Full opinion text
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.
MOORE, Circuit Judge, 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. The Chief of the Forest Service made this assumption when he ruled that the sailboat and houseboat prohibitions at issue in Amendment No. 1 were reasonable regulations that did not constitute a taking and therefore did not violate the “subject to” portion of the “subject to valid existing rights” language of the wilderness acts. Admin. R. 819-20. Even if deference to this interpretation of an ambiguous phrase were not appropriate under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), I would still hold that it was the correct interpretation. All authorities are in agreement that the “subject to valid existing rights” language was essentially designed to restrain agencies from effecting a taking. See Utah v. Andrus, 486 F.Supp. 995, 1010 (D.Utah 1979); Adams v. United States, 3 F.3d 1254, 1259 (9th Cir.1993) (citing Utah v. Andrus’s holding with approval); Symposium on Valid Existing Rights, 5 J. Min. L. & Pol’y 381 (1989-90); Jan G. Laitos & Richard A. Westfall, Government Interference with Private Interests in Public Resources, 11 Harv. Envtl. L.Rev. 1 (1987). Congress, of course, can always take property, provided it pays just compensation (and provided it does not violate due process), but Congress here has instructed the Forest Service not to do so. As a result, the remedy for an overreaching Forest Service regulation, rather than compensation, is an injunction. In other words, the “subject to valid existing rights” language appears to be Congress’s “promise” to private property owners that, at a minimum, it will not take their property, even with just compensation. 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, 379 Mich. 667, 154 N.W.2d 473, 483 (1967). On the other hand, the actual regulations in this case clearly do not infringe upon any of plaintiffs’ core property interests under state law. Therefore, under this approach — a “takings plus” approach that accounts for both state-law property protections and a takings analysis as the federal, minimum standard of protection — there is no basis for invalidating the Forest Service’s regulations. Judge Boggs’s opposing view essentially takes “subject to valid existing rights” to mean “without affecting valid existing rights in any way.” A careful reading of his opinion, however, reveals that this view relies on nothing but his own novel interpretation of the Organic Act, 16 U.S.C. § 551, and the Michigan Wilderness Act. As I have already indicated, all authorities are to the contrary, and Judge Boggs’s citations, though copious, are nonetheless almost wholly irrelevant. The opposing view also apparently misunderstands the prior panel’s determination that Congress had delegated its police power under the Property Clause to the Forest Service in the Organic Act and wilderness acts. Judge Boggs quotes at length from part IV of the panel opinion in describing the analysis as a “non sequitur.” Dissenting opinion at 1290-1291. It is little wonder that he thinks so, since the panel’s actual analysis of’ this point appears in part III. In part IV,, the panel simply held that state law, via the “subject to valid existing rights” language, imposed the same restrictions on the Forest Service’s exercise of federal police power that it did on a local government’s exercise of state police power. See Stupak-Thrall, 70 F.3d at 889-90. This is the “plus” in the “takings plus” approach. 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, 843 F.Supp. 327, 334 (W.D.Mich.1994). Indeed, the opposing view’s core discussion of the takings issue is devoted merely to complaining about the scarcity of courts that have been confronted with the issue, and to describing just how “exceedingly difficult” a takings analysis can be. Dissenting opinion at 1295-96. This case, however, does not even come close to presenting such hypothetical difficulties. Although plaintiffs now argue on rehearing, for the first time, that sailboats have been used on the lake, occasional and recreational use of the type suggested by plaintiffs is clearly not enough to establish a taking. Furthermore, although Judge Boggs is correct that statutes are to be interpreted whenever “fairly possible” so as to avoid constitutional questions, United States v. X-Citement Video, Inc., — U.S.-,-, 115 S.Ct. 464, 467, 130 L.Ed.2d 372 (1994), it is certainly not “fairly possible” to do so when the statute is designed to address a constitutional issue. 