ELR Citation: ELR 20910
No(s). 76-2400 (9th Cir. Aug 11, 1978)

The court rules that a privately owned marina created by the improvement of an enclosed and nonnavigable tidal fishpond is a navigable water of the United States within the regulatory jurisdiction of the Army Corps of Engineers under the Rivers and Harbors Act of 1899. The marina is now navigable in fact and capable of use for commercial purposes and thus meets the definition of navigable waters. Corps regulations excluding from the scope of the definition canals open to navigable water on one end and which do not in fact support interstate commerce apply only to artificially created waterways and are thus inapposite to natural water bodies such as the pond in this case which have been artificially improved. Nor does the Corps' earlier acquiescence in defendants' improvements without a permit estop the government from contending that the marina is a navigable water of the United States. The court also holds that even if the pond was considered the equivalent of fast land under state law, it became subject to the federal navigational servitude when it was converted into a marina and became navigable in fact. The lower court's denial of the government's request for an injunction preventing defendants from denying public access to the marina and requiring it to notify the public of the marina's accessibility must therefore be reversed.

Counsel for Plaintiff
Stephen P. Quinn, Ass't U.S. Attorney
320 Federal Bldg., Honolulu HI 96801
(808) 546-7170

Counsel for Defendants
R. Charles Bocken, Henry H. Shigekane
Damon, Shigekane, Key & Char
10th Floor, City Bank Bldg., 810 Richard St., Honolulu HI 96813
(808) 531-8031

G. Richard Morry
Conroy, Hamilton, Gibson, Nickelsen & Rush
20th Floor, Hawaii Bldg., 745 Fort St., Honolulu HI 96813
(808) 521-2611

Before MERRILL, CUMMINGS,^* and SNEED, Circuit Judges.