[00:00:00] Speaker 00:
That lawsuit proceed Thank you.

[00:00:04] Speaker 04:
All right.

[00:00:04] Speaker 04:
Thank you council the case just argued to be submitted Thank council for both sides for your helpful arguments in that case All right, we'll proceed now to hear argument in the last case on calendar for argument this morning and that is 25-

[00:00:27] Speaker 04:
410, Boaters Rights Association versus Craig Withee.

[00:00:34] Speaker 04:
And we will hear first from Ms.

[00:00:39] Speaker 04:
Gibson.

[00:00:57] Speaker 01:
Good morning.

[00:00:58] Speaker 01:
May it please the court.

[00:01:00] Speaker 01:
Jill Gibson for plaintiff appellants.

[00:01:02] Speaker 01:
I would like to reserve four minutes for rebuttal.

[00:01:06] Speaker 01:
Appellants in this case allege that the Sport Fish Restoration Act creates rights to recreational boating and that a state prohibition on certain types of recreational boating violates these rights.

[00:01:19] Speaker 01:
The state prohibition applies to a section of the Willamette River called the Newburgh Pool.

[00:01:25] Speaker 01:
This is a 30-mile stretch of the river that has historically been a very popular place for people to ski, inner tube, wakeboard, and wakesurf.

[00:01:36] Speaker 01:
But in 2022, the Oregon legislature passed a law prohibiting wakesurfing and all towed water sports that occurred in a boat.

[00:01:45] Speaker 04:
Do you agree that your case stands or falls on the

[00:01:49] Speaker 04:
Buckley decision and on its continued vitality?

[00:01:55] Speaker 01:
I do not, Your Honor.

[00:01:56] Speaker 01:
I think the Buckley decision did find that the act at issue did unambiguously create a right, but there were decisions after Buckley, such as Save Our Valley, which also found that the act created enforceable rights.

[00:02:15] Speaker 04:
And this is... Save Our Valley did not find.

[00:02:19] Speaker 04:
that the act creates enforceable rights.

[00:02:23] Speaker 04:
I mean, in your supplemental brief, you presented it as if, you described it as if the issue was presented in that case and decided anew for a second time, which is not in fact true.

[00:02:35] Speaker 04:
All it did was describe, in the course of discussing an entirely different fact pattern, it summarized that case and then, you know,

[00:02:46] Speaker 04:
Describe what the holding of it was so you're you seem to be suggesting in your brief that it was a second Reaffirmation and decision on the same point and that's not true You're correct that the save our Valley case specifically looked at was the rights created by the act or by the regulation and the Ninth Circuit decided that it was the act of

[00:03:12] Speaker 01:
that created the rights.

[00:03:14] Speaker 01:
And the Ninth Circuit repeatedly cited to Gonzaga before holding that.

[00:03:20] Speaker 01:
And if you apply the Gonzaga test, which was later applied in Tulevsky and in the Medina case, the act does create enforceable rights.

[00:03:35] Speaker 04:
Yeah, but in, for example, on page three of your brief,

[00:03:40] Speaker 04:
you say in Save Our Valley, the Ninth Circuit found for a second time, found for a second time that the Act creates enforceable rights, and you said Save Our Valley stated, quote, the issue in Berkeley was whether the Federal Aid in Sport Fish Restoration Act, non-its enabling regulations, created an enforceable federal statutory right under Section 1983,

[00:04:03] Speaker 04:
we hold that the Act does confer rights enforceable under Section 1983.

[00:04:08] Speaker 04:
That makes it sound like it's a holding of Save Our Valley, because you omitted the quotation marks around that from Buckley in that quote.

[00:04:17] Speaker 04:
And so reading this brief, a co-reader reading this brief, thinks that Save Our Valley had the same issue and decided it again, and that was not true.

[00:04:27] Speaker 01:
It was a different issue.

[00:04:28] Speaker 04:
I know you should not write a brief that way that suggests that we made a holding that, in fact, we did not do.

[00:04:38] Speaker 01:
Your Honor, that was not my intention to dismiss her.

