Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-88-0462-DAE. David A. Ezra, District Judge, Presiding.
Richard H. Chambers, Melvin Brunetti and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Brunetti.
Appellee John Boone, as trustee for the Maud Van Cortland Hill Schroll Trust ("the Trust"), brought an action against the United States to secure the Trust's right to deny public access to Puko'o Lagoon on the Island of Molokai, Hawaii. In a counter-suit, the United States sought a declaration that Puko'o Lagoon is subject to the federal navigational servitude. The district court found in favor of the Trust. See Boone v. United States, 725 F. Supp. 1509 (D. Haw. 1989), Boone v. United States, 743 F. Supp. 1367 (D. Haw. 1990). We have jurisdiction pursuant to 12 U.S.C. § 1291 and affirm.
Around 1829, native Hawaiians created Puko'o Fishpond, a littoral Hawaiian fishpond, by constructing a stone wall across an inlet to the sea.*fn1 The record contains no evidence of the size, condition, use, or water depth of the inlet prior to the construction of the wall. The fishpond wall was approximately 2000 feet long, ten feet wide and five feet high. The wall contained two Makaha, or openings to the sea, in which sluice grates were placed to allow fish to enter and exit the fishpond. Puko'o Fishpond covered about twenty-five acres; the depth of the pond ranged from one to three feet and was subject to the ebb and flow of the tides.
At the time the fishpond wall was constructed, Hawaiian fishponds were an integral part of the Hawaiian feudal system.
Chiefs gave land, including its fishponds, to sub-chiefs, or took it away at will. Any fishponds in conquered chiefdoms became the personal property of the conquering high chief and were treated in the same manner the high chief treated all newly subjugated lands and appurtenances. The commoner had no absolute right to fish in the ponds, nor in the sector of ocean adjacent to the chief's land - all of such rights were vested in the chiefs and ultimately in the King, alone.
United States v. Kaiser Aetna, 408 F. Supp. 42, 46-47 (D. Haw. 1976), aff'd in part and rev'd in part, 584 F.2d 378 (9th Cir. 1978), rev'd, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332 (1979). In 1848, King Kamehameha III pronounced the Great Mahele, or land distribution. In 1852, as part of the Great Mahele, title to Puko'o Fishpond was vested in 'Ilae Napohaku, the first tax assessor on Molokai. The parties agree that Puko'o Fishpond, like all Hawaiian fishponds, had always been considered private property by landowners and by the Hawaiian government. See Kaiser Aetna v. United States, 444 U.S. 164, 166-67, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979)(titles to fishponds are recognized to the same extent and in the same manner as rights recognized in fast land).
In 1946, a tsunami, or tidal wave, struck and damaged the fishpond wall. The extent of the damage is in dispute. At trial, the government presented testimony of witnesses who claimed they could navigate their flat bottomed boats through holes in the wall at high tide. The Trust presented evidence that the wall was intact prior to its destruction in the early 1970s and could not be breached by boats.
Around 1960, Pukoo Properties, Inc., purchased the property surrounding and including Puko'o Fishpond. Pukoo Properties, Inc., subsequently entered into a joint venture, "Canadian-Hawaiian Developers" ("Canadian-Hawaiian"), which planned to develop the property into a resort complex. Canadian-Hawaiian obtained zoning changes and permits from the United States Army Corps of Engineers ("the Corps") and various state agencies to dredge the waters contiguous to Puko'o Fishpond. Dredging was necessary to create an approach channel to the planned Puko'o Lagoon, a boat anchorage basin, and public beaches on submerged public lands. Because the fishpond was considered private property, no permits from the County or State were required or sought for dredging inside the fishpond. Boone, 725 F. Supp. at 1515.*fn2 Canadian-Hawaiian constructed the Lagoon, which involved the destruction of the fishpond wall, between 1971 and 1973.
In 1980 Canadian-Hawaiian abandoned its development plans and sold the property and the related development rights to the Trust for $5,750,000. The Trust's representatives believed the lagoon and its waters were private property and would not have purchased the property had they known there was a question about its private nature. Id. at 1519. The Trust subsequently invested an additional $340,000 to $500,000 in the property. The Trust seeks "to keep the property as clean and tranquil as possible by limiting access to the area to a limited number of organizations who share the Trust's expressed goal of promoting native Hawaiian culture." Id. at 1510. Public and commercial uses are excluded "so as to avoid spoilage of the property." Id. at 1519.
In 1982, a local charter boat operator complained to the Corps that the Trust had denied him access to Puko'o Lagoon. The Corps expressed its view that the denial of public access violated a condition in its dredging permit and the public's rights under the federal navigational servitude. In 1988, the Trust filed a declaratory judgment action to secure a right to deny public access to the lagoon. After cross-motions for summary judgment were denied, the Corps filed a counter-suit seeking, inter alia, a declaration that the Lagoon is subject to the federal navigational servitude. After a bench trial, the district court found that although Puko'o Lagoon is presently navigable, the lagoon was not subject to the navigational servitude and the Corps could not require public access without payment of compensation under the fifth amendment. Id. at 1525. The Corps filed a motion to alter or amend the judgment which was denied in the part pertinent to this appeal. 743 F. Supp. 1367, 1371-73, 1374-77 (D. Haw. 1990). The Corps then brought this appeal.
