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Supreme
Court of the United States
444 U.S. 164
No. 78-738.
Argued Oct. 1, 1979.
Decided Dec. 4, 1979.
164 Syllabus
[FN*]
FN*
The syllabus constitutes no part of the opinion of the Court
but has been prepared by the Reporter of Decisions for the
convenience of the reader.
See United States v. Detroit Timber & Lumber Co.,
200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.
Through
dredging and filling operations in developing a marina-style
subdivision community, petitioners, the owner and lessee of
an area which included Kuapa Pond, a shallow lagoon on the
island of Oahu, Hawaii, that was contiguous to a navigable
bay and the Pacific Ocean but separated from the bay by a
barrier beach, converted the pond into a marina and thereby
connected it to the bay.
The Army Corps of Engineers had advised petitioners
that they were not required to obtain permits for the development
of and operations in the pond, and petitioners ultimately
made improvements that allowed boats access to and from the
bay. Petitioner
lessee controls access to and use of the pond, which, under
Hawaii law, was private property, and fees are charged for
maintaining the
pond. Thereafter,
the United States filed suit in Federal District Court against
petitioners to resolve a dispute as to whether petitioners
were required to obtain the Corps' authorization, in accordance
with § 10 of the Rivers and Harbors Appropriation Act of 1899,
for future improvements in the marina, and whether petitioners
could deny the public access to the pond because, as a result
of the improvements, it had become a navigable water of the
United States. In examining the scope of
Congress' regulatory authority under the Commerce Clause,
the District Court held that the pond was "navigable
water of the United States," subject to regulation by
the Corps, but further held that the Government lacked authority
to open the pond to the public without payment of compensation
to the owner. The Court of Appeals agreed
that the pond fell within the scope of Congress' regulatory
authority, but held, reversing the District Court, that when
petitioners converted the pond into a marina and thereby connected
it to the bay, it became subject to the "navigational
servitude" of the Federal Government, thus giving the
public a right of access to what was once petitioners' private
pond.
Held:
If the Government wishes to make what was formerly
Kuapa Pond into a public aquatic park after petitioners have
proceeded as far as they have here, it may not, without invoking
its eminent domain power and paying just compensation, require
them to allow the public free access to the dredged pond. Although the dredged pond
falls within 165 the definition
of "navigable waters" as this Court has used that
term in delimiting the boundaries of Congress' regulatory
authority under the Commerce Clause, this Court has never
held that the federal navigational servitude creates a blanket
exception to the Takings Clause of the Fifth Amendment whenever
Congress exercises its Commerce Clause authority to promote
navigation. Congress,
in light of its extensive Commerce Clause authority over this
Nation's waters, which does not depend on a stream's "navigability,"
may prescribe rules governing petitioners' marina and may
assure the public a free right of access to the marina if
it so chooses, but whether a statute or regulation that goes
so far amounts to a "taking" is an entirely separate
question. Here
the Government's attempt to create a public right of access
to the improved pond goes so far beyond ordinary regulation
or improvement for navigation involved in typical riparian
condemnation cases as to amount to a taking requiring just
compensation.
Cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43
S.Ct. 158, 67 L.Ed. 322.
Pp. 387-393.
584
F.2d 378, reversed.
Richard
Charles Bocken, Honolulu, Hawaii, for petitioners.
Kathryn
A. Oberly, Washington, D. C., for respondent.
Mr.
Justice REHNQUIST delivered the opinion of the Court.
The
Hawaii Kai Marina was developed by the dredging and filling
of Kuapa Pond, which was a shallow lagoon separated from Maunalua
Bay and the Pacific Ocean by a barrier beach.
Although under Hawaii law Kuapa Pond was private property,
the Court of Appeals for the Ninth Circuit held that
166 when petitioners converted the
pond into a marina and thereby connected it to the bay, it
became subject to the "navigational servitude" of
the Federal Government.
Thus, the public acquired a right of access to what
was once petitioners' private pond. We granted certiorari
because of the importance of the issue and a conflict concerning
the scope and nature of the servitude. [FN1]
440 U.S. 906, 99 S.Ct. 1211, 59 L.Ed.2d 453 (1979).
FN1.
In the companion to this case, Vaughn v. Vermilion Corp.,
444 U.S. 206, 100 S.Ct. 399, 62 L.Ed.2d 365, the Louisiana
Court of Appeal held that privately constructed canals, connected
to navigable waters of the United States, navigable in fact,
and used for commerce, are not subject to the federal navigational
servitude. 356
So.2d 551, writ denied, La., 357 So.2d 558 (1978).
I
Kuapa Pond
was apparently created in the late Pleistocene Period, near
the end of the ice age, when the rising sea level caused the
shoreline to retreat, and partial erosion of the headlands
adjacent to the bay formed sediment that accreted to form
a barrier beach at the mouth of the pond, creating a lagoon.
It covered 523 acres on the island of Oahu, Hawaii, and extended
approximately two miles inland from Maunalua Bay and the Pacific
Ocean. The
pond was contiguous to the bay, which is a navigable waterway
of the United States, but was separated from it by the barrier
beach.
Early Hawaiians
used the lagoon as a fishpond and reinforced the natural sandbar
with stone walls.
Prior to the annexation of Hawaii, there were two openings
from the pond to Maunalua Bay.
The fishpond's managers placed removable sluice gates
in the stone walls across these openings.
Water from the bay and ocean entered the pond through
the gates during high tide, and during low tide the current
flow reversed toward the ocean.
The Hawaiians used the tidal action to raise and catch
fish such as mullet.
Kuapa Pond,
and other Hawaiian fishponds, have always been considered
to be private property by landowners and by the Hawaiian government.
Such ponds were once an integral part of the Hawaiian
feudal system.
And in 1848 they were
167 allotted as parts of large land
units, known as "ahupuaas," by King Kamehameha III
during the Great Mahele or royal land division.
Titles to the fishponds were recognized to the same
extent and in the same manner as rights in more orthodox fast
land. Kuapa
Pond was part of an ahupuaa that eventually vested in Bernice
Pauahi Bishop and on her death formed a part of the trust
corpus of petitioner Bishop Estate, the present owner.
In 1961, Bishop
Estate leased a 6,000-acre area, which included Kuapa Pond,
to petitioner Kaiser Aetna for subdivision development.
The development is now known as "Hawaii Kai."
Kaiser Aetna dredged and filled parts of Kuapa Pond,
erected retaining walls and built bridges within the development
to create the Hawaii Kai Marina. Kaiser Aetna increased the
average depth of the channel from two to six feet.
It also created accommodations for pleasure boats and
eliminated the sluice gates.
When petitioners
notified the Army Corps of Engineers of their plans in 1961,
the Corps advised them they were not required to obtain permits
for the development of and operations in Kuapa Pond. Kaiser Aetna subsequently
informed the Corps that it planned to dredge an 8-foot-deep
channel connecting Kuapa Pond to Maunalua Bay and the Pacific
Ocean, and to increase the clearance of a bridge of the Kalanianaole
Highway -- which had been constructed during the early 1900's
along the barrier beach separating Kuapa Pond from the bay
and ocean -- to a maximum of 13.5 feet over the mean sea level.