[00:04:40] Speaker 04:
Well, I'm just saying, when you leave off quotes and you make it sound like we hold, that is not an accurate representation of the holding of the case, and it's not appreciated that you do that.

[00:04:54] Speaker 01:
OK.

[00:04:54] Speaker 01:
Thank you, Your Honor.

[00:05:00] Speaker 04:
So why don't you explain why Medina doesn't overrule Buckley?

[00:05:09] Speaker 04:
I mean, Buckley applies the Wilder test, three-factor test, in determining whether or not a right is unambiguously created.

[00:05:19] Speaker 04:
And then Medina comes along and says that courts have gotten confused by our decisions.

[00:05:24] Speaker 04:
They apply a three-factor test from Wilder.

[00:05:27] Speaker 04:
They should no longer do so.

[00:05:29] Speaker 04:
That sounds like Buckley is now no longer good law.

[00:05:33] Speaker 04:
Tell me why that's wrong.

[00:05:36] Speaker 01:
Even if Buckley is not, Buckley was decided before Gonzaga.

[00:05:44] Speaker 01:
But in Medina, the Supreme Court stated that it was simply applying the same test that was applied in Gonzaga and then in Tulevsky.

[00:05:52] Speaker 01:
And this is de novo review.

[00:05:56] Speaker 01:
It's our argument that the Sport Fish Restoration Act does meet the Gonzaga test.

[00:06:04] Speaker 04:
But the Buckley decision, I'm looking on page 191, it says to answer the initial question of whether the law in question unambiguously confers an enforceable right, we must still apply the three-part test set forth in Wilder by asking and then it'll limit its

[00:06:24] Speaker 04:
enumerates the three factors and then applies them.

[00:06:28] Speaker 04:
But then Medina says, some lower court judges, including in this case, still consult wilder right and blessing when asking whether a spending power statute creates an enforceable individual right.

[00:06:40] Speaker 04:
They should not.

[00:06:42] Speaker 04:
That seems to me to just directly reject the holding of Buckley.

[00:06:48] Speaker 04:
And so unless you can explain how this statute meets the Medina test,

[00:06:56] Speaker 04:
then I don't see how you can prevail.

[00:07:00] Speaker 01:
It meets the Medina test because it is phrased, which I think is the Gonzaga test, because the Supreme Court in Medina says we're simply applying the test that was in Gonzaga and Tulevsky.

[00:07:15] Speaker 01:
The act is phrased in terms of the person benefited, and it contains language that is rights creating, individual-centric, and unmistakably focuses on the benefited class.

[00:07:27] Speaker 01:
The standards are met because there is an unmistakable focus on the benefited class.

[00:07:33] Speaker 01:
The act specifically refers to recreational boaters, and it repeatedly refers to recreational boaters, recreational boating, recreational boats, and recreational waters.

[00:07:45] Speaker 04:
What are the rights creating terms in the statute?

[00:07:48] Speaker 04:
Can you point me to them?

[00:07:50] Speaker 01:
Yes, there are, I have identified five provisions

[00:07:56] Speaker 01:
which show that Congress repeatedly and unmistakably focused on the recreational voters and their rights.

[00:08:06] Speaker 01:
One is 16 USC subsection 777G subsection G1.

[00:08:15] Speaker 01:
That's the provision that requires states to conduct surveys to determine the adequacy of facilities that provide access to recreational waters

[00:08:22] Speaker 01:
for all sizes of recreational boats.

[00:08:25] Speaker 01:
The phrase all sizes of boats shows that the act is focused on individual rights, not aggregate rights, because it doesn't just say most boats or the most common size boats.

[00:08:37] Speaker 01:
But if there's one boat that's larger than all the others, that boat also has to have access to waters.

[00:08:43] Speaker 02:
Another... I think the difficulty that I have with the argument is the Supreme Court in Medina told us that

[00:08:49] Speaker 02:
We're looking for specific language, and the only example you have that works is Tulevsky.

[00:08:53] Speaker 02:
So I'm looking at this statute and trying to compare it to what the statute and Tulevsky look like and see how close of a match they are.