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, 70 F.3d 881 (6th Cir.1995), vacated, 81 F.3d 651 (6th Cir.1996). Because it is clear to me that Amendment No. 1 did not effect a taking or otherwise violate state-law limits on police power regulation, I believe without hesitation that the district court’s judgment upholding the wilderness regulations is properly affirmed. MERRITT, C.J., and DAUGHTREY, J., concur in Judge MOORE’S opinion. . The underlying constitutional, statutory, and regulatory background of this case is fully described in the | panel opinion, Stupak-Thrall v. United States, 70 F.3d 881 (6th Cir.1995), vacated, 81 F.3d 651 (6th Cir.1996), and is not repeated here. . 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, 131 Mich. 156, 91 N.W. 211, 212 (1902)) — as a discrete, unconditional property "right” equivalent to a fee simple land right, instead of looking at the plaintiffs’ general right, as a whole, to use Crooked Lake in a reasonable manner. There is no basis for defining property rights in this way under Michigan law. There is no reason to think that a regulation requiring life preservers (or first-aid kits, or navigational equipment, or safety inspections) is necessarily less intrusive on the single riparian use of sailing than prohibition of that single riparian use (which arguably has never taken place) on the whole of plaintiffs’ usufructuary right in the surface of the lake. Indeed, Judge Boggs’s assumption that each riparian use is a separate and absolute property right on its own is almost ironic, given his criticism of the difficulty in defining the “denominator” of the entitlement in. a takings analysis. Dissenting opinion at 1295-1296. Judge Boggs’s approach rests unavoidably on the premise that each permissible riparian use may count as an individual entitlement — a discrete denominator that cannot be destroyed “in its entirety” — but there is absolutely no support for defining the denominator of the entitlement in this fashion. . 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.
BOGGS, Circuit Judge, 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. By their interpretation of a statutory phrase embodying an obvious legislative compromise, the district court and the members of the panel that first heard the case, joined now by four other members of this court, rupture that compromise without support in the text of the statute, its legislative history, or the purposes that Congress could plausibly have been attempting to achieve when it enacted the legislation at issue. In the words of Macbeth, the district court and these seven members of our court make the statute’s words “keep the word of promise to our ear, and break it to our hope.” (Macbeth, act V, sc. 7, lines 50-51). 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, 390 U.S. 404, 404 n. 1, 88 S.Ct. 979, 979 n. 1, 19 L.Ed.2d 1267 (1968) (Douglas, J., dissenting) (collecting cases); Standard Indus., Inc. v. Tigrett Indus., Inc., 397 U.S. 586, 90 S.Ct. 1310, 25 L.Ed.2d 590 (1970) (Black, J., dissenting); Jenkins by Agyei v. Missouri, 807 F.2d 657, 661, 687-95 (8th Cir.1986), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987) (Arnold, J., concurring in part and dissenting in part). Judge Arnold did not even pause to justify his ability to write separately in such a situation. 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 States owns, and the Forest Service administers, 95% of the land surrounding Crooked Lake while the other 5% of the surrounding area is in private hands. A total of 13 private owners currently hold land abutting Crooked Lake. 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, 484 F.2d 1244 (10th Cir.1973). This led to the initiation of RARE II. RARE IPs Final Environmental Impact Statement (“EIS”) was completed in January 1979. See generally John Klein-Robbehaar, Judicial Review of Forest Service Timber Sales: Environmental Plaintiffs Gain New Options under the Oregon Wilderness Act, 35 Nat. Resources J. 201, 205-06 (describing the history of the two RARE initiatives). In the RARE II EIS, the Forest Service made the statement that, ‘Wilderness designation in itself imposes no restrictions on the use of private land within or adjacent to wilderness.” It also provided that “non-Federal lands included within boundaries of an area classified as wilderness are not themselves classified.” Final Environmental Impact Statement: Roadless Area Review and Evaluation 73 (1979). 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. Under Michigan law (see Section V.D., pp. 1296-1298 infra), Stupak-Thrall and the federal government both possess riparian property rights to use the entire surface of Crooked Lake, for instance for boating and swimming, by virtue of their ownership of land abutting the lake. In reliance on assurances by local representatives of the Forest Service that the designation by Congress of certain portions of the Ottawa National Forest as federal wilderness areas would not affect their riparian rights, Stu-pak-Thrall purchased her cabin and land from her father, and the other private landowners along the lake decided not to oppose the legislation that implemented this change. Back in 1981, an attempt by the Forest Service to obtain congressional wilderness designation for the area including Crooked Lake had failed. 