New Jersey v. Delaware – Oral Argument – November 27, 2007

Media for New Jersey v. Delaware

Audio Transcription for Opinion Announcement – March 31, 2008 in New Jersey v. Delaware

del

John G. Roberts, Jr.:

We’ll hear argument next in case 134 on our original docket, New Jersey v. Delaware.

Mr. Farr.

H. Bartow Farr, III:

Mr. Chief Justice, and may it please the Court: Although the 1905 Compact between Delaware and New Jersey did not settle the boundary dispute between them, New Jersey nevertheless agreed to dismiss the suit that it had filed before this Court to determine the boundary.

And the reason for those two seemingly contradictory facts, I think, is because the Compact did resolve permanently certain issues of jurisdiction, implementing rules that could be administered without regard to where the boundary was.

Thus in particular Article VII, the provision of the Compact that’s particularly at issue in this case, provided that each State could continue to exercise its traditional riparian authority over the riparian owners on its side of the river according to its laws.

Now, the Special Master I think fundamentally changed the nature of the Compact by superimposing the boundary line into the terms of an agreement that was meant to operate without it.

And I think he did so because he mistakenly applied the presumption that all promises with respect to jurisdiction and territory must be unmistakable; and this Court, however, had said several years before, in Virginia versus Maryland, that that presumption simply is not applicable to compacts that are entered into when the boundaries between the States are disputed.

Ruth Bader Ginsburg:

Mr. Farr, one of the striking things about this Compact is that to the extent that it is definite, there is a lot in here in detail about service arrests on the river and about fishing, but then you get to these two articles at the end and they certainly don’t have that same definite detailed quality.

As I read the Article VII that you’re stressing, it says… let’s see… “may continue to exercise”.

So it seems to me that “may continue to” was just whatever was the status quo, that will continue; not to do anything dispositive, just whatever was will continue.

H. Bartow Farr, III:

Well, several things about that, Justice Ginsburg.

First of all I think that the language “continue to” necessarily brings in the historical antecedents of regulation of riparian matters by both States.

It’s undisputed in this case that on New Jersey’s side of the river, that is with respect to riparian owners on the New Jersey side, New Jersey had exercised full and exclusive authority over, for example, wharfing out to navigable water, the building of piers and wharfs to do that, the granting of lands, without any involvement whatsoever by Delaware.

Antonin Scalia:

Was it clear that New Jersey believed when it had authorized somebody to wharf out, that the person who wharfed out was not subject to New Jersey’s environmental laws?

H. Bartow Farr, III:

No.

I think what–

Antonin Scalia:

The history doesn’t show anything about that?

H. Bartow Farr, III:

–The history doesn’t show anything–

Antonin Scalia:

So if–

H. Bartow Farr, III:

–specific about that kind of law.

Antonin Scalia:

–if it… if it would have been subject to New Jersey’s environmental laws, had New Jersey owned the bed of the river into which the wharf was extended, by parity of reasoning it seems to me the wharf would be subject to Delaware’s environmental laws if Delaware owns the bed of the river.

H. Bartow Farr, III:

I think without the Compact that would be true, but I think what the Compact is saying is that you get to retain the degree of power on your own side of the river that you had before, without regard ultimately to where the boundary is determined to be.

David H. Souter:

So your… your argument… it seems to me it’s not that easy, because your argument is assuming that by virtue of the “may continue” language, the State of New Jersey acquires a new power, and the new power in effect is to… is to make grants of subaqueous land that belonged not to New Jersey but to Delaware, and that’s the stretch.

It… it seems to me that that is such an extraordinary position or proposition, that you’ve got to have something more specific than “may continue” in order to construe that as meaning an agreement which was intended to give New Jersey the power to grant away Delaware land.

H. Bartow Farr, III:

Well, Justice Souter, I think that the difficulty with that question is it assumes knowledge of where the boundary is.

In other words, when one talks about New Jersey getting a new power to grant lands that are within Delaware, that is a… that is a question that necessarily assumes that the boundary has to be part of that understanding.

Antonin Scalia:

I don’t–

David H. Souter:

No, I’m simply saying that your position… and I accept your position… that the Compact is intended to continue to operate whether or not the boundary is… is ultimately determined, and if so, after it is ultimately determined… and once we get to that point of continuing to operate after, then necessarily the only way it can operate on your theory is to give New Jersey the power to grant Delaware land.

And if New Jersey has that power, it must have been a power that was intended in the 1905 Compact, and that intent strikes me as a very extraordinary intent; and… and my… the point of my question was the application of the Compact in the new circumstances, as you claim it to be, would be so extraordinary that you ought to have language more specific than “may continue” in order to establish that extraordinary result.

H. Bartow Farr, III:

Well, of course.

H. Bartow Farr, III:

It is… it is saying

“may continue to grant riparian rights and lands under its laws. “

So it is not simply the language “may continue”.

David H. Souter:

Well, if you emphasize “under its laws”, then don’t you lose?

Because New Jersey does not… I presume New Jersey does not have law, for example, in its constitution, providing that it can grant Delaware land.

H. Bartow Farr, III:

Well, I don’t think that the laws have to refer specifically, obviously, to granting Delaware land.

It did have provision for granting laws beyond the low-water mark in New Jersey.

Many of the grants before 1905 specifically–

David H. Souter:

But I’m going on the assumption that it, in fact, had jurisdiction; that it had land below… beyond the low-water mark.

H. Bartow Farr, III:

–But what I think you’re suggesting, Justice Souter, I think, is what… what fundamentally alters the nature of the Compact is to assume that New Jersey had certain powers up until the time the boundary line was determined, and then it lost those powers after the boundary line was–

David H. Souter:

It didn’t so much lose… I mean it had a generalized recognition of power.

In order to exercise that power, it had to possess certain attributes, i.e., land.

Once it lost that land, it had nothing to exercise the power over.

In fact, it had a little bit left.

It had the distance between the high and the low-water marks, so it still had the power.

But the… the recognition of the power in 1905 was, in effect, a formula; and the formula depends on facts to be applied; and the facts changed once the boundary was determined.

H. Bartow Farr, III:

–You see, I think there are two problems with that, Justice Souter.

First of all, the very notion that there would be something left if the boundary line was determined to be at the low-water mark on the New Jersey side… in other words, that Article 7 would continue to operate; it would just operate subject to the boundary… at least in the context of the riparian right that we are talking about, the right to wharf out to navigable water, that right is essentially meaningless if you stop at the low-water mark.

In other words, what you’re saying and what the Special Master’s recommendation essentially does, it says New Jersey has no right to authorize wharfing out to navigable water without Delaware’s consent.

Samuel A. Alito, Jr.:

What right do you think–

H. Bartow Farr, III:

I–

Samuel A. Alito, Jr.:

–What right do you think New Jersey has now with respect to the subaqueous land?

