[00:00:00] Speaker 02:
That lawsuit would proceed.

[00:00:03] Speaker 04:
Thank you. All right. Thank you, counsel. The case just argued to be submitted. And I thank counsel for both sides for your helpful arguments in that case.

[00:00:13] Speaker 04:
All right. We'll proceed now to hear argument in the last case on calendar for argument this morning. And that is twenty five dash.

[00:00:28] Speaker 04:
410, Voters' Rights Association versus Craig Withey.

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

[00:00:57] Speaker 01:
Good morning. May it please the court. Jill Gibson for plaintiff appellants. 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 Pools. 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 toad water sports that occurred in a boat.

[00:01:45] Speaker 04:
Do you agree that your case stands or falls on the Buckley decision and on its continued vitality?

[00:01:55] Speaker 01:
I do not, Your Honor. 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:
Save Our Valley did not find that.

[00:02:21] Speaker 04:
the act creates enforceable rights. 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 a new for a second time, which is not in fact true. All it did was, was describe in the course of discussing the entirely different fact pattern. It summarized that case and then, you know, describe what the holding of it was. So 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.

[00:03:00] Speaker 01:
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 that created the rights. 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 Talevsky 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, 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 and Sport Fish Restoration Act, not its enabling regulations, created an enforceable federal statutory right under Section 1983. 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. 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.

[00:04:35] Speaker 01:
Okay.

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

[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.

[00:04:53] Speaker 01:
Okay. 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. They apply a three-factor test from Wilder. They should no longer do so. That sounds like Buckley is now no longer good law. 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 Talewski. And this is de novo review. So 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 enumerates the three factors and then applies them. 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. That seems to me to just directly reject the holding of Buckley. And so unless you can explain how this statute meets the Medina test, 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 Talewski.

[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. 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? Can you point me to them?

[00:07:50] Speaker 01:
Yes, there are. I have identified five provisions that which show that Congress repeatedly and unmistakably focused on the recreational boaters 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 for all sizes of recreational boats. 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 00:
I think the difficulty that I have with the argument is the Supreme Court in Medina told us that we're looking for specific language and the only example you have that works is Tlefsky. So I'm looking at this statute and trying to compare it to what the statute in Tulefsky looked like and see how close of a match they are. It's undeniable, I think, if you look at this statute, that Congress had an objective of making rivers accessible to recreational boating. But I'm not clear how it is that the language that you're pointing to establishes that Congress intended to create an individual right of action.

[00:09:21] Speaker 00:
And that's the question that we're asking here.

[00:09:24] Speaker 01:
Well, the Telefsky case was, I think, easy to find rights because the word rights was right in the provision.

[00:09:31] Speaker 00:
Right, and that's the problem for you, right? Because the Supreme Court has told us that's the only example you have 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. 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. Another provision which I think shows that it's rights-creating is subsection... One moment.

[00:10:22] Speaker 01:
777G subsection G3. 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 00:
That sounds to me like an aggregate objective and not an individualized rate.

[00:10:44] 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. 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. The language you just read, what provision was that from? It is 16 U.S.C.

[00:11:28] Speaker 01:
777G subsection G3. Oh, G3.

[00:11:31] Speaker 04:
Okay. I thought you had said two.

[00:11:33] Speaker 01:
All right. Subsection 2 requires 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. Again, there's that word needs, which I think shows the individual focus because individuals will be surveyed.

[00:12:06] Speaker 01:
And 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've got about three minutes left. So do you have further questions now?

[00:12:24] Speaker 04:
All right. You can reserve the rest of your time for rebuttal. All right. Thank you, counsel. All right. We'll hear now from Mr. Whitehead.

[00:12:39] Speaker 02:
May it please the Court, counsel, Carson Whitehead, for defendants, members. of the Oregon Marine Board. And I'd like to start where the Court was just discussing, Medina. 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.

[00:13:02] Speaker 03:
Can't we affirm you without reaching that issue?

[00:13:04] Speaker 02:
I think that's right, Your Honor. And that's held in the original brief. We did not ask the Court to overrule Buckley because we don't think the Court needed to, 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 02:
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?

[00:13:27] Speaker 02:
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. 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 it, in fact, does survive the Medina test? Because, yes, maybe the particular analysis that was given in Buckley is wrong, and we have to set that aside. It doesn't give us the right answer. But now there's a clarified test, but it's actually, as she says, it's really just an elaboration of the preexisting test. And here, you know, when you use phrases like all boats and ensure, those are things that are rights creating and it's not a magic words test. What's your response to that argument?

[00:14:11] Speaker 02:
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 to And I think this is the exact kind of language that Tulefsky 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 02:
And that's all we have here. I mean, the key provision that plaintiff cites is about the distribution of these funds That's 77GB1, 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 to improve or to increase the suitability of the nation's waterways for recreational use.