These improvements were made in order to allow boats
from the marina to enter into and return from the bay, as
well as to provide better waters.
The Corps acquiesced in the proposals, its chief of
construction commenting only that the "deepening of the
channel may cause erosion of the beach."
At the time
of trial, a marina-style community of approximately 22,000
persons surrounded Kuapa Pond.
It included approximately 1,500 marina waterfront lot
lessees. The
waterfront 168 lot lessees,
along with at least 86 nonmarina lot lessees from Hawaii Kai
and 56 boat owners who are not residents of Hawaii Kai, pay
fees for maintenance of the pond and for patrol boats that
remove floating debris, enforce boating regulations, and maintain
the privacy and security of the pond.
Kaiser Aetna controls access to and use of the marina.
It has generally not permitted commercial use, except for
a small vessel, the Marina Queen, which could carry 25 passengers
and was used for about five years to promote sales of marina
lots and for a brief period by
marina shopping center merchants to attract people to
their shopping facilities.
In 1972, a
dispute arose between petitioners and the Corps concerning
whether (1) petitioners
were required to obtain authorization from the Corps, in accordance
with § 10 of the Rivers and Harbors Appropriation Act of 1899,
33 U.S.C. § 403, [FN2] for future construction, excavation,
or filling in the marina, and (2) petitioners were precluded
from denying the public access to the pond because, as a result
of the improvements, it had become a navigable water of the
United States.
The dispute foreseeably ripened into a lawsuit by the
United States Government against petitioners in the United
States 169
District Court for the District of Hawaii.
In examining the scope of Congress' regulatory authority
under the Commerce Clause, the District Court held that the
pond was "navigable water of the United States"
and thus subject to regulation by the Corps under § 10 of
the Rivers and Harbors Appropriation Act.
408 F.Supp. 42, 53 (D.Haw.1976).
It further held, however, that the Government lacked
the authority to open the now dredged pond to the public without
payment of compensation to the owner.
Id., at 54. In reaching this holding,
the District Court reasoned that although the pond was navigable
for the purpose of delimiting Congress' regulatory power,
it was not navigable for the purpose of defining the scope
of the federal "navigational servitude" imposed
by the Commerce Clause.
Ibid. Thus,
the District Court denied the Corps' request for an injunction
to require petitioners to allow public access and to notify
the public of the fact of the pond's accessibility.
FN2.
Title 33 U.S.C. § 403 provides:
"The creation
of any obstruction not affirmatively authorized by Congress,
to the navigable capacity of any of the waters of the United
States is prohibited;
and it shall not be lawful to build or commence the
building of any wharf, pier, dolphin, boom, weir, breakwater,
bulkhead, jetty, or other structures in any port, roadstead,
haven, harbor, canal, navigable river, or other water of the
United States, outside established harbor lines, or where
no harbor lines have been established, except on plans recommended
by the Chief of Engineers and authorized by the Secretary
of the Army; and
it shall not be lawful to excavate or fill, or in any manner
to alter or modify the course, location, condition, or capacity
of, any port, roadstead, haven, harbor, canal, lake, harbor
of refuge, or inclosure within the limits of any breakwater,
or of the channel of any navigable water of the United States,
unless the work has been recommended by the Chief of Engineers
and authorized by the Secretary of the Army prior to beginning
the same."
The
Court of Appeals agreed with the District Court's conclusion
that the pond fell within the scope of Congress' regulatory
authority, but reversed the District Court's holding that
the navigational servitude did not require petitioners to
grant the public access to the pond.
584 F.2d 378 (1978). The Court of Appeals reasoned
that the "federal regulatory authority over navigable
waters . . .
and the right of public use cannot consistently be
separated. It
is the public right of navigational use that renders regulatory
control necessary in the public interest."
Id., at 383.
The question before us is whether the Court of Appeals
erred in holding that petitioners' improvements to Kuapa Pond
caused its original character to be so altered that it became
subject to an overriding federal navigational servitude, thus
converting into a public aquatic park that which petitioners
had invested millions of dollars in improving on the assumption
that it was a privately owned pond leased to Kaiser Aetna.
[FN3]
FN3. Petitioners
do not challenge the Court of Appeals' holding that the Hawaii
Kai Marina is within the scope of Congress' regulatory power
and subject to regulation by the Army Corps of Engineers pursuant
to its authority under § 10 of the Rivers and Harbors Appropriation
Act, 33 U.S.C. § 403.
170
II
The
Government contends that petitioners may not exclude members
of the public from the Hawaii Kai Marina because "[t]he
public enjoys a federally protected right of navigation over
the navigable waters of the United States."
Brief for United States 13.
It claims the issue in dispute is whether
Kuapa Pond is presently a "navigable water of the
United States." Ibid.
When petitioners dredged and improved Kuapa Pond, the
Government continues, the pond -- although it may once have
qualified as fast land -- became navigable water of the United
States. [FN4] The
public thereby acquired a right to use Kuapa Pond as a continuous
highway for navigation, and the Corps of Engineers may consequently
obtain an injunction to prevent petitioners from attempting
to reserve the waterway to themselves.
FN4. The Government
further argues:
"The fact
that the conversion was accomplished at private expense does
not exempt Kuapa Pond from the navigable waters of the United
States. To
allow landowners to dredge their fast lands and reshape the
navigable waters of the United States to more conveniently
serve their land, and then to exclude the public from the
navigable portions flowing over the site of former fast lands,
would unduly burden navigation and commerce.
The states lack the power under the Commerce Clause
to sanction any such form of private property.
. . ."
Brief for United States 14-15.
The
position advanced by the Government, and adopted by the Court
of Appeals below, presumes that the concept of "navigable
waters of the United States" has a fixed meaning that
remains unchanged in whatever context it is being applied.
While we do not fully agree with the reasoning of the
District Court, we do agree with its conclusion that all of
this Court's cases dealing with the authority of Congress
to regulate navigation and the so-called "navigational
servitude" cannot simply be lumped into one basket.
408 F.Supp., at
[171] 48-49.
As the District Court aptly stated, "any reliance
upon judicial precedent must be predicated upon careful appraisal
of the purpose for which the concept of 'navigability' was
invoked in a particular case."
Id., at 49. [FN5]
FN5. Petitioners
contend that the term "navigable waters of the United
States," which has been traditionally employed to identify
water subject to federal regulation and admiralty jurisdiction,
see infra, this page and 389, "is so inherently unworkable
with regard to Hawaiian fish ponds that it does not represent
a meaningful or equitable standard under which public and
private rights may be determined." Pet. for Cert. 8.
