Few areas of federal environmental law show less clarity and consistency than the limits of the federal government's constitutional powers over the nation's navigable waters. In particular, the concept of the "navigational servitude"—the government's virtually unfettered privilege to preserve, enhance, or condemn rights in navigable waters—has evolved erratically from its various constitutional and common law sources to the point where it defies precise definition. The United States Supreme Court has acknowledged this unsteady history, for which it is itself largely responsible:

[T]he shifting back and forth of the Court in this area until the most recent decisions bears the sound of "Old, unhappy, far off things, and battles long ago."¹

This statement, however, is contained in a recent opinion demonstrating that the unhappy battles of long ago are far from settled. In Kaiser Aetna v. United States² the issue before the Court was whether a real estate developer, which had dredged a 500-acre "fishpond" next to a Hawaiian beach to construct a marina and build on its shores a large resort and shopping complex, was entitled to restrict access to the marina to the resort's residents and commercial clientele. The United States had requested a district court to issue an injunction prohibiting the developers from denying use of the waters to the general public. The district court denied the requested relief³ and, despite a reversal in the Ninth Circuit,⁴ was upheld by the High Court, at least as to its conclusion that the public enjoyed no general right of access to the pond.