kaiser
aetna
argued
october
decided
december
dredging
filling
operations
developing
subdivision
community
petitioners
owner
lessee
area
included
kuapa
pond
shallow
lagoon
island
oahu
hawaii
contiguous
navigable
bay
pacific
ocean
separated
bay
barrier
beach
converted
pond
marina
thereby
connected
bay
army
corps
engineers
advised
petitioners
required
obtain
permits
development
operations
pond
petitioners
ultimately
made
improvements
allowed
boats
access
bay
petitioner
lessee
controls
access
use
pond
hawaii
law
private
property
fees
charged
maintaining
pond
thereafter
filed
suit
federal
district
petitioners
resolve
dispute
whether
petitioners
required
obtain
corps
authorization
accordance
rivers
harbors
appropriation
act
future
improvements
marina
whether
petitioners
deny
public
access
pond
result
improvements
become
navigable
water
examining
scope
congress
regulatory
authority
commerce
clause
district
held
pond
navigable
water
subject
regulation
corps
held
government
lacked
authority
open
pond
public
without
payment
compensation
owner
appeals
agreed
pond
fell
within
scope
congress
regulatory
authority
held
reversing
district
petitioners
converted
pond
marina
thereby
connected
bay
became
subject
navigational
servitude
federal
government
thus
giving
public
right
access
petitioners
private
pond
held
government
wishes
make
formerly
kuapa
pond
public
aquatic
park
petitioners
proceeded
far
may
without
invoking
eminent
domain
power
paying
compensation
require
allow
public
free
access
dredged
pond
although
dredged
pond
falls
within
definition
navigable
waters
used
term
delimiting
boundaries
congress
regulatory
authority
commerce
clause
never
held
federal
navigational
servitude
creates
blanket
exception
takings
clause
fifth
amendment
whenever
congress
exercises
commerce
clause
authority
promote
navigation
congress
light
extensive
commerce
clause
authority
nation
waters
depend
stream
navigability
may
prescribe
rules
governing
petitioners
marina
may
assure
public
free
right
access
marina
chooses
whether
statute
regulation
goes
far
amounts
taking
entirely
separate
question
government
attempt
create
public
right
access
improved
pond
goes
far
beyond
ordinary
regulation
improvement
navigation
involved
typical
riparian
condemnation
cases
amount
taking
requiring
compensation
cf
pennsylvania
coal
mahon
pp
reversed
rehnquist
delivered
opinion
burger
stewart
white
powell
stevens
joined
blackmun
filed
dissenting
opinion
brennan
marshall
joined
post
richard
charles
bocken
argued
cause
petitioners
briefs
george
richard
morry
kathryn
oberly
argued
cause
brief
solicitor
general
mccree
assistant
attorney
general
moorman
william
alsup
raymond
zagone
martin
green
charles
marshall
filed
brief
louisiana
landowners
association
amicus
curiae
urging
reversal
justice
rehnquist
delivered
opinion
hawaii
kai
marina
developed
dredging
filling
kuapa
pond
shallow
lagoon
separated
maunalua
bay
pacific
ocean
barrier
beach
although
hawaii
law
kuapa
pond
private
property
appeals
ninth
circuit
held
petitioners
converted
pond
marina
thereby
connected
bay
became
subject
navigational
servitude
federal
government
thus
public
acquired
right
access
petitioners
private
pond
granted
certiorari
importance
issue
conflict
concerning
scope
nature
servitude
kuapa
pond
apparently
created
late
pleistocene
period
near
end
ice
age
rising
sea
level
caused
shoreline
retreat
partial
erosion
headlands
adjacent
bay
formed
sediment
accreted
form
barrier
beach
mouth
pond
creating
lagoon
covered
acres
island
oahu
hawaii
extended
approximately
two
miles
inland
maunalua
bay
pacific
ocean
pond
contiguous
bay
navigable
waterway
separated
barrier
beach
early
hawaiians
used
lagoon
fishpond
reinforced
natural
sandbar
stone
walls
prior
annexation
hawaii
two
openings
pond
maunalua
bay
fishpond
managers
placed
removable
sluice
gates
stone
walls
across
openings
water
bay
ocean
entered
pond
gates
high
tide
low
tide
current
flow
reversed
toward
ocean
hawaiians
used
tidal
action
raise
catch
fish
mullet
kuapa
pond
hawaiian
fishponds
always
considered
private
property
landowners
hawaiian
government
ponds
integral
part
hawaiian
feudal
system
allotted
parts
large
land
units
known
ahupuaas
king
kamehameha
iii
great
mahele
royal
land
division
titles
fishponds
recognized
extent
manner
rights
orthodox
fast
land
kuapa
pond
part
ahupuaa
eventually
vested
bernice
pauahi
bishop
death
formed
part
trust
corpus
petitioner
bishop
estate
present
owner
bishop
estate
leased
area
included
kuapa
pond
petitioner
kaiser