The efforts to distinguish "fast lands" from
public rights in waterways subject to the navigational servitude,
however, has been the subject of litigation for more than
a century, and in the absence of something more unusual than
the situation presented here it is the Hawaiian fishpond that
must fit into the decisions of this Court, rather than the
latter being tailored to exclude the fishpond.
[1][2]
It is true that Kuapa Pond may fit within definitions of "navigability"
articulated in past decisions of this Court.
But it must be recognized that the concept of navigability
in these decisions was used for purposes other than to delimit
the boundaries of the navigational servitude: for example,
to define the scope of Congress' regulatory authority under
the Interstate Commerce Clause, see, e. g., United States
v. Appalachian Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed.
243 (1940); South
Carolina v. Georgia, 93 U.S. 4, 23 L.Ed. 782 (1876);
The Montello, 20 Wall. 430, 22 L.Ed. 391 (1874);
The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999 (1871),
to determine the extent of the authority of the Corps of Engineers
under the Rivers and Harbors Appropriation Act of 1899, [FN6]
and to 172
establish the limits of the jurisdiction
of federal courts conferred by Art. III, § 2, of the United
States Constitution over admiralty and maritime cases. [FN7]
Although the Government is clearly correct in maintaining
that the now dredged Kuapa Pond falls within the definition
of "navigable waters" as this Court has used that
term in delimiting the boundaries of Congress' regulatory
authority under the Commerce Clause, see, e. g., The Daniel
Ball, supra, 10 Wall., at 563;
The Montello, supra, 20 Wall., at 441-442; United States
v. Appalachian Power Co., supra, 311 U.S., at 407-408, 61
S.Ct., at 299-300, this Court has never held that the navigational
servitude creates a blanket exception to the Takings Clause
whenever Congress exercises its Commerce Clause authority
to promote navigation. Thus, while Kuapa Pond may
be subject to regulation by the Corps of Engineers, acting
under the authority delegated it by Congress in the Rivers
173 and Harbors Appropriation Act,
it does not follow that the pond is also subject to a public
right of access.
FN6. See, e. g.,
United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct.
884, 4 L.Ed.2d 903 (1960) (deposit of industrial solids into
river held to create an "obstruction" to the "navigable
capacity" of the river forbidden by § 10 of the Rivers
and Harbors Appropriation Act of 1899).
The Corps of Engineers
has adopted the following general definition of "navigable
waters":
"Navigable
waters of the United States are those waters that are subject
to the ebb and flow of the tide and/or are presently used,
or have been used in the past, or may be susceptible for use
to transport interstate or foreign commerce.
A determination of navigability, once made, applies
laterally over the entire surface of the waterbody, and is
not extinguished by later actions or events which impede or
destroy navigable capacity." 33 CFR § 329.4 (1978).
FN7. "Navigable
water" subject to federal admiralty jurisdiction was
defined as including waters that are navigable in fact in
The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 13 L.Ed.
1058 (1852). See
also, e. g., The Belfast, 7 Wall. 624, 19 L.Ed. 266 (1869).
And in Ex parte Boyer, 109 U.S. 629, 3 S.Ct. 434, 27
L.Ed. 1056 (1884), this Court held that such jurisdiction
extended to artificial bodies of water: "Navigable water
situated as this canal is, used for the purposes for which
it is used, -- a highway for commerce between ports and places
in different states, carried on by vessels such as those in
question here, -- is public water of the United States, and
within the legitimate scope of the admiralty jurisdiction
conferred by the constitution and statutes of the United States,
even though the canal is wholly artificial, and is wholly
within the body of a state, and subject to its ownership and
control; and
it makes no difference as to the jurisdiction of the district
court that one or the other of the vessels was at the time
of the collision on a voyage from one place in the state of
Illinois to another place in that state."
Id., at 632, 3 S.Ct., at 435-36.
Congress, pursuant
to its authority under the Necessary and Proper Clause of
Art. I to enact laws carrying into execution the powers vested
in other departments of the Federal Government, has also been
recognized as having the power to legislate with regard to
matters concerning admiralty and maritime cases.
Butler v. Boston S.S. Co., 130 U.S. 527, 557, 9 S.Ct.
612, 619, 32 L.Ed. 1017 (1889).
See also, e. g., In re Garnett, 141 U.S. 1, 12, 11
S.Ct. 840, 842, 35 L.Ed. 631 (1891).
A
[3]
Reference to the navigability of a waterway adds little if
anything to the breadth of Congress' regulatory power over
interstate commerce.
It has long been settled that Congress has extensive
authority over this Nation's waters under the Commerce Clause.
Early in our history this Court held that the power
to regulate commerce necessarily includes power over navigation.
Gibbons v. Ogden, 9 Wheat. 1, 189, 6 L.Ed. 23 (1824).
As stated in Gilman v. Philadelphia, 3 Wall. 713, 724‑725,
18 L.Ed. 96 (1866):
"Commerce
includes navigation.
The power to regulate commerce comprehends the control
for that purpose, and to the extent necessary, of all the
navigable waters of the United States which are accessible
from a State other than those in which they lie.
For this purpose they are the public property of the
nation, and subject to all the requisite legislation by Congress."
The
pervasive nature of Congress' regulatory authority over national
waters was more fully described in United States v. Appalachian
Power Co., supra, 311 U.S., at 426-427, 61 S.Ct., at 308:
"[I]t
cannot properly be said that the constitutional power of the
United States over its waters is limited to control for navigation. . . .
In truth the authority of the United States is the
regulation of commerce on its waters.
Navigability
. . . is
but a part of this whole.
Flood protection, watershed development, recovery of
the cost of improvements through utilization of power are
likewise parts of commerce control.
. . . [The]
authority is as broad as the needs of commerce.
. . . The
point is that navigable waters are subject to national planning
and control in the broad regulation of commerce granted the
Federal Government."
174
Appalachian Power Co. indicates
that congressional authority over the waters of this
Nation does not depend on a stream's "navigability."
And, as demonstrated by this Court's decisions in NLRB
v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct.
615, 81 L.Ed. 893 (1937), United States v. Darby, 312 U.S.
100, 657, 61 S.Ct. 451, 85 L.Ed. 609 (1941), and Wickard v.
Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), a
wide spectrum of economic activities "affect" interstate
commerce and thus are susceptible of congressional regulation
under the Commerce Clause irrespective of whether navigation,
or, indeed, water, is involved.
The cases that discuss Congress' paramount authority
to regulate waters used in interstate commerce are consequently
best understood when viewed in terms of more traditional Commerce
Clause analysis than by reference to whether the stream in
fact is capable of supporting navigation or may be characterized
as "navigable water of the United States." With respect to the Hawaii
Kai Marina, for example, there is no doubt that Congress may
prescribe the rules of the road, define the conditions under
which running lights shall be displayed, require the removal
of obstructions to navigation, and exercise its authority
for such other reason as may seem to it in the interest of
furthering navigation or commerce.
B
In
light of its expansive authority under the Commerce Clause,
there is no question but that Congress could assure the public
a free right of access to the Hawaii Kai Marina if it so chose.