Is it simply to authorize it to be disturbed to the extent necessary to construct a wharf, or does it go any further than that?

H. Bartow Farr, III:

–Basically, I think what you have said, Justice Alito, is exactly right.

It is–

Antonin Scalia:

–I have a more basic question.

Assume… assuming that the subaqueous land belongs to New Jersey and that New Jersey gives a private individual a right to wharf out into the Delaware, does that individual acquire ownership of the land under the water, assuming New Jersey owns the subaqueous land?

H. Bartow Farr, III:

–It depends on the form of the grant, but, typically, if New Jersey–

Antonin Scalia:

But, normally, authority to wharf out doesn’t convey the land with it; does it?

H. Bartow Farr, III:

–It conveys an interest in the land that allows the doing of the activity–

Antonin Scalia:

Of the wharf.

H. Bartow Farr, III:

–for which the–

Antonin Scalia:

Of the wharf.

H. Bartow Farr, III:

–That’s correct.

Antonin Scalia:

Now, if… if merely authority to wharf out would not even convey New Jersey’s own land, how can you argue that, by reason of this Compact, it implicitly conveyed what is now Delaware’s land?

H. Bartow Farr, III:

Well, because Delaware has essentially said in Article VII, we believe, Justice Scalia, that New Jersey may continue to do this.

It was doing… I mean this land–

Antonin Scalia:

May continue to wharf out, but not continue to grant subaqueous land, which you say doesn’t go with wharfing out.

H. Bartow Farr, III:

–Well, what we are… what we’re talking about, I think, is we’re talking about granting the interest in land that is necessary for the riparian owner to be able to wharf out.

John G. Roberts, Jr.:

So that if you have one of these wharves that goes beyond the low-water mark and there are two people at the end of it and one of them shoots the other, would they be prosecuted for murder in Delaware or New Jersey?

H. Bartow Farr, III:

Well, in… in… there was a gambling offense at the end of a pier in… in… that proceeded from the New Jersey shoreline, in 19… in the late 1950’s in a case called the Federenco case, which I don’t have the cite for immediately.

The New Jersey Supreme Court held that that was within the jurisdiction of New Jersey, and Delaware filed a–

John G. Roberts, Jr.:

I suspect the New Jersey Supreme Court would.

H. Bartow Farr, III:

–Delaware filed a brief, Mr. Chief Justice, supporting that position.

So… but if I could return just for a second to Justice Souter’s point and Justice Scalia’s point, if one thinks for a moment… we’re… we’re trying to, I think, interpret the… the 1905 Compact as it must have been understood by the commissioners who drafted it.

And so I think that, unlike the Special Master, who at the time he’s interpreting it, knows where the boundary line is, we have to think about, first of all, would the commissioners essentially have been saying to New Jersey, as your hypothesis would suggest, that each State on its own side of the river has the right to grant riparian rights and lands and exercise riparian jurisdiction subject to the boundary line, which for New Jersey would mean that, in fact, if it lost the boundary case, it would effectively have no riparian jurisdiction at all?

Ruth Bader Ginsburg:

Mr. Farr, what about the article that follows Article VII?

Article VIII says:

“Nothing herein contained shall affect the territorial limits, rights, or jurisdiction of either State in or over the Delaware River. “

So that’s a qualification at least on every other article.

H. Bartow Farr, III:

Well, Justice Ginsburg, if I may say, the quote is longer than that and in a critically important way.

It says it may not do that

“except as herein expressly set forth. “

Ruth Bader Ginsburg:

Yes, and I don’t see anything expressly set forth in VII, which just says “may continue to”, which says the status quo is maintained.

H. Bartow Farr, III:

Well, I mean, obviously, we’re… we’re debating the meaning of Article VII, but it seems to me that Article VII is an express provision herein, meaning in the Compact.

So that what Article VII is aiming at, it seems to me, if we are correct that it is essentially meant to operate without respect to the boundary, would expressly set forth a cession.

And I might point out that when this case was before this Court or the two States were before this Court back in 1934, Delaware’s counsel before this Court said pretty much exactly what I’m saying this morning: that… and this is on page 44 of our blue brief, but said that the Compact of 1905 in his view ceded to the State of New Jersey all the right to control the erection of those wharves, meaning wharves that were constructed by New Jersey riparian owners past the low-water mark, and to say who shall erect them.

Anthony M. Kennedy:

Well, are you asking us to reject the concept of concurrent jurisdiction in all circumstances?

H. Bartow Farr, III:

As far as State jurisdiction goes, it seems to me there is not concurrent jurisdiction over riparian structures such as piers and wharves and other kinds of acknowledged riparian rights.

With respect to matters that are nonriparian, for example, if a riparian owner in New Jersey wanted to construct a hotel that was beyond the low-water mark, that would not be a riparian use.

H. Bartow Farr, III:

And Delaware–

John G. Roberts, Jr.:

How do we split that difference?

I mean let’s–

H. Bartow Farr, III:

–Pardon me?

John G. Roberts, Jr.:

–I mean, how do we decide the difference between those two cases?

And applicable here, for example, let’s say it’s perfectly fine for New Jersey to build a wharf out there, but they can’t use it for liquified natural gas, which Delaware may conclude poses particular problems that other uses don’t.

H. Bartow Farr, III:

But I think what you’ve done, Mr. Chief Justice, if I may, is I think you’ve detached the purpose of a wharf from the wharf itself.

The purpose of a wharf is the loading and unloading of goods.

That’s what… what they are used for.

Vessels draw up, tie up and unload or load goods and/or passengers.

Antonin Scalia:

Could New Jersey… could New Jersey prevent its use for liquified gas?

H. Bartow Farr, III:

Under State law, yes, it could, Your Honor.

Antonin Scalia:

Well… but New Jersey had given this riparian owner the right to wharf out.

H. Bartow Farr, III:

Well–

Antonin Scalia:

So, obviously, the right to wharf out does not include the right to use the wharf for whatever you like, and the only thing we’re arguing about is whether it is New Jersey or Delaware that can impose limitations.

But that it is subject to limitation is, it seems to me, absolutely clear.

H. Bartow Farr, III:

–I agree with that.

There’s no question that it is subject to limitation.

The question is, whose laws apply?

Who… and it seems to me that is the question that Article VII expressly answered.

Article VII again says

“each State on its own side of the river. “

–which is not a designation that is limited by the boundary, because Delaware made that argument to the Special Master, the Special Master rejected it, and Delaware did not file exceptions in this Court.

So

“on its own side of the river. “

I think is properly taken to mean with respect to the riparian owners on its bank of the river.

Those riparian owners… I mean, excuse me…

“each State may continue on its own side of the river to exercise riparian jurisdiction of every kind and nature, make grants of riparian rights and land under the respective laws of the States. “

Anthony M. Kennedy:

And in your view to what extent does this involve subaqueous lands toward… and I’ll just put “toward”… the New Jersey side?

