with whom Circuit Judges O’SCANNLAIN and RYMER join, dissenting:
The Supreme Court has held time and again that states control fishing in their navigable waters, unless Congress has dearly stated a contrary intention. See United States v. Oregon, 295 U.S. 1, 14, 55 S.Ct. 610, 79 L.Ed. 1267 (1935); Coyle v. Smith, 221 U.S. 559, 573, 31 S.Ct. 688, 55 L.Ed. 853 (1911); see also Montana v. United States, 450 U.S. 544, 552, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981). Alaska exercises sovereignty over the beds of its navigable waters just as it does over its dry land; its power to control navigation, fishing and other public uses of the water above the beds is an incident of this sovereignty. See Utah Div. of State Lands v. United States, 482 U.S. 193, 195, 107 S.Ct. 2318, 96 L.Ed.2d 162 (1987). Because control over “navigable waters uniquely implieate[s] sovereign interests,” Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 284, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997), Congress will not be deemed to have taken away such rights by implication or indirection. Rather, Congress must have “definitely declared or otherwise made plain” an intent to diminish the state’s right to control fishing and other activities on its navigable waters. Montana, 450 U.S. at 552, 101 S.Ct. 1245 (internal quotation marks omitted); see also Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991).
This “super-strong clear statement rule” reflects important structural considerations in the relationship between the states and the federal government.1 It *1045“assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.” United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). When Congress takes away important incidents of a state’s sovereignty, it must speak plainly, not only to show that it has carefully considered the issue, but also to ensure political accountability. Just as Congress must make “unmistakably clear in the language of the statute” its intent to abrogate a state’s Eleventh Amendment immunity, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), so too must it make “unmistakably clear” an intent to alter the usual federal-state balance with respect to a “traditional and essential state function.” Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); see also Gregory, 501 U.S. at 460-61, 111 S.Ct. 2395.
Just this term, the Supreme Court reminded us that the clear statement rule applies whenever an interpretation of a statute “would result in a significant impingement of the States’ traditional and primary power over land and water use.” Solid Waste Agency v. United States Army Corps of Eng’rs, 531 U.S. 159, 121 S.Ct. 675, 684, 148 L.Ed.2d 576 (2001). In Solid Waste, the Court struck down the Army Corps of Engineers’ “Migratory Bird Rule.” See 51 Fed.Reg. 41,217 (Nov. 13, 1986) (bureaucratic power-grab over intrastate waters where migratory birds stop to drink). The Clean Water -Act defined “navigable waters” as “the waters of the United States, including the territorial seas,” 33 U.S.C. § 1362(7), a definition that clearly did not include non-navigable, isolated, intrastate waters.2 Even if the statute were not clear, the Court held, it would reject a construction that encroached upon a traditional state power where Congress had not clearly expressed an intent to do so. See Solid Waste, 121 S.Ct. at 683.
As the Supreme Court has thus made plain, in determining whether Congress has made the kind of clear statement required in these circumstances, we must ask whether an interpretation that infringes on a state’s sovereignty would be “plain to anyone reading the [statute].” Gregory, 501 U.S. at 467, 111 S.Ct. 2395. Rather than answering this question, the majority declines to “disturb[ ] or alter[ ]” our court’s earlier ruling in Alaska v. Babbitt, 72 F.3d 698 (9th Cir.1995). Maj. Op. at 1033. In Babbitt, we recognized that ANILCA “makes no reference to navigable waters” but nonetheless deferred to the federal agency’s “reasonable” interpretation of “public lands.” 72 F.3d at 702, 703-04. By adopting Babbitt’s judgment, the majority implicitly adopts Babbitt’s ra*1046tionale, which rests upon deference to agency interpretation under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d-694 (1984).
