Transcript

IN THE SUPREME COURT OF THE UNITED STATES

KAISER AETNA, ET AL., Petitioners, v. UNITED STATES, Respondent

No. 78-738

October 1, 1979

The above-entitled matter came on for oral argument at 11:06 a.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States
WILLIAM J. BRENNAN, JR., Associate Justice
POTTER STEWART, Associate Justice
BYRON R. WHITE, Associate Justice
THURGOOD MARSHALL, Associate Justice
HARRY A. BLACKMUN, Associate Justice
LEWIS F. POWELL, JR., Associate Justice
WILLIAM H. REHNQUIST, Associate Justice
JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

RICHARD CHARLES BOCKEN, ESQ., Damon, Key, Char & Bocken, 810 Richard Street, Honolulu, Hawaii 96813; on behalf of the Petitioners

KATHRYN A. OBERLY, ESQ., Land and Natural Resources Division, Department of Justice, Washington, D. C.; on behalf of the Respondent

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will hear argument next in 78-738, Kaiser Aetna, et al., v. the United States.

Mr. Bocken, you may proceed whenever you are ready.

ORAL ARGUMENT OF RICHARD CHARLES BOCKEN, ESQ., ON BEHALF OF THE PETITIONERS

MR. BOCKEN: Mr. Chief Justice, and may it please the Court:

This case is here upon a grant of a writ of certiorari to the Ninth Circuit. I believe that this is a unique case which will require this Court to distinguish between federal regulatory authority and the public navigation servitude.

The issue presented is as follows: Does the privately funded improvement of a private pond which is the legal equivalent of fast land when that pond is connected to navigable waters of the United States thereby become burdened with a public navigation servitude even though no public funds are involved.

QUESTION: Mr. Bocken, was there a natural opening between the pond and the bay?

MR. BOCKEN: Pre-development, Your Honor?

QUESTION: In its natural state.

MR. BOCKEN: In its natural state, it was separated, the pond was separated from the bay, from the sea by a barrier, a beach barrier. There were -- and whether they were natural or not, I don't know, but an ancient Hawaiian history in the use of the pond as a fish pond, there were sluice gates that were narrow in nature which did exist when they were placed there -- history doesn't tell us, Your Honor.

QUESTION: This is way down on the southeast tip of the island, isn't it?

MR. BOCKEN: That's right, Your Honor.

QUESTION: Is there any place in the record that indicates the distance between the high water mark and the beginning of the seaward edge of the pond?

MR. BOCKEN: Well, the seaward edge of the pond is the barrier -- yes, the sea went to the barrier beach. True, it is an admitted fact that there was some tidal action in the pond, the waters of the pond, however, were brackish and included fresh water runoff.

QUESTION: Well, the reason I ask the question is in the case of United States v. Rands, which Mr. Justice White wrote for the Court several years ago, the land condemned was referred to as riparian land, that is presumably having access to navigable water or at least having access to water. Would you describe this as riparian land?

MR. BOCKEN: No, I don't think so, Your Honor. I think this is a private pond which had no access to the sea prior to the development stage in the sixties. At that time, there was no evidence -- and I think the government will concede this -- there was no traffic between the pond and the sea except I suppose you could physically somewhere carry a small flat bottom boat over the barrier beach and place it in the sea. But certainly three sides it was just land and then the barrier beach which had been there for centuries separated the pond from the ocean.

QUESTION: But it was opening up to the sea, that some artificial barriers were placed between the pond and the sea?

MR. BOCKEN: Well, I don't know, Your Honor, if they would be referred to as artificial barriers.

QUESTION: Well, were they barriers enough to keep fish in?

MR. BOCKEN: That's correct, they were sluice --

QUESTION: So if they hadn't placed the barriers there they would have lost some fish?

MR. BOCKEN: That's correct, Your Honor.

QUESTION: By their swimming to the ocean.

MR. BOCKEN: They may have flushed out with the tide, Your Honor, right.

But for centuries and under unique Hawaii law, the fish ponds were always considered to be private property. They were never considered to be part of the sea. They were considered to be part of the land under the Hawaii law these ponds, the title to them could be transferred. In some cases they were described in land commission awards, some of them, as this pond was, was included within a parcel of land which was owned by the Bishop Estate, the Bishop Estate being an educational trust created for the supporting of the Hawaii Kamehameha School System, and this particular pond was located within a parcel which was owned and had been owned for a long period by the Bishop Estate, and while owned by the estate it was leased out to various individuals for use as a fish pond.

It was, as I mentioned before, not navigable in its natural condition and its private nature had been recognized for centuries, through ancient Hawaiian custom as outlined extensively in our brief by Hawaii law and by federal law upon annexation of the territory as a state in the union, and that annexation act is codified, which is called the Organic Act, is codified at 48 U.S. Code 506, and it recognized these ancient Hawaiian rights to fish ponds. In short, they were treated as private land, as the equivalent, the legal equivalent of fast land just as a farm or a house lot would be considered. They were not considered separately as part of the sea.

QUESTION: If the government were to come in and have condemned this particular fish pond, the items which were compensable and went to measuring compensable value, it would have been determined by federal law, wouldn't they?

MR. BOCKEN: No, Your Honor, I think that they would be determined by state law. I think what would be taken would have to be valued in accordance with the state law in the valuation.

QUESTION: But how about your concept of riparian servitude which descends from the Commerce Clause regulation of the -- Article I of the Constitution, even if state law recognized the value as a hydroelectric site in the various cases we have decided as a compensable item, if the state were taking under the cases from this Court, the federal condemnation would not have to include that in valuation, isn't that correct?

MR. BOCKEN: Would not have to include what, Your Honor?

QUESTION: The value of particular land as a site for the construction of a hydroelectric dam.

MR. BOCKEN: I don't know -- whatever purpose it would be taken for, it would have to be compensated -- the owner would have to be compensated.

QUESTION: Well, sure he would have to be compensated, but the question is what elements go into the making up of that value that he is ultimately paid.

MR. BOCKEN: Well, I think that it would relate to comparable values in the state of Hawaii, whatever the comparable values might be for --

QUESTION: In each determination the -- in answer to my Brother Rehnquist's question, whether or not something is property at all depends upon state law. I mean Hawaii law might have been --

MR. BOCKEN: That's correct.