H. Bartow Farr, III:

Unfortunately, I’m not sure I understand the phrase “toward the New Jersey side”.

H. Bartow Farr, III:

I mean, between the low-water mark–

Anthony M. Kennedy:

I’m not sure I understand your position on where New Jersey’s jurisdiction begins and ends with reference to subaqueous lands.

H. Bartow Farr, III:

–Well, it’s… literal ownership of the land begins at the high-water mark on the New Jersey side and ends at the low-water mark on the New Jersey side, its actual ownership.

Under the Compact, we believe Delaware has ceded to it the right to grant certain interests in subaqueous land to the extent but only to the extent that they are necessary to allow owners in New Jersey, riparian owners, to exercise riparian rights, provided that the New Jersey State law grants them that right.

Ruth Bader Ginsburg:

That suggests–

H. Bartow Farr, III:

If they were–

Ruth Bader Ginsburg:

–it’s still an extraordinary power for one State to give up.

If Delaware… if that land… they didn’t settle the boundary, but it might be on the Delaware side.

If Delaware was giving up so much, what did it get in exchange?

H. Bartow Farr, III:

–Well, again, the question that you’re asking assumes that the negotiators were coming into the negotiation with their boundary positions fixed and that they were essentially horse-trading within the bounds of the different positions taken by the two States.

Ruth Bader Ginsburg:

No, I’m not assuming that.

I’m assuming it’s unknown, but there is the possibility that it’s going to end up–

H. Bartow Farr, III:

There’s the possibility that–

Ruth Bader Ginsburg:

–end up–

H. Bartow Farr, III:

–I’m sorry.

Ruth Bader Ginsburg:

–There’s a possibility that it will end up on the Delaware side.

And you’re suggesting that Delaware relinquished all of its regulatory authority and gave it to New Jersey, no matter where the boundary turned out to be.

H. Bartow Farr, III:

That is what I’m suggesting with respect to this narrow category of riparian rights.

Just as that’s true, for example, in Article I.

New Jersey has the right to serve criminal process with respect, for example, to crimes that occur on the eastern half of the river, which is something that New Jersey clearly would not have had if it ultimately lost the boundary dispute; whereas Delaware got, in Article II, the authority to serve process for crimes occurring on the western half of the river, which it would have had anyway, whether it won or lost the boundary dispute, assuming that the half of the river refers to the channel.

So I mean… let me–

Anthony M. Kennedy:

But that’s… Article I… that’s an exception.

And you don’t have the benefit of that exception when you’re talking about Article VII.

H. Bartow Farr, III:

–The exception–

Anthony M. Kennedy:

The exception is not that specific as to the… as to the extent of the jurisdiction.

H. Bartow Farr, III:

–Well, Justice Kennedy, I think you’ve asked a very good question, but… but I guess I think it is… it’s quite specific, because the question is, what do the terms

mean?

Those obviously have some geographical impact here, and indeed in… before the Special Master, Delaware’s position was yes, that is a geographical designation, but what it means is “up to the boundary line”.

In other words, up to the low-water mark.

As I say, the Special Master rejected that position.

H. Bartow Farr, III:

Delaware did not file exceptions from that position.

So I think we can accept at this point in the case that’s not what

“on its own side of the river. “

means.

So the question then is: What does it mean?

And it seems to me what it means is, with respect to the riparian property owned by New Jersey citizens on the New Jersey side of the river, Delaware citizens on the Delaware side of the river.

And what it is therefore doing is saying each State may control and determine the rights of its citizens who own riparian property–

John Paul Stevens:

Mr. Farr, is there–

H. Bartow Farr, III:

–regardless of where–

John Paul Stevens:

–Is there a limit on New Jersey’s rights?

As long as it’s building a wharf, can it do anything it wants to on that or is there… for example, could it dam up the navigable part of the river in order to build a superstructure on the wharf?

H. Bartow Farr, III:

–Well, there are two questions there, Justice Stevens, if I can separate them for a moment.

As far as State law goes, purely State law, I think the answer to that question is that New Jersey determines what can and cannot be done–

John Paul Stevens:

Well, then I should–

H. Bartow Farr, III:

–on a wharf.

John Paul Stevens:

–I should rephrase it.

To what extent, if any, does Delaware place a limit on the way in which New Jersey may exercise its riparian rights?

H. Bartow Farr, III:

Under State… by applying Delaware State law, I think it cannot impose any limits.

John Paul Stevens:

Any limit whatsoever?

H. Bartow Farr, III:

With respect to the exercise of riparian rights.

Because once it–

John Paul Stevens:

Even if… even if the building of the wharf interfered with the navigation on the river?

H. Bartow Farr, III:

–Well, this is, I think, why I was trying to separate it into two parts.

What I’ve left out, the part I’ve left out so far, is Federal law.

Federal law has a significant amount to say about what happens with respect to piers and wharves–

John Paul Stevens:

Well, I’m just asking, is it–

H. Bartow Farr, III:

–in any State.

John Paul Stevens:

–does Delaware law place any limit on what New Jersey may do in exercising its riparian rights?

H. Bartow Farr, III:

I mean, it does impose a limit, but we don’t think those limits are valid under Article VII of the Compact.

I think the–

John Paul Stevens:

I mean, can they validly impose a limit?

H. Bartow Farr, III:

–No, no, they cannot.

They… what this does is it says, for New Jersey riparian owners, when they are building wharves and piers, they are subject to the laws of New Jersey.

“The respective States” means that the laws of one State or the laws of the other State, depending on which side of the river you’re on.

So they are subject to New Jersey law.

Now, obviously, any pier or wharf that interfered with navigation interferes with the Federal navigational servitude.

So that would be subject to review under Federal law.

John Paul Stevens:

And what about the example of using a… setting a gambling casino or something at the end of the wharf, well into Delaware territory?

You’d say Delaware has no right to object to that.

H. Bartow Farr, III:

No, I would say it does have a right there because that is not a–

John Paul Stevens:

That’s not a riparian use.

H. Bartow Farr, III:

–That’s not a riparian use.

We’re talking about–

John Paul Stevens:

Anything involving loading and unloading of ships and so forth would be permissible?

H. Bartow Farr, III:

–Exactly.

John G. Roberts, Jr.:

Then how come your position in my murder hypothetical was what it was?

Because I assume murder is not a riparian use either.

And yet, why would Delaware have jurisdiction over a casino but not over a crime?

H. Bartow Farr, III:

Because I think we’re talking about now what happens with respect… I mean, if we’re talking… this was a gambling… it wasn’t a casino.

This was a gambling offense that took place on a facility that actually was used for the loading and unloading of ships.

The gambling was an outside activity not relating to the use of the wharf.

So I think the understanding was that riparian jurisdiction of every kind and nature would be sufficient to say, once you have built the wharf and it is a legitimate riparian purpose not subject to Delaware laws, then New Jersey would apply its criminal laws as well.