Chevron deference has never been very persuasive in this context. An agency’s interpretation is entitled to deference only where the statute is ambiguous; in such cases, the agency may resolve the ambiguity in accordance with its best judgment. But Chevron deference carries the day only where the statute is not clear. See INS v. Cardoza-Fonseca, 480 U.S. 421, 447-48, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Chevron and the clear statement rule are, therefore, at loggerheads: If we must rely on the agency to divine the meaning of the statute, the meaning cannot be “plain to anyone reading” it. And, where Congress has not spoken plainly, it cannot be deemed to have abrogated an important incident of a state’s sovereignty. Nor are we convinced that this is the kind of decision Congress could delegate to an agency, and certainly not casually. The clear statement rule is “an effort to promote congressional-rather than executive or bureaucratic deliberation ... and to cabin executive officials by calling for express legislative authorization.” Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L.Rev. 2071, 2114 (1990). Agencies have expertise in particular areas of the law, not in deciding the proper allocation of power between the federal and state governments. For reasons already explained, this is a matter of utmost importance and delicacy, one that must be decided by Congress itself, subject to the normal political accountability such a decision entails. Delegating that authority to an agency of the Executive Braneh-to officials well below the level of the President-is an affront to the dignity of the sovereign states. So understood, the clear statement rule “cannot be trumped by Chevron.” Id.
In any event, Babbitt’s deference to the agency’s interpretation of ANILCA is now foreclosed by Solid Waste. See 121 S.Ct. at 683 (“[The clear statement] requirement stems from ... our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority.”). Babbitt did just what the Supreme Court said not to do, by deferring to the agency’s interpretation of “public lands” despite the absence of a clear statement. Is Solid Waste chopped liver? One would certainly think so from reading what seems to be our court’s first en banc memorandum disposition. One can only guess whether a majority believes that the clear statement rule does not apply, despite what the Supreme Court told us in Solid Waste; or that it does apply, but Babbitt’s interpretation of ANILCA is “plain to anyone reading the [statute].”
In fact, as Babbitt recognized, its interpretation of the statute is far from plain. 72 F.3d at 703-04 (agency’s interpretation of “public lands” gives no meaning to the term “title” as used in ANILCA’s definition of “public lands,” but it is “reasonable”). ANILCA does not speak of navigable waters at all. And it does not mention reserved water rights or the navigational servitude. ANILCA speaks only of public lands, which it defines as “lands, waters, and interests therein ... the title to which is in the United States.” 16 U.S.C. § 3102(l)-(3) (emphasis added).
The majority adopts an interpretation of “public lands” that includes those navigable waters where the United States retains reserved water rights. See Maj. Op. at 1033; Babbitt, 72 F.3d at 703-04. The reserved water rights doctrine provides that, where the United States owns lands, it reserves a usufructuary right to waters *1047adjacent to that land, to the extent necessary to carry out the purpose to which that land is devoted. See Cappaert v. United States, 426 U.S. 128, 138-39, 96 S.Ct. 2062, 48 L.Ed.2d 523 (1976). Thus, if a piece of federal grazing land depends on adjacent waters for irrigation, the United States is deemed to have retained the right to take sufficient water to irrigate the land. See Arizona v. California, 373 U.S. 546, 598-99, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). But a usufructuary right does not give the United States title to the waters or the lands beneath those waters. See Federal Power Comm’n v. Niagara Mohawk Power Corp., 347 U.S. 239, 247 n. 10, 74 S.Ct. 487, 98 L.Ed. 666 (1954); see also California v. Rank, 293 F.2d 340, 357 (9th Cir.1961), aff'd in part and rev’d in part on other grounds sub nom. Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963).3 Because ANILCA defines public lands as “lands, waters, and interests” to which the United States holds title, the federal government’s reserved water right is simply not sufficient to turn waters subject to that right into public lands.