aetna
subdivision
development
development
known
hawaii
kai
kaiser
aetna
dredged
filled
parts
kuapa
pond
erected
retaining
walls
built
bridges
within
development
create
hawaii
kai
marina
kaiser
aetna
increased
average
depth
channel
two
six
feet
also
created
accommodations
pleasure
boats
eliminated
sluice
gates
petitioners
notified
army
corps
engineers
plans
corps
advised
required
obtain
permits
development
operations
kuapa
pond
kaiser
aetna
subsequently
informed
corps
planned
dredge
channel
connecting
kuapa
pond
maunalua
bay
pacific
ocean
increase
clearance
bridge
kalanianaole
highway
constructed
early
along
barrier
beach
separating
kuapa
pond
bay
ocean
maximum
feet
mean
sea
level
improvements
made
order
allow
boats
marina
enter
return
bay
well
provide
better
waters
corps
acquiesced
proposals
chief
construction
commenting
deepening
channel
may
cause
erosion
beach
time
trial
community
approximately
persons
surrounded
kuapa
pond
included
approximately
marina
waterfront
lot
lessees
lot
lessees
along
least
nonmarina
lot
lessees
hawaii
kai
boatowners
residents
hawaii
kai
pay
fees
maintenance
pond
patrol
boats
remove
floating
debris
enforce
boating
regulations
maintain
privacy
security
pond
kaiser
aetna
controls
access
use
marina
generally
permitted
commercial
use
except
small
vessel
marina
queen
carry
passengers
used
five
years
promote
sales
marina
lots
brief
period
marina
shopping
center
merchants
attract
people
shopping
facilities
dispute
arose
petitioners
corps
concerning
whether
petitioners
required
obtain
authorization
corps
accordance
rivers
harbors
appropriation
act
future
construction
excavation
filling
marina
petitioners
precluded
denying
public
access
pond
result
improvements
become
navigable
water
dispute
foreseeable
ripened
lawsuit
government
petitioners
district
district
hawaii
examining
scope
congress
regulatory
authority
commerce
clause
district
held
pond
navigable
water
thus
subject
regulation
corps
rivers
harbors
appropriation
act
supp
held
however
government
lacked
authority
open
dredged
pond
public
without
payment
compensation
owner
reaching
holding
district
reasoned
although
pond
navigable
purpose
delimiting
congress
regulatory
power
navigable
purpose
defining
scope
federal
navigational
servitude
imposed
commerce
clause
ibid
thus
district
denied
corps
request
injunction
require
petitioners
allow
public
access
notify
public
fact
pond
accessibility
appeals
agreed
district
conclusion
pond
fell
within
scope
congress
regulatory
authority
reversed
district
holding
navigational
servitude
require
petitioners
grant
public
access
pond
appeals
reasoned
federal
regulatory
authority
navigable
waters
right
public
use
consistently
separated
public
right
navigational
use
renders
regulatory
control
necessary
public
interest
question
us
whether
appeals
erred
holding
petitioners
improvements
kuapa
pond
caused
original
character
altered
became
subject
overriding
federal
navigational
servitude
thus
converting
public
aquatic
park
petitioners
invested
millions
dollars
improving
assumption
privately
owned
pond
leased
kaiser
aetna
ii
government
contends
petitioners
may
exclude
members
public
hawaii
kai
marina
public
enjoys
federally
protected
right
navigation
navigable
waters
brief
claims
issue
dispute
whether
kuapa
pond
presently
navigable
water
ibid
petitioners
dredged
improved
kuapa
pond
government
continues
pond
although
may
qualified
fast
land
became
navigable
water
public
thereby
acquired
right
use
kuapa
pond
continuous
highway
navigation
corps
engineers
may
consequently
obtain
injunction
prevent
petitioners
attempting
reserve
waterway
position
advanced
government
adopted
appeals
presumes
concept
navigable
waters
fixed
meaning
remains
unchanged
whatever
context
applied
fully
agree
reasoning
district
agree
conclusion
cases
dealing
authority
congress
regulate
navigation
navigational
servitude
simply
lumped
one
basket
district
aptly
stated
reliance
upon
judicial
precedent
must
predicated
upon
careful
appraisal
purpose
concept
navigability
invoked
particular
case
true
kuapa
pond
may
fit
within
definitions
navigability
articulated
past
decisions
must
recognized
concept
navigability
decisions
used
purposes
delimit
boundaries
navigational
servitude
example
define
scope
congress
regulatory
authority
interstate
commerce
clause
see
appalachian
power
south
carolina
georgia
montello
wall
daniel
ball
wall
determine
extent
authority
corps
engineers
rivers
harbors
appropriation
act
establish
limits
jurisdiction
federal
courts
conferred
