congressional designation of Crooked Lake as a wilderness area. Stu-pak-Thrall must recognize that these arguments are weak. The real issue in this case is the nature of the Forest Service’s authority to regulate the Sylvania Wilderness as defined in the MWA.
III. THE FOREST SERVICE’S AUTHORITY UNDER THE WILDERNESS ACTS
Stupak-Thrall owns land abutting Crooked Lake. Prior to the enactment of the MWA, no one doubts that she could swim, boat, fish,
The case before us directly involves only the power of the Forest Service to stop sailboats and houseboats from moving about on Crooked Lake and to ban the usage of nonburnable disposable food and beverage containers, but counsel for the Forest Service. admits that the same rationale behind Amendment No. 1 also would be a source.of power to prohibit ice skating, swimming, fishing, and all similar riparian uses. A different case in the- United States District Court for the Western District of Michigan involves Amendment No. 5, which bans motorboat use on Crooked Lake. The powers the Forest Service claims here sweep broadly, indeed. What is the source of the authority claimed by the Forest Service and'what are the limits of that grant of authority? Does Amendment No. 1 fall within the grant of authority claimed?
Various answers to these questions have been proposed in the opinions of the Regional Forester, the Chief Forester, the district court, and the panel, in the Forest Service’s briefs and oral arguments, and in Judge Moore’s concurring opinion upon rehearing en banc. As I shall endeavor to prove, not one of these theories accords with any remotely sensible reading of the statute or with a thorough understanding of Michigan riparian law.
I begin with the text of the two most salient statutes. First, Section 4(c) of the Wilderness Act provides:
Except as specifically provided for in this Act and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and, except as necessary to meet minimum requirements for the administration of the area for the purpose of the Act (including measures required in emergencies involv.ing the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area.
16 U.S.C. § 1133(c) (emphasis supplied).
The most important statutory provision for the purposes of this case is contained in Section 5 of the MWA:
Administration of Wilderness Areas— Subject to valid existing rights, each wilderness area designated by this Act shall be administered by the Secretary of Agriculture in accordance with the provisions of the Wilderness Act of 1964 governing areas designated by the Act as wilderness areas except that with respect to any areas designated in this Act, any reference in such provisions to the effective date of the Wilderness Act of 1964 shall be deemed to be a reference to the effective date of this Act.
(Emphasis supplied.) Section 5 is the only source of power the Forest Service can legitimately point to as a basis for regulating Crooked Lake. The MWA placed the Sylva-nia Wilderness, in the Ottawa National Forest, within the wilderness system administered by the Forest Service. This development allowed the Forest Service to regulate the Sylvania Wilderness and those portions of Crooked Lake within it according to the powers granted to the Forest Service in the Wilderness Act. Thus, the sort of authority the Forest Service has to regulate in this ease must come from the Wilderness Act. Neither the Forest Service, the district court, nor the panel paid very much attention to this threshold issue, but the statutory powers the Forest Service is exercising in this case must derive from Section 4(b) of the Wilderness Act:
Except as otherwise provided in this Act, each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area and shall so administer such area for such other purposes for which it may have been established as also to preserve its wilderness character. Except as otherwise provided in this Act, wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.
16 U.S.C. § 1133(b). Amendment No. 1 is undoubtedly within the Forest Service’s powers under Section 4(b) of the Wilderness Act. Its avowed purposes and functions are to preserve the wilderness character of the lands and waters within the Sylvania Wilderness.
The Forest Service also claims that it has the authority to regulate under both the Property Clause and the Organic Act of 1897 (“Organic Act”). As is clear from its terms, however, the Property Clause grants authority only to Congress. Of course, Congress can delegate that power to an administrative agency, such as the Forest Service, but that is exactly the point — the Property Clause itgelf grants no powers without a delegation to the Forest Service.
. The Organic Act, 16 U.S.C. § 551, is applicable to this case because it was the source of authority originally used by the Forest Service to create wildernesses. The Wilderness Act emerged in part as an effort to ensure that the Forest Service could not eliminate wilderness areas administratively. H.R.Rep. No. 1538, 88th Cong., 2d Sess. 8, reprinted in 1964 U.S.C.C.A.N. 3615, 3616 (1964); Michael McCloskey, The Wilderness Act of 196j: Its Background and Meaning, 45 Or. L.Rev. 288, 296 (1966). Moreover, the Wilderness Act specifically states that it is not
The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests which may have been set aside or which may be hereafter set aside ... and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction—
The phrases “insure the objects of such reservations” and “regulate their occupancy and use” could be read broadly to give the Forest Service the power to issue Amendment No. 1. However, as Stupak-Thrall correctly points out, the Organic Act is the product not of modern environmentalism — the wilderness values embodied in Section 2(c) of the Wilderness Act — but of the earlier ethos of conservation from the Progressive movement that formed a solid plank of Teddy Roosevelt’s administration. See Ronald H. Rosenberg, “Evolving Consensus: the Dynamic Future of Environmental Law and Policy,” 27 Loy. L.A. L.Rev. 1049, 1049 n. 2 (1994) (explaining the genesis of modern environmentalism in the dispute involving John Muir, founder of the Sierra Club, with the City of San Francisco over the creation of the Hetch Hetchy Dam).
The first wilderness area to be set aside administratively under the Organic Act, for instance, was created in 1924. in the Gila National Forest in New Mexico, 27 years after the enactment of the Organic Act. H.R. Rep. 1538, reprinted in 1964 U.S.C.C.A.N. at 3616. The focus of the Organic Act is on preventing destruction by fire and depredations of the national forests and to encourage their use. Preserving “wilderness character” is a very different endeavor from that envisioned. by the Congress that enacted the Organic Act. While the government cites no cases to support the conclusion that the Organic Act alone would permit the promulgation of regulations like Amendment No. 1, this conclusion can be assumed without conceding anything of significance here.
The important point to recognize is that the powers the Forest Service possesses under Section 4(b) of the Wilderness Act and under the Organic Act are “subject to valid existing rights” under Section 5 of the MWA. It cannot be disputed that Section 5 of the MWA constitutes a limitation on the Forest Service’s powers. The core issue in the case is therefore whether this “subject to valid existing rights” language in Section 5 is a limitation that would preclude either the adoption of or application to Stupak-Thrall of Amendment No. 1.
IV. APPLICATION OF CHEVRON
We review the district court’s analysis of such a question de novo because all that is involved is statutory interpretation. Nixon v. Kent County,
One of the most significant structural linchpins on which the legitimacy of the modern administrative state hinges is the fact that the clear text of statutes inexorably binds and will be enforced by federal courts against administrative agencies. If this were not true, our federal laws would be written by unelected bureaucrats and not by the people’s chosen representatives. This important structural feature of government is embodied in so-called Chevron review by the federal courts of administrative regulations, adjudications, and other forms of agency action. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
When a court reviews an agency’s construction of the statute which it administers it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the stat*1285 ute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
This ease is clearly resolvable on step one of the Chevron analysis. Section 5 of the MWA grants to the Forest Service the power to regulate various new wilderness areas in Michigan, including the Sylvania Wilderness, in accordance with the Wilderness Act. However, this power is “subject to valid existing rights.”
The concurrence on rehearing en banc implies that the phrase “subject to” is ambiguous. Op. at 1270 & n. 3. The meaning of “subject to” is actually highly definite. The most appropriate meanings given by Black’s Law Dictionary are “subordinate” and “subservient.” Black’s Law Dictionary 1278 (5th ed.1979). If the regulatory powers delegated to the Forest Service are sufficient to destroy certain riparian rights in their entirety, it should be obvious that those regulatory powers are not seriously limited by, let alone made “subordinate” or “subservient” to, those state-created rights. Fulfilling the “subject to” condition requires that the protected ‘Valid existing rights” not be destroyed or disparaged by Forest Service regulation.
