New Jersey v. Delaware, No. 134 Original

Though almost all cases considered by the US Supreme Court these days are under the discretionary appellate jurisdiction of the Court (i.e., it chooses which cases it wants to hear and decide, after lower courts have had a crack at the case), the Court has, by virtue of language in Article III of the Constitution, original jurisdiction--i.e., with no lower court determination--over disputes between states. This is the third time in more than 100 years in which these two states have wanted the Supreme Court to solve border or interstate issues they couldn't solve on their own. In this instance it has to do with whether NJ and DE have to approve jointly a project (construction of a liquefied natural gas facility) built on the NJ side of the Delware River and extending 2000 feet into the river. In normal instances, the border between two states which are separated by a river or body of water is the "high water mark" in the center of the river. But here we have an added complexity, which led to the Court's siding (6-2) with DE. For a part of the Delaware River, DE has ownership to the NJ "low water mark" and, if construction happens in that area, DE may have the authority to nix NJ's plan if it so desires. This authority of DE to do this rests on the construal of a 1905 compact between the two states, ratified by Congress in 1907.

Thus, the Court's task here was to determine if the report of a "Special Master," a lawyer appointed to analyze the submissions from each side and make recommendations concerning them before the case made it to the Supreme Court should be upheld. He recommended that DE not only owned to the NJ low water mark, but that any construction jutting out to the DE-controlled portion of the river had to have the approval of DE in order to continue.

It might be helpful to review a little history behind this case and then look at the disputed provision of the 1905 compact between the states.

The "Twelve-Mile" Circle

Border disputes between NJ and DE regarding the boundary along the Delaware River separating the states have persisted for hundreds of years. In 1682 the Duke of York granted to William Penn portions the northern portions of what is now the State of DE. Penn asserted dominion, within a "twelve-mile circle" over the River and its subaqueous lands up to the low-water mark on the NJ side. This circle centered on New Castle, DE. By looking at a DE map today you can see the circumference of the circle that forms an arc where it meets with the PA border. But the twelve-mile circle also continues south of New Castle. Thus, from approximately Delware City north about 24 miles to the northernmost part of DE, the DE border in the Delware River is the low-water mark on the NJ side. This was actually not confirmed in law until a 1934 decision of the US Supreme Court (New Jersey v. Delaware, 291 US 361). The reason for DE's relatively dramatic claim of ownership to the NJ side of the River was to give PA, the original owner of this area, direct and easy access to water.

The 1905 Compact

Prior to that 1934 decision, however, the two States entered into an accord (the 1905 Compact) which Congress ratified in 1907. That Compact had little really to do with actual border issues; it simply regulated concerns over which the States had disagreements--on service of civil and criminal process on vessels and rights of fishering within the twelve-mile zone. The two important paragraphs of the Compact for the 2008 decision are pars. VII and VIII.

"Art. VII. Each State may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and nature, and to make grants, leases, and conveyances of riparian lands and rights under the laws of the respective States.
“Art. VIII. Nothing herein contained 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 Dispute at Hand

The issue has to do with what is meant by "riparian jurisdiction." New Jersey argued that the phrase was synonymous with "exclusive jurisdiction," which would mean that the state would exercise exclusive jurisdiction of "every kind and nature" for projects "on its own side of the river." Since the liquefied natural gas structure would be anchored on the New Jersey side, even though the terminal/wharf would jut out into the river 2000 feet, NJ argued that in order to be free to exercise its "riparian jurisdiction" it had to have exclusive control of the project.

The Supreme Court didn't bite on NJ's argument. Rather than accepting NJ's construal, it concluded that "riparian jurisdiction," even when supplemented by the phrase "of every kind and nature," didn't effectuate a transfer to NJ of DE's entire "territorial..jurisdiction over [the portion of] the Delaware River [in question]."

Justice Ginsburg, writing for the majority, continued (in language taken from the Syllabus of the decision):

"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 authorize activities that go beyond the exercise of ordinary and usual riparian rights in the face of contrary regulation by Delaware..."

This paragraph, in a nutshell, summarizes the Court's argument. NJ has exclusive jurisdiction of projects that extend to its low-water mark. But, once the project impinges on DE's water, DE has to agree in order for the project to go forward.

Conclusion

Once again, it is the vagaries of history that end up deciding a legal case. Had the border between the two states along the Delaware River in the "twelve-mile circle" been a normal "high water" boundary, NJ would probably have been able to pursue this project without consulting DE. But not with the crucial "twelve-mile circle." We are ruled by our ancestors from their graves...

And, oh, the two dissenters (Justices Scalia and Alito) were both long-time New Jersey residents. Surely that had nothing to do with their dissents.

3434