Whether a statute or regulation that went so far amounted
to a "taking," however, is an entirely separate
question. [FN8] Pennsylvania
Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67
L.Ed. 322 (1922).
As was recently pointed out in Penn Central Transportation
Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d
631 (1978), 175
this Court has generally "been unable to develop any
'set formula' for determining when 'justice and fairness'
require that economic injuries caused by public action be
compensated by the government, rather than remain disproportionately
concentrated on a few persons."
Id., at 124, 98 S.Ct., at 2659.
Rather, it has examined the "taking" question
by engaging in essentially ad hoc, factual inquiries that
have identified several factors -- such as the economic impact
of the regulation, its interference with reasonable investment
backed expectations, and the character of the governmental
action -- that have particular significance.
Ibid. When
the "taking" question has involved the exercise
of the public right of navigation over interstate waters that
constitute highways for commerce, however, this Court has
held in many cases that compensation may not be required as
a result of the federal navigational servitude.
See, e. g., United States v. Chandler-Dunbar Co., 229
U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (1913).
FN8.
Thus, this Court has observed that "[c]onfiscation may
result from a taking of the use of property without compensation
quite as well as from the taking of the title."
Chicago, R. I. & P. R. Co. v. United States, 284
U.S. 80, 96, 52 S.Ct. 87, 92, 76 L.Ed. 177 (1931).
C
[4]
The navigational servitude is an expression of the notion
that the determination whether a taking has occurred must
take into consideration the important public interest in the
flow of interstate waters that in their natural condition
are in fact capable of supporting public navigation. See United States v. Cress,
243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917). Thus, in
United States v. Chandler-Dunbar Co., supra, 229 U.S., at
69, 33 S.Ct., at 674, this Court stated that "the running
water in a great navigable stream is [incapable] of private
ownership . . . ."
And, in holding that a riparian landowner was not entitled
to compensation when the construction of a pier cut off his
access to navigable water, this Court observed:
"The
primary use of the waters and the lands under them is for
purposes of navigation, and the erection of piers in them
to improve navigation for the public is entirely consistent
with such use, and infringes no right of the riparian owner.
Whatever the nature of the interest of
176 a riparian owner in the submerged
lands in front of his upland bordering on a public navigable
water, his title is not as full and complete as his title
to fast land which has no direct connection with the navigation
of such water.
It is a qualified title, a bare technical title, not
at his absolute disposal, as is his upland, but to be held
at all times subordinate to such use of the submerged lands
and of the waters flowing over them as may be consistent with
or demanded by the public right of navigation."
Scranton v. Wheeler, 179 U.S. 141, 163, 21 S.Ct. 48,
57, 45 L.Ed. 126 (1900).
For over a
century, a long line of cases decided by this Court involving
Government condemnation of "fast lands" delineated
the elements of compensable damages that the Government was
required to pay because the lands were riparian to navigable
streams. The
Court was often deeply divided, and the results frequently
turned on what could fairly be described as quite narrow distinctions.
But this is not a case in which the Government recognizes
any obligation whatever to condemn "fast lands"
and pay just compensation under the Eminent Domain Clause
of the Fifth Amendment to the United States Constitution.
It is instead a case in which the owner of what was
once a private pond, separated from concededly navigable water
by a barrier beach and used for aquatic agriculture, has invested
substantial amounts of money in making improvements.
The Government contends that as a result of one of
these improvements, the pond's connection to the navigable
water in a manner approved by the Corps of Engineers, the
owner has somehow lost one of the most essential sticks in
the bundle of rights that are commonly characterized as property
-- the right to exclude others.
Because the
factual situation in this case is so different from typical
ones involved in riparian condemnation cases, we see little
point in tracing the historical development of that doctrine
here. Indeed,
since this Court's decision in United States v. Rands, 389
U.S. 121, 123, 88 S.Ct. 265, 266, 19 L.Ed.2d 329 (1967), closely
following its decisions in United States v. Virginia Electric
& 177
Power Co., 365 U.S. 624, 628, 81 S.Ct.
784, 788, 5 L.Ed.2d 838 (1961), and United States v. Twin
City Power Co., 350 U.S. 222, 226, 76 S.Ct. 259, 261, 100
L.Ed. 240 (1956), the elements of compensation for which the
Government must pay when it condemns fast lands riparian to
a navigable stream have remained largely settled.
Distinctions between cases such as these, on the one
hand, and United States v. Kansas City Life Ins. Co., 339
U.S. 799, 808, 70 S.Ct. 885, 890, 94 L.Ed. 1277 (1950), may
seem fine, indeed, in the light of hindsight, but perhaps
for the very reason that it is hindsight which we now exercise,
the 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."
There
is no denying that the strict logic of the more recent cases
limiting the Government's liability to pay damages for riparian
access, if carried to its ultimate conclusion, might completely
swallow up any private claim for "just compensation"
under the Fifth Amendment even in a situation as different
from the riparian condemnation cases as this one.
But, as Mr. Justice Holmes observed in a very different
context, the life of the law has not been logic, it has been
experience. The
navigational servitude, which exists by virtue of the Commerce
Clause in navigable streams, gives rise to an authority in
the Government to assure that such streams retain their capacity
to serve as continuous highways for the purpose of navigation
in interstate commerce. Thus, when the Government acquires
fast lands to improve navigation, it is not required under
the Eminent Domain Clause to compensate landowners for certain
elements of damage attributable to riparian location, such
as the land's value as a hydroelectric site, Twin City Power
Co., supra, or a port site, United States v. Rands, supra. But none of these cases ever
doubted that when the Government wished to acquire fast
lands, it was required by the Eminent Domain Clause of the
Fifth Amendment to condemn and pay fair value for that interest.
See United States v. Kansas City Life Ins. Co., supra,
339 U.S., at 800, 70 S.Ct., at 886;
United States v. Virginia Electric & Power Co.,
[178] supra,
365 U.S., at 628, 81 S.Ct., at 788; United States v. Rands,
supra, 389 U.S., at 123, 88 S.Ct., at 266.
The nature of the navigational servitude when invoked
by the Government in condemnation cases is summarized as well
as anywhere in United States v. Willow River Co., 324 U.S.
499, 502, 65 S.Ct. 761, 764, 89 L.Ed. 1101 (1945):
"It
is clear, of course, that a head of water has value and that
the Company has an economic interest in keeping the St. Croix
at the lower level.
But not all economic interests are 'property rights';
only those economic advantages are 'rights' which have
the law back of them, and only when they are so recognized
may courts compel others to forbear from interfering with
them or to compensate for their invasion."
We
think, however, that when the Government makes the naked assertion
it does here, that assertion collides with not merely an "economic
advantage" but an "economic advantage" that
has the law back of it to such an extent that courts may "compel
others to forbear from interfering with [it] or to compensate
for [its] invasion."
United States v. Willow River Co., supra, at 502, 65
S.Ct., at 764.