And as I say, Delaware filed an amicus brief… unfortunately, we don’t have a copy of it in the record… but the New Jersey Supreme Court noted that Delaware supported New Jersey’s jurisdiction over that gambling offense.

Antonin Scalia:

Mr. Farr, could you tell me… one thing in Article VII perplexes me.

Why does it say that each State may

“make grants, leases, and conveyances of riparian lands and rights? “

“Rights” I can understand.

But why would they say “conveyances of riparian lands”?

H. Bartow Farr, III:

I assume–

Antonin Scalia:

I mean, obviously each State can… riparian lands are within each State.

Antonin Scalia:

Nobody questioned that at the time.

H. Bartow Farr, III:

–Well, I think the fact is that this is why one needs to give some sort of practical… take a practical view of what Article VII is talking about.

Article VII… the two riparian rights that are of particular interest and were established clearly in 1905, obviously subject to the State limitations, were, first of all, the right to draw water, the riparian right that was at issue in Virginia v. Maryland, where the Court said Maryland can’t apply its police power, I might point out.

The second was piers and wharves.

Obviously, a pier and a wharf that stops at the low-water mark is of no use at all.

It’s got to get out to the navigable water.

That’s where the ships are.

It’s the Willie Sutton principle.

So once have you that, if you’re going to have riparian rights, you’ve got to have the ability to grant some interest in lands so that they can exercise their right out to the point where it becomes meaningful.

And that’s, it seems to me, why–

Antonin Scalia:

So you say “riparian lands” means the land under the wharf?

That’s a strange use of “riparian lands”.

H. Bartow Farr, III:

–No, that’s what… I mean, “riparian lands” could mean the lands on the bank, but I think that’s not what they’re talking about in this context.

Antonin Scalia:

Do you know of any other instance where people talk of riparian lands and they mean land extending under the water?

H. Bartow Farr, III:

I think, because of the context here, when it’s linked with the rights, that the necessary… the limitation that Justice Alito mentioned gives… colors it essentially to say this is what we’re talking about.

And after all, this is similar–

Antonin Scalia:

That’s your position, that “lands” means the lands under the water?

H. Bartow Farr, III:

–That’s correct, because this is settling… 1 the point of it is to settle and avoid future controversy with respect to the river, and those are the lands that are under the river.

If I could reserve–

Ruth Bader Ginsburg:

And there was in fact in this project, was there not, there was required dredging of 1.24 million cubic yards of submerged soil that would be–

H. Bartow Farr, III:

–That’s true.

Ruth Bader Ginsburg:

–on the Delaware side of the boundary?

H. Bartow Farr, III:

That’s true.

Although I might point out that, as the Weggle Declaration says in the record… and I can get a citation to that in a moment, it’s in our brief… that actually is a relatively small amount compared to much dredging that went on prior to 1905.

Ruth Bader Ginsburg:

I thought this extended out more than any prior exercise of riparian rights.

H. Bartow Farr, III:

In the Delaware River, I believe that is correct.

Ruth Bader Ginsburg:

Yes.

This was going to be 2,000 feet, and the greatest extension up until then was between 500 and 600.

H. Bartow Farr, III:

I’m not… I think the second figure may be short.

But nonetheless, I don’t argue with the premise.

John G. Roberts, Jr.:

Thank you, Mr. Farr.

H. Bartow Farr, III:

Thank you, Mr. Chief Justice.

John G. Roberts, Jr.:

Mr. Frederick.

David C. Frederick:

Thank you, Mr. Chief Justice, and may it please the Court: Our position can be summarized in two words: Boundaries matter.

Boundaries determine where States can make grants of land, and they determine where a State can exercise its police powers.

And with respect to both principle, the Special Master got it exactly right.

Nothing in Article VII or elsewhere in the Compact of 1905 precludes the State of New Jersey from exercising its police powers within the boundary determined by this Court in its 1934 boundary decision.

And, in fact, at 291–

John Paul Stevens:

May I just interrupt right there, Mr. Frederick?

Do you contend that they may no longer build wharves that go beyond the State line?

David C. Frederick:

–No.

Our position is that–

John Paul Stevens:

Well, then boundries don’t matter completely.

David C. Frederick:

–No, they can… under Delaware law, a riparian owner in New Jersey can extend past the low-water mark as has been permitted by New Jersey, by Delaware in every single instance since 1961 when Delaware enacted subaqueous land laws, except the two times where New Jersey riparian owners sought to violate Delaware’s laws by building LNG facilities: In 1972 when the El Paso Company sought to build an LNG facility and was denied by Delaware and New Jersey acquiesced in that denial, and then in 2005 when Delaware made the status determination that the Crown Landing facility was a prohibited bulk transfer facility precluded by Delaware law.

David H. Souter:

What if Delaware took the position that there simply is the maximum amount of allowable building in the river, and from now on it will not, in fact, agree to grant, authorize, whatever the title is, any further wharves and piers on New Jersey’s side?

Does Delaware have the authority to do that?

David C. Frederick:

Delaware can exercise its police authority as–

David H. Souter:

It’s passed a statute.

David C. Frederick:

–Yes.

David H. Souter:

Is the statute effective?

David C. Frederick:

The statute is not effected in the hypothetical that you give.

Nothing in Delaware subaqueous land laws goes to clutter, visual or otherwise, on the bank.

David H. Souter:

I’m talking about a new statute.

Delaware says enough is enough; no more wharfs and piers from the New Jersey side.

Is that statute effective and enforceable?

David C. Frederick:

That statute would be subject to Delaware takings law, and Delaware has found that–

David H. Souter:

But, Mr. Frederick, if the… if the legislature of Delaware passes that statute, I assume they intend it to mean what it says.

And as against a claim by New Jersey or on behalf of a New Jersey grantee, is that Delaware statute effective?

David C. Frederick:

–It depends.

Justice Souter, it depends.

David H. Souter:

It depends on what?

David C. Frederick:

The Constitution of the United States and the constitution of Delaware.

A private–

David H. Souter:

Forget the Federal right now.

We’re talking about construing a compact.

So far as this Compact is concerned, so far as the domestic laws of the two states, New Jersey and Delaware, are concerned, would the Delaware statute be effective?

David C. Frederick:

–The Delaware statute would not be affected by the 1905 Compact, Justice Souter, because Delaware would assert presumably, if defending that law, that it was subject to regular police power restrictions.

But those police power restrictions–

David H. Souter:

I’m not asking you what Delaware would say.

I think I can imagine what Delaware would say.

I want to know whether Delaware would prevail when it got here–

David C. Frederick:

–No.

David H. Souter:

–in your view?

David C. Frederick:

I don’t think that Delaware would prevail on a blanket prohibition of the exercise of riparian rights by New Jersey landowners.