[00:15:23] Speaker 02:
And so that's the sort of broad expression of congressional intent that I'm not aware of any case that supports a creation of an enforceable right under Section 1983 after Medina.

[00:15:41] Speaker 02:
And even before then, you know, our position in the opening brief was that if you apply the Gonzaga test to the this act. It's not enough. And even if you applied the test from Blessing, we didn't think that was enough. And now Medina has clarified that Blessing is no longer a good law. Gonzaga was the correct statement of the law. And then Medina goes further and says, really, the only reliable yardstick we have is Talvesky.

[00:16:13] Speaker 02:
And this statute is so different from 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:
But 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 rights that were recognized in Buckley, I mean, it's...

[00:16:47] Speaker 04:
Buckley says that there is this kind of right of access. Why isn't this kind of – this isn't some obscure or unusual type of voting activity. This is a pretty typical type of voting activity. So why wouldn't this be in the heartland of the voting rights that are recognized in Buckley?

[00:17:08] Speaker 02:
Well, again, I mean I think the notion that – if we accept the holding of Buckley that there is a right to access for specified recreational purposes, then, you know, I think the Judiciary Court was correct there if that is an actual, you know, the right, an individual right that's created by the Act. 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 by SV 1578 because plaintiffs can still access the water.

[00:17:47] Speaker 02:
Anyone can still access the water with any boat.

[00:17:50] Speaker 04:
It's just the specific uses of those boats are restricted on the water, and that's the sort of traditional... So the Buckley right of access for specified recreational activities gives the state plenary power to just reduce the specification to... nothing?

[00:18:11] Speaker 02:
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, you know, can't restrict access for powerboats 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 in Buckley was that it relied on those interpretive regulations in a way that I don't think the court can do any longer.

[00:18:46] Speaker 02:
And so the court was looking at a law that prohibited using jet skis, even if the jet ski has 50 horsepower, you can't use it, but you can use a powerboat that has 50 horsepower. And so I think the court was really operating in that, the framework of the claim being the the right was to access and there was a prohibition on kind of discriminating between boats in the manner that this law discriminated. And we don't have that situation here.

[00:19:17] Speaker 02:
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. It's a specific activity you might use a boat for. And it says if you have a boat, and you're engaging in towed water sports, that boat has to have a maximum loading capacity of less than 5,500 pounds. And so I think it's very different than the claimant issue in Buckley and that notion of access.

[00:19:49] Speaker 02:
The law simply doesn't restrict access with a boat of any weight.

[00:19:55] Speaker 02:
So I think for those reasons, even if the court doesn't reconsider Buckley, we should still prevail and the district court was right to say there just hasn't been a violation of plaintiff's rights.

[00:20:10] Speaker 02:
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, but that's just generally how we determine whether a private right of action is created. This is talking about spending power statutes and how they are analyzed. 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? Excuse me.

[00:20:43] Speaker 02:
You know, I think the state certainly has an interest in not facing more lawsuits like this. And we have the state receives, you know, I think between $8 and $10 million a year under this act and uses, you know, a percentage of those funding, those funds. 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, 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 02:
Certainly, Your Honor. And so that principle – for why Buckley is no longer good law under Medina and as distinct from just a case where you're looking at a pure private right of action from a non-spending clause case. Yeah, the idea that the state was put on notice that by taking this amount of money on facilities in the Newburgh pool that then we were subject to private rights of action under Section 1983, that's just not supported by the text of the act.

[00:21:50] Speaker 02:
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. And this language, I don't think, gets anywhere close to that. Again, I'm happy to answer any other questions. But if the court has none, we ask that you affirm the district court's ruling. Thank you.

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

[00:22:13] Speaker 04:
All right. We asked you a lot of questions, 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, and the Court considered that that would likely mean all the other provisions of the Medicaid Act would also create rights. and that would lead to it not being atypical, which would be against the rule that the court had enunciated. 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.

[00:23:16] Speaker 04:
But the question I have for Medina, it's, and it's the language of Medina that it doesn't quote from Gonzaga, that it actually adds. It says, you know, it has to clearly and unambiguously use his 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.

[00:23:46] Speaker 04:
So it Looks like the court is saying we now have to be applying an individual focus. But then that brings up Judge Forrest's question, which is that this all looks very group class-based. There's no focus on individual rights as there is in the Tavaleski, if I'm pronouncing that correctly, case. 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... Every individual boat must have access to recreational waters. Also, the requirement for states to ensure that recreational, let me get the exact language, 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, and that's very different than the provision that the Supreme Court looked at in Medina. 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. Again, in Medina, the court was concerned with the litigation that could come about if they found that the Medicaid Act created rights. 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. And the right that would be created would be very narrow. 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. 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. I think that that implies that they meant for the term to be given its general meaning. 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. And here I feel like the state is trying to arbitrarily limit the definition of recreational boating.

[00:26:31] Speaker 04:
All right. Thank you, counsel. Thank you. All right. The case just argued will be submitted, and we will stand in recess.

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