Black’s Law Dictionary defines a “right” in two senses, an abstract sense and a concrete sense. Obviously, because the word “right” in Section 5 of the MTWA is modified by the word “existing,” a concrete meaning for the word “right” is plain on the face, of the statute.
The word “existing” limits those rights protected from invasion by Forest Service regulations to those rights that predate the enactment of the MWA. In this case the riparian rights at issue clearly predate the enactment of the MWA. See, e.g., Hulbert, decided in 1902. The government maintained at oral argument that the rights Stu-pak-Thrall claimed as part of her “bundle” of sticks (sailing, boating, fishing, swimming, waterskimg, sledding, and ice- skating) were not property rights, but simply activities that “no one [had] stopp[ed].” The following ex
Q So do I understand then that if the Forestry Service is to get away with a regulation that proscribes sailboating, it’s because sailboating is [an] unreasonable use of one’s riparian rights?
Government It’s because under our reading of the Michigan — it’s because number one under our reading of Michigan ease law, the right to sailboat standing alone is not a stick. The fact that they could do it beforehand is, that they had a license, that no one was stopping them....
Q Your sticks sort of have an abstract life. They exist as, I’m not trying to be funny, they exist as intellectual concepts.
Government Well, all of this is a very academic enterprise, but it’s, what we’re getting down to is the distinction between the fact that no one was stopping you and a right and what we’re saying is the fact that no one was stopping you does not equal a right.
Q But if the Michigan courts next week rule that it has always been a principle of Michigan law that you can swim on the lake, is it then your position that you can[] no longer regulate swimming on the lake?
Government I’m sorry, let me make sure I understand your question, that you can swim, that there can’t be lifeguards....
Q No, all I’m saying, your proposition, I very much understand the difference between a right and something that nobody stopped, but let’s take swimming. You told me a minute ago that yes, indeed you could ban swimming on the lake. Presumably the reason is that same argument there never was a right to swim. Suppose the Michigan Supreme Court next week rules, it’s not a new rule, it’s been the rule since 1830, that you could swim on this lake, does that vaporize your right to regulate swimming?
Government Yes, that would, unless the swimming were unreasonable.
Q So in other words, this regulation can be overturned by the Michigan Supreme Court tomorrow?
Government It would be affected by decisions of the Michigan Supreme Court, of course.
Q Well, can it be overturned in the sense that your argument really rests then on valid existing rights, you say they’ve got these rights, this is just not one of them. Is that the guts?
Government Mm hmm.
As this exchange shows, the government, at least at times, pins its argument that Amendment No. 1 is valid on its argument that Stupak-Thrall did not have the riparian rights she claimed — Stupak-Thrall was simply claiming as “rights” activities that no one had ever stopped her from engaging in. The government’s argument was therefore that the “right” claimed was not “valid.” I interpret this word of the statutory phrase to address exactly the distinction that the government sought to make between an activity and/or entitlement privileged under law on the one hand, and a mere traditional usage that has simply gone unregulated, on the other. In other words, a right is “valid” if it truly exists under the source law that created it. Black’s Law Dictionary defines “valid” in precisely this fashion:
Of binding force; legally sufficient or efficacious; authorized by law. Good or sufficient in point of law; efficacious; executed with the proper formalities; incapable of being rightfully overthrown or set aside;*1287 sustainable and effective in law, as distinguished from that which exists or took place in fact or appearance, but has not the requisites to enable it to be recognized and enforced by law.
Black’s Law Dictionary 1390 (5th ed.1979). At oral argument, for instance, there was some concern evinced by members of the court that holding that Stupak-Thrall had valid existing rights in this case would lead to trash being dumped in Crooked Lake and the Forest Service being powerless to stop it. Such a concern is unwarranted, as the activity of dumping trash in Crooked Lake is not a “valid” right under Michigan riparian law. See Attorney Gen. ex rel. Emmons v. City of Grand Rapids,
Judge Moore argues in her concurrence that this construction of the phrase “valid existing rights” essentially prohibits the Forest Service from enacting any regulation that .affects state-created property rights. Op. at 1270-1271. This is not the case. Compare the absolute ban in Amendment No. 1 on sailboating with a hypothetical Forest Service regulation that required sailboats operating on Crooked Lake to carry life preservers. (Of course, it is a completely separate question whether such a regulation would be a valid exercise of the Forest Service’s powers under Section 4(b) of the Wilderness Act, 16 U.S.C. § 1133(b), to promote wilderness values.) Because there are no Michigan cases holding that riparians have property rights to sail without life preservers that I am aware of, this hypothetical regulation would not violate the limitation in Section 5 of the MWA because the right claimed is not “valid.” I can imagine regulations that would present tricky questions about the scope of particular riparian rights under state law in connection with Section 5’s limitation, but Amendment No. 1 does not raise questions of this nature, as it destroys the riparian right to sail in its entirety.
The concurrence argues that there is no basis in Michigan law for defining rights like “sailing,” “fishing,” “boating,” “ice skating,” etc., as “discrete, unconditional property ‘right[s]’ equivalent to a fee simple land right, instead of the plaintiffs’ general right, as a whole, to use Crooked Lake in a reasonable manner.” Op. at 1270 n. 5. I do not contend that either riparian rights or fee simple land rights are “unconditional.” Rather, the conditions placed on both kinds of rights under state law make them indistinguishable for the purposes of this case. I am only taking Michigan’s riparian rights as I find them in its case law.
Michigan law does not define riparian rights as a “general right, as a whole,” Op. at 1270 n. 5, in the fashion that the concurrence would prefer that it did. There are no Michigan cases, for instance, holding that ripari-ans have the right to sail, but that this right may be entirely destroyed, no matter how reasonably it is exercised, so long as the riparian is permitted to retain other, discrete, riparian rights. Michigan law has chosen to define its riparian rights discretely. Though Judge Moore could be right that it would be less intrusive, judged from the baseline of a discrete right to sail, to be required to wear a life preserver while sailing on Crooked Lake when compared to being prohibited from sailing entirely, judged from the baseline of a conglomerated right to use the waters of Crooked Lake for all reasonable purposes, this is beside the point. Her policy preferences are not reflected in Michigan law. Finally, the logic of the concurrence’s position swallows the “concession” that “core” riparian rights, such as the right to take drinking water, could not be destroyed without violating “valid existing rights.” In this circumstance, even the concurrence is conceptualizing the right to take drinking water discretely. Why would a riparian whose right to take drinking water was the only right destroyed by the government not be consoled under the concurrence’s theory by the fact that she retained other “sticks” in the bundle of uses, for instance, the right to swim or fish? Presumably, the answer that the concurrence would provide is that the right to take drinking water is a so-called natural use under Michigan law and the right to sail is an artificial use subject to reasonable use regulation. But this brings me full circle — fee simple rights in land are also subject to a reasonable use limitation in the form of nuisance law,
To summarize, the plain and unambiguous meaning of “valid existing rights” in Section 5 of the MWA protects from invasion or disparagement (1) property rights (2) officially sanctioned by state law (3) in existence on the date the MWA was enacted. Applying this standard, Amendment No. l’s prohibitions on houseboats and sailboats on Crooked Lake are in excess of the Forest Service’s authority under Section 5 of the MWA. Amendment No. l’s ban on the use of nonburnable, disposable food and beverage containers is not in excess of the authority the Forest Service has been delegated under Section 5 of the MWA, however. There are no cases holding that this is a “valid” riparian “right” under Michigan law. In the words of the government, using these containers may have been something no one stopped, but it is certainly not something to which there is a right under Michigan law. Therefore Amendment No. l’s regulation of the use of these containers is permissible under Chevron because this is a reasonable regulation designed to protect wilderness values. The court need not go on to decide whether Amendment No. l’s ban on nonburnable, disposable food and beverage containers was arbitrary and capricious, as Stupak-Thrall never raised such an argument on appeal.