Here,
the Government's attempt to create a public right of access
to the improved pond goes so far beyond ordinary regulation
or improvement for navigation as to amount to a taking under
the logic of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
43 S.Ct. 158, 67 L.Ed. 322 (1922).
More than one factor contributes to this result. [FN9]
It is clear that prior to its improvement, Kuapa Pond
was incapable of being used as a continuous highway for the
purpose of navigation in interstate commerce.
Its maximum depth at high tide was a mere two feet,
it was separated from the adjacent bay and ocean by a natural
barrier beach, and its principal commercial value was limited
to fishing. [FN10] It
179
consequently is not the sort of "great
navigable stream" that this Court has previously recognized
as being "[incapable] of private ownership."
See, e. g., United States v. Chandler-Dunbar Co., 229
U.S., at 69, 33 S.Ct., at 674;
United States v. Twin City Power Co., supra, at 228,
76 S.Ct., at 262.
And, as previously noted, Kuapa Pond has always been
considered to be private property under Hawaiian law.
Thus, the interest of petitioners in the now dredged
marina is strikingly similar to that of owners of fast land
adjacent to navigable water.
FN9.
We do not decide, however, whether in some circumstances one
of these factors by itself may be dispositive.
FN10.
While it was still a fishpond, a few flat-bottomed shallow
draft boats were operated by the fishermen in their work.
There is no evidence, however, that even these boats
could acquire access to the adjacent bay and ocean from the
pond. Although Kuapa Pond clearly was not navigable in fact
in its natural state, the dissent argue that the pond nevertheless
was "navigable water of the United States" prior
to its development because it was subject to the ebb and flow
of the tide. Post,
at 393, 394, 396.
This Court has never held, however, that whenever a
body of water satisfies this mechanical test, the Government
may invoke the "navigational servitude" to avoid
payment of just compensation irrespective of the private interests
at stake.
We have not
the slightest doubt that the Government could have refused
to allow such dredging on the ground that it would have impaired
navigation in the bay, or could have conditioned its approval
of the dredging on petitioners' agreement to comply with various
measures that it deemed appropriate for the promotion of navigation.
But what petitioners now have is a body of water that
was private property under Hawaiian law, linked to navigable
water by a channel dredged by them with the consent of the
Government. While
the consent of individual officials representing the United
States cannot "estop" the United States, see Montana
v. Kennedy, 366 U.S. 308, 314-315, 81 S.Ct. 1336, 1340-1341,
6 L.Ed.2d 313 (1961);
INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7
(1973), it can lead to the fruition of a number of expectancies
embodied in the concept of "property" -- expectancies
that, if sufficiently important, the Government must condemn
and pay for before it takes over the management of the landowner's
property. In this case, we hold that
the "right to exclude," so universally held to be
a fundamental element of 180 the property
right, [FN11] falls within this category of interests that
the Government cannot take without compensation.
This is not a case in which the Government is exercising
its regulatory power in a manner that will cause an insubstantial
devaluation of petitioners' private property;
rather, the imposition of the navigational servitude
in this context will result in an actual physical invasion
of the privately owned marina.
Compare Andrus v. Allard, 444 U.S. 51 at 65-66, 100
S.Ct. 318, at 326-327, 62 L.Ed.2d 210, with the traditional
taking of fee interests in United States ex rel. TVA v. Powelson,
319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943), and in
United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed.
336 (1943). And
even if the Government physically invades only an easement
in property, it must nonetheless pay just compensation.
SeeUnited States v. Causby, 328 U.S. 256, 265, 66 S.Ct.
1062, 1067, 90 L.Ed. 1206 (1946);
Portsmouth Co. v. United States, 260 U.S. 327, 43 S.Ct.
135, 67 L.Ed. 287 (1922).
Thus, if the Government wishes to make what was formerly
Kuapa Pond into a public aquatic park after petitioners have
proceeded as far as they have here, it may not, without invoking
its eminent domain power and paying just compensation, require
them to allow free access to the dredged pond while petitioners'
agreement with their customers calls for an annual $72 regular
fee.
FN11.
See, e. g., United States v. Pueblo of San Ildefonso, 513
F.2d 1383, 1394, 206 Ct.Cl. 649, 669-670 (1975);
United States v. Lutz, 295 F.2d 736, 740 (CA5 1961).
As stated by Mr. Justice Brandeis, "[a]n essential
element of individual property is the legal right to exclude
others from enjoying it."
International News Service v. Associated Press, 248
U.S. 215, 250, 39 S.Ct. 68, 76, 63 L.Ed. 211 (1918) (dissenting
opinion).
Accordingly
the judgment of the Court of Appeals is
Reversed.
Mr. Justice
BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL
join, dissenting.
The Court
holds today that, absent compensation, the public may be denied
a right of access to "navigable waters of the 181 United States"
that have been created or enhanced by private means.
I find that conclusion neither supported in precedent
nor wise in judicial policy, and I dissent.
My disagreement
with the Court lies in four areas.
First, I believe the Court errs by implicitly rejecting
the old and long-established "ebb and flow" test
of navigability as a source for the navigational servitude
the Government claims.
Second, I cannot accept the notion, which I believe
to be without foundation in precedent, that the federal "navigational
servitude" does not extend to all "navigable waters
of the United States."
Third, I reach a different balance of interests on
the question whether the exercise of the servitude in favor
of public access requires compensation to private interests
where private efforts are responsible for creating "navigability
in fact." And finally, I differ on the bearing that state
property law has on the questions before us today.
I
The first
issue, in my view, is whether Kuapa Pond is "navigable
water of the United States," and, if so, why.
The Court begins by asking "whether
. . . petitioners' improvements to Kuapa Pond caused
its original character to be so altered that it became subject
to an overriding federal navigational servitude."
Ante, at 387.
It thus assumes that the only basis for extension of
federal authority must have arisen after the pond was "developed"
and transformed into a marina. This choice of starting point
overlooks the Government's contention, advanced throughout
this litigation, that Kuapa pond was navigable water in its
natural state, long prior to petitioners' improvements, by
virtue of its susceptibility to the ebb and flow of the tide.
[FN1]
FN1. The District
Court found that "the Pacific tides ebbed and flowed
over Kuapa Pond in its pre-marina state."
408 F.Supp. 42, 50 (D.Haw.1976).
The tide entered through two openings in the barrier
beach; it also
percolated through the barrier beach itself.
Id., at 46. Although
"[l]arge areas of land at the inland end were completely
exposed at low tide," the entire pond was inundated at
high tide. Ibid.
182
The Court concedes that precedent does
not disclose a single criterion for identifying "navigable
waters."
I read our prior cases to establish three distinct
tests: "navigability
in fact," "navigable capacity," and "ebb
and flow" of the tide.