While this seems the most plausible interpretation of ANILCA, it doesn’t matter whether the majority agrees. It suffices that it is a plausible interpretation. As the Supreme Court made clear in Solid Waste, the existence of two plausible interpretations, one of which removes an incident of state sovereignty and the other of which does not, requires us to adopt the interpretation that preserves the state’s sovereignty. 121 S.Ct. at 683-84; see also Gregory, 501 U.S. at 467, 111 S.Ct. 2395 (“[I]n this case we are not looking for a plain statement that judges are excluded. We will not read the ADEA to cover state judges unless Congress has made it clear that judges are included.”). Quite aside from the fact that Babbitt only found its interpretation of “public lands” to be reasonable — and not plain — the majority’s refusal to offer any analysis in support of its conclusion obviously falls short because it fails to explain why the alternative interpretation, the one that preserves the state’s prerogatives, is not also plausible.
Judge Tallman reads “public lands” to include all navigable waters by virtue of the federal government’s navigational servitude4 and reserved water rights. See Tallman Concurrence at 1040. He finds this meaning plain because Congress was *1048“clear that ... the federal government would step in to protect subsistence fishing as traditionally practiced by rural Alaskans.” Id. at 1037.5 But he finds this clarity only by dismissing the statutory language as a technicality. As Judge Tall-man sees the matter, in “the absence of clear textual substantiation” that ANILCA does not apply to navigable waters, it would “def[y] common sense” to think the subsistence priority would apply only to non-navigable waters. Id. at 1037. Under Judge Tallman’s approach, we must adopt the statutory definition that tramples on state sovereignty unless Congress has clearly stated otherwise. This is the clear statement rule alright-stood on its head.6
What is plain is that Congress limited the definition of “public lands” to those *1049lands, waters and interests to which the United States holds title. Contrary to the concurrence’s suggestion, the ordinary definition of title is the “legal right to control and dispose of property.” Black’s Law Dictionary 1493 (7th ed.1999) (emphasis added); compare Tallman Concurrence at 5639 (defining title as “exclusive possession and control”).7 No one suggests that an implied reserved water right or the navigational servitude is a transferable interest: The United States may use waters next to its land to the extent necessary to support the land, and it may exercise regulatory authority over navigable waters, but it does not hold “title” in these “interests” as it would in a leasehold or easement. See City of Angoon v. Hodel, 803 F.2d 1016, 1027 n. 6 (9th Cir.1986) (“[T]he United States does not hold title to the navigational servitude .... ”); see also Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 548 n. 15, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (declining to rule out the possibility that the United States might have “title” to interests in the Outer Continental Shelf); Restatement (First) of Property § 450 (1944) (defining easement as “an interest in land in the possession of another”). To say that the United States holds title to an interest in land or water, no matter how ephemeral or inalienable, may sound “natural” to the concurrence, but it eviscerates the meaning of “title.”
*1050While, for the reasons explained, we do not believe that the interpretation adopted by Judge Tallman is plausible, his concurrence strains credulity when he argues that our interpretation, which relies on the text of the statute rather than statutory penumbras and emanations, is implausible. Aside from the fact that our interpretation relies on the statutory text, we are not the first to adopt this interpretation, as it was initially proffered by the United States. While the United States is not entitled to deference, the fact that the agency charged with implementing the statute initially adopted this interpretation and asserted it in this litigation lends weight to the notion that this interpretation is at least plausible. See New York Tel. Co. v. New York State Dep’t of Labor, 440 U.S. 519, 544 n. 43, 99 S.Ct. 1328, 59 L.Ed.2d 553 (1979) (agency’s contemporaneous interpretation of the NLRA as permitting state unemployment compensation for strikers supported an interpretation of the NLRA as not infringing on state authority to provide such benefits). The concurrence therefore suffers from the same deficiency as the majority (and Babbitt). Having failed to persuasively exclude a plausible interpretation that preserves the state’s customary prerogatives, it runs afoul of Solid Waste’s clear statement that, where two or more plausible interpretations of the statute exist, we must adopt the one that preserves the state’s prerogatives.