Stupak-Thrall claims to be challenging the entirety of Amendment No. 1. Yet, the entirety of Amendment No. 1 is not invalid. Moreover, as was pointed out in footnote 5, supra p. 1275, she lacks standing to make such a challenge. As then-judge Scalia noted while sitting on the Court of Appeals for the District of Columbia Circuit, the over-breadth doctrine is in reality a rule of standing.
At this point, determining whether Stu-pak-Thrall’s as-applied challenge to Amendment No. 1 can possibly succeed essentially requires an analysis of whether the invalid portions of Amendment No. 1 can be severed from the rest of that regulation. Section 2(g) of the Administrative Procedure Act
Severability analysis here focuses on whether the Forest Service would have enacted most of Amendment No. 1 in the absence of a sailboating and houseboating ban applied to riparian owners. See Brockett v. Spokane Arcades, Inc.,
V. THEORIES OFFERED TO SUPPORT THE VALIDITY OF AMENDMENT NO. 1
The government has little response to a plain meaning interpretation of Section 5 of the MWA’s “valid existing rights” language. It merely asserts in both its original brief to the panel and in its supplemental brief on rehearing en banc that the provision is ambiguous. No argument for why the provision is ambiguous is ever provided. But if the government is short on theories for why the statute is ambiguous, it.is.long on theories that purport to uphold-the validity of Amendment No. 1 rooted either in the legislative history,, state law, or other sources of authority. In fact, defending against .the government’s and the panel’s theories is rather like fighting the multi-headed Lernean Hydra of Greek mythology — one argument is rebutted, but by the time the other arguments have been addressed, the head of the original argument has regenerated. It remains unclear whether any judges other than those joining in the concurrence support any one of these particular theories. I therefore do my best to explain how none of the arguments that
A. District Court’s Reasonable Use Theory
The panel properly rejected the district court’s argument that Amendment No. 1 is valid because of the reasonable use limitation under Michigan riparian law that prevents one riparian from using his riparian rights in an unreasonable fashion in relation to a fellow riparian. Stupak-Thrall II,
The undertone, the unspoken assumption in both the district court’s and the panel’s opinion is that the reasonable use doctrine makes riparian rights somehow unique— something less than rights in land. This assumption is completely false. I suspect it could only be made by American lawyers trained in the latter half of the twentieth century. According lesser dignity to riparian rights would have been unthinkable to our predecessors, who were much better steeped in the common law.
The reasonable use doctrine is only invoca-ble by one riparian against another riparian in his capacity as a fellow riparian and only under state law.
B. Panel’s Theory of Delegation to the Forest Service of Powers Coextensive with Michigan’s Police Powers
The panel ultimately concluded in this case that Section 5 of the MWA’s “valid existing rights” language delegated to the Forest Service powers identical to the police powers
[W]e find that Amendment No. 1’s management prescriptions are permissible because they constitute a legitimate exercise of the sovereign’s police power. The Michigan Supreme Court has explicitly held that local governments may regulate their citizens’ riparian rights pursuant to their inherent police powers.... The federal government’s actions here are similar to those of the townships in [the Michigan cases cited in the ellipsis] except that the “general public” in this case is the nation at large instead of the local community, and the power now comes from a highly particularized source, the Property Clause, rather than from the state’s inherent powers. Kleppe [v. New Mexico,426 U.S. 529 , 540,96 S.Ct. 2285 , 2292,49 L.Ed.2d 34 (1976)] makes this comparison explicit: “[T]he general Government doubtless has a power over its own property analogous to the police power of the several States_”-
Thus, the Forest Service possesses a power delegated to it by Congress that is “analogous to the police power,” and its exercise of this federal power does not violate Congress’s express limitation deferring to “existing” state law rights in the wilderness acts, so long as it does not exceed the bounds of permissible police power regulation under state law.
Stupak-Thrall II, 70 F.3d at 889-90 (emphasis supplied and citations omitted). How does this conclusion follow from its premise? The “logic” is contorted and completely circular. In its impact, it is difficult to distinguish from the district court’s reasonable use theory. The fact that Kleppe noticed an analogy to be made between the authority of the federal government (read Congress) under the Property Clause to regulate its own property (and private property where necessary and proper) and the states’ police powers to regulate their citizens’ property is absolutely irrelevant to the determination of whether Congress has delegated its powers to the Forest Service in the MWA. It simply does not follow that the Forest Service possesses the Congress’s Property Clause powers because these powers were once analogized by the Supreme Court to the states’ police powers.
Moreover, it takes a further giant leap in the panel’s analysis to reach the conclusion that Congress delegated powers to the Forest Service identical to those possessed by Michigan’s local governments. The panel could not possibly explain how the language Congress chose in Section 5 of the MWA would support any implication that the delegation of power in that provision was designed with reference to Michigan’s police powers, let alone Michigan’s police powers as they are typically delegated under Michigan law to its local governments.
If Congress had intended to convey such broad-ranging powers, it could have spoken much more clearly. For instance, in addition to the “valid existing rights” language in Section 5 of the MWA, Congress could have included a provision such as this: “Such valid existing rights can be regulated by the Forest Service with the full panoply of police
But to think about how Congress might have phrased a delegation of police powers of any sort is to think about why Congress would want to delegate the full range of any set of police powers and still include a limitation like “valid existing rights.” The answer to that question is obvious: Congress would not want simultaneously to delegate a full range of police powers and to limit the Forest Service to regulations that did not impinge on “valid existing rights.” One of the major functions of police powers is to impinge upon property rights. Although it was not always thus, in the modern legal world, except with reference to constitutional limits, a state’s police power is virtually unlimited, if not completely so. This is true under federal or Michigan law. See Maher v. City of New Orleans,
The interpretation of the “valid existing rights” language in Section 5 of the MWA to mean that Stupak-Thrall has no rights that the Forest Service is bound to respect is a good example of the distortion of language decried by George Orwell in his famous essay, Politics and the English Language:
In our time, political speech and writing are largely the defence of the indefensible.... Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. De-fenceless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers ....
A mass of a Latin words falls upon the facts like soft snow, blurring the outlines and covering up all the details.
George Orwell, Politics and the English Language, in 4 The Collected Essays, Journalism and Letters of George Orwell 136-37 (Sonia Orwell and Ian Angus eds., 1968). The panel’s interpretation of the phrase “val
The panel’s opinion (as well as the other theories proposed to support the validity of Amendment No. 1) also destroys the benefit of the legislative bargain inherent in the “valid existing rights” phrase, and gives less politically accountable administrative agencies the power to make regulations infringing upon or destroying existing state property rights contrary to Congress’s intent. It removes from Congress’s hands a powerful tool to modulate the amount of power it chooses to delegate to administrative agencies. Since we know that State police powers are very broad, the panel’s interpretation of “valid existing rights” makes this intended protective reservation of power, which is usually a very hard-fought part of any new federal land classification or regulation, meaningless or even harmful to property owners. Recall the letter to Congressman Robert Davis from local Forest Supervisor, Dave Morton, who opined that, “without the original Congressional compromise of accepting established pre-existing valid right of motorized use on Crooked, Big Bateau, and Devils Head lakes, we feel that we would not have a Sylvania Wilderness today.”