QUESTION: -- that these fish ponds were not the property of the fee owner or the lands surrounding them, and if they had been not property at all then there would be zero compensation.

MR. BOCKEN: That's correct. I concede that.

QUESTION: Even though the federal government tried to condemn them. But as you say, the money law did recognize them as part of the fee.

MR. BOCKEN: That's right.

QUESTION: The land fee title.

MR. BOCKEN: That's correct.

QUESTION: And now when the federal government condemn them, it is its property, but the elements to be considered in the condemnation, certainly in the light of our cases, are matters of federal law and when you come to the discounting the value of the property by the navigational servitude.

MR. BOCKEN: Except that we --

QUESTION: I think that is --

MR. BOCKEN: -- navigation servitude there for a --

QUESTION: I know, but assuming there is one.

MR. BOCKEN: Oh, yes.

QUESTION: And the hydroelectric example given by my brother is one --

MR. BOCKEN: Yes.

QUESTION: -- or the riparian right in the Rand case is another.

MR. BOCKEN: Yes.

QUESTION: Those are discounted as a matter of federal law. Whether or not the item to be taken is property at all is a matter of state law.

MR. BOCKEN: That's correct, Your Honor.

QUESTION: Mr. Bocken, to go back a little, in the old law and the present law of Hawaii, federal law not being involved, could you drain it and build something?

MR. BOCKEN: Yes, Your Honor. As a matter of fact, some of the ponds were filled in, some of them were abandoned and no longer used as fish ponds, some of them were --

QUESTION: Well, what is the law in Hawaii?

MR. BOCKEN: That is the law in Hawaii. They remain as fish ponds.

QUESTION: If I have a pond of --

MR. BOCKEN: Yes, Your Honor.

QUESTION: -- 500-and-some acres, I can fill it in if I want to, right?

MR. BOCKEN: It has been done.

QUESTION: I know a lot of things that have been done that are illegal.

MR. BOCKEN: Yes, Your Honor, it could be done legally.

QUESTION: All right, that is what I was asking for. That's all.

QUESTION: Mr. Bocken, in your view could the Corps of Engineers have blocked off access to the pond without paying compensation?

MR. BOCKEN: Blocked off the access, at what period at this period?

QUESTION: Any time.

MR. BOCKEN: Blocked off the sluice gates that we have mentioned?

QUESTION: Yes.

MR. BOCKEN: I would imagine that had they done so, it might have and would have interfered with the private property right which would be compensable.

QUESTION: Private property right being the right of access to the sea, is that your point?

MR. BOCKEN: Being a destruction of the pond as it was being used at that time, Your Honor. I suppose it might be compared to if the federal government had taken any other fast land or blocked in some way or interfered with the use or a property right of a private property owner by some action of the Corps of Engineers. I think the difficulty we have in this case is the seeding of water as fast land, and that is what I am urging upon this Court. The petitioners are for a law that treats this pond as fast land. I think if we think of it as fast land, that --

QUESTION: Until you drain it, it is not land.

MR. BOCKEN: Pardon me?

QUESTION: Until you drain it, it is not land.

MR. BOCKEN: Maybe I misstate -- it is the legal equivalent of fast land and it is treated as fast land. It is sold as fast land and its ownership has the same property rights as fast land.

QUESTION: It is just like a farm pond out in the middle of Ohio.

MR. BOCKEN: That is right. In fact, the owners of the --

QUESTION: Well, were there sharecropped in the pool?

MR. BOCKEN: No, but there are property taxes and there have been real property taxes paid on this pond for I don't know how many years, forever as far as I know, and the real property taxes are paid just like any other real property taxes. So it is treated the same as the farm in Iowa, the land in Florida. There is no legal difference in the treatment of the two.

QUESTION: You are saying then that Congress, even exercising its commerce power, could not have provided for public access to this pond?

MR. BOCKEN: That's true, Your Honor, without condemnation and compensation.

QUESTION: So you think the answer is the same then under the commerce power or under the navigation servitude?

MR. BOCKEN: Your Honor, I think regardless of which it is, the position that we take is that no federal navigation, no federal public navigation servitude ever existed on this property.

QUESTION: I know, but I ask you what if Congress passed a statute that said that there would be public access to this fish pond, to this pond the way it is now.

MR. BOCKEN: Well, I think they would have to pay for it.

QUESTION: But what if we decided that they would not have to pay for it if the commerce power were exercised?

MR. BOCKEN: Well, if this Court said that they didn't --

QUESTION: Would that answer the navigation question too or not, the navigation servitude question or not?

MR. BOCKEN: I don't know how the two can be separated.

QUESTION: So you agree then with the court below that you can't separate the two?

MR. BOCKEN: No, I disagree with that. I think the federal regulatory authority, if you want to regulate any activities with the pond, you can do that the same as you could with another --

QUESTION: Well, how about authorizing public access though --

MR. BOCKEN: No.

QUESTION: -- by statute?

MR. BOCKEN: No.

QUESTION: So for that purpose the servitude and the commerce power are identical?

MR. BOCKEN: Identical.

QUESTION: Well, the servitude is -- there is nothing in Article I of the Constitution that says anything about navigational servitude, is there?

MR. BOCKEN: Well, it is an established law that --

QUESTION: It is established by reason of the power of Congress to --

MR. BOCKEN: To regulate commerce.

QUESTION: -- to regulate interstate commerce.

MR. BOCKEN: Right.

QUESTION: And navigational servitude is simply shorthand for the fact that when you are condemning land or when you are making land or water highways navigable, you do not have to pay certain elements to the landowner.

MR. BOCKEN: And the reason for that being that the navigation servitude always existed on public navigable waters. That is why the government doesn't have to pay for it, because it always had that right. They didn't have that right in Kuapa Pond, for two reasons: One, because it was not navigable in fact, nor could it be made susceptible to navigability with reasonable resources, but primarily because of Hawaii law which is recognized by the federal --

QUESTION: When did it become navigable?

MR. BOCKEN: Pardon me?

QUESTION: When did it become navigable?

MR. BOCKEN: It became navigable in fact -- and I want to stress that, Your Honor, in fact -- during the sixties, during the development stage by --

QUESTION: When the water from the sea came in?

