In the case of Kaiser Aetna et al. v. United States in 1979, the U.S Supreme Court ruled that private property could not be forcibly opened to public use without just compensation under the Fifth Amendment's Takings Clause. The dispute arose when real estate developers Kaiser Aetna transformed a shallow Hawaiian lagoon into an exclusive marina and residential community known as Hawaii Kai Marina, which included navigable waters connected to the Pacific Ocean via a channel dredged by them. The Army Corps of Engineers argued that this connection made it subject to federal regulation and should be open for public navigation rights according to Rivers and Harbors Act of 1899. However, Kaiser Aetna disagreed stating they had state permission for their development plans including maintaining privacy over access points. The court held (6-3) in favor of Kaiser Aetna stating that while Congress has broad powers over navigable waters, these do not extend so far as converting private property into public domain without compensation due its transformation from non-navigable water body into a valuable marina being result of extensive efforts and resources invested by developer.

In the dissenting opinion for Kaiser Aetna et al. v. United States, Justice Thurgood Marshall argued that the majority's decision to recognize a private property right in an artificially created pond was misguided and inconsistent with established legal principles. He contended that while the developers had made significant improvements to their land, they did not have an inherent right to exclude others from navigable waters which are traditionally considered public resources under American law. Furthermore, he disagreed with the majority's assertion that government regulation of such waters constituted a "taking" requiring compensation under the Fifth Amendment. Instead, he viewed it as a legitimate exercise of state power aimed at preserving public access to important natural resources.