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 created by the Wilderness Act. Section 5 of the MWA conferred on the Forest Service, in relation to the Sylvania Wilderness, all of the broad powers to regulate that the Forest Service had under the Wilderness Act, but provided that these powers were only to be exercised “subject to valid existing rights.” 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. The Amendment also provided that motor boating would be allowed to continue, but would be subject to a future Forest Management Plan amendment. While not a part of the appeal in this case, another regulation, Amendment No. 5, has now been promulgated by the Forest Service. Amendment No. 5 confirmed Stupak-Thrall’s fears — it restricted motorboating on Crooked Lake. 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. The Regional Forester concluded he could not address a takings claim in the context of an administrative appeal. 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-Thrall’s. After cross-motions for summary judgment were filed, the district court granted summary judgment to the government on January 25, 1995. Stupak-Thrall I, 843 F.Supp. at 327-33. The district court held that under the plain meaning of the phrase “valid existing rights,” all state-created property rights were saved from regulation by the Forest Service. It rejected the argument that the phrase protected only mineral rights in the Nordhouse Dunes Wilderness area. The government did not cross-appeal this ruling. Some Michigan riparian rights are subject to a reasonable use limitation— one riparian cannot use his rights in a way that unreasonably inflinges on other ripari-ans. Without specifying exactly how this state law concept had become embedded in the MWA’s “valid existing rights” language, the district court held that the validity of any regulations issued by the Forest Service should be judged by the reasonable use doctrine in Michigan riparian law — a peculiar twist on this doctrine. The district court held that Amendment No. 1 was valid- because this regulation was reasonable, not because Stupak-Thrall's use of Crooked Lake was unreasonable. Stupak-Thrall and the Gajewskis filed a timely notice of appeal. In order to allow the appeal to proceed in light of Fed.R.Civ.P. 54(b), the district court dismissed the takings claim without prejudice. A panel of our court affirmed the district court’s grant of summary judgment to the government, but on different grounds. Stupak-Thrall II, 70 F.3d at 882. The panel stated: 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 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 and the Necessary and Proper Clause of the Constitution gives Congress all the power it would have needed to make Amendment No. 1 law. In a basic case where only the regulation of land is involved, it should be obvious that Congress has the power to regulate bordering private land when such regulation is necessary to protect public land. For a discussion of the well-established law on this point see the panel’s opinion. Stupak-Thrall II, 70 F.3d at 884-86. Even easier is this ease, however, as the riparian rights allegedly destroyed by Amendment No. 1 are shared between the federal government and Stupak-Thrall. Thus, the federal government’s regulation of its own property is inseparable from its regulation of Stupak-Thrall’s property. Unless Congress is to be denied the power to regulate its own property, something it surely cannot be denied on the basis of the Property Clause itself, regulations like Amendment No. 1 must be constitutional. This is not to say that Stupak-Thrall’s co-ownership of the riparian rights being regulated by Amendment No. 1 is irrelevant to this case, simply that it is irrelevant for the purposes of Property Clause analysis. 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 authority it claims for Amendment No. 1 because the surface of Crooked Lake is not federally-owned property. The most important problem with this argument is that Congress specifically indicated in Section 2(a) that subsequent laws could designate new wilderness areas. In this case, Section 3(b) of the MWA, enacted in 1987, designated the Sylva-nia Wilderness as a wilderness area. Thus, the Wilderness Act’s apparent requirement that wilderness areas would have to be federally-owned is irrelevant in light of the subsequent enactment of the MWA, which includes in its boundaries parts of Crooked Lake, a body of water not owned entirely by the federal government. And even if the Wilderness Act did not allow for subsequent designations of wilderness areas, it would remain true that one Congress cannot bind a subsequent one absent a constitutional barrier. There is no such constitutional concern in this case. The Wilderness Act cannot be used to prevent a later Congress from designating as a wilderness anything it sees fit. 