MR. BOCKEN: There is no question about it. That is a conceded fact, that after the pond and the surrounding area was leased to Kaiser Aetna for development, then it did become navigable in fact. I might add that that development stayed within total complete coordination with the Corps of Engineers.

QUESTION: Let me try another hypothetical on you which may or may not shed light. Suppose an inland landowner had a large area that was low, below sea-level. Could he without the approval of the United States Corps of Engineers run a channel from his low land to the sea to let water in to make a navigable --

MR. BOCKEN: No, I think the Corps of Engineers has every right under those circumstances where it might interfere with navigable waters of the United States, either by dumping waste out into navigable waters, out into the sea, or causing pollution or whatever reason that is a legitimate reason to the federal government, that they have a right to go to that owner and say, look, you're going to dig and you are going to discharge or pollute the sea and you have to get a permit and we are not going to let you have one until we are assured that it is not going to affect navigable waters of the United States.

QUESTION: Well, that is their regulatory power.

MR. BOCKEN: And if they decide that is all right and the person can in fact connect to the open sea without some problem or effect on navigable waters, then there is nothing wrong with that and it doesn't subject the owner's pond, may it be a pond in the State of Minnesota connected to the Mississippi River for the farmer's ingress and egress, that doesn't make his little fish pond or that little pond of whatever nature he has it for public navigable waters.

QUESTION: But this little fish pond had 1,500 marinas.

MR. BOCKEN: Well --

QUESTION: This little fish pond had 1,500 marinas. Am I right?

MR. BOCKEN: It has --

QUESTION: Well, when does it become a big fish pond?

MR. BOCKEN: Pardon?

QUESTION: It has got 1,500 marinas in there now.

MR. BOCKEN: No, Your Honor, it --

QUESTION: Well, how many?

MR. BOCKEN: Let me just describe a little bit about --

QUESTION: Well, describe how many marinas there are.

MR. BOCKEN: There are slips for -- well, there is one marina. I think you were referring to the number of slips for boats.

QUESTION: Leases, yes.

MR. BOCKEN: About 600.

QUESTION: But when does it become a big fish pond?

MR. BOCKEN: Well, it was always --

QUESTION: When you say "a little fish pond," to me it doesn't have boats --

MR. BOCKEN: No, I was talking about the little fish pond that Justice Burger gave as an example.

QUESTION: Well, I am not talking about his example. I am talking about this case.

MR. BOCKEN: Now, this is about 500 acres and it is in its original state --

QUESTION: It is not a small fish pond.

MR. BOCKEN: No, no, no. No, sir, it was from zero to about --

QUESTION: It is a big --

MR. BOCKEN: -- at high tide and at low tide the --

QUESTION: Well, who has control of navigation on this little fish pond?

MR. BOCKEN: Well, in this pond today the residents pay an assessment for the non-exclusive use of the pond waters, and this assessment pays for a patrol boat which picks up debris, it pays for a patrol boat which tries to manage and to --

QUESTION: Well, who decides which boat passes to the right and which boat passes to the left?

MR. BOCKEN: Well, they have internal rules which have been established for the residents, Your Honor, and they are all aware of these and they are printed and the people are well aware of them.

QUESTION: You've got a little state going there, huh?

MR. BOCKEN: No, Your Honor.

QUESTION: A little federal government going there?

MR. BOCKEN: The Coast Guard since the Ninth Circuit decision has come in and out occasionally.

QUESTION: But without that --

MR. BOCKEN: But generally speaking, it is an internal control by --

QUESTION: You could keep the Coast Guard out, couldn't you? You could keep the Coast Guard out, couldn't you?

QUESTION: With the Ninth Circuit decision, you can't.

MR. BOCKEN: Under the Ninth Circuit decision, you could not.

QUESTION: I said without the Ninth Circuit, you couldn't --

MR. BOCKEN: Without the Ninth Circuit decision, I think as a matter of good comity we could not keep the Coast Guard out, Your Honor.

QUESTION: Comity between states.

MR. BOCKEN: We couldn't keep the Coast Guard out, Your Honor.

QUESTION: I don't understand how this is not navigable. How many boats do you have to have before it becomes navigable?

MR. BOCKEN: Pardon me?

QUESTION: How many boats do you have to have on the pond before it becomes a navigable pond?

MR. BOCKEN: Well, I don't think -- we are not arguing that it isn't navigable. It is navigable in fact, Your Honor, and there is --

QUESTION: You admit that it is navigable in fact?

MR. BOCKEN: Yes, I admit that, Your Honor, and a small portion of the pond is devoted to a marina for the residents to make their pleasure boats, but this isn't a big commercial harbor, this is just an internal pond which is used for local residents --

QUESTION: So the only question --

MR. BOCKEN: -- who I might add -- it was created as a result of $9 million, at the time of trial almost $9 million had been spent to build walls around the pond, to make channels where channels never existed, to make islands for houses, to pay for patrol boats to pick up debris and flotsams floating around, to keep it a clean environment and for safety purposes and to pay for a variety of other services that these people who had the leases around the pond needed and paid through their assessments to the Bishop Estate. I want to emphasize that it was privately created --

QUESTION: Mr. Bocken, your position if I understand it is that really this case is the same as the Chief Justice's hypothetical, you have an owner of a large piece of dry land who builds an artificial lake, digs a canal to some navigable waters and it all becomes navigable -- that is the same case as this?

MR. BOCKEN: That's right. As the Chief Justice said, if the pond is in Minnesota or Iowa --

QUESTION: The question is whether when somebody does that he has dedicated it to the public or not, that is the --

MR. BOCKEN: No, he does not dedicate it to the public.

QUESTION: Well, that is what we are going to decide.

MR. BOCKEN: That is the question.

QUESTION: Well, what if you reversed the Chief Justice's hypothetical and have this inland pond separated by distinctly fast land from navigable ocean water and the Corps of Engineers decides that it wants to improve Maunalua Bay and so it dredges a channel through the fast land to connect it to the interior pond, do you think it has to pay compensation?

MR. BOCKEN: Yes, Your Honor.

QUESTION: For what? For the fast land and for the pond?