[00:09:00] Speaker 02:
It's undeniable, I think, if you look at this statute, that Congress had an objective of making rivers accessible to recreational boating.

[00:09:10] Speaker 02:
But I'm not clear how it is that the language that you're pointing to establishes that Congress intended to create an individual

[00:09:19] Speaker 02:
Right of action and that's the question that we're asking here Mm-hmm well the telepsych case was I think easy to find rights because the word rights was right in The provision right and that's the problem for you right because the Supreme Court has told us that's the only example you have That where this worked

[00:09:38] Speaker 01:
But the Supreme Court doesn't say that the word rights is required to find that the language is rights creating.

[00:09:43] Speaker 01:
It doesn't really say what is required to find rights creating, but it gives the test which include the unmistakable focus and that it's clear and unambiguous.

[00:10:01] Speaker 01:
Another provision which I think shows that it's rights creating is

[00:10:09] Speaker 01:
Subsection.

[00:10:10] Speaker 01:
One moment.

[00:10:21] Speaker 01:
777G subsection G3.

[00:10:25] Speaker 01:
This is the provision that requires states to develop plans that ensure, and that's the word used in the provision, ensure that there is boat access adequate to meet the needs of recreational boaters on its waters.

[00:10:37] Speaker 02:
That sounds to me like an aggregate objective and not an individualized right.

[00:10:43] Speaker 01:
States are required to conduct surveys which are given to individual voters and they ask the individual voters, what are your access needs?

[00:10:54] Speaker 01:
And the word needs I believe shows that it is an individual focus because it's asking individual voters.

[00:11:02] Speaker 01:
And this provision, in this provision it shows that the state plans must ensure that those needs are met.

[00:11:12] Speaker 01:
The provision is phrased in the terms of the person benefited, and there is an unmistakable focus on recreational boaters in that provision.

[00:11:20] Speaker 01:
The language you just read, what provision was that from?

[00:11:24] Speaker 01:
It is 16 USC 777G subsection G3.

[00:11:31] Speaker 04:
Oh, G3.

[00:11:32] Speaker 04:
Okay.

[00:11:32] Speaker 04:
I thought you had said 2.

[00:11:33] Speaker 01:
All right.

[00:11:37] Speaker 01:
Subsection 2.

[00:11:43] Speaker 01:
require states to conduct surveys and report those surveys to the federal government so findings can be used to be used in an assessment of recreational boat access needs and facilities.

[00:11:57] Speaker 01:
Again, there's that word needs which I think shows the individual focus because individuals will be surveyed.

[00:12:06] Speaker 01:
I think needs is rights creating because states just aren't required to spend money on Boating facilities, but those facilities should meet the needs of the recreational boaters, and I see that I'm Just got about three minutes left, so do you have further questions now?

[00:12:26] Speaker 04:
All right, you can reserve the rest of your time for a bottle all right.

[00:12:28] Speaker 04:
Thank you council All right, we'll hear now from Mr.. Whitehead

[00:12:39] Speaker 00:
May it please the court counsel Carson Whitehead for defendants members of the Oregon Marine Board.

[00:12:45] Speaker 00:
And I'd like to start with the court was just discussing Medina.

[00:12:50] Speaker 00:
And I think this court's decision in Buckley is clearly irreconcilable with the court's analysis in Medina and that the case fails for that reason.

[00:13:01] Speaker 03:
Can't we affirm you without reaching that issue?

[00:13:05] Speaker 00:
I think that's right, Your Honor.

[00:13:06] Speaker 00:
And that's held in the original brief.

[00:13:08] Speaker 00:
We did not ask the court to overrule Buckley because we don't think the court needed to.

[00:13:12] Speaker 00:
And I think before Medina, there was a question.

[00:13:15] Speaker 04:
Was Medina filed before or after your brief was filed?

[00:13:18] Speaker 00:
It was after, Your Honor.

[00:13:21] Speaker 03:
But what would you urge us to do from a jurisprudence standpoint?

[00:13:26] Speaker 03:
Reach that issue or not?

[00:13:28] Speaker 00:
At this point, I think the cleanest out is to say that Medina controls here and look at the terms of the act and say that Buckley is just irreconcilable.

