concurring in the order.
It is unfortunate that after considerable expense of time and effort this case has resulted in no law of the circuit. Under such circumstances, there is undoubtedly little need to engage in lengthy debate in opinions lacking any precedential value. Nevertheless, I believe that due regard for Judge Boggs’s opposing view compels a brief explanation of the view favoring affirmance.1
Throughout this litigation, we have assumed that the plaintiffs’ riparian rights may count as “valid existing rights” to which Forest Service regulations are “subject” under the wilderness acts.2 The Chief of the For*1270est Service made this assumption when he ruled that the sailboat and houseboat prohibitions at issue in Amendment No. 1 were reasonable regulations that did not constitute a taking and therefore did not violate the “subject to” portion of the “subject to valid existing rights” language of the wilderness acts. Admin. R. 819-20. Even if deference to this interpretation of an ambiguous phrase were not appropriate under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), I would still hold that it was the correct interpretation.3 All authorities are in agreement that the “subject to valid existing rights” language was essentially designed to restrain agencies from effecting a taking. See Utah v. Andrus, 486 F.Supp. 995, 1010 (D.Utah 1979); Adams v. United States, 3 F.3d 1254, 1259 (9th Cir.1993) (citing Utah v. Andrus’s holding with approval); Symposium on Valid Existing Rights, 5 J. Min. L. & Pol’y 381 (1989-90); Jan G. Laitos & Richard A. Westfall, Government Interference with Private Interests in Public Resources, 11 Harv. Envtl. L.Rev. 1 (1987). Congress, of course, can always take property, provided it pays just compensation (and provided it does not violate due process),4 but Congress here has instructed the Forest Service not to do so. As a result, the remedy for an overreaching Forest Service regulation, rather than compensation, is an injunction. In other words, the “subject to valid existing rights” language appears to be Congress’s “promise” to private property owners that, at a minimum, it will not take their property, even with just compensation.
Because we deal in this case with state-created property rights, it is appropriate to recognize that in certain instances, different states may define these rights by providing additional protection from government interference. For example, the government defendants here concede that Michigan has defined riparian rights in such a way that if the Forest Service or local government had attempted to deprive the plaintiffs of the ability to extract drinking water from the lake, the regulation would be invalid, even if it did not constitute a taking. See Thompson v. Enz, 379 Mich. 667, 154 N.W.2d 473, 483 (1967). On the other hand, the actual regulations in this case clearly do not infringe upon any of plaintiffs’ core property interests under state law. Therefore, under this approach — a “takings plus” approach that accounts for both state-law property protections and a takings analysis as the federal, minimum standard of protection — there is no basis for invalidating the Forest Service’s regulations.
Judge Boggs’s opposing view essentially takes “subject to valid existing rights” to mean “without affecting valid existing rights in any way.”5 A careful reading of his *1271opinion, however, reveals that this view relies on nothing but his own novel interpretation of the Organic Act, 16 U.S.C. § 551, and the Michigan Wilderness Act. As I have already indicated, all authorities are to the contrary, and Judge Boggs’s citations, though copious, are nonetheless almost wholly irrelevant. The opposing view also apparently misunderstands the prior panel’s determination that Congress had delegated its police power under the Property Clause to the Forest Service in the Organic Act and wilderness acts. Judge Boggs quotes at length from part IV of the panel opinion in describing the analysis as a “non sequitur.” Dissenting opinion at 1290-1291. It is little wonder that he thinks so, since the panel’s actual analysis of’ this point appears in part III. In part IV,, the panel simply held that state law, via the “subject to valid existing rights” language, imposed the same restrictions on the Forest Service’s exercise of federal police power that it did on a local government’s exercise of state police power. See Stupak-Thrall, 70 F.3d at 889-90. This is the “plus” in the “takings plus” approach.
I doubt that even the opposing view would hold that the Forest Service’s sailboat and houseboat regulations constituted a taking, especially since the district court noted that plaintiffs had failed to produce any evidence that sailboats or houseboats have ever been used on Crooked Lake. See Stupak-Thrall v. United States, 843 F.Supp. 327, 334 (W.D.Mich.1994). Indeed, the opposing view’s core discussion of the takings issue is devoted merely to complaining about the scarcity of courts that have been confronted with the issue, and to describing just how “exceedingly difficult” a takings analysis can be. Dissenting opinion at 1295-96. This case, however, does not even come close to presenting such hypothetical difficulties. Although plaintiffs now argue on rehearing, for the first time, that sailboats have been used on the lake, occasional and recreational use of the type suggested by plaintiffs is clearly not enough to establish a taking.6 Furthermore, although Judge Boggs is correct that statutes are to be interpreted whenever “fairly possible” so as to avoid constitutional questions, United States v. X-Citement Video, Inc., — U.S.-,-, 115 S.Ct. 464, 467, 130 L.Ed.2d 372 (1994), it is certainly not “fairly possible” to do so when the statute is designed to address a constitutional issue.