MR. BOCKEN: Well, the pond is fast land. That is what is --

QUESTION: But do you think it has to pay both for the concededly non -- the land that never had any water on it at all and also for the interior pond that was not navigable at the time?

MR. BOCKEN: That's right, Your Honor, it is all fast land for the purposes of law.

QUESTION: Well, your answer would be the same if the pond were navigable in fact before the canal was build, wouldn't you?

MR. BOCKEN: That's true, Your Honor. That's true, exactly true. However, we have our back-up position that it wasn't, just for safety reasons.

QUESTION: But this is true every time the federal government builds a dam and floods 3,000 or 300,000 acres, they have to pay the owners of the land which is now as a result of the dam covered by water, is that not true?

MR. BOCKEN: That's right, Your Honor. I think that is the case as we have cited. I think Kansas City Light, as I recall, is one of those cases.

I have reserved some time, Your Honor, Thank you.

MR. CHIEF JUSTICE BURGER: Very well, Mr. Bocken.

Ms. Oberly.

ORAL ARGUMENT OF KATHRYN A. OBERLY, ESQ., ON BEHALF OF THE RESPONDENT

MS. OBERLY: Mr. Chief Justice, and may it please the Court:

At the outset, I would like to stress what is not disputed by petitioners in this case. They have not in any way challenged the government's position that the public has a right stemming from the common law and protected by the Commerce Clause to navigate all navigable waters of the United States. What they do contest is whether Kuapa Pon is a navigable water of the United States. But even as to that question, counsel has just conceded that they don't argue that the pond is not navigable for all purposes. They now concede that it is a navigable water of the United States for purposes of the Corps of Engineers --

QUESTION: Well, they concede it is a navigable water but not a navigable water that belongs to the United States.

MS. OBERLY: Your Honor, the Court of Appeals' decision was that this pond --

QUESTION: Well, that is the decision that we are now reviewing.

MS. OBERLY: There were two parts to the Court of Appeals' decision. The court first held that this is a navigable water of the United States and therefore subject to federal regulations. That question has not been presented to this court by the petitioners. The only question they are presenting is whether a different test of navigable waters of the United States should be applied when we are talking about the public right of navigation as opposed to the federal government's authority to regulate.

Our position is that the same test of navigability that this Court has developed under the Commerce Clause for purposes of regulatory jurisdiction also determines the public's right of navigation.

QUESTION: They both stem from the Commerce Clause.

MS. OBERLY: That's correct. We believe that the public right to navigate predates the Commerce Clause. It existed before the Constitution was written, but it finds protection in the Commerce Clause against state intrusion and --

QUESTION: Well, what if adjacent to this pond on land that was concededly never covered by water there was a house in which King Kamehameha had slept, do you think the government could by exercise of its Commerce Clause power tell the private owner of that house that he would have to have it open from 9:00 to 5:00 to tourists because it was a very important historical monument?

MS. OBERLY: If this house was always on fast land above the boundaries of the navigable waters, which in coastal areas is the line of mean high tide, if his house was above that area, to make it into navigable waters I would concede that we would --

QUESTION: They don't want to make it into navigable waters, they simply want to make it available to tourists who are on the Island of Oahu. Under the commerce power, do they have that right?

MS. OBERLY: They may have that right under the commerce power, but that doesn't settle the question of whether there has been a compensable taking.

QUESTION: You said they might have to pay.

MS. OBERLY: That's correct, if the government undertook an activity that was truly on fast land, but our position here is that this fish pond has always both before and after the improvements been a navigable water of the United States and for that reason compensation would not be owed for anything that the government might choose to undertake in the fish pond.

QUESTION: Penn Central Depot was on quick dry land, was it not?

MS. OBERLY: That's correct, but that was a regulatory case in which no compensation was owed as an exercise of --

QUESTION: Well, don't you ultimately get down to Justice Holmes' distinction in Mann v. Pennsylvania called whether this is just regulation or whether it is so substantial regulation that you have to treat it as a taking?

MS. OBERLY: You get to that question only if you assume that the pond is fast land and always has been. If the pond itself is navigable waters of the United States, then the whole line of this Court's compensation cases such as Rands dictate that the government does not pay when it exercises the navigation servitude in those areas. The reason no compensation is owed is not because we are exercising the Commerce Clause power but because we are exercising the navigation servitude.

QUESTION: But the navigation servitude depends on the commerce power.

MS. OBERLY: It pre-dates the Commerce Clause, although it is protected by the Commerce Clause, but our position is that we would agree with petitioners that the servitude is not as broad as the government's powers under the Commerce Clause. I think what the petitioners want the Court to believe is that our position is the navigation servitude goes as far as the government's Commerce Clause powers on dry land, and that is not what we are saying at all.

QUESTION: The government did institute a condemnation proceeding for the Port of Portland, but it is just a question of how much the fast land owner should be paid. It wasn't the idea that the Columbia River could simply be enlarged by plowing into it a whole bunch of fast land under the commerce power and the government pay nothing.

MS. OBERLY: We concede completely that when the government take fast land above the line of mean high tide under the Commerce Clause, we would pay for that, although as of Rands we would not pay any special value for its riparian access. But that is not the situation we have in this case. The government has not taken fast land. The situation we have here is that both before and after the improvements, made by Kaiser Aetna, this has always been navigable water of the United States. Before the improvements, just merely by removing the sand bar which separates the bay from the pond, we would have had the navigable waters of the bay flowing into the pond, we could have easily made the pond suitable for use of commerce simply by removing the --

QUESTION: That was not the Court of Appeals' theory, as I remember it, was it?

MS. OBERLY: No, the Court Appeals --

QUESTION: They assumed it was fast land and it was dedicated to the public when it was made navigable.

MS. OBERLY: That's correct. And our case does not depend upon it being navigable before the improvements. That is our alternative submission.

QUESTION: I think that is the more interesting problem, to assume it was fast land -- don't you also agree that even though you may have regulatory power when it became navigable, that does not necessarily answer the servitude issue?

MS. OBERLY: If the reason we have regulatory power is because it is navigable waters of the United States, then we also argue that it is subject to the public right of navigation. We agree with petitioners that there are reasons for regulatory power which go beyond navigation, but those are not the--

QUESTION: Do you take the position that if water is sufficiently navigable to give the United States regulatory power over it, that it is necessarily subject to servitude?