Once one recognizes that the panel’s interpretation of the “valid existing rights” phrase renders meaningless what was intended to be a limitation, then circuit precedent in other areas is threatened if this theory is ever applied to “valid existing rights” language as used in other statutes through the method of statutory interpretation called in pan mate-ria — interpreting like provisions in different statutes to have the same meaning. See Belville Mining v. United States,
Belville and this case cannot be distinguished. Both riparian rights and contract rights are subject to a state’s police powers. A state could curtail the right to sail on Crooked Lake just as it could the right to engage in strip mining reserved in a contract as in Belville. Thus, if Stupak-Thrall had been decided before Belville, the Office of Surface Mining could easily have claimed that because the State of Ohio could prohibit strip mining outright if it chose under delegated local police powers, then it, the Office of Surface Mining, could abrogate any contractual right to engage in strip mining without running afoul of Congress’s “valid existing rights” language in SMCRA by use of the
While there'may exist a plausible reading of the “valid existing rights” language in Section 5 of the MWA more limited than my own (although I cannot think of one), the theory concocted by the panel is strained and unnatural. In my view, its interpretation of Section 5 of the MWA constitutes an utterly illegitimate judicial annotation of the text of the statute.
C. Chief Forester’s and Government’s New Takings Theory
Perhaps sensing the weakness in the panel’s argument, the government suddenly advanced a new theory in its supplemental brief on rehearing en banc to defend the validity of Amendment No. 1, a theory first espoused by the Chief Forester in his original opinion ruling on Stupak-Thrall’s administrative appeal. In its supplemental brief, the government claimed that the term “valid existing rights” in the MWA is coextensive with the rights protected by the Takings Clause of the. Fifth Amendment.
First, there is absolutely no support for interpreting the statute in this way on the basis of its text. Section 5 of the MWA does not define “valid existing rights” as the right to be free of a taking within the meaning of the Fifth Amendment. The legislative history never mentions takings analysis in connection with the “valid existing rights” phrase, either. For this reason, interpreting Section 5 of the MWA to be coextensive with the Takings Clause creates a new specious canon of statutory construction — the canon of charging headlong, willy-nilly into constitutional questions. Of course, the correct canon of statutory interpretation to apply in this situation is the canon to avoid constitutional questions, whenever fairly possible. United States v. X-Citement Video, Inc., — U.S. -,-,
Second, to support his takings interpretation of the “valid existing rights” language in the MWA, the Chief Forester cited two eases, both of which involved the Federal Land Policy and Management Act of 1976 (“FLPMA”). One of them, Sierra Club v. Hodel,
“Valid Existing Rights.” Sec. 701(h) of FLPMA, 43 U.S.C.A. § 1701(h) (West Supp.1978), states that, “All actions by the Secretary concerned under this Act shall be subject to valid existing rights.” Mineral leases, mining claims and grazing permits all grant varying rights and privileges and these rights and privileges cannot be taken pursuant to sec. 603 or any other section of FLPMA. The degree to which see. 603 authorizes regulation of valid existing rights to protect wilderness suitability is thus bounded by the fact that these rights must not be condemned or taken. The degree to which FLPMA allows regulation of the exercise of these rights and privileges without “taking” them in the constitutional sense is a complex one which can be addressed only in concrete cases.
Interpretation of Section 60S of the Federal Land Policy and Management Act of 1976— Bureau of Land Management (BLM) Wilderness Study, 86 Int. Dec. 89, 116 (1978). The Solicitor’s Opinion never seriously asked the question of how the “valid existing rights” provision in the FPLMA should be interpreted. It simply reached a conclusion. At oral argument, the government indicated that it thought the Chief Forester’s opinion that the valid existing rights language in the MWA should be construed as coextensive with the Takings Clause was correct. I fail to see what possible basis there is for agreeing with the government or the Chief Forester about the meaning of Section 5 of the MWA’s “valid existing rights” language in light of the paltry and opaque authority cited to support this position. The authority cited involved a different statute with a different legislative history being interpreted by a different administrative agency and was explicitly adopted in only one district court case on the basis of no express reasoning. The concurrence also seeks to rely on authorities that address the “valid existing rights” phrase in statutes other than the MWA, such as Andrus and the Solicitor’s Opinion. However, since the concurrence eschews the plain meaning approach to interpreting the “valid existing rights” phrase, it logically should delve deeply into the different legislative histories and statutory structures of these very different enactments. This is something the concurrence does not do. See Section V.F., pp. 1302-1305 infra.
Moreover, the constitutional question that would thus be imported into this case is exceedingly difficult. Answering it depends on resolving the vexing matter of how to define the “denominator” of the entitlement for regulatory takings analysis. Precisely this question was left open in the famous footnote 7 of Lucas v. South Carolina Coastal Council,
Regrettably, the rhetorical force of our “deprivation of all economically feasible use” rule is greater than its precision, since the rule does not make clear the “property interest” against which the loss of value is to be measured. When, for example, a regulation requires a developer to leave 90% of a tract in its rural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution of value of the tract as a whole. (For an extreme — and, we think, unsupportable — view of the relevant calculus, see Penn Central Transp. Co. v. New York City [438 U.S. 104 ,98 S.Ct. 2646 ,57 L.Ed.2d 631 (1978)] ....) Unsurprisingly, this uncertainty regarding the composition of the denominator in our “deprivation” fraction has produced inconsistent pronouncements by the Court. The answer to this difficult question may lie in how the owner’s reasonable expectations have been shaped by the State’s law of property — i.e., whether and to what degree the State’s law has accorded legal recognition and protection to the particular interest in land with respect to which a takings claimant alleges a diminution in (or elimination of) value.
Lucas,
I would not venture an answer to this question in a run-of-the mill takings case if it were fairly possible to avoid doing so. In this case, there is even more reason to avoid the constitutional takings question, especially because the need to answer such a question would stem purely from a completely unsupportable reading of Section 5 of the MWA.
D. Theory That Claimed Riparian Rights Are Nonexistent or Too Insubstantial under Michigan Law
As I have indicated, one of the underlying assumptions in the district court’s and the panel’s opinions appeared to be that riparian rights were somehow lesser creatures, diminutive rights, if rights at all. The government, at oral argument, was also quick to capitalize on this impression:
[Riparian rights are] property right[s], but they are usufructuary ... and I think it’s clear with many such rights under the common law all such usufructuary rights, water rights, rights to appropriate water, rights to use water for beneficial use out west, have always been subject to a lot of regulation. Common law about riparian rights has always recognized that these are rights you use with other people and as a result your right to use can be restricted.
This statement may be technically correct, but it leaves one with the incorrect impression that riparian rights are more insubstantial, and deserving of less protection, than rights in land. Riparian rights are subject to no more regulation in Michigan than land rights. Riparian rights are property rights.
Riparian rights are subject to the police power and so are rights exclusively in land. Riparian rights are subject to a reasonable use limitation in order to protect other riparian rights holders. But so are fee simple land rights subject to a reasonable use limitation in the form of nuisance law. An even better analogy than one to the law of nuisance can be drawn to the common law protection afforded to co-owners or co-tenants of land against waste by their fellow owners or tenants. It seems to me that the fact that riparian rights are held in common or subject to a reasonable use limitation under state law does not diminish their status as property rights. Riparian rights are not diaphanous rights, mini-rights, junior varsity rights or quasi-rights. They exist under state law on the same level as pure rights in land. Riparian rights come within the protection of Section 5 of the MWA’s “valid existing rights” language. They are not entitled to less protection under MWA because of a mistaken impression that they are less significant than rights in land.
