- Kaiser Aetna
- Hawaii Kai Development Co.
- Trustees of the Bernice P. Bishop Estate
- R. Charles Bocken; Damon, Shigekane, Key & Char, Honolulu, Hawai`i
- G. Richard Morry; Conroy, Hamilton, Gibson, Nickelsen & Rush,
- In 1967, Defendant Bishop Estate leased 6,000 acres of land to Defendant
Kaiser Aetna to develop the area, now known as Hawaii Kai. Kaiser Aetna
built housing and created the Hawaii Kai Marina (“the Marina”)
by dredging and filling Kuapa Pond (an ancient Hawaiian fishpond), erecting
retaining walls, and building bridges. Kaiser Aetna also dredged an
eight-foot channel under the Kalanianaole Highway bridge to allow boats
to travel between the Marina and Maunalua Bay (“the Bay”),
the gateway to the Pacific Ocean.
- The U.S. Army Corps of Engineers (“the Corps”) told the
Defendants that no permit was needed for the development. Defendants
also wrote a letter to the Corps stating the Defendants’ understanding
that no permit was required and its intention to keep the marina private,
but the records indicate no response to this letter. At the time of
this decision, the Marina was used by residents who had a non-exclusive
easement to use the Marina and paid a $72 annual maintenance fee, and
also by non-residents who paid a $72 fee for the right to moor boats
and travel through the Marina to the Bay.
- In this action, the United States sought to exercise the Commerce
Clause of the U.S. Constitution, granting jurisdiction to the federal
government over the surface of all navigable waters. Specifically, Plaintiff
asked the Court to declare the Marina as navigable water and thus subject
to the navigational servitude or right of public access.
- Defendants denied that the Marina is navigable water and raised several
affirmative defenses: 1) prior to 1972, the Corps did not require permits
because it considered the waters to be private; 2) if the Marina is
required to be open for public use, the United States must pay just
compensation, as it would be a “taking” of private property
under the Fifth Amendment; and 3) public use of the Marina would constitute
“major federal action affecting the quality of the environment”
under NEPA, and so an environmental impact statement would be required
of the Corps.
- The Court addressed whether Kuapa Pond was navigable in its natural
state, since it would be subject to the public right of access if it
were navigable prior to development. The Court recognized three tests
of navigability. The first was the navigable in fact test: if a body
of water is navigable in fact, or actually navigable, then it is navigable
in law. This did not apply to Kuapa Pond because historically no boats
could travel between the pond and the Bay. Plaintiff urged the Court
to adopt the second test, the reasonable improvement test, which states
that a waterway is navigable in law if reasonable improvement will render
it navigable in fact. The Court, though, said that just because Defendants
decided it was reasonable to make a marina for its residents out of
the pond, it did not follow that it was ever financially reasonable
for them to develop the pond into a highway for interstate commerce
by water. The third test was the ebb and flow test: “estuarine
tidal areas which are regularly inundated by the mean higher, high tide
are subject to the navigational servitude.” The tides have always
ebbed and flowed over Kuapa Pond, but the Court ruled that this did
not render the pond subject to the navigational servitude because of
the unique legal status of Hawaiian fishponds as strictly private property.
- The Court explained that, since prerecorded history, the Hawaiian
fishponds have always been considered private property. The Hawai`i
Supreme Court has recognized that the Great Mahele, or land division
of 1852, did not affect the rights of private ownership of fishponds.
Even the U.S. Supreme Court, in two opinions written by Justice Holmes,
recognized the legitimacy of similar Hawaiian property rights in sea
fisheries. Thus, the United States could not claim any “common
right of piscary” (a concept stemming from English common law
acknowledging the right of the people to travel upon and fish the waters,
which gave rise to the concept of “navigable waters”), because
annexation did not change the legal status of Hawaiian fishponds as
- The Court examined whether or not development rendered the pond navigable.
Plaintiff’s argument was that use of the Marina Queen, a small
25-person vessel, to transport tourists in and around the Marina constituted
interstate commercial use. The Court found this a weak argument, stating
that the Marina Queen rides were just a relaxing diversion. However,
the Court determined the Marina navigable since it was used both to
make money for Kaiser Aetna (by selling licenses to use the Marina)
and to transport people into and out of the Bay. Nevertheless, the Court
declared that just because the Marina was found to be navigable, it
did not follow that the government may impose a public navigation servitude
upon a privately constructed waterway without paying just compensation
for the use thereof.
- Finally, the Court found NEPA to be inapplicable here because the
Court’s determination that the Marina is navigable does not constitute
a “final agency determination” (the Court not being an “agency”)
for the purposes of NEPA.
- Plaintiff’s prayer for a declaration that the Marina is subject
to the Rivers and Harbors Act was GRANTED. Plaintiff’s request
for an injunction preventing Defendants from denying public access to
the Marina was DENIED.