The Corps makes two arguments on appeal. First, it contends that the district court erred in finding that the area presently comprising Puko'o Lagoon was not navigable in fact within the meaning of the federal navigational servitude at the time the fishpond wall was destroyed in the early 1970s. Second, the Corps argues, regardless of the navigability of the fishpond in 1970, the Lagoon is subject to the navigational servitude because the area was a navigable inlet of the Pacific Ocean in its natural state.
Whether Puko'o Lagoon is subject to the navigational servitude is a mixed question of fact and law. The application of a rule of law to established facts is reviewed de novo when the question requires consideration of legal concepts in mix of facts and law. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (enbanc), cert. denied, 469 U.S. 824, 83 L. Ed. 2d 46, 105 S. Ct. 101 (1984). Essentially factual inquiries or the establishment of historical facts, however, are reviewed for clear error. Id. at 1202-04. We give special deference to the district court's credibility findings. Anderson v. City of Bessemer, 470 U.S. 564, 573, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985).
A. The Commerce Clause and the Navigational Servitude.
The commerce clause*fn3 supports two distinct but often overlapping phenomena relevant to this appeal: the congressional authority to regulate the nation's interstate waterways and the federal navigational servitude. Kaiser Aetna v. United States, 444 U.S. 164, 173, 177, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979). Clarification of this distinction is useful for the resolution of this case.
"Commerce," the Supreme Court explained, "includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other then those in which they lie." Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25, 18 L. Ed. 96 (1866). See also Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 190, 6 L. Ed. 23 (1824) ("all America understands, and has uniformly understood, the word 'commerce,' to comprehend navigation"). Since Gibbons v. Ogden, the authority to regulate waterways under the commerce clause has been extended beyond control over waters navigable in fact*fn4 to nonnavigable tributaries,*fn5 waters which were once navigable in fact but are no longer so,*fn6 and water neither formerly nor presently navigable but which may be made navigable by reasonable improvements.*fn7 This expansion of the power to regulate navigable waters parallels, and is coextensive with, the expansion of the power to regulate commerce generally.
In United States v. Appalachian Electric Power Co., 311 U.S. 377, 85 L. Ed. 243, 61 S. Ct. 291 (1940), the respondent power company argued that the government may regulate water rights "only in so far as necessary to protect navigation or navigable capacity." Id. at 393. The Court rejected such a limited view and found that Congress had the authority under the commerce clause to require riparian land owners to obtain a license prior to the construction of dams even where the river was not, nor ever had been, navigable but could become navigable through reasonable congressionally authorized improvements.
It cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. By navigation respondent means no more than operation of boats and improvement of the waterway itself. In truth the authority of the United States is the regulation of commerce on its waters. Navigability, in the sense just stated, is but a part of this whole. Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control. . . . [The authority to regulate waterways] is as broad as the needs of commerce. . . . The point is that navigable waters are subject to national planning and control in the broad regulation of commerce granted the Federal Government.
Id. at 426-27. Appalachian Electric 's expansive view of navigation is consistent with the Court's expansive interpretations of commerce in other areas during the same period. Cf., N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 81 L. Ed. 893, 57 S. Ct. 615 (1937), United States v. Darby, 312 U.S. 100, 85 L. Ed. 609, 61 S. Ct. 451 (1941), Wickard v. Filburn, 317 U.S. 111, 87 L. Ed. 122, 63 S. Ct. 82 (1942). See Kaiser Aetna, 444 U.S. at 174; Morreale, Federal Power in Western Waters: The Navigation Power and the Rule of No Compensation, 3 Nat. Resources J. 1, 5-6 nn. 22, 23 (1963).
Though similarly grounded in the commerce clause, Kaiser Aetna, 444 U.S. at 177, United States v. Rands, 389 U.S. 121, 122, 19 L. Ed. 2d 329, 88 S. Ct. 265 (1967), the navigational servitude is distinct from the power to regulate navigable waters. Kaiser Aetna, 444 U.S. at 174-75, Swanson v. United States, 789 F.2d 1368, 1371-72 (9th Cir. 1986). Described as a "dominant servitude," United States v. Cherokee Nation of Oklahoma, 480 U.S. 700, 704, 94 L. Ed. 2d 704, 107 S. Ct. 1487 (1987), Federal Power Comm'n v. Niagara Mohawk Power Corp., 347 U.S. 239, 249, 98 L. Ed. 666, 74 S. Ct. 487 (1954), a "plenary authority," South Carolina v. Georgia, 93 U.S. 4, 10, 23 L. Ed. 782 (1876), and a "superior navigation easement," United States v. Grand River Dam Authority, 363 U.S. 229, 231, 4 L. Ed. 2d 1186, 80 S. Ct. 1134 (1960), the navigational servitude generally relieves the government of the obligation to pay compensation for acts interfering with the ownership of riparian, littoral, or submerged lands which, if not for the fact that a waterway is involved, would require compensation under the fifth amendment.*fn8 See Tarlock, Law of Water Rights and Resources § 9.04[a] (1990). This "rule of no compensation" is based in part on the tenuous nature of private property ownership of riparian, littoral, and submerged lands. See, e.g., Cherokee Nation, 480 U.S. at 704 (when the government exercises its rights pursuant to the servitude, there has been no " 'invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the fifth amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject.' ") (quoting Rands, 389 ...