MS. OBERLY: That's correct.

QUESTION: You do take that position, that the two are coextensive?

MS. OBERLY: Yes.

QUESTION: I didn't read your Footnote 18 that way.

MS. OBERLY: My Footnote 18 concedes that there are regulatory powers under the Commerce Clause which have nothing to do with navigation and as to those obviously we don't contend that the public has a right to navigate. It is a practical impossibility. What we are saying is that when the Corps of Engineers regulates in navigable waters of the United States, the reason it regulates is for the purpose of keeping those waters open and usable for public navigation.

QUESTION: So you contend that when we are dealing with navigable water, the two are coextensive?

MS. OBERLY: Yes but only when we are dealing with navigable waters of the United States.

QUESTION: Aren't the navigable waters of the United States owned by the United States?

MS. OBERLY: They really aren't owned by anyone. The United States has paramount authority over them.

QUESTION: Right. Well, why isn't a fact in this case that you are condemning somebody's land without paying for it?

MS. OBERLY: We did not condemn --

QUESTION: Well, suppose you started out to condemn it, what would you have done? You would have put the money up and gone through condemnation, wouldn't you?

MS. OBERLY: Yes.

QUESTION: And for that money you would have gotten control of that pond, wouldn't you?

MS. OBERLY: If the United States had wanted to make this pond into a marina, we would have an entirely different case, assuming that it was originally fast land.

QUESTION: Well, what do you --

MS. OBERLY: But the United States did not undertake the improvements of--

QUESTION: That's right, but what do you want by this declaratory judgment?

MS. OBERLY: Our position is that once petitioners chose to take advantage of the public's waters in the bay and brought them onto their property, that they thereby subjected their -- they made their property become a navigable water of the United States.

QUESTION: And what does the United States want done?

MS. OBERLY: We want two things in this case. We want them to commence applying for permits under the Rivers and Harbors Act for any future dredging or filling in of the pond or at the connection of the pond to the bay, and we want them to acknowledge that they have made the pond a navigable water of the United States and that it was therefore open for public navigation, and that is the important one. And it is only the second question that --

QUESTION: And that would be free, they couldn't collect any more money?

MS. OBERLY: No, because by statute, 33 U.S.C., section 565, Congress has provided that private parties may undertake improvements at their own expense but if they do that, first of all the improvements have to be approved by the Corps of Engineers and, second of all, they can't take control --

QUESTION: No, I mean as of now they couldn't charge people for these slips?

MS. OBERLY: I want to make it clear that our position is not that the public has a right to use the slips. As you pointed out before, this is a 523-acre water body now. Our position is that the public has a right to use the open water, which is perhaps 500 of the 523 acres. We are not contending that the public has a right to use the privately built slips and docks that comprise maybe the other 23 acres of the --

QUESTION: Why not if they are navigable waters?

MS. OBERLY: Well, first of all we believe that so far as the Corps of Engineers is aware, this is not even a problem. The Corps is not aware of any examples of public using --

QUESTION: Maybe they don't want to exercise the power, but as a matter of raw power wouldn't the United States have the right to say even the slips are owned by the public?

MS. OBERLY: It could but we believe that the public right needs to be accommodated with the private interests in the piers and we believe there are several ways that could be done. The first is that the Corps has regulatory power under United States Code section 1 --

QUESTION: But it is no broader than the servitude, so the public can go right into the slips.

QUESTION: That's right.

MS. OBERLY: No, the Corps --

QUESTION: You just told me that, it is no broader than the servitude.

MS. OBERLY: The Secretary of the Army through the Corps of Engineers is authorized to regulate public use of navigable waters in the interest of safety, protection of property, protecting navigation, whatever interests he thinks are relevant.

QUESTION: Then suppose the petitioners here were going to build a hundred additional slips, would they have to get the approval of the Corps of Engineers?

MS. OBERLY: Yes, indeed, and I think they concede that now.

QUESTION: But they didn't get the permission to build the 500, did they?

MS. OBERLY. They originally started their activities in the pond itself before the connection to the bay and at that time, according to an affidavit of their employees, they were advised by the Corps that no permission was needed for work in the pond itself. But beginning in about 1966 or '67, when they wanted --

QUESTION: After the opening?

MS. OBERLY: After the opening -- the Corps from that time on advised them that permits were required. They obtained permits under protest, still contending that they didn't need them, but they have in fact been obtaining them.

QUESTION: Ms. Oberly, if I own farm land in Ohio and there is a small lake on it which is navigable and I drive around the lake in my outboard motorboat and so on, there is no question about the fact that the lake belongs to me and it is entirely in Ohio. Would you agree with that?

MS. OBERLY: And it doesn't connect to any other navigable waters.

QUESTION: Right.

MS. OBERLY: Yes.

QUESTION: Now, let's say that my farm lies both in Ohio and Indiana, which many farms do down where I came from, the southwestern corner of Ohio, and the lake happens to be part of it in Indian and part of it in Ohio. Does that lake automatically belongs to the United States?

MS. OBERLY: If it can be used as a highway for commerce --

QUESTION: Well, it can be. I said you can ride your outboard motor around the lake and it is now interstate.

MS. OBERLY: You still own the lake but subject to paramount federal --

QUESTION: And anybody in the public can come in without my permission and ride around in that lake, is that correct?

MS. OBERLY? Well, they may not be able to get there. They can --

QUESTION: Well, let's assume they can get there.

MS. OBERLY: Well, we are not presuming they have a right of access over your farm.

QUESTION: No, no. I say let's assume they can get there legally. They can ride around that lake without my permission, without paying me anything, is that correct?

MS. OBERLY: If they can get to the lake without crossing your dry land, yes.

QUESTION: Simply because it is partly in Ohio and partly in Indiana.

MS. OBERLY: That's correct.

QUESTION: Well, they couldn't if it was entirely in Ohio?

MS. OBERLY: And if it had no connection with another navigable water.

QUESTION: Right. But now the lake is partly in Ohio and partly in Indiana, it is a rather small lake but it is navigable. Is that correct?

MS. OBERLY: That is correct.

