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Kaiser Aetna v. United States

Citation: 10 ELR 20042
No. No. 78-738, 444 U.S. 164/13 ERC 1929/(U.S., 12/04/1979) Rev'd

The United States Supreme Court reverses a decision of the Ninth Circuit Court of Appeals and holds that the federal government's attempt to require that the public be given access to a privately constructed marina amounted to a taking of property without compensation in violation of the Fifth Amendment. Writing for the majority, Justice Rehnquist notes that the marina was created at considerable private expense by the dredging and improvement of a preexisting fish pond and the opening of a channel between the pond and the ocean.In its improved condition the pond is subject to the congressional power to promote navigation under the Commerce Clause and thus to the regulatory jurisdiction of the Corps of Engineers under the Rivers and Harbors Act. But such a determination of the marina's "navigability" for regulatory purposes does not resolve whether the body of water is subject to a public right of access as part of the federal navigational servitude. The government's attempt to create a public right of access to the improved pond goes beyond ordinary regulation or improvement for navigation and will result in an actual physical invasion of the privately owned and maintained marina. Stressing that the pond was considered private property under Hawaiian law and was connected to navigable waters by a channel dredged with the consent of the Corps of Engineers, the Court rules that the petitioners' right to exclude the public from the marina is a fundamental element of their property rights and cannot be taken from them without invocation of the eminent domain power and payment of just compensation.

A dissent by three justices contends that the majority erroneously fails to apply the "ebb and flow" test of navigability to the pond, improperly concludes that the federal navigational servitude does not extend to all navigable waters of the United States, accords undue weight to the private owners' financial stake in the marina in balancing those interests against the public interest in free navigational access, and erroneously views state law as relevant to the determination of the scope of the federal navigational servitude.

Counsel for Petitioners
Richard C. Bocken, Diana D. Hastert
Damon, Key, Char & Bocken
10th Floor, City Bank Bldg., 810 Richards St., Honolulu Hawaii 96813
(808) 531-8031

George R. Morry, Robert B. Graham, Jr.
Hamilton, Gibson, Nickelsen, Rush & Moore
20th Floor, Hawaii Bldg., 745 Fort St., Honolulu Hawaii 96813
(808) 521-2611

Counsel for Respondent
Kathryn A. Oberly; James W. Moorman, Ass't Attorney General; Raymond N. Zagone, Martin Green
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2756

Wade H. McCree, Solicitor General; William Alsup, Ass't to the Solicitor General
Department of Justice, Washington DC 20530
(202) 633-4278

MR. JUSTICE REHNQUIST delivered the opinion of the Court. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.