Sotomayor, J., concurring
*** One final note warrants mention. Although I join the Court’s opinion, I recognize that today’s decision creates uncertainty concerning the extent of Service authority over navigable waters in Alaska’s parks. Courts ultimately may affirm some of the Service’s authority over out-of-park areas and Wild and Scenic Rivers. But that authority may be more circumscribed than the special needs of the parks require. This would not only make it impossible for the Service to fulfill Congress’ charge to preserve rivers, made plain in ANILCA itself, but also threaten the Service’s ability to fulfill its broader duty to protect all of the parklands through which the rivers flow. See, e. g., 16 U. S. C. §410hh(6) (Kobuk Valley National Park “shall be managed… [t]o maintain the environmental integrity of the natural features of the Kobuk River Valley, including the Kobuk, Salmon, and other rivers”). Many of Alaska’s navigable rivers course directly through the heart of protected parks, monuments, and preserves. A decision that leaves the Service with no authority, or only highly constrained authority, over those rivers would undercut Congress’ clear expectations in enacting ANILCA and could have exceedingly damaging consequences.
In light of the explicit instructions throughout ANILCA that the Service must regulate and protect rivers in Alaska, I am convinced that Congress intended the Service to possess meaningful authority over those rivers. If I am correct, Congress can and should clarify the broad scope of the Service’s authority over Alaska’s navigable waters.