David H. Souter:

Why?

David C. Frederick:

Because Delaware has always permitted the exercise of riparian rights because–

David H. Souter:

Well, that is before there was all these wharves were out here, and Delaware is now saying the facts have changed.

David C. Frederick:

–Delaware certainly has the power, under our theory of the case as recommended by the Special Master, to implement its police powers.

Those police powers are always subject to constitutional constraints.

And under the hypothetical you posed, as extreme as it is, Justice Souter, the Constitution, both under Delaware law and under the United States Constitution, might well say the State has gone too far in exercising its police–

Anthony M. Kennedy:

It seems to me you’re running away from the hypothetical.

I have the question that Justice Souter has, basically to what extent does concurrent jurisdiction apply, what are the limits that we will apply in later cases to implement this concept of concurrent jurisdiction?

In the laws of some States you can’t overburden an easement.

If you give a power company an easement, it can’t put huge 300-foot structures on the easement without taking… is that the kind of analysis that we have to apply in order to make your concurrent jurisdiction and the Master’s concurrent jurisdiction theory work?

David C. Frederick:

–I’m not sure that you would need to go that far, certainly in light of the practical realities of the 150 years of shared use of the Delaware River, Justice Kennedy.

Importantly, under New Jersey’s theory, to go to your hypothetical, Justice Souter, where the entire bed of the river within the Twelve-Mile Circle would be built out, that would be a functional abrogation of this Court’s boundary decision, because this Court held that the land under the piers was not belonging to New Jersey and that an attempt to extend the entire boundary outward, water-ward, would be overriding what this Court determined was the… easement.

David H. Souter:

But again, you’re changing the hypothetical.

Your answer, I… the answer that you just gave, I presume would be the same whether Delaware had passed any particular statute regarding wharfage from the New Jersey side or whether it had… you were giving an answer which took into consideration the Compact but which basically depended upon we’ll call it the general riparian law.

The question, however, is the effectiveness of a Delaware statute directed specifically to this issue that says “no more”.

David C. Frederick:

That becomes a dormant Commerce Clause problem, Justice Souter.

Antonin Scalia:

He is asking about under this thing.

Forget about the Commerce Clause.

And it’s obvious what the purpose of the hypothetical is.

You’re saying that to give you the right to wharf out does not mean that you can use the wharf for any purpose that’s contrary to the police power prescriptions of Delaware.

That is reasonable enough.

Well, what if one of the police power prescriptions is you can’t have a wharf?

Now, you know, can you flatly contradict what Article VII says?

And I really think you ought to give that one away.

[Laughter]

David C. Frederick:

Justice Scalia, under a broad theory of where the boundary is in matters, it would require New Jersey to have access to grant Delaware lands.

And under our theory as accepted by the Special Master, that would not be permitted.

If it is simply a question of use, we would acknowledge that the New Jersey riparian owner can–

Samuel A. Alito, Jr.:

I think you’re eliminating the right to wharf out.

Before 1905, New Jersey was allowing the construction of wharves, isn’t that correct?

David C. Frederick:

–There were only two proven in the record, Justice Alito, and neither of which was proved in this record to go beyond the low-water mark.

But, yes, you’re right.

Antonin Scalia:

It was a wharf that didn’t go beyond a low-water mark?

David C. Frederick:

Yes.

Parts of the Twelve Mile Circle–

Antonin Scalia:

What did they do, jump onto the land?

[Laughter]

David C. Frederick:

–No.

In parts of the Twelve Mile Circle, Justice Scalia, particularly in Gloucester County, there’s marshy area where the low-water area extends hundreds of feet into the river.

And that is where the boundary is… is determined.

And it was not necessary in some places within the Twelve Mile Circle to go beyond the low-water mark in order to build a pier–

Samuel A. Alito, Jr.:

Isn’t it true… we can look and see what was authorized or not before 1905.

But isn’t it true that the ability to wharf out is a classic American… a classic riparian right–

David C. Frederick:

–Certainly.

Samuel A. Alito, Jr.:

–under U.S. law?

David C. Frederick:

Certainly.

Samuel A. Alito, Jr.:

And in deciding whether to allow someone to wharf out, the State with jurisdiction would decide whether the wharf was consistent with State objectives, safety objectives, interference with navigation and so forth?

David C. Frederick:

Yes, Justice Alito.

Samuel A. Alito, Jr.:

And Article VII says that each State on its own side of the river may continue to make conveyances of riparian rights.

So why doesn’t that mean that each State is continued… continues to have the ability to authorize the wharfing out and to decide whether particular wharves are consistent with the State’s police powers?

David C. Frederick:

The last part of your question, Justice Alito, is where the rub lies, because riparian law was subject to the individual determination of what a riparian right was, and how the State’s regulation of that right as a private property right would be determined.

What this Court’s cases uniformly hold is that the police power trumps that private riparian right, and this was recognized by the attorney general for New Jersey.

Samuel A. Alito, Jr.:

If you separate these two, then the riparian right is worthless, is it not?

David C. Frederick:

I beg your pardon?

Samuel A. Alito, Jr.:

It’s worthless if you separate those two.

David C. Frederick:

No.

Samuel A. Alito, Jr.:

If you say, New Jersey can authorize wharfing out, except Delaware can say you can’t wharf out, because it’s inconsistent with our police power, then… then the authorization to allow wharfing out is meaningless.

David C. Frederick:

No, because wharfing out is always dependent on whether or not it is so far into the river to impede the navigable channel, to become a nuisance, and none of the cases by this Court talking about wharfing rights concern the police powers issued by the State.

Cummings v The City of Chicago held that the Federal riparian right given to the wharf owner in Chicago was not… could not override a State’s determination of how the wharf could be built, that police power.

Hudson v McCarter–

Anthony M. Kennedy:

But that assumes that there is going to be a wharf.

You want us to say that the police power means that there cannot be a wharf if New Jersey says no.

David C. Frederick:

–No.

Anthony M. Kennedy:

And that seems to me inconsistent.

If Delaware says no.

David C. Frederick:

Justice–

Anthony M. Kennedy:

That seems to me inconsistent with saying that New Jersey has a right to wharf out.

David C. Frederick:

–We are not going that far, Justice Kennedy.

What we are saying–

Anthony M. Kennedy:

I don’t know where… what… where do you draw the line, what is your distinction?

David C. Frederick:

–A wharf that impedes navigation is a nuisance that is subject to classic police power restrictions.

A wharf that does not have any of those consequences is permitted and Delaware has permitted those wharves.

In fact even recently when the State of New Jersey petitioned to Delaware to obtain a permit for the Fort Mott State Recreational Park, Delaware granted that to them.

Antonin Scalia:

So a wharf that is just ugly is okay.

Your answer to Justice Souter is, Delaware can’t say no more wharfs.