The foregoing approach adopts the prior panel’s recognition that plaintiffs’ riparian rights have never included the right to be immune from reasonable regulation. Congress chose to “grandfather” private rights in the “subject to valid existing rights” phrase, but in doing so, it never intended that those rights be ossified against further regulation. In employing a takings inquiry, the foregoing approach also makes explicit a narrow limitation on the prior panel’s analysis to ensure that the police power is exercised within reasonable bounds. With this slight clarification, I would adheré to the panel opinion in its entirety, and I incorporate it herein by reference. See Stupak-Thrall v. United States, 70 F.3d 881 (6th Cir.1995), vacated, 81 F.3d 651 (6th Cir.1996).
*1272Because it is clear to me that Amendment No. 1 did not effect a taking or otherwise violate state-law limits on police power regulation, I believe without hesitation that the district court’s judgment upholding the wilderness regulations is properly affirmed.
MERRITT, C.J., and DAUGHTREY, J., concur in Judge MOORE’S opinion.
. The underlying constitutional, statutory, and regulatory background of this case is fully described in the | panel opinion, Stupak-Thrall v. United States, 70 F.3d 881 (6th Cir.1995), vacated, 81 F.3d 651 (6th Cir.1996), and is not repeated here.
. Michigan Wilderness Act, Pub.L. No. 100-184, 101 Stat. 1274; Wilderness Act of 1964, 16 U.S.C. § 1133(c). This assumption in favor of the plaintiffs' position properly allows the court to reach the critical issue in this case: the meaning of "subject to” valid existing rights.
. The phrase, “subject to valid existing rights,” is indeed ambiguous. The University of Kentucky’s Journal of Mineral Law & Policy, for instance, has devoted an entire 375-page issue to trying to untangle the phrase. See Symposium on Valid Existing Rights, 5 J. Min. L. & Pol'y 381 (1989-90). The fact that Judge Boggs’s interpretation of "subject to” contradicts a longstanding Interi- or Department interpretation, see Interpretation of Section 603 of the Federal Land Policy and Management Act of 1976 — Bureau of Land Management (BLM) Wilderness Study, 86 Int. Dec. 89, 116 (1978), and the fact that the court is so evenly divided on what it means to say "subject to” valid existing rights, would seem to indicate that the phrase is not the model of clarity Judge Boggs would have us believe.
. The Takings Clause states: "nor shall private property be taken for public use, without just compensation.” U.S. Const, amend. V.
. Judge Boggs responds that certain restrictions affecting valid existing rights, such as those requiring life preservers on sailboats, would not violate his interpretation of the "subject to” proviso, yet his explanation for this conclusion falls far short. He points out that there has never been a right "to sail without life preservers" under Michigan law, only a right to sail, and Amendment No. 1 "destroys the riparian right to sail in its entirety.” Dissenting opinion at 1287. The problem with this approach is that it takes each potentially permissible riparian use — “fishing, wading, bathing, swimming, washing sheep, watering cattle, pigs, and horses, washing vehicles and clothing, cutting ice, boating, sailing, etc.,” Dissenting opinion at 1297 n. 33 (citing People v. Hulbert, 131 Mich. 156, 91 N.W. 211, 212 (1902)) — as a discrete, unconditional property "right” equivalent to a fee simple land right, instead of looking at the plaintiffs’ general right, as a whole, to use Crooked Lake in a reasonable manner. There is no basis for defining property rights in this way under Michigan law. There is no reason to think that a regulation requiring life preservers (or first-aid kits, or navigational equipment, or safety inspections) is necessarily less intrusive on the single riparian use of sailing *1271than prohibition of that single riparian use (which arguably has never taken place) on the whole of plaintiffs’ usufructuary right in the surface of the lake. Indeed, Judge Boggs’s assumption that each riparian use is a separate and absolute property right on its own is almost ironic, given his criticism of the difficulty in defining the “denominator” of the entitlement in. a takings analysis. Dissenting opinion at 1295-1296. Judge Boggs’s approach rests unavoidably on the premise that each permissible riparian use may count as an individual entitlement — a discrete denominator that cannot be destroyed “in its entirety” — but there is absolutely no support for defining the denominator of the entitlement in this fashion.
. The dissent’s analogy to the seizure of Cincinnati’s Riverfront Stadium "or the tickets of season ticket holders” is completely inapt. Although activities at the stadium might reasonably be classified as "occasional and recreational,” they are also manifestly more than that. Such activities constitute the entire basis for owning Riverfront Stadium, or for investing in personal property like season tickets. In other words, Judge Boggs again errs by assuming the “denominator” of the entitlement to be whatever best suits his argument. In the instant case, no one disputes that sailboat use on Crooked Lake, if any, has been nothing more than a peripheral use of little moment. A far more appropriate analogy to this case, from a takings standpoint, would be government regulations prohibiting horse racing or gambling at Riverfront Stadium.