Navigability in fact has been used as a test for the
scope of the dominant federal interest in navigation since
The Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 457,
13 L.Ed. 1058 (1852), and The Daniel Ball, 10 Wall. 557, 563,
19 L.Ed. 999 (1871).
The test of navigable capacity is of more recent origin;
it hails from United States v. Appalachian Power Co.,
311 U.S. 377, 407-408, 61 S.Ct. 291, 299-300, 85 L.Ed. 243
(1940), where it was used to support assertion of the federal
navigational interest over a river nonnavigable in its natural
state but capable of being rendered fit for navigation by
"reasonable improvements."
Ebb and flow is the oldest test of the three. It was inherited from England,
where under common law it was used to define ownership of
navigable waters by the Crown.
In the early days of the Republic, it was regarded
as the exclusive test of federal jurisdiction over the waterways
of this country.
See The Thomas Jefferson, 10 Wheat. 428, 429, 6 L.Ed.
358 (1825); Waring v. Clarke, 5 How. 441, 463-464,
12 L.Ed. 226 (1847).
Petitioners
say that the ebb-and-flow test was abandoned in The Propeller
Genesee Chief and The Daniel Ball in favor of navigability
in fact. I
do not agree with that interpretation. It is based upon language
in those opinions suggesting that the test is "arbitrary,"
that it bears no relation to what is "suitable"
for federal control, that it "has no application in this
country," and indeed that it is not "any test at
all." See
The Propeller Genesee Chief v. Fitzhugh, 12 How., at 454;
The Daniel Ball, 10 Wall., at 563.
One may acknowledge the language without accepting
petitioners' inference.
The Propeller Genesee Chief and The Daniel Ball were
concerned with extending federal power to accommodate the
stark realities of
183 fresh-water commerce.
In the former the question was whether admiralty jurisdiction
included the Great Lakes.
In the latter the question was the scope of federal
regulatory power over navigation on a river. In either case it is not
surprising that the Court, contemplating the substantial interstate
fresh-water commerce on our lakes and rivers, found a test
developed in England, an island nation with no analogue to
our rivers and lakes, unacceptable as a test for the extent
of federal power over these inland waterways.
Cf. The Propeller Genesee Chief v. Fitzhugh, 12 How.,
at 454-457. But
the inadequacy of the test for defining the interior reach
of federal power over navigation does not mean that the test
must be, or must have been, abandoned for determining the
breadth of federal power on our coasts.
The
ebb-and-flow test is neither arbitrary nor unsuitable when
applied in a coastwise setting.
The ebb and flow of the tide define the geographical,
chemical, and environmental limits of the three oceans and
the Gulf that wash our shores.
Since those bodies of water in the main are navigable,
they should be treated as navigable to the inner reach of
their natural limits. Those natural limits encompass a water
body such as Kuapa Pond, which is contiguous to Maunalua Bay,
and which in its natural state must be regarded as an arm
of the sea, subject to its tides and currents as
much as the Bay itself.
I
take it the Court must concede that, at least for regulatory
purposes, the pond in its current condition is "navigable
water" because it is now "navigable in fact."
See ante, at 389.
I would add that the pond was "navigable water"
prior to development of the present marina because it was
subject to the ebb and flow of the tide. In view of the importance
the Court attaches to the fact of private development, [FN2]
184 this alternative basis for navigability
carries significant implications. [FN3]
FN2. The Court's
opinion also embraces, distressingly for me, an implication
that the amount of the private investment somehow influences
the legal result. Ante,
at 386, 387, and 393.
I would think that the consequences would be the same
whether the developer invested $100 or, as the Court stresses,
ante, at 387, "millions of dollars."
FN3. Essentially
for the reasons stated by the District Court, 408 F.Supp.,
at 49-50, I stop short of agreeing with the Government's contention
that the pond has been shown to be navigable under the Appalachian
Power test. Although
petitioners found it "reasonable" to deepen the
pond for private development of the surrounding land, it does
not follow that the same improvements would be equally "reasonable"
if
viewed solely in terms of benefits to navigational
commerce.
II
A
more serious parting of ways attends the question whether
the navigational servitude extends to all "navigable
waters of the United States," however the latter may
be established. [FN4]
The Court holds that it does not, at least where navigability
is in whole or in part the work of private hands.
I disagree.
FN4. In addressing
this question, we quickly may cast aside any distinction based
on the qualifying phrase "of the United States."
As prior cases demonstrate, this phrase is intended
to draw the line between waters that may be navigated only
intrastate, and those that are subject to navigation in interstate
and foreign commerce.
See, e. g., United States v. Utah, 283 U.S. 64, 75,
51 S.Ct. 438, 440, 75 L.Ed. 844 (1931); The Daniel Ball, 10
Wall. 557, 563, 19 L.Ed. 999 (1871).
Since Kuapa Pond opens onto a bay of the Pacific Ocean,
there can be no doubt that it may be navigated in interstate
and foreign commerce.
The
Court notes that the tests of navigability I have set forth
originated in cases involving questions of federal regulation
rather than application of the navigational servitude.
Ante, at 388-389.
It also notes that Congress has authority to regulate
in aid of navigation far beyond the limitations of "navigability."
Ante, at 389-390.
From these indisputable propositions the Court concludes
that "navigable waters" for these other purposes
need not be the same as the "navigable waters" to
which the navigational servitude applies.
Preliminarily,
it must be recognized that the issue is not whether the navigational
servitude runs to every watercourse over which the Federal
Government may exercise its regulatory
185
power to promote navigation. Regulatory
jurisdiction "in aid of" navigation extends beyond
the navigational servitude, and indeed beyond navigable water
itself. In
United States v. Rio Grande Dam & Irrig. Co., 174 U.S.
690, 707-710, 19 S.Ct. 770, 776-777, 43 L.Ed. 1136 (1899),
for example, the Court confirmed the Federal Government's
power to enjoin an irrigation project above the limits of
navigable water on the Rio Grande River because that project
threatened to destroy navigability below.
But this is not such a case.
Federal authority over Kuapa Pond
does not stem solely from an effect on navigable water elsewhere,
although this might be a sound alternative basis for regulatory
jurisdiction.
Instead, the authority arises because the pond itself
is navigable water.
Nor
does it advance analysis to suggest that we might decide to
call certain waters "navigable" for some purposes,
but "non-navigable" for purposes of the navigational
servitude. See
ante, at 387-388.
To my knowledge, no case has ever so held.
Although tests of navigability have originated in other
contexts, prior cases have never attempted to limit any test
of navigability to a single species of federal power.
Indeed, often
they have referred to "navigable" water as "public"
water. See,
e. g., The Propeller Genesee Chief v. Fitzhugh, 12 How., at
455, 457; The
Daniel Ball, 10 Wall., at 563.
In any event, to say that Kuapa Pond is somehow "nonnavigable"
for present purposes, and that it is not subject to the navigational
servitude for this reason, is merely to substitute one conclusion
for another. To
sustain its holding today, I believe that the Court must prove
the more difficult contention that the navigational servitude
does not extend to waters that are clearly navigable and fully
subject to use as a highway for interstate commerce.