There is no doubt that Congress meant to create a subsistence priority for rural Alaskans on “public lands.” But it is far from clear that Congress intended to take away the state’s traditional authority to control fishing in half of the state’s navigable waters, as the majority implicitly holds, or in all of the state’s navigable waters, as the concurrence would have it. Just as it was “at least ambiguous whether a state judge is an ‘appointee on the policymaking level,’ ” it is “at least ambiguous” whether navigable waters are lands, waters or interests to which the United States holds title. Gregory, 501 U.S. at 467, 111 S.Ct. 2395. As Judge Hall recognized in Babbitt, a political, judgment as monumental as this must be made by Congress itself, and expressed in no uncertain terms. 72 F.3d at 708 (Hall, J., dissenting). The statute does not give fair notice that this is what ANICLA was meant to do. As applied by Judge Tallman, the clear statement rule becomes a euphemism for reading statutory tea leaves. And, as the majority says nothing at all, we can only guess why it chooses to leave in place our highly questionable and clearly discredited opinion in Babbitt. Because we believe the parties in this case, and especially the State of Alaska, deserve better, we respectfully dissent.
RYMER, Circuit Judge:I write separately because Alaska has had two bites at the same apple, and this troubles me. In 1994 the district court certified two controlling questions of law for interlocutory review under 28 U.S.C. § 1292(b), one of which was “Does the term ‘public lands’ as defined in Title VIII of ANILCA, 16 U.S.C. § 3101(3) include navigable waters within the State of Alaska?” Alaska filed an interlocutory appeal and we entertained it. We resolved the certified question affirmatively in 1995, although we disagreed with the theory upon which the district court proposed to decide which navigable waters constitute public lands (navigational servitude) and held instead that public lands extend to navigable waters on which the United States reserved a water right. We declined to take the panel decision en banc, and the Supreme Court denied certiorari. Our prior decision was, in every sense that matters, a final judgment. Although a new regulatory structure was put in place to implement our decision, see 64 Fed.Reg. 1276 (Jan. 8, 1999), nothing substantive hap*1051pened in the district court on remand. (There is no challenge here, nor was there in the district court, having to do with the new 1999 regulations.) The district court simply entered judgment adopting our panel decision. Nevertheless, Alaska again appealed, this time in 2000 from the final judgment, raising precisely the same issue on this appeal as we heard and determined on the last one. Indeed, Alaska’s brief frames the issue as whether the prior panel got it right.
This bothers me, for the only reason to take a § 1292(b) interlocutory appeal is to facilitate disposition of the action by getting a final decision on a controlling legal issue sooner rather than later. The point is to save the courts and the litigants unnecessary trouble and expense. Neither will have happened in this case. Parties normally do not get two bites at the apple. However, no one has argued that Alaska should be precluded from doing so here. As preclusion principles are not jurisdictional, I will, reluctantly, reach the merits.
. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L.Rev. 593, 619-25 (1992) (describing the Court's "super-strong clear statement rules”). As described by Professors Eskridge and Frickey, the Supreme Court has strengthened the clear statement rule in part because of its constrained review of federal legislation that intrudes on states' regulatory authority: "[I]nasmuch as ... Garcia [v. San Antonio Metro. Trans. Auth., 469 U.S. 528, 105 S.Ct. *10451005, 83 L.Ed.2d 1016 (1985)] has left primarily to the political process the protection of the States against intrusive exercises of Congresses] Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise.” Gregory, 501 U.S. at 464, 111 S.Ct. 2395.
. Rather than expressing a desire to allow the Army Corps to assert jurisdiction over ponds and mudflats, Congress had "recognize[d], preserve[d], and protected] the primary responsibilities and rights of States ... to plan the development and use ... of land and water resources....” Solid Waste, 121 S.Ct. at 684 (quoting 33 U.S.C. § 1251(b)); cf. 16 U.S.C. § 3202(a) ("Nothing in this Act is intended to enlarge or diminish the responsibility and authority of the State of Alaska for management of fish and wildlife on the public lands except as may be provided in subchap-ter II of this chapter, or to amend the Alaska constitution.”); id. § 3202(b) ("Except as specifically provided otherwise by this Act, nothing in this Act is intended to enlarge or diminish the responsibility and authority of the Secretary over the management of the public lands.”).
