United States v. Kaiser Aetna

Civ. No. 73-3864 (408 F. Supp. 42, 8 ERC 1741) (D. Haw. February 6, 1976)

ELR Digest

The court holds that fishponds in Hawaii are private and not subject to the federal navigation servitude, but that when the defendants began using such a pond as a marina in interstate commerce, the pond became subject to regulation by the Corps of Engineers under the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, ELR 41141. Kuapa Pond extends approximately two miles inland from the Pacific Ocean on the island of Oahu, and is separated from the ocean by a barrier beach, although it is subject to tidal flows through sluice gates. Fishponds were historically part of the Hawaiian feudal system, and commoners had no right to fish in the ponds. Defendants began developing Kuapa Pond in 1961, at which time the Corps of Engineers raised no objection. In addition defendants began chartering tourists aboard a boat that navigates the pond.

Jurisdiction over navigable waters resides in the federal government under the Commerce Clause. Martin v. Waddell's Lessee, 41 U.S. (16 Pet.) 367 (1842). One test of navigability — whether waters are navigable in fact or can be made so with reasonable improvement — does not apply here, since the fact that defendants constructed a marina to promote a private homesite development does not prove that the marina could economically have been used in interstate commerce. Cf. United States v. Appalachia Electric Power Co., 311 U.S. 377 (1940). The ebb and flow test of navigability would apply here were it not for the unique legal status of Hawaiian fishponds: Hawaiian property rights survived annexation to the United States. 30 Stat. 750. Kuapa Pond therefore was never subject to the navigation servitude.

Nevertheless, defendants have transformed a private recreational area into a combination harbor and canal available to anyone for a fee. Therefore, since Kuapa Pond in fact supports interstate commerce, it is subject to regulation under § 10 of the Rivers and Harbors Act. Congress may not, however, impose a public navigation servitude on private waterways without paying reasonable compensation.

Defendants' other defenses are without merit. Congress' constitutional power over navigable waters cannot be estopped or waived by the executive branch. Nor does NEPA apply, since the Corps' assertion of jurisdiction under existing legislation is not an "action" within NEPA's ambit. The government's request for an injunction preventing defendants from denying public access to the marina is denied.

The full text of this opinion is available from ELR (14 pp. $1.75, ELR Order No. C-1056).

Counsel for Plaintiff
Harold Fong, U.S. Attorney
Stephen D. Quinn, Asst. U.S. Attorney
Honolulu HI 96809
(808) 546-7170

Counsel for Defendant Kaiser Aetna
R. Charles Bocken
Damon, Shigekane, Key & Char
810 Richards St.
Honolulu HI 96813
(808) 531-8031

Counsel for Defendant Bishop Estate
G. Richard Morry
Conroy, Hamilton, Gibson, Nickelsen & Rush
745 Fort St.
Honolulu HI 96813
(808) 521-2611

Pence, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]