The
Court holds, in essence, that the extent of the servitude
does not depend on whether a waterway is navigable under any
of the tests, but on whether the navigable waterway is "natural"
or privately developed.
In view of the fact that
186
Kuapa Pond originally was created by
natural forces, and that its separation from the Bay has been
maintained by the interaction of natural forces and human
effort, neither characterization seems particularly apt in
this case. [FN5] One
could accept the Court's approach, however, and still find
that the servitude extends to Kuapa Pond, by virtue of its
status prior to development under the ebb-and-flow test.
Nevertheless, I think the Court's reasoning on this
point is flawed.
In my view, the power we describe by the term "navigational
servitude" extends to the limits of interstate commerce
by water; accordingly,
I would hold that it is coextensive with the "navigable
waters of the United States."
FN5. The natural
and human contributions to the character of the pond are described
by the District Court.
See 408 F.Supp., at 46.
As
the Court recognizes, ante, at 390, the navigational servitude
symbolizes the dominant federal interest in navigation implanted
in the Commerce Clause.
See Scranton v. Wheeler, 179 U.S. 141, 159-163, 21
S.Ct. 48, 55-57, 45 L.Ed. 126 (1900);
cf. Gibbons v. Ogden, 9 Wheat. 1, 189-190, 6 L.Ed.
23 (1824). To
preserve this interest, the National Government has been given
the power not only to regulate interstate commerce by water,
but also to control the waters themselves, and to maintain
them as "common highways,
. . . forever
free." See
the Act of Aug. 7, 1789, 1 Stat. 50, 52, n. (a) (navigable
waters in Northwest Territory). See United States v. Chandler-Dunbar
Co., 229 U.S. 53, 62-64, 33 S.Ct. 667, 671-672, 57 L.Ed. 1063
(1913); Gilman
v. Philadelphia, 3 Wall. 713, 724-725, 18 L.Ed. 96 (1866).
The National Government is guardian of a public right of access
to navigable waters of the United States.
The navigational servitude is the legal formula by
which we recognize the paramount nature of this governmental
responsibility.
The
Court often has observed the breadth of federal power in this
context. In United
States v. Twin City Power Co., 350 U.S. 222, 76 S.Ct. 259,
100 L.Ed. 240 (1956), for example, it stated:
"The
interest of the United States in the flow of a navigable stream
originates in the Commerce Clause. 187
That Clause speaks in terms of power,
not of property.
But the power is a dominant one which can be asserted
to the exclusion of any competing or conflicting one.
The power is a privilege which we have called 'a dominant
servitude' or 'a superior navigation easement.' "
(Citations omitted.)
Id., at 224-225, 76 S.Ct., at 261.
Perhaps with
somewhat different emphasis, the Court also has stated, in
cases involving navigable waters, that "the flow of the
stream [is] in no sense private property," United States
v. Chandler-Dunbar Co., 229 U.S., at 66, 33 S.Ct., at 673,
and that the waters themselves "are the public property
of the nation."
Gilman v. Philadelphia, 3 Wall., at 725.
The
Court in Twin City Power Co. recognized that what is at issue
is a matter of power, not of property.
The servitude, in order to safeguard the Federal Government's
paramount control over waters used in interstate commerce,
limits the power of
the States to create conflicting interests based on local
law. That
control does not depend on the form of the water body or the
manner in which it was created, but on the fact of navigability
and the corresponding commercial significance the waterway
attains. Wherever
that commerce can occur, be it Kuapa Pond or Honolulu Harbor,
the navigational servitude must extend.
III
The conclusion
that the navigational servitude extends to privately created
or enhanced waters does not entirely dispose of this case.
There remains the question whether the Government's
resort to the servitude requires compensation for private
investment instrumental in effecting or improving navigability.
The Court, of course, concludes that there is no navigational
servitude and, accordingly, that assertion of public access
constitutes a compensable taking. Because I do not agree with
the premise, I cannot conclude that the right to
188
compensation for opening the pond to
the public is a necessary result. Nevertheless, I think this
question requires a balancing of private and public interests.
Ordinarily,
"[w]hen the Government exercises [the navigational] servitude,
it is exercising its paramount power in the interest of navigation,
rather than taking the private property of anyone."
United States v. Kansas City Ins. Co., 339 U.S. 799,
808, 70 S.Ct. 885, 890, 94 L.Ed. 1277 (1950).
See also United States v. Willow River Co., 324 U.S.
499, 509-510, 65 S.Ct. 761, 767, 89 L.Ed. 1101 (1945);
Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82,
87-88, 33 S.Ct. 679, 680-681, 57 L.Ed. 1083 (1913);
Gibson v. United States, 166 U.S. 269, 276, 17 S.Ct.
578, 580, 41 L.Ed. 996 (1897).
The Court's prior cases usually have involved riparian
owners along navigable rivers who claim losses resulting from
the raising or lowering of water levels in the navigable stream,
or from the construction of artificial aids to navigation,
such as dams or locks.
In these cases the Court has held that no compensation
is required for loss in water power due to impairment of the
navigable water's flow, e. g., United States v. Twin City
Power Co., 350 U.S., at 226-227, 76 S.Ct., at 261-262;
United States v. Chandler-Dunbar Co., 229 U.S., at
65-66, 33 S.Ct., at 672-673;
for loss in "head" resulting from raising
the stream, United States v. Willow River Co., 324 U.S., at
507-511, 65 S.Ct., at 766-768;
for damage to structures erected between low-and high-water
marks, United States v. Chicago, M., St. P. & P. R. Co.,
312 U.S. 592, 595-597, 61 S.Ct. 772, 774-776, 85 L.Ed. 1064
(1941); for loss
of access to navigable water caused by necessary improvements,
United States v. Commodore Park, Inc., 324 U.S. 386, 390-391,
65 S.Ct. 803, 805-806, 89 L.Ed. 1017 (1945); Scranton v. Wheeler, 179 U.S.,
at 163, 21 S.Ct., at 57;
or for loss of value to adjoining land based on potential
use in navigational commerce, United States v. Rands, 389
U.S. 121, 124-125, 88 S.Ct. 265, 267-268, 19 L.Ed.2d 329 (1967).
The Court also has held that no compensation is required
when "obstructions," such as bridges or wharves,
are removed or altered to improve navigation, despite their
obvious commercial value to those who erected them, and despite
the Federal Government's original willingness to have them
built. See,
e. g., Greenleaf Lumber Co. v. Garrison, 237 U.S. 251, 256,
258-264, 35 S.Ct. 551, 552, 553-556, 59 L.Ed. 939
[189] 1915); Union Bridge Co. v.
United States, 204 U.S. 364, 400, 27 S.Ct. 367, 380, 51 L.Ed.
523 (1907). [FN6]
FN6.
There have been cases where compensation was required for
private investment in improvement of navigation.
