Sotomajor, J., concurring
ble solely to public lands within such units,” although the Secretary may acquire those lands and administer them as part of the unit. Ibid. ANILCA, in turn, defines “public lands” as nearly all “lands, waters, and interests therein” in which the United States has title. §§3102(1)–(3). Crucially, Alaska has title to the lands under its navigable waters. See n. 2, supra. If the Service’s ordinary authority over navigable waters within park boundaries is diminished in Alaska relative to everywhere else in the United States, all agree that ANILCA §103(c) is the culprit.
II
Thus we arrive at the crux of this case: How, if at all, does ANILCA §103(c) circumscribe the Service’s ordinary authority over navigable rivers within the geographic boundaries of national parks?
A
I agree with the Court that the Service may not treat every navigable river in Alaska as legally part of Alaska’s parks merely because those (nonpublic) rivers flow within park boundaries. The majority ably explains why ANILCA’s text leads to this outcome. See ante, at 16–20. According to ANILCA §103(c), navigable waters (at least apart from Wild and Scenic Rivers) must be treated as waters outside of park units for legal purposes. Thus they may not be “subject to the regulations applicable solely to public lands within such units.” 16 U. S. C. §3103(c).[1]
- ↑ Notably, the Park Service did not argue—nor does the Court’s opinion address—whether navigable waters may qualify as “public lands” because the United States has title to some interest other than an interest in reserved water rights. See §§3102(1)–(3). In particular, the United States did not press the argument that the Federal Government functionally holds title to the requisite interest because of the navigational servitude. See, e. g., Kaiser Aetna v. United States, 444 U. S. 164, 177 (1979) (“The navigational servitude… gives rise to an authority in the Government to assure that [navigable] streams retain their capac-