art
iii
constitution
admiralty
maritime
cases
although
government
clearly
correct
maintaining
dredged
kuapa
pond
falls
within
definition
navigable
waters
used
term
delimiting
boundaries
congress
regulatory
authority
commerce
clause
see
daniel
ball
supra
montello
supra
appalachian
power
supra
never
held
navigational
servitude
creates
blanket
exception
takings
clause
whenever
congress
exercises
commerce
clause
authority
promote
navigation
thus
kuapa
pond
may
subject
regulation
corps
engineers
acting
authority
delegated
congress
rivers
harbors
appropriation
act
follow
pond
also
subject
public
right
access
reference
navigability
waterway
adds
little
anything
breadth
congress
regulatory
power
interstate
commerce
long
settled
congress
extensive
authority
nation
waters
commerce
clause
early
history
held
power
regulate
commerce
necessarily
includes
power
navigation
gibbons
ogden
wheat
stated
gilman
philadelphia
wall
commerce
includes
navigation
power
regulate
commerce
comprehends
control
purpose
extent
necessary
navigable
waters
accessible
state
lie
purpose
public
property
nation
subject
requisite
legislation
congress
properly
said
constitutional
power
waters
limited
control
navigation
truth
authority
regulation
commerce
waters
navigability
part
whole
flood
protection
watershed
development
recovery
cost
improvements
utilization
power
likewise
parts
commerce
control
authority
broad
needs
commerce
point
navigable
waters
subject
national
planning
control
broad
regulation
commerce
granted
federal
government
light
expansive
authority
commerce
clause
question
congress
assure
public
free
right
access
hawaii
kai
marina
chose
whether
statute
regulation
went
far
amounted
taking
however
entirely
separate
question
pennsylvania
coal
mahon
recently
pointed
penn
central
transportation
new
york
city
generally
unable
develop
set
formula
determining
justice
fairness
require
economic
injuries
caused
public
action
compensated
government
rather
remain
disproportionately
concentrated
persons
rather
examined
taking
question
engaging
essentially
ad
hoc
factual
inquiries
identified
several
factors
economic
impact
regulation
interference
reasonable
investment
backed
expectations
character
governmental
action
particular
significance
ibid
taking
question
involved
exercise
public
right
navigation
interstate
waters
constitute
highways
commerce
however
held
many
cases
compensation
may
required
result
federal
navigational
servitude
see
navigational
servitude
expression
notion
determination
whether
taking
occurred
must
take
consideration
important
public
interest
flow
interstate
waters
natural
condition
fact
capable
supporting
public
navigation
see
cress
thus
supra
stated
running
water
great
navigable
stream
incapable
private
ownership
holding
riparian
landowner
entitled
compensation
construction
pier
cut
access
navigable
water
observed
primary
use
waters
lands
purposes
navigation
erection
piers
improve
navigation
public
entirely
consistent
use
infringes
right
riparian
owner
whatever
nature
interest
riparian
owner
submerged
lands
front
upland
bordering
public
navigable
water
title
full
complete
title
fast
land
direct
connection
navigation
water
qualified
title
bare
technical
title
absolute
disposal
upland
held
times
subordinate
use
submerged
lands
waters
flowing
may
consistent
demanded
public
right
navigation
scranton
wheeler
factual
situation
case
different
typical
ones
involved
riparian
condemnation
cases
see
little
point
tracing
historical
development
doctrine
indeed
since
decision
rands
closely
following
decisions
virginia
electric
power
twin
city
power
elements
compensation
government
must
pay
condemns
fast
lands
riparian
navigable
stream
remained
largely
settled
distinctions
cases
one
hand
kansas
city
life
ins
may
seem
fine
indeed
light
hindsight
perhaps
reason
hindsight
exercise
shifting
back
forth
area
recent
decisions
bears
sound
old
unhappy
things
battles
long
ago
denying
strict
logic
recent
cases
limiting
government
liability
pay
damages
riparian
access
carried
ultimate
conclusion
might
completely
swallow
private
claim
compensation
fifth
amendment
even
situation
different
riparian
condemnation
cases
one
justice
holmes
observed
different
context
life
law
logic
experience
navigational
servitude
exists
virtue
commerce
clause
navigable
streams
gives
rise
authority
government
assure
streams
retain
capacity
serve
continuous
highways
purpose
navigation
interstate
commerce
thus
government
acquires
fast
lands
improve
navigation
required
eminent
domain
clause