The government’s focus in its briefs on the distinction between natural and artificial uses also does not carry the day for Amendment No. 1. See Thompson v. Enz,
Most of the government’s arguments from state law seem designed to confuse. Others are simply ridiculous. Consider the government’s argument that the “valid existing rights” language in Section 5 of the MWA would prevent the Forest Service from denying Stupak-Thrall access to Crooked Lake. At oral argument, however, the government admitted that under its various theories and the panel’s local police power theory, the Forest Service would have the ability to stop Stupak-Thrall from using almost every conceivable form of locomotion to implement that access: swimming, motorboating, sailing, and ice skating, among others. Only walking on water was not addressed, and the number of practitioners of that particular mode of access is very small. The government’s arguments from state law are designed to give the impression that something remains of the protection afforded by the “valid existing rights” limitation and consequently something remains of state riparian rights, but in reality, under its theories, no such protections or rights remain. Michigan state law provides absolutely no support for Amendment No. 1.
E. Legislative History and the Mlotor-boat Theory
Before delving into what light the legislative history of the MWA and Wilderness Act can shed on the controversy involved in this case, it is first necessary to ask whether this court can consult the legislative history at all. Honestly facing up to this question yields a negative answer. When the text of a statute is clear, courts cannot look to legislative history to create ambiguity. Audette v. Sullivan,
If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.
See also Chevron,
But, putting aside my argument that the legislative history cannot be consulted here, I also maintain that no damage to my analysis and conclusions is actually done by consulting the legislative history in this case. The government’s arguments from the legislative
The government’s lead-off argument from the legislative history provides the classic example of an “exclusivity fallacy.” See, e.g., H.R. Rep. 29,100th Cong., 1st Sess., pt. 1, at 5 (1987) [hereinafter “Committee on Interior and Insular Affairs Report”]
At oral argument the government advanced a second claim based on the legislative history — that the “valid existing rights” language is simply meaningless:
Government .... And if you look at the legislative history to the Michigan Wilderness Act, Congress says in its committee report we have no idea what this [“valid existing rights” language] means. We have no idea. And that means that the term is ambiguous and you let the agencies construe it. I think here the agencies have construed it reasonably. You have to balance the interests that the plaintiffs had against what Congress has....
Q Is that constitutional for Congress to pass an act that has no meaning at all to Congress?
[LAUGHTER]
Government Well, as I like to say, your Honor, the arbitrary and capricious test does not apply to acts of Congress, it only applies to the actions of administrative agencies and if they want to pass....
Q No, my question is a serious one.
Government I think that, I think that here the Forest Service has given it meaning. I mean, it certainly isn’t a violation of the nondelegation doctrine or anything like that. The agency has given it meaning and it is a meaning that is a reasonable one and comports with other interpretations of the term as other agencies have done it....
What rights may constitute “valid existing rights” is a question of law which the Committee does not attempt to define. The extent of the nonfederally-owned mineral rights are determined in part by the terms of the deeds which the owners acquired the rights, and by federal, state and local laws and regulations. The inclusion in the bill of language relating to valid existing rights should not be construed as reflecting any express or implied determination by the Committee regarding the nature or extent of the title to such rights.
Committee on Interior and Insular Affairs Report at 6-6. .
First, I think the government’s argument that Congress indicated that it thought that the “valid existing rights” language in Section 5 of the MWA is meaningless is simply wrong. Belville Mining actually sheds some light on what Congress had in mind. Under the laws of many states, including Ohio, the relevant state in Belville Mining, a deed or lease for mineral rights does not confer the right to mine by strip mining methods. The deed or lease must specifically contemplate in some fashion that the minerals owned or leased can be mined by strip mining methods. It seems to me that all the quoted passage in the committee report indicates is that Congress was aware of this background principle of state law. In other words, the quoted language in the committee report was included to ensure that the holder of a mineral lease or deed could not attempt to claim that he had rights that were protected by Congress in Section 5 of the MWA not protected under state law. The fact that a statute or report looks to preexisting law for the meaning of a term hardly implies that that definition was meant to be infinitely malleable.
Second, even if this passage were read in the fashion the government has read it, as indicating that Section 5 of the MWA is meaningless, then obvious constitutional difficulties arise. The non-delegation doctrine may be largely dead, or barely breathing, but it is not totally dead. Congress could not enact the text of Joyce’s Finnegan’s Wake and then delegate to the Forest Service the power to administer it. If the text of a statute were truly meaningless, doubtless even the post-New Deal Supreme Court would find non-delegation problems with such a statute. To concede that a statutory provision is meaningless is to concede exactly what concerned Justice Cardozo, hardly one of the Four Horsemen, when he said: “The delegated power of legislation which has found expression in this code is not canalized within the banks that keep it from overflowing. It is unconfined and vagrant, if I may borrow my own words in an earlier opinion.” Schechter Poultry Corp. v. United States,
Third, the government points to a passage where the Committee on Interior and Insular Affairs stated, “the committee believes that any proposed exploration and/or development of the underlying mineral rights should be carefully examined by the Forest Service to insure that disturbances to the wilderness are minimized under applicable law.” Committee on Interior and Insular Affairs Report at 6. From this language, the government argues that Congress intended to grant the Forest Service powers to regulate mining despite the “valid existing rights” limitation in Section 5 of the MWA. This passage does not support such a view, however. There is nothing inconsistent between the Forest Service attempting to minimize the damage done by mining where such a right exists, and its recognizing the existence of such a right. In fact, if there were no right to mine, then there would be no reason to advise the Forest Service to minimize damage from mining; mining could simply be prohibited outright.
Finally, the government points to a passage from the legislative history concerning motorboat usage:
In designating this area as wilderness, the Committee is aware that motorboats are currently used for fishing and other purposes on Big Bateau, Devils Head and Crooked Lakes. In accordance with section 4(d)(1) of the Wilderness Act, such pre-existing motorboat use may be permitted to continue on the 3 lakes subject to such restrictions (motor horsepower limits, levels of use, etc.) as the Forest Service deems appropriate and desirable. It is the Committee’s understanding that the issue of motorboat use is currently being reviewed in the land management planning process for the Ottawa National Forest, and that future use will be guided by the plan.
Committee on Interior and Insular Affairs Report at 7. This piece of evidence from the committee report provides the government its strongest argument from the legislative history, but it is still unavailing. As described in Section I, at pages 1272-73, the MWA incorporates the Wilderness Act. Indeed, Section 4(d)(1) of the Wilderness Act does specifically provide that the continued use of motorboats within wilderness areas is discretionary with the Secretary of Agriculture. Thus, the report is correct as far as it goes, which is not very far. The government argues that because boating is a riparian right under Michigan law and this activity can still be regulated pursuant to Section 4(d)(1) of the Wilderness Act, therefore riparian rights are not protected by the MWA. This argument collapses, however, because the committee was not discussing “valid existing rights” at the time it made this pronouncement. The quoted passage occurs in a series of wilderness-area-by-wilderness area discussions in the committee report. There is an obvious way to interpret this passage without impinging upon the broad language of Section 5 of the MWA that protects all sorts of rights. Recall that the Forest Service built the first public boat landing on Crooked Lake. This passage in the legislative history could be read to acknowledge what is obvious from Section 5 of the MWA’s incorporation of the whole of the Wilderness Act, including Section 4(d)(1)— that the Forest Service, as an arm of the Department of Agriculture, had the authority to regulate the motorboat usage of non-ripar-ians. Indeed, it must be read this way, otherwise the clearly expansive word “rights” in Section 5 of the MWA is read arbitrarily to exclude riparian rights. Finally, the last sentence of the quoted legislative history is simply boilerplate as to what bureaucratic process will occur. It is not related to the substantive outcome of the administrative review being conducted.
The government must be given its due by recognizing that the legislative history never specifically acknowledges that riparian rights are protected by the “valid existing rights” language. Thus, it is perhaps safe to assume that the members of Congress involved in, writing the relevant committee report (to the extent the report was written by members of Congress and not their staffers) did not think about riparian rights. However, it is clear that members of Congress did think about mining rights and contemplate that these should be included in the protection from regulation offered by the savings clause in Section 5 of the MWA. When Congress decides to act at a higher level of generality to remedy a set of problems than the specific examples it expressly contemplates in the legislative history of an enactment, courts
The legislative history should not be consulted in this case because Section 5 of the MWA is clear. Legislative history cannot be consulted, even under Chevron, to contradict unambiguous text. Even “peeking” at the legislative history, however, yields nothing that defeats my interpretation of the “valid existing rights” language in the MWA.