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, 70 F.3d at 887. 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, explaining the administrative coding and noting that payments made to counties in lieu of taxes treat Crooked Lake as private property, is similarly irrelevant and relies on extra-record evidence. Actually contained within the record, however, is a document entitled “Preferred Alternative Land and Resource Management Plan — Draft Environmental Impact Statement, 1985.” The accompanying map states: “The management areas identified on this map and the management direction defined in the forest plan apply to national forest system lands only. They do not apply to any lands in state, county, private, or other ownership.” Although the map is very difficult to read because it was poorly reproduced in the court’s joint appendix, I will assume, as Stupak-Thrall warrants, that the map shows Crooked Lake as falling outside the boundaries of the management areas identified on the map. This document does not establish that the Forest Service cannot manage Crooked Lake as a wilderness area, however. This evidence merely shows a plan for management that (1) predates the enactment of the MWA and therefore has no relevance to the authority the Forest Service was delegated by Congress in 1987, and (2) only shows the Forest Service’s present intentions, not its view of the limits of its jurisdiction. 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 , then the nature of the various rights in Crooked Lake under Michigan law is as follows: (1) Michigan holds the waters in trust for its citizens and has the right to navigate them and improve their navigation; (2) Michigan’s citizens have the right to navigate the waters; (3) riparian owners have the right to use the waters for various reasonable purposes subject to the public’s navigation rights; and, (4) riparian owners hold title to the bed of the lake in proportion to the land they own abutting the lake. Peterman v. State, 446 Mich. 177, 521 N.W.2d 499, 508-09 (1994) (state holds in trust navigable lake waters and has right to improve navigation; riparian owners’ rights are subject to these public rights); West Mich. Dock & Market Corp. v. Lakeland Investments, 210 Mich.App. 505, 534 N.W.2d 212, 216 (1994) (riparian ’owners have the right to use the surface of the whole lake for boating, swimming, fishing,' and other similar riparian activities); Hall v. Wantz, 336 Mich. 112, 57 N.W.2d 462, 464 (riparian proprietors own to the middle of the lake); Gregory v. LaFaive, 172 Mich.App. 354, 431 N.W.2d 511, 515-16 (1988) (method of determining ownership of bed by riparian owners depends on shape of lake). 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 contemplate private holdings being wholly contained within wilderness areas. Both sets of provisions therefore indicate that, in situations where territorial rights are mixed and in situations where private territory is surrounded. by federal land, the government can include such mixed or surrounded land within a wilderness area.. The portion of Crooked Lake that, Congress included within the Sylvania Wilderness arguably qualifies for inclusion in a wilderness area under both of these formulations — rights to it are mixed and the portion designated as wilderness is surrounded by government-owned land. 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, and make many other uses of the waters anywhere on the lake. There are a substantial number of people in the country who dislike humans engaging in such activities on Crooked Lake. They prefer to maintain- “wil- • derness values,” keeping wildernesses as nearly as possible pristine places untouched by the human hand — “area[s] where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” 16 U.S.C. § 1131(c) (Section 2(c) of the Wilderness Act). Therefore, such individuals want the power to prevent or limit some or all of these activities. This is, of course, a perfectly reasonable goal for those holding this opinion to pursue through the legislative process. But, I do not think that it can be seriously maintained that the Forest Service has the ability to stop Americans from doing anything that they want to do or have property rights under state law to do without a source of congressional authority. “[A]n agency literally has no power to act ... unless and until Congress confers power upon it.” Louisiana Public Serv. Comm’n v. FCC, 476 U.S. 355, 374, 106 S.Ct. 1890, 1901, 90 L.Ed.2d 369 (1986). This case is about whether the Forest Service has the authority it claims to have for issuing Amendment No. 1. While some of Stupak-Thrall’s arguments related to the Forest Service’s authority are quite weak, her challenge to the Forest Service’s authority in relation to its regulation of “valid existing rights” is undeniably strong. 