compensate
landowners
certain
elements
damage
attributable
riparian
location
land
value
hydroelectric
site
twin
city
power
supra
port
site
rands
supra
none
cases
ever
doubted
government
wished
acquire
fast
lands
required
eminent
domain
clause
fifth
amendment
condemn
pay
fair
value
interest
see
kansas
city
life
ins
supra
virginia
electric
power
supra
rands
supra
nature
navigational
servitude
invoked
government
condemnation
cases
summarized
well
anywhere
willow
river
clear
course
head
water
value
company
economic
interest
keeping
croix
lower
level
economic
interests
property
rights
economic
advantages
rights
law
back
recognized
may
courts
compel
others
forbear
interfering
compensate
invasion
government
attempt
create
public
right
access
improved
pond
goes
far
beyond
ordinary
regulation
improvement
navigation
amount
taking
logic
pennsylvania
coal
mahon
one
factor
contributes
result
clear
prior
improvement
kuapa
pond
incapable
used
continuous
highway
purpose
navigation
interstate
commerce
maximum
depth
high
tide
mere
two
feet
separated
adjacent
bay
ocean
natural
barrier
beach
principal
commercial
value
limited
fishing
consequently
sort
great
navigable
stream
previously
recognized
incapable
private
ownership
see
twin
city
power
supra
previously
noted
kuapa
pond
always
considered
private
property
hawaiian
law
thus
interest
petitioners
dredged
marina
strikingly
similar
owners
fast
land
adjacent
navigable
water
slightest
doubt
government
refused
allow
dredging
ground
impaired
navigation
bay
conditioned
approval
dredging
petitioners
agreement
comply
various
measures
deemed
appropriate
promotion
navigation
petitioners
body
water
private
property
hawaiian
law
linked
navigable
water
channel
dredged
consent
government
consent
individual
officials
representing
estop
see
montana
kennedy
ins
hibi
lead
fruition
number
expectancies
embodied
concept
property
expectancies
sufficiently
important
government
must
condemn
pay
takes
management
landowner
property
case
hold
right
exclude
universally
held
fundamental
element
property
right
falls
within
category
interests
government
take
without
compensation
case
government
exercising
regulatory
power
manner
cause
insubstantial
devaluation
petitioners
private
property
rather
imposition
navigational
servitude
context
result
actual
physical
invasion
privately
owned
marina
compare
andrus
allard
ante
traditional
taking
fee
interests
ex
rel
tva
powelson
miller
even
government
physically
invades
easement
property
must
nonetheless
pay
compensation
see
causby
portsmouth
thus
government
wishes
make
formerly
kuapa
pond
public
aquatic
park
petitioners
proceeded
far
may
without
invoking
eminent
domain
power
paying
compensation
require
allow
free
access
dredged
pond
petitioners
agreement
customers
calls
annual
regular
fee
accordingly
judgment
appeals
reversed
footnotes
title
provides
creation
obstruction
affirmatively
authorized
congress
navigable
capacity
waters
prohibited
shall
lawful
build
commence
building
wharf
pier
dolphin
boom
weir
breakwater
bulkhead
jetty
structures
port
roadstead
harbor
canal
navigable
river
water
outside
established
harbor
lines
harbor
lines
established
except
plans
recommended
chief
engineers
authorized
secretary
army
shall
lawful
excavate
fill
manner
alter
modify
course
location
condition
capacity
port
roadstead
harbor
canal
lake
harbor
refuge
inclosure
within
limits
breakwater
channel
navigable
water
unless
work
recommended
chief
engineers
authorized
secretary
army
prior
beginning
petitioners
challenge
appeals
holding
hawaii
kai
marina
within
scope
congress
regulatory
power
subject
regulation
army
corps
engineers
pursuant
authority
rivers
harbors
appropriation
act
government
argues
fact
conversion
accomplished
private
expense
exempt
kuapa
pond
navigable
waters
allow
landowners
dredge
fast
lands
reshape
navigable
waters
conveniently
serve
land
exclude
public
navigable
portions
flowing
site
former
fast
lands
unduly
burden
navigation
commerce
lack
power
commerce
clause
sanction
form
private
property
brief
petitioners
contend
term
navigable
waters
traditionally
employed
identify
water
subject
federal
regulation
admiralty
jurisdiction
see
infra
page
inherently
unworkable
regard
hawaiian
fish
ponds
represent
meaningful
equitable
standard
public
private
rights
may
determined
pet
cert
efforts
distinguish
fast
lands
public
rights
waterways
subject
navigational
servitude
however
subject
litigation
century
absence
something
unusual
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