QUESTION: Ms. Oberly, is the same true of a railroad, say, that goes from Ohio to Indiana? Concededly, the Commerce Clause authorizes a great deal of regulation which has been exercised by the Interstate Commerce Commission. Do you think the Congress can say to the railroad, we want you to carry all passengers free on this railroad without exercising any condemnation authority?

MS. OBERLY: Our position is not that the regulatory power under the Commerce Clause authorizes the free access, it is the public's right to navigate which pre-dates the Commerce clause.

QUESTION: But you concede that when we are looking at the Constitution, the only thing that talks about authorizing Congress to enforce any right to navigate is the Commerce Clause.

MS. OBERLY: That's correct, but the public right pre-dates the Commerce Clause.

QUESTION: Well, what does that mean in terms of constitutional law?

MS. OBERLY: Our position is that the public right came from common law, the commonese adopted it as their common law, the states had it as their common law, and in the Commerce Clause they surrender to the federal government the power to protect that right against state infringement and --

QUESTION: So this is just something that the Commerce Clause picked up and it is --

MS. OBERLY: Yes.

QUESTION: Ms. Oberly, if you get what you want, can he sell this pond?

MS. OBERLY: He can't sell the water in it, because that --

QUESTION: Can he sell the pond? He could sell it before, couldn't he?

MS. OBERLY: Apparently under Hawaii law --

QUESTION: Couldn't he sell it before?

MS. OBERLY: Well, now there is no pond to sell.

QUESTION: So now he can't sell it now if you get your way?

MS. OBERLY: No, because he has voluntarily converted it into navigable waters of the United States.

QUESTION: And voluntarily gave up his right to sell it?

MS. OBERLY: He does not have to change the pond to the navigable waters of the United States -- if he decides to stop --

QUESTION: He could drain the water out?

MS. OBERLY: No, but he doesn't have to --

QUESTION: Then how could he do it?

MS. OBERLY: -- he doesn't have to do the dredging operations.

QUESTION: Well, could he sell the water?

MS. OBERLY: No, he doesn't own the water.

QUESTION: He did up until now.

MS. OBERLY: It wasn't the same water. He had his own water in the fish pond but once he opened up the connection he brought the public's waters from the bay and the ocean.

QUESTION: And how much public water is in there?

MS. OBERLY: I assume it is quite a bit.

QUESTION: Well, you don't know, do you?

MS. OBERLY: It is 500 acres, deepened from two feet to six feet.

QUESTION: Well, you don't want me to have the job of separating it, do you? Now, suppose he wants to sell his water, he can't sell it.

MS. OBERLY: That is because he has merged his water with the public's waters, at no cost to him he has obtained use of the public's waters. Our position is simply that no private person has a right to connect his land or his water to the public's waters without the government's permission, and that as a condition for that permission it is not at all unreasonable to require that the public's waters from the bay which have now been brought onto his pond be kept open to the public.

QUESTION: Well, even if he didn't get permission, if you would make the second assertion, if he got no permission from anybody, if he had a pond and he dug a navigable ditch to the sea, then under your submission that is open to the public?

MS. OBERLY: Well, he certainly can't benefit from the fact that he --

QUESTION: The answer is yes, isn't it?

MS. OBERLY: That's correct, with or without permission.

QUESTION: With or without permission.

MS. OBERLY: That's right.

QUESTION: Well, wouldn't you go further and say if the government had dug the ditch, that the pond would then be open to the public?

MS. OBERLY: Yes, that's correct, and the compensation question arising out of the government's digging the ditch would depend upon whether or not the water was always navigable water of the United States --

QUESTION: Right.

MS. OBERLY: -- or whether the government took fast land and made it navigable water of the United States. But in either event, the government could dredge the pond, the opening and then provide for public access.

QUESTION: I thought I caught something you said a few moments ago that if the aperture to the sea were sealed off, then this would be restored to the private status without servitude, without federal servitude?

MS. OBERLY: As it stands now, the petitioners do not have the authority to close off the opening to the sea, but if the government wanted to close off the opening for the interests of navigation, then the government would have the authority to do that. The petitioners would be denied access to the opening and they would not be entitled to compensation because they do not own access, but they probably would be free to return to their fish pond operations and use it as a fish pond.

QUESTION: But they are still using that public water that you placed so much reliance on.

MS. OBERLY: Well, we would be cutting off their use of the waters from the bay and they would no longer continue to flow in.

I would like to go back for a minute to explain why we believe the Commerce Clause test of navigability is the one that also governs the test for public right navigation, and it is simply a matter of common sense.

We believe that the principal reason the government's regulatory power over navigation even exists is to protect the public's right to navigate. It doesn't make much sense to give the Corps of Engineers sweeping powers to prohibit obstruction to navigable waters as Congress has done in the Rivers and Harbors Act if the public is not entitled to use those same waters. We are confident that it must have been the assumption of Congress in 1899 that the waters it was directing the Secretary of War to keep free of obstructions were the same waters that the public had a right to navigate.

QUESTION: And the Corps of Engineers can require that the slips be kept free of obstacles, can't they?

MS. OBERLY: Yes, they can.

QUESTION: And then doesn't it follow that the public can get in the slips?

MS. OBERLY: No, we are willing to concede that the public right is subject to reasonable regulations. One theory would be that the Corps of Engineers' permit to the slip owner to build implies a right of exclusive use of the slip and mooring area there. The permit does not run to the general public, it runs to the person who built the pier and for it to be a meaningful permit he has to be able to find his parking space open when he gets there.

Another thing would be the Corps could set regulations under the authority of section 1 of Title 33 that would put those slips off limits to the public in order to foster navigation in the open channel. If riparian owners had no place to park their boats and hat to instead park them in the open channel, that would itself or could turn into an obstruction to navigation.

QUESTION: But that is a matter of regulatory discretion and judgment.

MS. OBERLY: That's correct.

QUESTION: It is not a matter of power.

MS. OBERLY: It is a matter of regulatory discretion with the Corps or if the Corps didn't chose to promulgate that type of regulation, we would also agree that it is the type of strictly local matter rather than a burden on interstate commerce, that the states would be free to provide for by regulation. Again, it would not be an impediment to navigation but it would rather foster navigation by keeping the --

QUESTION: Well, there might be an argument about it and in any event that would be a matter of policy and not of power.