David C. Frederick:

Delaware cannot say no more wharfs, but that doesn’t answer the question that’s really at the rub of this case, which is what you do on the wharf.

John G. Roberts, Jr.:

So we here decide… under your view the case comes down to whether or not use of the wharf for a liquified natural gas terminal is a traditional riparian right.

David C. Frederick:

And all of the law and evidence suggests that it is not.

In fact, the riparian grants that New Jersey issued after its Wharf Act of 18 never contained a specification of use.

They admitted in the record–

John G. Roberts, Jr.:

So let’s say Delaware, it’s not liquified natural, gas but it’s, you know, bulk shipments.

Is that a traditional riparian right that Delaware could not prohibit or is it something that it could prohibit?

David C. Frederick:

–Delaware has permitted that.

The Keystone facility allows for bulk shipments of coal to be delivered and offloaded within the Twelve Mile Circle.

Anthony M. Kennedy:

Under your view a riparian right exists only to say whether there should be a wharf.

The… the State with jurisdiction over the riparian right has no interest in what’s going to happen on that wharf, or what the wharf is going to look like?

David C. Frederick:

They are distinctive rights.

It’s like… it’s like zoning laws, Justice Kennedy.

You can own a piece of land but that does not mean that you can override the police powers of the State by what you do on land.

Samuel A. Alito, Jr.:

Well, what’s the point you just made that Delaware can’t prohibit a coal wharf but it cannot prohibit a liquified natural gas wharf?

David C. Frederick:

Delaware’s Subaqueous Lands Act makes that distinction.

Samuel A. Alito, Jr.:

No, but–

David C. Frederick:

As a matter of police power–

Samuel A. Alito, Jr.:

–not what Delaware will do or did do.

Can it, could it do that?

David C. Frederick:

–Delaware has to–

Samuel A. Alito, Jr.:

Could Delaware prohibit a coal wharf?

David C. Frederick:

–It… yes.

It could.

That if… if it were deemed to be a proper exercise of its police authority, yes, it could.

David H. Souter:

Well, that’s the question.

David C. Frederick:

And the answer, Justice Souter, is not decided by the facts on the case here but rather on the individual circumstances.

I appreciate that there are hypotheticals that–

David H. Souter:

Then your answer to Justice Alito is, tell me more about the circumstances and I will then give you an answer.

David C. Frederick:

–Indeed.

Because there are constitutional constraints.

David C. Frederick:

There are dormant Commerce Clause considerations.

John G. Roberts, Jr.:

No.

So what we want to know it whether or not there are constraints in the Compact.

David C. Frederick:

The Compact does not contain the constraints, the Attorney General of New Jersey recognized it, and this is at the appendix starting at 905 of the Delaware appendix.

In 1867 in New Jersey, Attorney General Robeson issued a very lengthy and scholarly opinion on the difference between the powers that a State could exercise over riparian rights, and he distinguished in that opinion between what he called the great public uses, which would be for defense, for the environment, for protection of the people’s safety, and what were deemed to be public uses.

Those who would be using those riparian lands for a railway bridge or a terminal that would be for commercial purposes.

And he said that in the instance of the great public uses, there would not be a need to pay compensation because that great public right overrided the riparian proprietor’s exercise of riparian right.

With respect to the public use, however, and this is at page 910 to 911 Delaware’s appendix, he said that with respect to those public uses, there might be a requirement for a taking or a payment of compensation.

And so Justice Souter, I appreciate that our position has a frustration, in the sense that it does require individual facts.

But I would submit to you that in the 160 years in which the… New Jersey citizens have been wharfing into the Delaware River, Delaware has permitted that in every single instance, except two.

And there are both liquified natural gas facilities.

Ruth Bader Ginsburg:

It’s rather recent that Delaware has gotten into the business of regulating at all.

I thought that for most of this period until the ’60s, Delaware just wasn’t doing anything unless something was a nuisance, and that didn’t come up.

David C. Frederick:

It is correct that Delaware regulated by the common law, Justice Ginsburg, but as the Special Master correctly found just because the limitation under the FX judicial precedents is for nuisances does not mean there is no regulation.

When Delaware chose to override its common law riparian jurisdiction by implementing statutes, New Jersey acceded to them to the point that in its consideration of coastal zone management laws in the 1970s, the attorney general of New Jersey was specifically consulted whether compliance with the Federal statute and Delaware statutes was necessary.

And in 1980 issued a coastal zone management plan, New Jersey did… that recognized that if there was an LNG facility, the agreement of both states was necessary.

The deponents in this case, every single one of them from the New Jersey side, including persons who had worked for the State for nearly 30 years, said that the entire time they had worked for the State, if the project crossed the boundary there had to be a permit obtained from the State of Delaware.

We would submit that the constant–

John G. Roberts, Jr.:

A permit… a permit for the project or a permit for the wharf?

David C. Frederick:

–If the wharf extended beyond the boundary line, Mr. Chief Justice, a permit for the wharf, and that permit–

John G. Roberts, Jr.:

Well, then what does the 1905 Compact give New Jersey?

David C. Frederick:

–It gives New Jersey the right to say who shall be the riparian owners to exercise their rights, what they can do, and up to the point where there would be an encroachment of the police power of the State, the permission to do that.

Anthony M. Kennedy:

What case… and I could ask Mr. Farr the same question… do I consult in order to give content to the term riparian rights?

Where can I see what the substance of riparian rights is, in the… in the decisions of this Court or in other leading decisions.

David C. Frederick:

The leading decision of this Court, Justice Kennedy, is a case called Shively v Bowlby, which was decided a few years before the 1905 Compact; and in that case this Court went through an exhaustive determination to show what the riparian rights were, State by State by State.

The purpose there was to determine whether or not an Oregon riparian land owner had rights that were consistent under Oregon common law with those granted in a deed by Congress, and in order to do that the Court went through a very long examination and analysis of riparian rights as they existed in all–

Antonin Scalia:

If I understand you correctly, Mr. Frederick, you say that the… that the police power of Delaware, despite Article VII, includes the power to require you to get a license before you can wharf out from the New Jersey Shore?

David C. Frederick:

–I’m saying yes, that under Delaware’s… no, it’s–

Antonin Scalia:

In other words, Delaware can say no you can’t wharf out unless, you get a license from us, despite Article VII.

David C. Frederick:

–If it goes beyond the boundary, that is the position New Jersey–

Antonin Scalia:

Of course it goes beyond the boundary.

If it–

David C. Frederick:

–They have–

Antonin Scalia:

–If the other side of the boundary you don’t need Article VII.

New Jersey can allow anything to be done up to… up to the low water mark, but you’re saying that despite Article VII Delaware can say no, you cannot wharf out until you get a license from us?

David C. Frederick:

–Yes.

There are prohibited uses, Justice Scalia.

Antonin Scalia:

Oh–

David C. Frederick:

You have to get a license under New Jersey law, too, and that’s the whole point of State officials by New Jersey saying compliance had to be with both laws.