Petitioners place particular reliance on Monongahela
Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622,
37 L.Ed. 463 (1893).
In that case, a private company had constructed locks
and dams along the Monongahela River in order to improve its
navigability.
The company acted under express authority
from the State of Pennsylvania, and at the invitation
of the United States.
Subsequently, Congress authorized the purchase or condemnation
of one lock and dam in connection with a project to improve
the upper waters of the river.
Congress did not authorize compensation for the right
to collect tolls.
The Court emphasized the Government's role in encouraging
the project, and held that, in consequence, "it does
not lie in the power of
. . . the
United States to say that such lock and dam are an obstruction,
and wrongfully there, or that the right to compensation for
the use of this improvement by the public does not belong
to its owner, the navigation company."
Id., at 335, 13 S.Ct., at 630.
Subsequent decisions have limited Monongahela Navigation
Co. to this rationale. See Lewis Blue Point Oyster Co. v.
Briggs, 229 U.S. 82, 89, 33 S.Ct. 679, 681, 57 L.Ed. 1083
(1913); Greenleaf
Lumber Co. v. Garrison, 237 U.S., at 265, 35 S.Ct., at 556;
cf. United States v. Rands, 389 U.S. 121, 126, 88 S.Ct.
265, 268, 19 L.Ed.2d 329 (1967). There is a striking difference
between Monongahela Navigation Co. and this case.
Although the Army Corps of Engineers originally may
have acquiesced in the improvement of Kuapa Pond, it did not
invite or actively encourage the development for the benefit
of public navigation.
The difference is significant.
In Monongahela Navigation Co. the United
States was required to compensate for the commercial
value of navigational improvements it had promoted.
In this case, in order to maintain uniformly free navigation,
the Government now must compensate for improvements it might
not have undertaken if it were at liberty independently to
assess the advisability of opening the pond to navigation.
These
cases establish a key principle that points the way for decision
in the present context.
In most of them, the noncompensable loss was related,
either directly or indirectly, to the riparian owner's "access
to, and use of, navigable waters."
United States v. Rands, 389 U.S., at 124-125, 88 S.Ct.,
at 268. However
that access or use may have been turned to account for personal
gain, and no matter how much the riparian owner had invested
to enhance the value, the Court held that these rights were
190
shared with the public at large.
Actions taken to improve their value for the many caused
no reimbursable damage to the few who, by the accident of
owning contiguous "fast land," previously enjoyed
the blessings of the common right in greater measure. See, e. g., United States
v. Commodore Park, Inc., 324 U.S., at 390-391, 88 S.Ct., at
805-806. The
Court recognized that encroachment on rights inhering separately
in the adjoining "fast land," United States v. Virginia
Electric Co., 365 U.S. 624, 628, 81 S.Ct. 784, 788, 5 L.Ed.2d
838 (1961), or resulting from access to nonnavigable tributaries,
see United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61
L.Ed. 746 (1917), might form the basis for a valid compensation
claim. But
the principal distinction was that these compensable values
had nothing to do with use of the navigable water.
Application
of this principle to the present case should lead to the conclusion
that the developers of Kuapa Pond have acted at their own
risk and are not entitled to compensation for the public access
the Government now asserts.
See Union Bridge Co. v. United States, 204 U.S., at
400, 27 S.Ct., at 380. The chief value of the pond
in its present state obviously is a value of access to navigable
water. Development
was undertaken to improve and enhance this value, not to improve
the value of the pond as some aquatic species of "fast
land." [FN7]
Petitioners do not question the Federal Government's
plenary control over the waters of the Bay, and they have
no vested right in access to its open water.
Since the value of the pond and the motive for improving
it lie in access to a highway of commerce, I am drawn to the
conclusion that the petitioners' interest in the improved
waters of the pond is not subject to compensation.
Whatever expectancy petitioners may have had in control
over the pond for use as a fishery was surrendered in exchange
for 191
the advantages of access when they cut a channel into the
Bay.
FN7.
I need not reach the question whether petitioners could have
been compensated for the value of the pond as a fishery if
the Government had decided, prior to development of Hawaii
Kai, either to cut off access to the Bay or to dredge the
pond. But
cf. United States v. Commodore Park, Inc., 324 U.S. 386, 390,
65 S.Ct. 803, 805, 89 L.Ed. 1017 (1945); Lewis Blue Point
Oyster Co. v. Briggs, 229 U.S. 82, 33 S.Ct. 679, 57 L.Ed.
1083 (1913).
In contrast,
the Government's interest in vindicating a public right of
access to the pond is substantial.
It is the very interest in maintaining "common
highways, . .
. forever free."
After today's decision, it is open to any developer
to claim that private
improvements to a waterway navigable in interstate commerce
have transformed "navigable water of the United States"
into private property, at least to the extent that he may
charge for access to the portion improved.
Such appropriation of navigable waters for private
use directly injures the freedom of commerce that the navigational
servitude is intended to safeguard.
In future cases, of course, the Army Corps of Engineers
may alleviate this danger by conditioning permission for connection
with other waterways on a right of free public access.
But it seems to me that the inevitable result of today's
decision is the introduction of new legal uncertainty in a
field where I had thought the "battles long ago,"
ante, at 391, had achieved some settled doctrine.
IV
I come, finally,
to the question whether Kuapa Pond's status under state law
ought to alter this conclusion drawn from federal law.
The Court assumes, without much discussion, that Kuapa
Pond is the equivalent of "fast land" for purposes
of Hawaii property law.
There is, to be sure, support for this assumption,
and for present purposes I am prepared to follow the Court
in making it.
See, e. g., In re Application of Kamakana, 58 Haw.
632, 574 P.2d 1346 (1978).
Nonetheless, I think it clear that local law concerns
rights of title and use between citizen and citizen, or between
citizen and state, but does not affect the scope or effect
of the federal navigational servitude.
The
rights in Kuapa fisheries that have been part of Hawaii law
since the Great Mahele are not unlike the right to the use
of the floor of a bay that was at issue in Lewis Blue Point
192
Oyster Co. v. Briggs, 229 U.S. 82, 33
S.Ct. 679, 57 L.Ed. 1083 (1913).
There the Court found no entitlement to compensation
for destruction of an oyster-bed in the course of dredging
a channel. The
Court reasoned: "If
the public right of navigation is the dominant right, and
if, as must be the case, the title of the owner of the bed
of navigable waters holds subject absolutely to the public
right of navigation, this dominant right must include the
right to use the bed of the water for every purpose which
is in aid of navigation."
Id., at 87, 33 S.Ct., at 680.
By similar logic, I do not think Hawaii or any other
State is at liberty through local law to defeat the navigational
servitude by transforming navigable water into "fast
land." Instead,
state-created interests in the waters or beds of such navigable
water are secondary to the navigational servitude.
Thus, I believe this case should be decided purely
as a matter of federal law, in which state law cannot control
the scope of federal prerogatives.
For all of
the foregoing reasons, the judgment of the Court of Appeals
was correct. I
therefore dissent.
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