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 district court, the panel, and .the government in oral argument before the panel all erred in lumping this provision in with a similar one in the MWA. Stupak-Thrall I, 843 F.Supp. at 330; Stupak-Thrall II, 70 F.3d at 883-84 & n. 3. The “subject to existing private rights” limitation in Section 4(c) of the Wilderness Act only applies to bans on commercial enterprises and permanent roads. Obviously, the building of permanent roads has nothing to do with this ease. And while the Gajewskis maintain a resort on Crooked Lake, they have not made any claim that Amendment No. 1 is designed to ban their commercial enterprise because it is a commercial enterprise, even though, if the Forest Service does have the powers it claims here, then the Gajewskis’ resort business may be'seriously injured dr totally destroyed. Moreover, Section 4(c) does not give the Forest Service any real discretion to promulgate regulations that would permit commercial enterprises or permanent roads in wilderness areas, except for administrative and emergency purposes. Therefore, Section 4(c)’s “subject to existing private rights” language is wholly inapplicable to this case. 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 intended to displace the Organic Act. 16 U.S.C. § 1133(a)(1) (Section 4(a)(1) of the Wilderness Act). The Organic Act provides as follows: 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. Because specific statutes and language within statutes control over general statutes and language, the existence of the Organic Act in the background of our case has little relevance in light of the important limitation contained the MWA relating to “valid existing rights.” FDIC v. Bates, 42 F.3d 369, 372 (6th Cir.1995) (specific language) (citing D. Ginsberg & Sons, Inc. v. Popkin, 286 U.S. 204, 52 S.Ct. 322, 76 L.Ed. 704 (1932)); Edward D. Rollert Residuary Trust, Genesee Merchants Bank and Trust Co., Trustee v. Commissioner, 752 F.2d 1128, 1133 (6th Cir.1985) (specific statute) (citing HCSC-Laundry v. United States, 450 U.S. 1, 6, 101 S.Ct. 836, 838-39, 67 L.Ed.2d 1 (1981)). This resolution of the problem of how the Organic Act applies to wilderness area administration also avoids construing 16 U.S.C. § 480, which can also be interpreted to protect state-created property rights from regulation by the Forest Service. 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, 76 F.3d 1381, 1386 (6th Cir.1996) (en banc). There are no disputed factual issues in this case and therefore there is no need even to state the standard of review on summary judgment relating to evi-dentiary matters. If the “valid existing rights” language of Section 5 of the MWA, properly construed, allows Amendment No. 1 to be applied to Stupak-Thrall, then the district court’s grant of summary judgment must be affirmed. If there is no such proper construction, then it follows that summary judgment must be reversed. 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., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), sets up the following two-step procedure for judicial review of an agency’s regulations: 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 statute 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 statute could not be clearer— the Forest Service cannot regulate in a way that invades or destroys “valid existing rights.” It seems beyond cavil to me that the phrase ‘Valid existing rights” refers to property rights, most of which are created by state law, protecting them from invasion or disparagement by the Forest Service. 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. In this case the most appropriate meaning of the word “right” is “an interest or title in an object of property.” Black’s Law Dictionary 1189 (5th ed.1979). Michigan law establishes that Stupak-Thrall has the riparian property right to sail and boat on the entire surface of Crooked Lake. Peterman v. State, 446 Mich. 177, 521 N.W.2d 499, 507-08 (1994) (“‘riparian rights are property1 ” and as such “are protected by [the] limits of the power of eminent domain”) (quoting Bott v. Commission of Natural Resources, 415 Mich. 45, 327 N.W.2d 838, 850 (1982)); People v. Hulbert, 131 Mich. 156, 91 N.W. 211, 211-12 (1902) (riparian rights include rights to. “fishing, wading, bathing, swimming, washing sheep, watering cattle, pigs, and horses, washing vehicles and clothing, cutting ice, boating, sailing, etc.”) (emphasis supplied). 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 exchange shows the argument made by the government and a significant concession that really puts an end to the problem of how to resolve this case: 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. Sup