Antonin Scalia:

–You’ve just read Article… Article VII out of the Compact.

David C. Frederick:

No.

Antonin Scalia:

It gives nothing to New Jersey.

David C. Frederick:

It protects the New Jersey landowners who in the interregnum between the 1905 Compact and this Court’s boundary determination would have faced the uncertainty that their grants would be deemed puerperous by Delaware.

What this Court said in its boundary decision was that the mere use of those was recognized by Delaware under the common law, was not deemed to be a nuisance, but in this Court’s decision in Coffee versus Groover, a grant made by a state that does not have lawful title to the land would be deemed invalid.

That case, which was decided in the late 1880s, invalidated grants that had been made by the State of Florida at a time when the boundary was uncertain.

And this Court said that those grants were invalid in light of the uncertain title that the State had when it made those grants.

Samuel A. Alito, Jr.:

Why wouldn’t Delaware’s police power allow it to require the demolition of all existing wharfs?

David C. Frederick:

Those would be deemed takings, Justice Alito.

Antonin Scalia:

That’s fine.

They can do it.

David C. Frederick:

But it can be acquired by compensation, yes.

Antonin Scalia:

So long as it pays.

David C. Frederick:

Yes.

John G. Roberts, Jr.:

What’s left under your reading of Virginia v. Maryland?

I understood that case to say… I mean it’s the same thing, the Maryland boundary goes to the low-water mark on the Virginia shore.

Yet this Court held that that did not include police power to prevent the particular riparian use at issue there.

David C. Frederick:

The decision in Virginia v. Maryland is distinguishable in a number of ways, and if I could take a moment to go through those ways.

The first is that it involved a different Compact with different language.

The 1785 Compact between Virginia and Maryland specifically provided that each… the citizens of each State shall have

“full property in the shores of the Potomac River. “

David C. Frederick:

The court construed the phrase “full property” to include riparian rights.

Antonin Scalia:

Excuse me.

New Jersey does not have full property in the shore of the Delaware?

David C. Frederick:

Yes.

Antonin Scalia:

Well, then that’s no basis for distinguishing.

What else is there?

David C. Frederick:

The Black-Jenkins award issued to resolve the boundary line was decided in 1877.

And in that arbitration decision, Maryland specifically represented that the boundary should be drawn around the wharves that were on the Virginia side of the boundary so that the boundary, instead of being at the low-water mark, would carve out every pier that had been constructed.

The arbitrators rejected that, but in the process provided that the riparian owners on the Virginia side could go beyond the low-water mark… that is a direct quote…

“beyond the low-water mark to exercise their riparian rights. “

Congress–

John G. Roberts, Jr.:

That’s the case here as well.

There’s no doubt that New Jersey under the Compact has the right to grant riparian rights, including wharfing out, that go beyond the low-water mark.

David C. Frederick:

–The doubt here, Mr. Chief Justice, is what the phrase “own side” means.

And we think the better reading of own side is captured by the grants part of the Special Master’s recommendation is that own side means the boundary.

But to the extent that a right can be exercised, a riparian right authorized by New Jersey beyond the low-water mark, it is still subject to the police powers.

And at page 10 of the Special Master’s report in Virginia v. Maryland, the Special Master specifically said this case does not concern the exercise of the police powers, but rather the mere withdrawal of the water.

There is no issue here as to the types of general police powers that would apply to the riparian right.

And finally, I would note that the Special Master was the same.

He was uniquely positioned in this case to assess the applicability of Virginia v. Maryland because he had been the special master in that case, too.

John Paul Stevens:

I don’t understand the difference between withdrawing water as not being subject to the police powers.

That could mean they could drain the river, in effect.

David C. Frederick:

Well, what the court held and what was decided in that case was that the taking of the water by Virginia was not to the level where it would give rise to the kind of police concern that Maryland might express.

The court left that issue open.

Antonin Scalia:

I don’t understand that.

It’s up to Maryland what’s a concern.

If Maryland doesn’t want any water taken, why isn’t that a valid exercise of Maryland’s police power?

David C. Frederick:

It would be a valid exercise, but I was answering Mr. Chief Justice’s question about what is left of it.

And the question, what is left of it is that Virginia can continue to withdraw water from the Potomac River.

Whether there should be a problem in the future about overwithdrawing or an exercise–

John G. Roberts, Jr.:

As I understand our decision in Virginia v. Maryland it’s that withdrawing of the water is a carve out of Maryland’s police power that would otherwise apply.

David C. Frederick:

–It would… it would be a limited carve out, that is correct.

John G. Roberts, Jr.:

Right.

Now why isn’t there a limited carve out on the New Jersey side of similar riparian rights?

In other words, New Jersey has the authority to authorize wharfing out and to that extent, it’s a carve out of Delaware’s police power.

David C. Frederick:

It is a limited carve out to the extent of permitting the wharfing out, Mr. Chief Justice.

But that–

Antonin Scalia:

You don’t even acknowledge that.

You deny even that.

You have said that Delaware can prevent the wharfing out and say you can’t wharf out unless you get a license from us.

David C. Frederick:

–If it is a nuisance you cannot get a license.

That is classic riparian law, Mr…. Justice–

David H. Souter:

Well, I understood your earlier answer to be exactly what Justice Scalia said.

Are you now saying that Delaware can prevent it only on the grounds of preventing a nuisance?

David C. Frederick:

–I’m saying yes.

That would be a classic exercise of riparian–

David H. Souter:

I’m not saying whether that would be a classic exercise.

Is that the only circumstance in which it can be exercised, or conversely, does Delaware have the authority to say no simply because it says no?

I thought your answer the first time around finally was the latter.

It can say no.

And I think that’s what my brother Scalia thought.

Now are you saying it can say no only if there is a nuisance or some other specified reason?

David C. Frederick:

–Let me try it this way.

As a limitation of a riparian right, the State of Delaware can limit the length of the wharf, whether the wharf goes in ordinary circumstances, but as to a prohibition, it cannot do so unless it is a nuisance as a matter of riparian jurisdiction.

As a matter of police power–

Ruth Bader Ginsburg:

I don’t.

Antonin Scalia:

Wait.

He is not done.

As a matter of police power, however, they can do anything?

David C. Frederick:

–No.

David C. Frederick:

The State can limit the activities that can occur on the wharf.

And that is the crucial distinction here.

David H. Souter:

And it can limit it, I presume, subject to some reasonable rule of health and safety?

David C. Frederick:

That’s correct.

David H. Souter:

Okay.

It simply cannot say as a matter of legislative view case no more wharfs?

David C. Frederick:

That’s correct.

Samuel A. Alito, Jr.:

Who decides whether it’s a nuisance?

If Delaware says that docking a sailboat is a nuisance, who decides that?

Does all of this have to be decided by us in original cases?

