444 U.S. 164 (1979)
In the early 1960s, Kaiser Aetna's predecessor leased a 6,000-acre area including Kuapa Pond on the island of Oahu from the Bishop Estate for subdivision development known as Hawaii Kai.1 Kuapa Pond was a shallow lagoon covering 523 acres that extended approximately two miles inland from Maunalua Bay, was separated from the Pacific Ocean by a barrier beach, and had been used historically as a private fishpond under Hawaiian law following the 1848 Great Mahele land division.2 Kaiser Aetna dredged the pond to an average channel depth of six feet, constructed an eight-foot-deep channel through the barrier beach to connect it to the bay and ocean, erected retaining walls, built bridges, and eliminated the original sluice gates to create the Hawaii Kai Marina for pleasure boats.3
The Army Corps of Engineers issued a permit for the dredging and filling operations that expressly provided the marina would be a private facility not open to the general public.4 At the time of trial, a marina-style community of approximately 22,000 persons surrounded the pond, including 1,500 waterfront lot lessees who paid fees for maintenance and security, and Kaiser Aetna controlled access while generally prohibiting commercial use except for limited promotional vessels.5 In 1972 a dispute arose when the Corps asserted regulatory authority under the Rivers and Harbors Appropriation Act and claimed the pond had become navigable waters of the United States open to the public.6
The United States filed suit in the United States District Court for the District of Hawaii seeking a declaration of public access rights and an injunction requiring Kaiser Aetna to allow such access.7 The District Court found that Kuapa Pond had not been navigable prior to the improvements, held that the pond was subject to Corps regulation but that the Government lacked authority to open it to the public without compensation, and denied the requested injunction.8 The Court of Appeals for the Ninth Circuit reversed, holding that the marina was subject to the federal navigational servitude and that no compensation was required.9
The Supreme Court granted certiorari to consider whether the Government's assertion of a public right of access amounted to a taking of private property.10
Whether the actions of the Government in asserting a public right of access to the marina constitute a taking of private property for which the Fifth Amendment requires just compensation?11
The Fifth Amendment provides that private property shall not be taken for public use without just compensation.12 The navigational servitude is a doctrine that allows the Government to regulate and control the use of navigable waters without the payment of compensation, but its scope is limited to those waters that are navigable in fact.13 The Government cannot, by its own actions or by the actions of a private party, create a navigational servitude where none existed before without compensating the owner for the loss of his property rights.14
Yes. The District Court found that the pond was not navigable prior to the improvements made by Kaiser Aetna.15 Kaiser Aetna invested substantial sums in developing the marina with the expectation that it would remain a private facility.16 The permit issued by the Army Corps of Engineers specifically provided that the marina would be private and not open to the general public.17
The Government's attempt to require public access after the improvements constitutes an actual physical invasion of the privately owned marina, going so far beyond ordinary regulation or improvement for navigation as to amount to a taking.18 The interest of petitioners in the now dredged marina is strikingly similar to that of owners of fast land adjacent to navigable water.19
The actions of the Government in asserting a public right of access to the marina constitute a taking of private property for which the Fifth Amendment requires just compensation.20
Related opinions on this issue
Joined by Justices Brennan And Marshall
Justice Blackmun, joined by Justices Brennan and Marshall, dissented from the Court's holding that the navigational servitude did not apply.21 He argued that Kuapa Pond was navigable water of the United States in its natural state by virtue of its susceptibility to the ebb and flow of the tide.22 He contended that the navigational servitude extends to all navigable waters of the United States and that the public right of access does not require compensation for private investment in creating navigability.23
He would have affirmed the judgment of the Court of Appeals.24