MS. OBERLY: That's correct, but our position here is that the petitioners have never asked the Corps of Engineers to set reasonable limits on the public's use of the pond.

QUESTION: I don't see the difference logically between saying an owner of a slip can control the slip and an owner of fifty slips can control the fifty slips. That is what you have got here, is fifty slips or 500, whatever the number is.

MS. OBERLY: All of the --

QUESTION: When is one different from 600?

MS. OBERLY: All of the slips are for the same purpose, of mooring boats in order to keep them from being parked in the --

QUESTION: And the whole purpose of the petitioner here is to have an area in which he can moor boats and so forth --

MS. OBERLY: And here --

QUESTION: If he owned all 600 boats himself, would that be different from having one slip?

MS. OBERLY: No, and we are not asking that the public be able to use either one or 600 of the slips. We are talking about the approximately 500 acres of open water, and that is all that the government's position is.

QUESTION: Suppose the open water were useful only for parking 600 boats, you would still have legally the same position, wouldn't you?

MS. OBERLY: If it were so small that that was all, that you would only have room for 600 slips, that might be a different case. But here we have a pond that is over 500 acres, it is two miles long, it serves as access to the Pacific Ocean and we simply don't have that limited case before the Court now.

QUESTION: But the access to the Pacific Ocean is both what gives you the power and also what makes it as a reason for the development, both.

MS. OBERLY: And petitioners -- the reason for the development being access to the Pacific Ocean, the petitioners have gotten a substantial benefit by that access which they have not paid for, the result of which sustaining petitioners' position is basically to sanction private ownership of the waters of the bay that they have brought on their land.

QUESTION: But they have paid for it, just as when I buy in Hawaii that is contiguous to the ocean, I pay for that augmented value of the land when I buy it. And if I buy land which is not but I legitimately build a waterway to the ocean, I pay for it.

MS. OBERLY: If you buy land as a riparian owner, you basically take it as you find it, but that is not the situation with petitioners. They actually --

QUESTION: But they did pay for it. They paid for knocking down the seawall and for dredging the lake and everything else.

MS. OBERLY: But they had no private entitlement to use the public's waters in the bay and the ocean, and that is what they have done here. Their result basically sanctions private ownership of the waters of the bay that they have brought onto their land. This Court has held in United States v. Chandler-Dunbar that private ownership of navigable waters is inconceivable and yet that is what petitioners are --

QUESTION: Suppose it was conceded that this pond was always open to the ocean and was always navigable and always been used. If the company had come in and got a permit to build a marina and to have 400 slips, that wouldn't -- those slips could be limited to the people that the company leased them to, wouldn't it?

MS. OBERLY: If they got a permit from the Corps of Engineers for the slips, we would concede that the public itself implies a right to the permit holder to use those slips --

QUESTION: Sure.

MS. OBERLY: -- and the permit does not run to the general public.

QUESTION: Right. But the water would, just like you are contending here that it does.

MS. OBERLY: The open waters do, yes.

QUESTION: Let's extend that a little. Suppose a class action is brought by some nearby yacht club, a group of boat owners and they insist on the right to build a hundred slips in there for their own convenience. Do you think the federal authority can permit them to build a hundred slips?

MS. OBERLY: Well, the federal authority can prohibit their building the slips in the first place. They need the permit. But once --

QUESTION: The other way around. Now, the outsiders who don't own any of the land, never owned any of the land, say this is a fine place to park our boats and this is public water which exits only because the Corps of Engineers let the water come in, and we want slips in there, does federal authority, federal servitude require that?

MS. OBERLY: It certainly does not require the Corps of Engineers to grant the permit. The granting of the permit to build the slip is entirely within the discretion of the Corps.

QUESTION: All right, then, the Corps exercises the discretion and says we can build a hundred slips. To what do they attach the slips?

MS. OBERLY: The probably can't because they don't have the riparian ownership of the surrounding land and for the Corps to grant a permit in those circumstances would interfere with the riparian owner's access to the water. I think it is unlikely that the Corps would authorize building a hundred slips by someone who had no land connection to this water. In any event, the slips could not be built without the Corps' permission.

The final point I would like to stress is that --

QUESTION: Do you think that, as this case comes to us, it has been decided and not disputed that the United States could establish the rules of the road and the rules about navigation in this pond?

MS. OBERLY: As the case comes to you from the Ninth Circuit, but as it comes to you from the District Court the United States apparently has no more business in the pond navigating and --

QUESTION: But now you think it is conceded that -- or at least it hasn't been challenged?

MS. OBERLY: It is a matter of courtesy to the Coast Guard that they let Coast Guard boats in, but I am not sure under the District Court decision we would have that right.

QUESTION: No, but that issue isn't here, I guess, as to whether the Coast Guard could or couldn't establish the rules of the road in the pond?

MS. OBERLY: They do concede that the Corps of Engineers has regulatory jurisdiction. I would take that to include a concession that the Coast Guard can establish the rules of the road, but in fact they are establishing their own rules of the road for this pond.

QUESTION: Who could authorize shrimping and lobster pots and seine fishing, for example?

MS. OBERLY: I would say that would be a matter of state law.

QUESTION: Even though it is federal water in your submission?

MS. OBERLY: As long as it wasn't done in such a way as to be a burden on interstate commerce as in the cases decided last year by this Court Hughes v. Oklahoma or Douglas v. Sea Coast Products. But barring that, the state would be able to set fishing regulations.

QUESTION: Ms. Oberly, I take it that the Government takes the position that this pond always was navigable water?

MS. OBERLY: That's right, but our case does not depend upon the Court agreeing with that.

QUESTION: Do you have any particular preference for the test of navigability, or is it your position here that it doesn't make any difference which test applies, it is still navigable?

MS. OBERLY: We are happy with the Court's traditional test, which is navigability in fact at any point in time, either in the past or present or in the future with reasonable --

QUESTION: Now, traditionally I thought the ebb and slow test was the traditional one.

MS. OBERLY: That still survives, but traditional since the law, it is navigability in fact at any given point in time and we believe clearly this was susceptible to reasonable improvements because Kaiser Aetna made the improvements and we have to assume they were reasonable or they wouldn't have been made.