[00:13:38] Speaker 00:
with Medina.

[00:13:39] Speaker 00:
So again, I don't think the court has to go there.

[00:13:40] Speaker 04:
What's your response to her argument that in fact does survive the Medina test?

[00:13:44] Speaker 04:
Because yes, maybe the particular analysis that was given in Buckley is wrong, and we have to set that aside.

[00:13:49] Speaker 04:
It doesn't give us the right answer.

[00:13:52] Speaker 04:
But now there's a clarified test, but it's actually, as she says, it's really just an elaboration of the pre-existing test.

[00:13:59] Speaker 04:
And here, when you use phrases like all boats and insure, those are things that are rights creating and it's not a magic words test.

[00:14:09] Speaker 04:
What's your response to that argument?

[00:14:11] Speaker 00:
Your Honor, I think the references to public access and to recreational boating are very general expressions of the congressional purpose behind the act, which was to provide funding to the states to provide public access.

[00:14:27] Speaker 00:
And I think that's the exact kind of language that Tolefsky says is not enough, that you need that kind of individually focused rights creating language that's not just considering kind of an aggregate group or not considering a class of beneficiaries.

[00:14:46] Speaker 00:
And that's all we have here.

[00:14:48] Speaker 00:
I mean, the key provision that Plaintiff cites is about the distribution of these funds.

[00:14:55] Speaker 00:
That's 77GB1.

[00:14:58] Speaker 00:
And that's the clause that says a receiving state must use 15% of these funds to pay for not more than 75% of the costs of creating or improving public access

[00:15:15] Speaker 00:
to improve or to increase the suitability of the nation's waterways for recreational boating.

[00:15:24] Speaker 00:
And so that's a sort of broad expression of congressional intent that I'm not aware of any case that supports the creation of an enforceable right under Section 1983 after Medina

[00:15:41] Speaker 00:
And even before then, our position in the opening brief was that if you apply the Gonzaga test to this act, it's not enough.

[00:15:53] Speaker 00:
And even if you applied the test from Blessing, we didn't think that was enough.

[00:15:58] Speaker 00:
And now Medina has clarified that Blessing is no longer a good law.

[00:16:03] Speaker 00:
Gonzaga was the correct statement of the law.

[00:16:06] Speaker 00:
And then Medina goes further and says, really, the only reliable yardstick we have

[00:16:11] Speaker 00:
is Talewski and this statute is so different from Talewski that I don't see how the court could find a way to say, well, this is the sort of individual rights creating language that the court has approved of.

[00:16:29] Speaker 04:
Just sort of staying within the world in which the district court operated, where it was just looking at Buckley and then whether this fell within the

[00:16:39] Speaker 04:
rights that were recognized in Buckley.

[00:16:42] Speaker 04:
I mean, it's, Buckley said, excuse me, Buckley says that there is this kind of, you know, right of access.

[00:16:52] Speaker 04:
Why isn't this kind of, this isn't some, you know, obscure or unusual type of voting activity.

[00:16:59] Speaker 04:
This is a pretty typical type of voting activity.

[00:17:02] Speaker 04:
So why wouldn't this be in the heartland of the voting rights that are recognized in Buckley?

[00:17:08] Speaker 00:
Well, again, I think the notion that if we accept the holding of Buckley, that there is a right to access for specified recreational purposes, then I think that the district court was correct there.

[00:17:22] Speaker 00:
if that is an actual, you know, the right, an individual right that's created by the act.

[00:17:30] Speaker 00:
And that's where we would move to our merits argument of saying, well, even if the statute does create a right to access, a right of access is not violated.

[00:17:40] Speaker 00:
by SB 1578 because plaintiffs can still access the water, anyone can still access the water with any boat.

[00:17:50] Speaker 00:
It's just the specific uses of those boats are restricted on the water and that's the sort of traditional.

[00:17:56] Speaker 04:
So the Buckley right of access for, you know, specified recreational activities gives

[00:18:04] Speaker 04:
the state plenary power to just reduce the specification to nothing?