. Judge Tallman suggests that we must ignore the term “title" as used in the definition of public lands, as did Babbitt, or otherwise become “entangle[d]” in a syllogism where AN-ILCA does not apply to waters at all. See Tallman Concurrence at 5642. It’s true that neither Alaska nor the United States holds title to navigable waters. See Niagara Mohawk, 347 U.S. at 247 n. 10, 74 S.Ct. 487 ("[T]he water itself, the corpus of the stream, never becomes or, in the nature of things, can become, the subject of fixed appropriation or exclusive dominion, in the sense that property in the water itself can be acquired, or become the subject of transmission from one to another.” (internal quotation marks and emphasis omitted)). But, as the Supreme Court has repeatedly held, where the United States holds title to submerged lands, that title carries with it the right to control the waters flowing over those lands. See Utah Div., 482 U.S. at 195, 107 S.Ct. 2318. Thus, the United States does control fishing in certain navigable waters under ANILCA — those waters flowing over lands to which the United States has title. At the same time, nothing in ANILCA divests Alaska of its sovereign authority over the waters above state-owned riverbeds.
. The navigational servitude permits the federal government to regulate navigable waters in the interests of commerce without compensating interference with private water rights. See United States v. Virginia Elec. & Power Co., 365 U.S. 624, 627-28, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961). Even if the navigational servitude is a property interest, see Boone v. United States, 944 F.2d 1489, 1494 n. 9 (9th Cir.1991), it is a nonpossessoiy right rather than an interest to which the United States has title. See City of Angoon v. Hodel, 803 F.2d 1016, 1027 n. 6 (9th Cir.1986).
. The concurrence suggests that ANILCA must include navigable waters because Congress clearly intended to create a federal subsistence priority. See Tallman Concurrence at 5645-46. And, according to the concurrence, under United States v. Alaska, 521 U.S. 1, 117 S.Ct. 1888, 138 L.Ed.2d 231 (1997), we need only rely on Congress’s “express purpose” in so concluding. But Congress didn’t just create a subsistence priority; it told us that the priority would apply only to “public lands,” as defined in 16 U.S.C. § 3102(l)-(3).
United States v. Alaska does not stand for the proposition that we may focus entirely on a statute's purpose and ignore its language, as the concurrence would have it. See Tallman Concurrence at 1042-43. In Alaska, the Supreme Court determined exactly which lands were included within a federal land reservation by relying on the language of an executive order, which it held had been ratified by Congress in the Alaska Statehood Act. 521 U.S. at 44, 117 S.Ct. 1888. The order described a boundary following the Arctic coast line, measured along “the ocean side of the sandspits and islands forming the barrier reefs and extending across small lagoons from point to point, where such barrier reefs are not over three miles off shore.” Id. at 36, 117 S.Ct. 1888 (internal quotation marks omitted). This geographic description "necessarily embraced certain submerged lands — specifically tidelands shoreward of the barrier islands." Id. at 39, 117 S.Ct. 1888. The concurrence ignores tire Court's focus on the text of the executive order and suggests, instead, that the Court relied solely on the purpose of the reservation in concluding that the reservation included submerged lands. The Court did rely on Congress's purpose in reserving the land, but it ascertained that purpose from the text, and only after concluding that the order’s precise geographic terms clearly, encompassed submerged lands. See id. at 36-39, 117 S.Ct. 1888. Unlike the precise language of Alaska's executive order, which detailed the geographic boundaries of the reservation, the language of ANILCA does not clearly encompass all navigable waters, nor does it clearly express a congressional purpose to do so.
