Sotomayor, J., concurring
permit Jane to evade those rules entirely if she were to wade into the river or paddle along the bank in a canoe. She could toss her trash bag in the water and amp up her speakers with impunity. Under this reading, the Park Service would be powerless to stop her. Jane’s actions would likely harm flora and fauna on the banks of the river, which are public areas inside park boundaries. Jane’s trash also could drift from a navigable (and thus out-of-park, nonpublic) stretch of the Nation River into a nonnavigable (and thus in-park, public) stretch of the same river.[1] So much for the Service’s duty to maintain the “environmental integrity” of the Charley River basin “in its undeveloped natural condition,” 16 U. S. C. §410hh(10).
How can the Service adequately protect Alaska’s rivers if it cannot regulate? What is more, how can it maintain nearby park areas, such as riverbanks or nonnavigable park waters downstream, if it has no power to check the contamination of navigable waters? To achieve Congress’ stated goals in creating Alaska’s parks, the Service must have some authority to protect navigable rivers within those parks.[2]
- ↑ The navigability of a river is determined “on a segment-by-segment basis.” PPL Montana, LLC v. Montana, 565 U. S. 576, 593 (2012); see also id., at 594.
- ↑ Even if the Service cannot regulate the rivers itself, the majority says that the agency can enter into “cooperative agreements” with Alaska to regulate the rivers, 16 U. S. C. §3181(j), propose that state or other federal agencies take action to protect the rivers, §3191(b)(7), or buy the submerged lands from Alaska and then regulate them, §§3103(c), 3192. See ante, at 28. But Congress made the Service directly responsible for protecting Alaska’s parks and park resources. The Service cannot carry out its duty to “manag[e]” the park areas, see §410hh, if it is estopped from promulgating necessary rules and regulations.