QUESTION: If the private owner loses this case, could it decide it wanted to close the canal connecting with the ocean?

MS. OBERLY: No, it could not because it would be affecting the navigable waters of the United States. It could decide that it chose not to spend any more money dredging the canal.

QUESTION: That also would be true of the ditch connecting Justice Stewart's pond in Ohio to the Ohio River?

MS. OBERLY: The private owner has no obligation to maintain it if he doesn't want to, but he can't fill it up himself without --

QUESTION: He can't close it off?

MS. OBERLY: No.

The final point is petitioners' reliance on Hawaii law. We have explained in our briefs why we think Hawaiian law does not require the result they are arguing for, but even if it did the question for this Court is simply whether Congress meant to adopt that rule in the Hawaii Organic Act, and again our brief adequately explains that Congress was only dealing with the fishing rights in the Hawaiian Organic Act, it was not dealing with the public right of navigation. So there is no reason for assuming that Congress intended to forfeit the public right based on an act dealing with fishing ponds when today we have no fish pond in existence any more.

Thank you.

MR. CHIEF JUSTICE BURGER: Very well. Thank you.

We will resume at 1:00 o'clock if you have any rebuttal at that time.

(Whereupon at 12:00 o'clock noon, the Court was recessed until 1:00 o'clock p.m.)

AFTERNOON SESSION -- 1:00 O'CLOCK

MR. CHIEF JUSTICE BURGER: Mr. Bocken, you have about six minutes.

ORAL ARGUMENT OF RICHARD CHARLES BOCKEN, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL

MR. BOCKEN: Thank you, Your Honor.

We would just like to clarify a few things and bring home a few points. One is that there has been reference made to 525 acres of pond, a body of water consisting of that and that simply isn't true, Your Honors. I think the record will reflect that it is considerably less than that. There are islands, there was much dredging done and residential islands made throughout there, so the pond --

QUESTION: For the purposes of this case, does it make any difference whether it was 500 or 300?

MR. BOCKEN: It doesn't make any difference really because the farmer's pond of half an acre, as I illustrated the pond in Minnesota, or a larger pond I think is really immaterial. But I would like to clarify that one point because it did seem to make some difference.

Furthermore, there was a misstatement made concerning the number of slips. The number was 600-plus slips, and that is inaccurate, as I think the record reflects. We are talking about licenses for boats, not slips. There are some slips there, but there are certainly not 600-some slips, and I think the record will clarify that.

As to the permit activity, I do not want to have the Court led to any misconception that Bishop Estate and Kaiser were somehow slipping through and creating things without coordination with the Corps. The Corps was fully aware at all times of the activities in the pond. In fact, when the proposal was being made to build a bridge which required some dredging on the bay side, which was clearly navigable waters, Kaiser Aetna wrote to the Corps of Engineers and advised them of what they were going to do, that they were going to build a bridge across that area and that it would require some dredging on the ocean side, and that permit was granted. And interestingly enough, the defendant's Exhibit 15 in our joint appendix states that -- in this fashion -- it is addressed to the Department of the Army, and it is dated April 26, 1966, subject, Hawaii-Kai Bridge, to the Corps of Engineers:

"By your letter of April 5, 1966, you indicated general concurrence with our proposal for the Marina Bridge. It is our understanding that no separate federal permit will be required for this construction, and that there will be no requirement for public use or control of any waters on the Kuapa Pond side of the bridge. Very truly yours, D. M. Snow, Project Engineer." And I invite the Court's attention to that particular --

QUESTION: And he is the project engineer for what?

MR. BOCKEN: For Kaiser Aetna.

QUESTION: As to the total dredging process, the total development of this lake --

MR. BOCKEN: Pardon me?

QUESTION: The total developmental project, was he the project director --

MR. BOCKEN: He was the project director for Kaiser Aetna at that time, Your Honor, right.

QUESTION: Well, what do you get from that letter? Does that letter bind the United States government in any form or fashion?

MR. BOCKEN: I think I am pointing this out to the Court because counsel referred to --

QUESTION: I am asking as to what purpose --

MR. BOCKEN: -- because they said that we dedicated that pond when we made an opening to the ocean.

QUESTION: Well, does that --

MR. BOCKEN: We affirmatively deny that it was dedication.

QUESTION: This is a letter to whom?

MR. BOCKEN: This is a letter to the Corps of Engineers.

QUESTION: To whom?

MR. BOCKEN: Department of the Army, Honolulu District, Corps of Engineers.

QUESTION: Does that bind the federal government?

MR. BOCKEN: It does -- I can't argue estoppel, Your Honor. I am not saying that estoppel applies in this situation. But I am arguing that certainly it indicates that we didn't intend to dedicate the pond to public use. That was never our intention, never the petitioners' intention.

I would like to also point out that there is something more involved here than merely the taking of a navigation servitude, much more involved. What is being taken is the use of all of the tremendous amount of improvements that have been made totalling over $6 or $7 million, and likewise if the government should prevail, if there is a public navigation servitude imposed on these waters, who is going to pay for the maintenance of this pond from now on? The channels will silt, the walls will deteriorate, debris will accumulate in the pond, security will be impaired. Can you require private lessees to continue to pay for a public pond? I don't think that is fair, Your Honors.

The Corps of Engineers -- it is a matter of record, they said we don't have any funds for maintenance, we don't have -- we have no intention of -- there are no funds in the future projected for this. So what you are going to have is an impairment or deterioration of the environment.

Just in conclusion, Your Honors, I just want to conclude with this thought: If Kuapa Pond is burdened with the public navigation servitude, as the government urges, there will be, one, a public confiscation of private property for public recreational use of an area that was conceived, built, paid for and maintained by private funds, and confiscation would not only be servitude of the waters but the use of all of these improvements to which I just made mention.

And, two, such a result is constitutionally proscribed by the Fifth Amendment. It is not justified by any legitimate public interest and reeks of inequity.

MR. CHIEF JUSTICE BURGER: Your time is expired now, Mr. Bocken.

Thank you, counsel. The case is submitted.

(Whereupon, at 1:07 o'clock p.m., the case in the above-entitled matter was submitted.)