ELR Citation: ELR 20515
No(s). 88-00462 DAE (D. Haw. Nov 22, 1989)

The court holds that a man-made lagoon is not subject to a federal navigational servitude requiring general public access. The lagoon was formerly a privately owned fishpond that was not capable of supporting navigation in interstate commerce. A developer constructed the lagoon in its present navigable form in 1971-1973 by dredging and filling the fishpond. The court finds that the fishpond was private property under traditional Hawaiian law and that the Rivers and Harbors Act permit issued to the developer in 1971 did not authorize dredging or filling within the pond. The court holds that the pond was not a navigable water in its ordinary state subject to an overriding navigational servitude at the time the permit was issued. The fact that the Corps has the authority to regulate the lagoon in its now navigable state does not vest a general right of use in the public. The Corps may extinguish the owner's right to exclude others only if the government pays just compensation. The court also holds that a condition of the permit, which prohibits the owner from denying public access to navigable waters at or adjacent to the work authorized by the permit, does not require the owner to allow public access to the lagoon. This condition merely prohibits the owner from interfering with public use of the offshore state-owned waters already subject to a navigational servitude when the permit was issued. Even if the permit condition can be read to impose a public access requirement, such a requirement may be unconstitutional. The court holds that this action is not barred by the six-year statute of limitations in 28 U.S.C. §2401(a). Plaintiff has shown that it did not know that the government had taken a position adverse to plaintiff's property rights until December 1982, and the complaint was filed in June 1988.

Counsel for Plaintiff
Diane D. Hastert
Damon, Key, Bocken, Leong & Kupchak
Pauhi Tower, Ste. 1600, 1001 Bishop St., Honolulu HI 96813
(808) 531-8031

Counsel for Defendants
Stephen Samuels
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-3179