F. The “Takings Plus” Theory in the Concurrence
In her concurrence with our order en banc, Judge Moore presents another takings-based theory to defend the validity of Amendment No. 1. She calls this theory “takings plus.” Op. at 1271. Though she describes it as a “slight clarification” of the panel’s opinion, Op. at 1271, I do not see how the panel’s opinion could possibly have been interpreted as relying on takings analysis. The panel never even mentioned the word, “takings” except in its initial description of Stupak-Thrall’s takings claim being dismissed without prejudice by the district court. The concurrence also asserts that it would not be fairly possible to avoid the takings question in this ease. Ibid. But the panel and the district court seem to have done an excellent job of avoiding this question. If it is so clear that the statutory language requires the application of a takings analysis, one would have thought that the judges who wrestled with this issue earlier would have done so. Both the argument that the constitutional takings question is not fairly avoidable in this ease and the argument that the concurrence is a slight modification on the panel’s theory cannot withstand scrutiny.
Had it not been for the concurrence, one would not have known that any members of the panel had devoted thought to the application of Chevron or that the panel had held that the “valid existing rights” phrase was ambiguous, because the panel’s opinion never cited the case or applied its two-part approach to determine the validity of Amendment No. 1.
Judge Moore claims that “all authorities” support the conclusion that the phrase “valid existing rights” is ambiguous and that the phrase invokes takings analysis. Op. at 1269-1270. To the extent the concurrence relies on authorities such as Andrus and the Solicitor of the Interior’s opinion, I have refuted it above. See Section V.C., supra, pp. 1294-1295. New arguments to support the ambiguity of “valid existing rights” or “subject to valid existing rights” are also provided by the concurrence, however.
First, Judge Moore tells us that the phrase “valid existing rights” must be ambiguous because “The University of Kentucky ... has devoted an entire 375-page issue to trying to untangle the phrase.” Op. at 1270 n. 3. Thankfully, we have not yet reached the stage where law review articles rather than Article III judges determine when ambiguity is present in a provision of law. Law review commentators, especially those of the “critical legal studies” school, are notorious for thinking every bit of text is ambiguous. See, e.g., Anthony D’Amato, Aspects of Deconstruction: The “Easy Case” of the Under-Aged President, 84 Nw. U.L.Rev. 250 (1989) (arguing that the constitutional requirement that President of the United States be at least 35 years of age is ambiguous). By my count, the articles containing arguments that this provision in the Constitution is ambiguous total at least 308 pages.
Also consider that one of the articles in the symposium relied on by Judge Moore, not surprisingly the shortest, essentially argues that the phrase “valid existing rights” is unambiguous and that a takings-based interpretation of the phrase suffers from various infirmities. Ernest C. Baynard, III, Establishing a Definition of Valid Existing Rights, as Used in Section 522(e) of SMCRA, 5 J. Min. L. & Pol’y 529-36 (1989-90). Most significantly, Baynard points out that the takings-based interpretation creates a paradox:
[W]hen is a taking not a taking? Simply put, in order for the taking of private property by an officer of United States to be compensable under the Fifth Amendment, i.e., in order for a taking to be a Fifth Amendment taking, it must be authorized expressly, or by necessary implication by an act of Congress. Thus, if action taken by the [regulatory authority] is beyond the authority conferred by Congress, such action probably could not be a com-pensable taking.... So long as the action taken was beyond the scope of authority conferred by Congress, no Fifth Amendment taking would occur and the “takings” definition of [valid existing rights] would presumably not be triggered.
Id. at 532-33 (footnotes omitted). Of course, the simplest way out of this paradox is to relax the usual requirement that a regulatory action be authorized by Congress in order to be a taking for the purposes of interpreting “valid existing rights.” This added layer of complexity provides yet another reason why the takings-based approach to interpreting “valid existing rights” is strained and unnatural.
The symposium Judge Moore relies upon primarily focused on “valid existing rights” in SMCRA. Again, SMCRA is a different statute with a different legislative history being administered by a different regulatory agency than the Forest Service. SMCRA’s legislative history, unlike the legislative history of the MWA, does show that Congress wanted to avoid takings. See, e.g., 123 Cong. Rec. H12,878 (1977), cited in Meridian Land and Mineral Co. v. Hodel,
Second, Judge Moore argues that because our court is evenly divided the provision must be ambiguous. Op. at 1270 n. 3. This argument is completely circular and provides no independent basis to support the validity of Amendment No. 1. Otherwise, on ques
The “taking plus” theory also has no support in the text or legislative history of the MWA, and was certainly not inherent in the panel’s opinion.. The “takings plus” theory moves another large step away from any sensible reading of Section 5 of the MWA. While there is one case adopting the takings theory alone, Andrus, there are no cases adopting a “takings plus” theory. Of course, this fact alone does not carry much weight because courts often face issues of first impression. I would think, however, that justifying the application of Chevron that I urge requires less judicial energy than defending a “takings plus” interpretation of a statutory provision that mentions neither “takings” nor state law “pluses.” (Ironically, however, I have had to spin out lengthy arguments in order to kill every head of the Hydra presented by this case.)
As I understand it, the “takings plus” theory maintains that the “valid existing rights” phrase denies to the Forest Service any regulation that would either constitute a taking or violate a state property right protected to a special or unusual degree. Op. at 1270. This appears to be the only way to reconcile Judge Moore’s argument that it would indeed violate “valid existing rights” to stop Stupak-Thrall from obtaining drinking water from Crooked Lake but that it would not violate that provision to ban sailboats and houseboats. Op. at 1270. I fail to see how anyone reading Section 5 of the MWA could reach the conclusion that Congress intended to rely on such a distinction. Sailing and drinking water are both property rights under Michigan law. Granted, Thompson v. Enz categorized the former as an artificial riparian use and the latter as a natural use, but there is nothing whatsoever that authorizes the Forest Service to give this difference in state law any significance when it ponders its permissible scope of regulation. “Rights” is used as a unified term in Section 5 of the MWA. Judge Moore’s “plus” essentially reads the words “special” or “unusual” into Section 5 of the MWA just after the word “existing.” The “takings plus” limitation might be a wonderful public policy that Congress should have adopted as a floor amendment to the MWA. However, Congress did not choose to write the statute that way, and neither should we.
The concurrence does not respond to the argument that state or local police powers in Michigan would be sufficient to prevent Stu-pak-Thrall even from drinking Crooked Lake’s water. Like the government’s “concession” that it could not prohibit access without violating “valid existing rights,” just that it could prohibit every known means of access, the drinking water “concession” is not a concession at all. It is simply an effort to maintain some shred of px’otection in language that is otherwise shorn of any effectiveness. Under the original state/local police powers theory of the panel, there really is no activity that the Forest Service could not prevent and no state-created property right it could not destroy or disparage.
