Kaiser Aetna v. United States

No. 78-738. Argued October 1, 1979. Decided December 4, 1979. Certiorari to the United States Court of Appeals for the Ninth Circuit. Judgment reversed (584 Federal 2d 378, reversed). Opinion of the Court by Mr. Justice Rehnquist, in which Mr. Chief Justice Burger and Justices Stewart, White, Powell, and Stevens joined. Mr. Justice Blackmun filed a dissenting opinion, in which Justices Brennan and Marshall joined.

Editorial note. Kuapa Pond was a shallow fishpond on the island of Oahu, separated from Maunalua Bay by a barrier beach and held in private ownership from the time of the Great Mahele. The petitioners, developers of the Hawaii Kai subdivision, dredged and improved the pond at their own expense and cut a channel connecting it to the bay, converting it into a marina serving the surrounding residential development. The Corps of Engineers was aware of the work and did not assert any public right of access at the time. Only later did the United States contend that the marina, having become navigable water, was subject to a public right of navigation and that the owners could not exclude the boating public.

Editorial note. The District Court held that the owners could exclude the public but that the Corps had regulatory jurisdiction over the marina. The Court of Appeals for the Ninth Circuit held that the pond had become navigable water of the United States and that the public acquired a right of access without compensation. The Supreme Court reversed.

Editorial note. Even assuming the marina had become navigable in fact, the imposition of a public right of access would take the owners' property, and the United States must pay just compensation if it wishes to open the marina to the public. The rule derived is that the navigational servitude, an incident of the federal commerce power over waters navigable in their natural condition, does not extend of its own force to waterways created by private investment; and that the right to exclude others, in the circumstances of investment and reliance shown, is an interest of sufficient consequence that its destruction requires payment.

Editorial note. Mr. Justice Rehnquist distinguished the reach of Congress's regulatory power from the reach of the servitude that permits the Government to act without compensation. He accepted that the marina fell within the regulatory authority conferred by the Commerce Clause, but reasoned that the consequences of navigability for compensation purposes depend on the history of the particular waterway. The owners had invested in reliance on their exclusive interest; the pond had never been open to the public in its natural state; and the Government had not asserted a right of access until the improvement was complete. In that setting the right to exclude, described as one of the most essential sticks in the bundle of rights that are commonly characterised as property, could not be appropriated gratuitously. Mr. Justice Blackmun, dissenting, took the view that navigability in fact brought the servitude with it and that the owners had assumed the risk of that consequence.

Editorial note. Kaiser Aetna supplies the formulation of the right to exclude that later per se takings decisions adopted, and it establishes that the classification of a waterway for regulatory purposes does not settle the compensation question. For the treatise it belongs both to the law of water rights and public access and to the law of takings, where it is the natural companion of Loretto and Cedar Point Nursery in the line of cases treating compelled access as a taking without regard to economic impact.

Editorial note. Followed. The characterisation of the right to exclude was relied on in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021). Distinguished in cases concerning waters navigable in their natural condition, where the servitude applies without compensation.

Editorial note. Read with U.S. Const. amend. V, and the treatise chapters on water rights and public access, on the right to exclude, and on physical takings.