[00:18:11] Speaker 00:
Well, I think so the specific context of Buckley was about the, again, and Buckley really turned on the interpretive regulations that were in effect at the time that said that the states receiving funds under this provision

[00:18:27] Speaker 00:
You know can't restrict access for power boats kind of a common horsepower and so the existing regulations Overlaid that requirement, and I think that was one of What we now see what's one of the methodological errors and Buckley was that it relied on those interpretive regulations in a way that I don't think the court can do any longer and so the

[00:18:47] Speaker 00:
Court with the court was looking at a law that prohibited using jet skis even if the if the jet ski has 50 horsepower you can't use it but you can use a power boat that has 50 horsepower and so I think the court was really operating in that the framework of the claim being the.

[00:19:05] Speaker 00:
the right was to access, and there was a prohibition on kind of discriminating between boats in the manner that this law discriminated.

[00:19:13] Speaker 00:
And we don't have that situation here.

[00:19:17] Speaker 00:
So if we're left with just a general right of access, this law, it prohibits wake surfing, which isn't a restriction on a type of boat.

[00:19:29] Speaker 00:
It's a specific activity you might use a boat for.

[00:19:31] Speaker 00:
And it says if you have a boat,

[00:19:33] Speaker 00:
and you're engaging in towed water sports, that boat has to have a maximum loading capacity of less than 5,500 pounds.

[00:19:41] Speaker 00:
And so I think it's very different than the claimant issue in Buckley and that notion of access.

[00:19:48] Speaker 00:
The law simply doesn't restrict access with a boat of any weight.

[00:19:55] Speaker 00:
I think for those reasons, even if the court doesn't reconsider Buckley, we should still prevail.

[00:20:03] Speaker 00:
And the district court was right to say there just hasn't been a violation of plaintiff's rights.

[00:20:10] Speaker 00:
I'm happy to answer any other questions that the court might have.

[00:20:16] Speaker 03:
When I think of private right of action, I start with court versus ASH.

[00:20:21] Speaker 03:
But that's just generally how we determine whether a private right of action is created.

[00:20:25] Speaker 03:
This is talking about spending power statutes and how they are analyzed.

[00:20:29] Speaker 03:
So from your perspective, what is the informing principle that would persuade us that we need to reach this first issue or just affirm on the other basis?

[00:20:41] Speaker 03:
Excuse me.

[00:20:43] Speaker 00:
You know, I think the state certainly has an interest in not facing more lawsuits like this and we have the state receives,

[00:20:51] Speaker 00:
You know, I think between 8 and 10 million dollars a year under this act and uses, you know, a percentage of those funds.

[00:20:57] Speaker 00:
And to the extent that Buckley is hanging out there and says you might be able to bring a private suit and pull the members of the Oregon Marine Board into court.

[00:21:07] Speaker 00:
I think we have an interest there.

[00:21:11] Speaker 03:
Would it also be true that maybe the states did not bargain for that when they agreed to accept the money?

[00:21:17] Speaker 00:
Certainly, Your Honor.

[00:21:18] Speaker 00:
And so that principle for why Buckley is no longer good law under Medina

[00:21:24] Speaker 00:
And under the, as distinct from just a, were you looking at a pure private right of action from a non-spending law, spending clause case?

[00:21:32] Speaker 00:
Yeah, the idea that the state was put on notice that by taking this spending, you know, this amount of money on facilities in the Newburgh pool, that then we were subject to private rights of action under section 1983.

[00:21:45] Speaker 00:
And that's just not supported by the text of the act.

[00:21:50] Speaker 00:
And as Medina says, a case where a spending clause statute will create a private right of action is going to be an extraordinary case, a very rare case.

[00:21:59] Speaker 00:
And this language, I don't think, gets anywhere close to that.

[00:22:04] Speaker 00:
Again, I'm happy to answer any other questions.

[00:22:06] Speaker 00:
But if the court has none, we ask that you affirm the district court's ruling.

[00:22:09] Speaker 00:
Thank you.

[00:22:10] Speaker 04:
All right.

[00:22:10] Speaker 04:
Thank you, counsel.