Finally, I respond here to two “loose ends” from the concurrence. Judge Moore continues to ascribe some significance to the fact no evidence was introduced into the record that sailboats were ever used on Crooked Lake. Op. at 1271. This ignores the ripeness analysis I set out in footnote 7 supra, pp. 1275-1276. As a reiteration of the point made therein, consider a regulatory agency attempting to argue that a claim that the seizure of land constituted a taking was not
As I previously indicated in Section V.C., p. 1296, judicial restraint prevents me from offering an opinion about whether Amendment No. 1 is a taking. However, I think Judge Moore’s rather sanguine view that prohibiting sailboating and houseboating could not possibly be a taking, simply because these are “occasional” recreational activities, is unwise. Op. at 1271. Obviously, without paying compensation, the government could not seize Riverfront Stadium or the tickets of season ticket holders, simply because a mere “occasional” diversion is involved. See also Kaiser Aetna v. United States,
The concurrence’s emphasis, Op. at 1271 n. 6, that the sailboat ban affects no one’s livelihood also seems odd. The panel emphasized, Stupak-Thrall II,
VI
Amendment No. 1 is invalid to the extent it invades the riparian rights of Stupak-Thrall under Michigan law. I reach this result based on a simple reading of the clear text of Section 5 of the MWA. The result I would reach is not catastrophic for the Forest Service or environmental values. The vast majority of Amendment No. 1 would be left intact. It would have no impact on other disturbances of wilderness values. Most importantly, it would not increase pollution. See Section IV., pp. 1286-1287, supra. If authorized to do so, and if it truly believes its own riparian rights are being infringed by Stupak-Thrall, the Forest Service can bring suit in federal court to enjoin Stupak-Thrall’s invasion of its rights under the reasonable use doctrine in Michigan riparian law. And, of course, it is always free to ask Congress to enact Amendment No. 1 as law or to change the limits on its authority under Section 5 of the MWA. The important point is that courts must respect those limits unless and until Congress itself changes them.
The district court’s and the panel’s opinion destroyed the legislative bargain inherent in the savings provision, “valid existing rights,” contained in Section 5 of the MWA. “[Judicial] review must serve to ensure that the purposes of [an] Act and the legislative compromise it reflects are given effect.” United States v. Taylor,
ALAN E. NORRIS, SUHRHEINRICH, and BATCHELDER, JJ., concur in Judge BOGGS’s opinion.
. The length of this opinion stems not from its complexity but from the need to rebut the profusion of theories that have been advanced to defend the validity of the Forest Service regulation at issue in this case. The affirmative reasoning of this opinion can stand alone on the basis of the factual discussion in Section I and the legal analysis in Sections III-IV.
. Stupak-Thrall and the Gajewskis are the plaintiffs in this suit. Hereinafter they are collectively referred to as "Stupak-Thrall.” When only Stu-pak-Thrall herself is intended, her entire name is used: "Kathy Stupak-Thrall.” If the Gajewskis are separately referenced, they are termed "the Gajewskis.”
. Following the convention employed by the panel opinion, I hereafter refer to these rights as riparian rights, even though, technically speaking, they are littoral rights in common law parlance. Stupak-Thrall v. United States,
. Amendment No. 1 prohibits or limits many activities in the Sylvania' Wilderness. Most of the provisions in Amendment No. 1 have absolutely nothing to do with riparian rights. Stu-pak-Thrall claims to be challenging the entirety of Amendment No. 1, but, putting aside the question of severability (see Section IV, pp. 1288-89) she cannot be permitted to do so because it is clear that: (1) she only has standing to challenge those portions of Amendment No. 1 that affect her riparian rights (Amendment No. 1 does not purport to regulate conduct occurring on private land outside the Sylvania Wilderness); and, (2) she can only be challenging those portions of Amendment No. 1 that actually diminish her riparian rights. See 13 Charles A. Wright Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 3531.7, at 516 (1984) (discussing Section 10(a) of the Administrative Procedure Act ("APA”), 5 U.S.C. § 702, which limits the availability of judicial review to those who have been "aggrieved by agency action within the meaning of a relevant statute”). The Supreme Court has held that this provision in the APA invokes the "zone of interests” test in prudential standing analysis. See Association of Data Processing Serv. Orgs., Inc. v. Camp,
Similarly, Stupak-Thrall claimed, as the district court noted, that Amendment No. l’s regulation of the use of electronic fish-finders and boom-boxes also diminished her riparian rights. Stupak-Thrall v. United States,
The government also correctly points out that Stupak-Thrall's challenge to permitting requirements in Amendment No. 1 has been waived. This argument was first raised in Stupak-Thrall's reply brief. Wright v. Holbrook,
. The court can take judicial notice of this fact, as it is the subject of separate litigation by the same plaintiffs, also in the Western District of Michigan. See Fed.R.Evid. 101, 201(f), 1101(a). A different district judge of that court has issued a preliminary injunction against Amendment No. 5. Stupak-Thrall v. Glickman, No. 2:96-CV-054,
. Section 3(a) of the MWA, as well as Section 5, contains "valid existing rights”-like language. Section 3(a) is the provision of the MWA incorporating the Nordhouse Dunes area of the Man-istee National Forest into federal wilderness system. (Section 3(b), which specifically created the Sylvania Wilderness, does not contain valid existing rights language.)
. Neither Kathy-Stupak Thrall nor the Gajewskis appear to have submitted any evidence that they had attempted to engage in any of the uses of Crooked Lake prohibited by Amendment No. 1. In fact, the district court found no evidence in the record that sailboats or houseboats had ever been used on Crooked Lake. Stupak-Thrall I, 843 F.supp. at 334. Thus, although the government did not raise this issue, it would seem that a ripeness problem may exist with the plaintiffs' suit. The plaintiffs' challenge to Amendment No. 1 is ripe, however, because of the nature of their rights under state law. See Bauman v. Barendregt,
. "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States_" U.S.. Const, art. IV., § 3, cl. 2.
. “The Congress shall have the Power_ To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S. Const, art I, § 8, cl. 18.
. Ben Thrall was a party to the administrative appeal with the Forest Service, but was not in-eluded as a plaintiff in the action filed in district court.
. If the assumption is invalid, then only the United States and the 13 private riparians on Crooked Lake have rights to use the waters of Crooked Lake and have ownership of the bed of the lake. The State of Michigan would have no rights in the lake, arguably increasing the relative importance of the United States’ ownership interest and weakening Stupak-Thrall’s argument.
. It is an open question under Michigan law whether the public possesses recreational rights incident to its navigation rights similar to the recreational rights of riparian owners:
This Court has not been called upon to decide whether, and the extent to which, boating, as such, and other recreational uses are incidents of the navigational servitude and whether a distinction should be drawn in that regard between (i) waters in which riparian or littoral owners do not own the bed (the Great Lakes), (ii) waters in which they own the bed and which are navigable -in fact (by ship), (iii) waters in which they own the bed and which are qualifiedly navigable (by log flotation), and (iv), assuming adoption of a recreation-boating test, large and small inland rivers and lakes.
Bott v. Commission of Natural Resources,
.Riparian owners own the bed of all lakes they own land adjacent to, except the Great Lakes. Obrecht v. National Gypsum Co.,
. Section 4(d)(1) of the Wilderness Act, 16 U.S.C. § 1133(d)(1), specifically permits the Secretary of Agriculture to allow motorboating to continue where it had already become established.
. “The government concedes also that plaintiffs’ riparian rights are. probably protected anyway under the Wilderness Act's provision regarding ‘existing private rights,' which is incorporated by reference into the MWA. We therefore proceed under the assumption that riparian rights may be protected under either of the phrases Valid existing rights' or 'existing private rights.’ " Stupak-Thrall II,
. "Dam Hetch Hetchy! As well dam for water-tanks the people's cathedrals and churches, for no holier temple has ever been consecrated by the heart of man." Rosenberg, 27 Loy. L.A. L.Rev. at 1049 n. 2 (quoting Joseph M. Petulla, American Environmental History, 320 (2d ed.1988) (quoting John Muir)).