. The concurrence waffles as to the applicability of the clear statement rule, asserting that the clear statement rule applies, but the “super-strong clear statement rule” does not. See Tallman Concurrence at 1037 n.6. But there is no such distinction, nor has the Supreme Court even hinted as much. Compare Solid Waste, 121 S.Ct at 683-84 (requiring a “clear statement” where Congress intends to “aller[ ] the federal-state framework by permitting federal encroachment upon a traditional state power” (citing Bass, 404 U.S. at 349, 92 S.Ct. 515)), with Gregory, 501 U.S. at 460-61, 111 S.Ct. 2395 (requiring a “clear statement” where Congress acts “ '[ijn traditionally sensitive areas, such as legislation affecting the federal balance' ” (quoting Bass, 404 U.S. at 349, 92 S.Ct. 515)). The only support the concurrence offers for its view that we can both require and not require a clear statement is a law review article describing the Supreme Court’s rigorous enforcement of the rule. See Eskridge & Frickey, note 1 supra, at 619-25. That the Supreme Court is serious about applying the clear statement rule, however, suggests only that we should do the same, not that we should infringe on a state's sovereignty in the absence of a clear statement. If Professors Eskridge and Frickey suggested more than that (and we believe they did not), we are bound to follow the Supreme Court’s guidance, not that of law professors.
The concurrence also suggests that the clear statement rule applies here only in a watered-down fashion. See Tallman Concurrence at 1040 n.5 (the clear statement rule *1049applies here with less "persuasive force” than it ordinarily does (citing United States v. Locke, 529 U.S. 89, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000))). In Locke, the Supreme Court declined to presume that a state’s oil tanker regulations were not preempted, because the state had regulated in "an area where the federal interest has been manifest since the beginning of our Republic,” namely the area of national and international maritime commerce. 529 U.S. at 98, 108, 120 S.Ct. 1135. Here, Congress has legislated in an area traditionally occupied by the states, see Solid Waste, 121 S.Ct. at 684, and the United States hardly has played a similar role in Alaskan fishing as in international maritime commerce. Indeed, once Alaska became a state, the federal government “transferred and conveyed” to Alaska all federal property used to protect Alaskan fisheries. See Alaska Statehood Act, Pub.L. No. 85-508, § 6(e), 72 Stat. 339 (1958). And, title to the lands beneath navigable waters, and to the natural resources within such lands and waters, passed to Alaska under the Submerged Lands Act, 43 U.S.C. § 1311(a), just as it did to other states upon statehood. See Alaska Statehood Act, § 6(m).
The clear statement rule either applies or doesn't apply; it doesn't apply "less” or "more.” Congress must say so clearly when it intends to impinge on a state’s primary authority over traditional state functions, because we presume that Congress does not ordinarily intend to alter the balance of power between the federal and state governments. See Solid Waste, 121 S.Ct. at 683-84. But where Congress merely acts in an area, such as international maritime commerce, where it has traditionally played a dominant role, then the federal-state balance of power stays the same and the clear statement rule is not implicated. Here, as the Court told us in Solid Waste, the clear statement rule applies with all its "persuasive force,” requiring Congress to state clearly its intent to impinge on Alaska's sovereign authority over its navigable waters.
. The concurrence argues that we rely on “a strict, technical interpretation” of the term "title," rather than the “natural” meaning that it gives to the term. See Tallman Concurrence at 1040, 1041. But the concurrence relies on the same source that we do in defining title, namely Black's Law Dictionary. The only difference is that the concurrence leaves out part of the definition. According to the concurrence, title consists of "exclusive possession and control.” But this is only part of how Black's Law Dictionary defines "title”: "The union of all elements (as ownership, possession, and custody) constituting the legal right to control and dispose of property; the legal link between a person who owns property and the property itself.” Black’s Law Dictionary 1493 (7th ed.1999). Omitting the inconvenient parts of the definition, such as ownership, doesn’t seem the most ordinary method of interpretation, and it's far from a plain reading of the term.