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LEGAL INFORMATION INSTITUTE -- CORNELL LAW SCHOOL
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NEW JERSEY v. DELAWARE (134ORIG Syllabus)
http://www.law.cornell.edu/supct/html/134ORIG.ZS.html
(L033108 Orders)
http://www.law.cornell.edu/supct/html/033108.ZOR.html
NEW JERSEY v. DELAWARE (No. 134, Orig.)
Web-accessible at:
http://www.law.cornell.edu/supct/html/134ORIG.ZS.html
Argued: November 27, 2007 -- Decided: March 31, 2008
Opinion author: Ginsburg
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This is the third original action between New Jersey and
Delaware involving the boundary along the Delaware River
(or River) separating the two States. The first action
was settled by a compact the two States approved in 1905,
and Congress ratified in 1907 (1905 Compact or Compact).
See New Jersey v. Delaware, 205 U. S. 550 (New Jersey v.
Delaware I). The 1905 Compact addressed fishing rights
but did not define the interstate boundary line. Two provisions
of the Compact sowed the seeds for further litigation.
Article VII provided: "Each State may, on its own side
of the river, continue to exercise riparian jurisdiction
of every kind and nature." But Article VIII added: "Nothing
herein ... shall affect the territorial limits, rights,
or jurisdiction of either State of, in, or over the Delaware
River, or the ownership of the subaqueous soil thereof,
except as herein expressly set forth." The second action,
resolved by this Court in 1934, conclusively determined
the location of the interstate boundary: Delaware owned
"the river and the subaqueous soil" within a twelve-mile
circle centered on New Castle, Del., "up to [the] low water
mark on the easterly or New Jersey side"; south of the
twelve-mile circle, the middle of the River's main ship
channel marked the boundary. New Jersey v. Delaware II,
291 U. S. 361 .
The current controversy was sparked by the Delaware Department
of Natural Resources and Environmental Control's (DNREC)
refusal to grant British Petroleum permission to construct
a liquefied natural gas (LNG) unloading terminal projected
to extend beyond New Jersey's shore some 2,000 feet into
Delaware territory. DNREC determined that, under Delaware's
Costal Zone Act (DCZA), the proposed terminal would be
an "offshore bulk product transfer facilit[y]" as well
as a "heavy industry use," both prohibited by the Act.
New Jersey commenced this action, seeking a declaration
that Article VII of the 1905 Compact gave it exclusive
regulatory authority over all projects appurtenant to its
shores, including wharves extending past the low-water
mark on New Jersey's side into Delaware territory. Delaware's
answer asserted that, under, inter alia, Article VIII of
the Compact and New Jersey v. Delaware II, it had regulatory
authority, undiminished by Article VII, over structures
located within its borders. On cross-motions for summary
judgment, the Special Master filed a report recommending
a determination by this Court that the "riparian jurisdiction"
preserved to New Jersey by Article VII is not exclusive
and that Delaware has overlapping jurisdiction, within
the twelve-mile circle, to regulate improvements outshore
of the low-water mark on the New Jersey side of the River.
New Jersey filed exceptions.
Held: Article VII of the 1905 Compact did not secure to
New Jersey exclusive jurisdiction over all riparian improvements
commencing on its shores; New Jersey and Delaware have
overlapping authority to regulate riparian structures and
operations of extraordinary character extending outshore
of New Jersey's domain into territory over which Delaware
is sovereign. Pp. 8-23.
(a) The Court rejects New Jersey's argument that Article
VII, which accords each State "riparian jurisdiction of
every kind and nature," bars Delaware from any encroachment
upon New Jersey's authority over improvements extending
from New Jersey's shore. Pp. 8-16.
(1) The novel term "riparian jurisdiction," as used in
Article VII, is properly read as a limiting modifier and
does not mean "exclusive jurisdiction." "[R]iparian jurisdiction"
has never been a legal term of art, and appears to be a
verbal formulation the 1905 Compact negotiators devised
specifically for Article VII. Elsewhere in the 1905 Compact--most
notably, in Article VIII--the more familiar term "jurisdiction"
or "exclusive jurisdiction" appears. Attributing to "riparian
jurisdiction" the same meaning as "jurisdiction" unmodified,
or equating the novel term with the formulation "exclusive
jurisdiction," would deny operative effect to each word
in the Compact. See United States v. Menasche, 348 U. S.
528 . Presumably drafted in recognition of the still-unresolved
boundary dispute, Article VIII requires an express statement
in the Compact in order to "affect the territorial ...
jurisdiction of either State ... over the Delaware River."
The Court resists reading the uncommon term "riparian jurisdiction,"
even when aggrandized by the phrase "of every kind and
nature," as effectuating a transfer to New Jersey of Delaware's
entire "territorial ... jurisdiction ... over [the portion
of] the Delaware River [in question]." Pp. 10-11.
(2) A riparian landowner ordinarily enjoys the right to
build a wharf to access navigable waters far enough to
permit the loading and unloading of ships. But that right,
New Jersey agrees, is subject to state regulation for the
protection of the public. New Jersey sees itself, however,
as the only State empowered to regulate, for the benefit
of the public, New Jersey landowners' exercise of riparian
rights. Commonly, the State that grants riparian rights
also has regulatory authority over their exercise. But
the 1905 Compact's negotiators faced an unusual situation:
As long as the boundary issue remained unsettled, they
could not know which State was sovereign within the twelve-mile
circle beyond New Jersey's shore. They likely knew, however,
that "[t]he rights of a riparian owner [seeking to wharf
out into] a navigable stream ... are governed by the law
of the state in which the stream is situated." Weems Steamboat
Co. of Baltimore v. People's Steamboat Co., 214 U. S. 345
.. With the sovereignty issue reserved by the 1905 Compact
for another day, it is difficult to gainsay the Special
Master's conclusion that Article VII's reference to "riparian
jurisdiction" did not mean "exclusive jurisdiction." Endeavoring
to harmonize Article VII with the boundary determination,
the Special Master concluded that Article VII's preservation
to each State of "riparian jurisdiction" gave New Jersey
control of the riparian rights ordinarily and usually enjoyed
by landowners on New Jersey's shore. But once the boundary
line at low water is passed, the Special Master further
concluded, New Jersey's regulatory authority is qualified.
Just as New Jersey cannot grant land belonging to Delaware,
New Jersey cannot authori
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