[Laughter]

David C. Frederick:

Typically the Corps of Engineers determines that issue as a matter of application of the 1899 Rivers and Harbors Appropriations Act.

Section 10 of that act, Justice Alito, the Corps of Engineers has the authority to determine whether or not a docking or wharfing in a navigable waterway of the United States would constitute a nuisance to–

Ruth Bader Ginsburg:

But you’re not talking about nuisance.

You’re talking about Delaware’s environmental laws.

That’s what this project concerns.

David C. Frederick:

–That’s correct.

Ruth Bader Ginsburg:

And you were saying Delaware’s environmental laws trump whatever riparian right New Jersey can grant?

David C. Frederick:

The environmental laws would apply to the project.

The position of Delaware is not that BP can’t build its wharf.

It’s that it can’t engage in a prohibited use on that wharf.

The wharf itself is not a nuisance.

It does not violate any normal standard of riparian use.

Anthony M. Kennedy:

Could the State of New Jersey allow the wharf to be built for some unspecified purpose, just let it stick out there until it decides what it wants to do with it?

David C. Frederick:

As I matter of both States’ laws, Justice Kennedy, that’s not how either state does it.

Both States now require as part of the environmental–

Anthony M. Kennedy:

I’m asking a hypothetical, could it do that?

It would seem to me that would be a very stupid riparian use, but could it do that?

David C. Frederick:

–I think that, yes, it could do that if its intent was to achieve access to the navigable waterway.

But both states, both New Jersey, outside the Twelve-Mile Circle, and Delaware apply police powers now so that permits have to be required when–

John G. Roberts, Jr.:

How does that work?

What if New Jersey says to the wharf owners you must dredge around your wharf because we think it’s… you know, silt is depositing, and Delaware says you may not dredge around your wharf because we think it’s going to disturb the oysters?

Who… how do you concur jurisdiction work in that case?

David C. Frederick:

–That is an easy one, Mr. Chief Justice, because New Jersey has conceded that it does not have the authority to regulate dredging within the Twelve Mile Circle.

John G. Roberts, Jr.:

Well, it’s something they do have the authority to regulate.

David C. Frederick:

That’s the point.

Riparian jurisdiction is quite limited.

It concerns only certain aspects of the riparian owner’s access to the waterways, and that limitation of that property right has been recognized for centuries by this Court and others courts.

Ruth Bader Ginsburg:

You used the word “riparian jurisdiction”.

We have riparian rights.

That’s a familiar term.

Riparian jurisdiction which is used in Article VII is a novelty.

David C. Frederick:

That’s correct, Justice Ginsburg.

I’m using it in the term that the Special Master did it, which is the State’s jurisdiction to govern the exercise of riparian rights.

It is not a term of art.

Farnham’s treatise, which is another source of where riparian rights traditionally have been recognized, did not use that phrase, and the parties could not find any–

John Paul Stevens:

Mr. Frederick, does the riparian right include the right to dump refuse or sewage into a river?

David C. Frederick:

–It is a… yes, it is a part of the classic riparian right, intakes and discharges, Justice Stevens.

John Paul Stevens:

And even though that would create a nuisance across the river, you could… they still would have… who would trump?

Who would prevail?

David C. Frederick:

The police power would prevail on that, because what you dump is what… is where everything matters.

If the dumping is simply water that doesn’t have any ecological effects, that–

John Paul Stevens:

No, I’m assuming something that pollutes the river.

David C. Frederick:

–That would be subject to the environmental laws.

That’s classic police power recognized by this Court in Hudson v. McCarter.

John G. Roberts, Jr.:

Thank you, Mr. Frederick.

Mr. Farr, you have three minutes remaining.

H. Bartow Farr, III:

Thank you, Mr. Chief Justice.

May I just say two things, and, first of all, something that we haven’t really talked about this morning.

With respect to matters of nuisance and all, Federal law provides a substantial array of laws: The Clean Water Act, the Clean Air Act, the Coastal Zone Management Act, the Rivers and Harbors Act, all of those things.

H. Bartow Farr, III:

Anything built out from New Jersey has to undergo Federal review; and, subject to the Compact, Delaware has rights to participate at that Federal level.

So what we are talking about here, and what the bill of complaint deals with, is the question of whether Delaware can do what it did here, which is apply its State law enacted under its police power to say that a proposed project, riparian project, for the New Jersey side is impermissible and cannot be built.

So we are dealing just with the law of State versus State.

Now… so I’d like to suggest if… if we put ourselves in the shoes of the Commissioners who were negotiating this Compact in 1905, what is the likely reaction if Article VII… if, now, Delaware had proposed at the time that, instead of the language as it is now, at the end of Article VII the words were added

“subject to the police power of the other State? “

New Jersey obviously would have had the reaction to that that that is something that depends on the boundary.

There is no chance that New Jersey is going to be able to exercise any police power on the Delaware side, because there is no boundary dispute that would involve that.

So this would essentially be a one-way veto that Delaware would be trying to add to the contract to say: Could we… we’ll be able to override any riparian structure under our police power.

Antonin Scalia:

It’s a one-way pass.

Why shouldn’t it be a one-way veto?

H. Bartow Farr, III:

Well–

Antonin Scalia:

It doesn’t give Delaware anything.

H. Bartow Farr, III:

–Well, except for the fact that, again, if we put ourselves in their shoes, it seems to me what New Jersey would say is: If you are proposing that you can veto all of our riparian projects using your police power because of your view of the boundary, why are we dismissing the case that we just filed, or filed in 1877–

Anthony M. Kennedy:

You are saying that the–

H. Bartow Farr, III:

–to determine the boundaries?

Anthony M. Kennedy:

–You are saying that the concept of “riparian rights” displaces the police power, to a large extent.

H. Bartow Farr, III:

To the extent that the exercise of the police power is inconsistent with the power of the State, the authority of the State, to authorize a pier or wharf for the purposes for which piers and wharves are used, which is the loading and unloading of goods.

If that is what the State… if that is what New Jersey has done, that is not subject to an override or a veto by Delaware exercising its police power.

I mean this was an important value at the time that the Compact was enacted, and New Jersey would not have lightly let Delaware veto it.

John G. Roberts, Jr.:

Mr. Farr, can I ask you a question as purely a–

H. Bartow Farr, III:

Of course.

John G. Roberts, Jr.:

–matter of curiosity?

The parties talk about the Duke of York’s grant to William Penn in this case, but nobody ever explains where Delaware came from.

How did that… where did Delaware… I mean a grant to William Penn is Pennsylvania.

Where… when did Delaware–

H. Bartow Farr, III:

Oh, there were… I think there were further grants along the process and further division of… of territory.

I think some of that is actually explained in New Jersey v. Delaware, too.

I may be leading you in the wrong direction, but I don’t think so.

John G. Roberts, Jr.:

–Thank you.

The case is submitted.