. The government construed Stupak-Thrall’s argument against the Organic Act as a source of authority for Amendment No. 1 as a non-delegation argument. As the government correctly pointed out, such an argument is "barely worthy of a footnote” in the modem administrative state, citing United States v. Brown,
Stupak-Thrall argues that the panel reasoned that the powers granted to the Forest Service by the Organic Act and by the National Forest Management Act of 1976 ("NFMA”) were very broad and coextensive with Congress's powers under the Property Clause, citing Duncan Ener. Co. v. United States Forest Serv.,
. The relevant portion of 16 U.S.C. § 480 provides as follows:
[T]he intent and meaning of this provision being that the State wherein any such national forest is situated shall not, by reason of the establishment thereof, lose its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens, or be absolved from their duties as citizens of the State.
. The panel interpreted § 480 to apply only to those "rights,” "privileges,” and "duties" that "pertain to the state's exercise of jurisdiction.” Stupak-Thrall II,
. Stupak-Thrall made the argument in her supplemental brief on rehearing en banc that her rights are "more” than “valid existing rights;” they are vested rights. The distinction may be important to takings analysis, but it is unimportant in this case for two reasons. First, there is no reason to construe the term "valid existing rights” to be coextensive with the takings clause. See Section V.C., pp. 1294-1296 & V.F., pp. 1302-1305, infra. Second, the MWA uses the term “valid existing rights,” not the term "vested rights,” so whatever vested rights are, they are irrelevant to the statutory analysis required by this case.
. That Congress intended the “rights” referred to in this statute to .be concrete rights is also clear from the redundant usage of "valid existing rights” in Section 3(a) of the MWA, which speaks of "reasonable access” to exercise "valid existing rights.” Section 3(a) can be used as an aid to construe Section 5 because the same terms used in different sections of the same statute are presumed to have the same meaning. Sullivan v. Stroop,
. I quote it at length so as not to be accused of taking the government’s representations at oral argument out of context. Michigan distinguishes between so-called natural uses of waters and artificial uses. See, e.g, Thompson v. Enz,
. In their complaints, Kathy Stupak-Thrall and the Gajewskis challenged Amendment No. 1 as arbitrary and capricious, but this argument was not pressed on appeal. Judging by the district court's silence on this issue, it was dropped at that level, as well.
. Judge Scalia noted:
Ordinarily ... challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way: challengers are permitted to raise the rights of third parties; and the court invalidates the entire statute, "on its face,” not merely "as applied,” so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling,” deterrent effect of the overbroad statute on third parties not courageous enough to bring suit.
United Presbyterian Church in the USA v. Reagan,
. Even if Stupak-Thrall was sailboating or houseboating unreasonably within the meaning of Michigan law, the Forest Service would not be without a remedy, if it has been empowered to bring suits by Congress. It could bring suit under Michigan riparian law against Stupak-Thrall. Stupak-Thrall is wrong in maintaining that such an action would have to be brought in state court, however. The forum chosen by the Forest Service to press a "reasonable use” claim under Michigan riparian law would likely be a federal one, as the federal district courts have jurisdiction over civil actions commenced by agencies possessing such power. 28 U.S.C. § 1345. The Forest Service could also choose to bring a suit in Michigan state court, however, as the jurisdiction granted by § 1345 is not exclusive. But it would not be required to do so.
. In defending the panel’s analysis, the concurrence states that I could understandably find the panel’s reasoning a non sequitur because Part III of that opinion, Stupak-Thrall II,
. While the letter refers exclusively to motorboats and this case does not involve motorboats, the significance of the Morton letter is that it is evidence that the Forest Service and Congress knew that the "valid existing rights” language in Section 5 of the MWA protected one subset of Michigan riparian rights. The next step in the analysis is to recognize that Section 5 of the MWA does not limit itself to only riparian rights in the use of motorboats. Rather, it protects riparian rights generally.
. "[N]or shall private property be taken for public use without just compensation.” U.S. Const, amend. V.
. The concurrence notes that the Ninth Circuit cited Andrus approvingly in Adams v. United States,
. Some commentators have suggested that footnote 7 of Lucas has been rejected by the Court in Concrete Pipe and Prods. of Calif., Inc. v. Construction Laborers Pension Trust for S. Calif.,
. The concurrence argues that it is “ironic" to note that Michigan law defines riparian rights discretely while discussing the Supreme Court's analysis of the denominator problem in takings law. Op. at 1270 n. 5. There is no inconsistency, as footnote 7 of Lucas suggests that the denominator problem can be solved by recognizing the expectations created by the way "particular" (read "discrete") rights are defined under state property law.
. Peterman v. State,
. Bauerle v. Board of County Road Comm’rs for the County of Charlevoix,
. Peterman,
. Moreover, one doubts whether the distinction drawn in Thompson would actually be enforced by Michigan courts. If a riparian really was
. Another House committee report, from the Committee on Agriculture, adds nothing to the insights into legislative history of the MWA to be derived from the House Committee on Interior and Insular Affairs. H.R. Rep. 29, 100th Cong., 1st Sess., pt. 2 (1987). The Senate report from the Committee on Agriculture, Nutrition, and Forestry, also largely adds nothing to what can be gleaned from the report of the House Committee on Interior and Insular Affairs, with one exception. The Senate report indicates that the "mineral” rights Congress was especially concerned with in the Nordhouse Dunes Wilderness area actually were a “high potential for the occurrence of natural gas underlying the area.” S. Rep. 206, 100th Cong., 1st Sess., at 4 (1987). The government concedes that the legislative history of the Wilderness Act is unhelpful for resolving the issue of the meaning of "valid existing rights” in Section 5 of the MWA.
. D’Amato's article consists of 6 pages. See also Boris I. Bittker, Interpreting the Constitution: Is the Intent of the Framers Controlling? If Not, What Is?, 19 Harv. J.L. & Pub. Pol'y 9 (1995) (45 pages); Robert C. Power, The Textualist: A Review of the “Constitution of 1887: A Commentary," 84 Nw. U.L.Rev. 711 (1990) (reviewing George Anastaplo) (1989) (24 pages); Francis J. Mootz, III, The Ontological Basis of Legal Hermeneutics: A Proposed Model of Inquiry Based on the Work of Gadamer, Habermas, and Ricoeur, 68 B.U. L.Rev. 523 (1988) (94 pages); Gary Peller, The Metaphysics of American Law, 73 Calif. L.Rev. 1151 (1985) (139 pages). Of
. See Steven G. Calabresi & Saikrishna B. Prakash. The President’s Power to Execute the Laws, 104 Yale LJ. 541 (1994) (124 pages); David L. Faigman, “Normative Constitutional Fact-Finding”: Exploring the Empirical Component of Constitutional Interpretation, 139 U. Pa. L.Rev. 541 (1991) (71 pages); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L.Rev. 1189 (1987) (97 pages); Richard A. Posner, Law and Literature: A Relation Reargued, 72 Va. L.Rev. 1351 (1986) (41 pages); Erwin Chemerinsky, Wrong Questions Get Wrong Answers: An Analysis of Professor Carter's Approach to Judicial Review, 66 B.U. L.Rev. 47 (1986) (22 pages); Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L.Rev. 533 (1983) (19 pages).
Lead Opinion
ORDER
The en banc court is equally divided in this case. Seven members favor affirmance of the judgment of the District Court, and seven favor reversal. Hence, as is customary under such circumstances, the judgment of the District Court is affirmed by an equally divided vote.
The mandate will not issue for fourteen (14) days from the date of this order so that members of the court may file any separate opinions they wish to.
This Order was originally filed on June 24, 1996, and is now being reissued for full-text publication with a separate concurring opinion by Judge MOORE (pp. 1269-1272), in which Chief Judge MERRITT and Judge DAUGHTREY joined, and a separate dissenting opinion by Judge BOGGS (pp. 1272-1306), in which Judges NORRIS, SUHRHEINRICH, and BATCHELDER joined.