[00:22:13] Speaker 04:
All right.

[00:22:15] Speaker 04:
We asked you a lot of questions.

[00:22:16] Speaker 04:
So I'm going to give you the four minutes you requested.

[00:22:18] Speaker 01:
Thank you, your honor.

[00:22:22] Speaker 01:
I would also like to point out that the Act does not contain any exceptions like the Act did in Medina.

[00:22:29] Speaker 01:
Also, the Act does not require just substantial compliance.

[00:22:35] Speaker 01:
Medina also considered the consequence of what would happen if the court found that a right did exist in the Medicaid Act.

[00:22:42] Speaker 01:
And the court considered that that would likely mean all the other provisions of the Medicaid Act would also create rights

[00:22:51] Speaker 01:
and that would lead to it not being atypical, which would be against the rule that the court had enunciated.

[00:23:00] Speaker 01:
But in this case, I think the act is the atypical case because the act doesn't just contain in one provision that access needs to be provided to recreational boaters, to recreational waters, but it states it in at least five provisions.

[00:23:17] Speaker 04:
The question I have for Medina, and it's the language of Medina that it doesn't quote from Gonzaga, that it actually, it adds.

[00:23:26] Speaker 04:
It says, you know, it has the clearly and unambiguously uses rights creating terms, which it quotes from Gonzaga, but then it goes on to say, in addition, the statute must display, and then it quotes Gonzaga saying, an unmistakable focus, but then it says, on individuals like the plaintiff.

[00:23:47] Speaker 04:
Looks like the court is saying we now have to be applying an individual focus.

[00:23:53] Speaker 04:
But then that brings up Judge Forrest's question, which is that this all looks very group class based.

[00:24:00] Speaker 04:
There's no focus on individual rights as there is in the Tavaleski or if I'm pronouncing that correctly, case.

[00:24:07] Speaker 04:
So what's your response on that point?

[00:24:10] Speaker 01:
My response is the requirement that all boats need access shows an individual focus because it's every single boat every individual boat is Must have access to recreational waters also the requirement for states to ensure that Recreational let me get the exact language

[00:24:34] Speaker 01:
States must have plans that ensure that there is boat access adequate to meet the needs of recreational boating.

[00:24:41] Speaker 01:
So to meet the needs, I think, is rights creating.

[00:24:44] Speaker 01:
And that's very different than the provision that the Supreme Court looked at in Medina.

[00:24:50] Speaker 01:
It didn't look at the individual needs of people who were asserting the rights.

[00:25:03] Speaker 01:
And this would be the atypical case.

[00:25:06] Speaker 01:
Again, in Medina, the court was concerned with the litigation that could come about if they found that the Medicaid Act created rights.

[00:25:13] Speaker 01:
But my research shows that this is the only case in the last 25 years where a plaintiff has sought to enforce their rights under the Sport Fish Restoration Act.

[00:25:26] Speaker 01:
The right that would be created would be very narrow.

[00:25:29] Speaker 01:
First, the state would have to build boating facilities in U.S.

[00:25:33] Speaker 01:
waters from monies from the act, and then the state would need to prohibit recreational boating in those waters.

[00:25:43] Speaker 01:
And I think that that fact scenario is rare enough that that might be why this is the only case in the last 25 years to enforce the rights under the act.

[00:25:54] Speaker 01:
So it would remain the atypical case.

[00:25:59] Speaker 01:
I think it's important that Congress does not define the phrase recreational boating.

[00:26:03] Speaker 01:
I think that that implies that they meant for the term to be given its general meaning.

[00:26:09] Speaker 01:
And as I stated in my opening brief, according to Justice Scalia, when there's no definition, general terms are to be given their general meaning and afforded their full and fair scope without being arbitrarily limited.

[00:26:25] Speaker 01:
And here I feel like the state is trying to arbitrarily limit the definition of recreational boating.

[00:26:32] Speaker 04:
Thank you, Council.

[00:26:33] Speaker 04:
Thank you.

[00:26:33] Speaker 04:
All right, the case just argued will be submitted and we will stand in recess.

[00:26:42] Speaker 04:
All rise.