New Jersey v. New York

PETITIONER:New Jersey
RESPONDENT:New York
LOCATION:National Endowment for the Arts

DOCKET NO.: 120 ORIG
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT:

CITATION: 523 US 767 (1998)
ARGUED: Jan 12, 1998
DECIDED: May 26, 1998

ADVOCATES:
Daniel Smirlock – Argued the cause for the defendant
Jeffrey P. Minear – Argued the cause for the United States, amicus curiae
Joseph L. Yannotti – Argued the cause for the plaintiff

Facts of the case

Under an 1834 compact between New York and New Jersey, Ellis Island was deemed part of New York. It was later determined, by the Supreme Court, that New Jersey would have sovereign rights over all submerged lands on its side of the Hudson River. During the time Ellis Island was used to receive immigrants, the Federal Government filled around the island adding some 24.5 acres to its original size over 42 years. When immigration was diverted from Ellis Island in 1954, New York and New Jersey asserted rival sovereignty claims over the Island’s filled portions. New Jersey finally invoked the Supreme Court’s original jurisdiction to solve the matter once and for all time.

Question

Are the filled portions on Jersey’s Side of Ellis Island under the sovereign authority of the State of New York or the State of New Jersey?

William H. Rehnquist:

We’ll hear argument now in Number 120 Original, New Jersey v. New York.

Mr. Yannotti.

Joseph L. Yannotti:

Thank you, Mr. Chief Justice, and may it please the Court:

In his final report the Special Master concluded that New York’s jurisdiction on Ellis Island was limited to the island as it existed in April 1834, and New Jersey is sovereign over the portions of the island created by artificial filling of submerged lands in the years after 1834.

Although we take issue with the amount of territory allocated to New York and with the recommended boundary line of the Special Master, we would first like to offer the Court our reasons why we believe the Special Master’s principal conclusion is legally sound and amply supported by the record.

First, the Special Master correctly interpreted the 1834 Compact between the States which fixed the territorial limits and jurisdiction of New Jersey and New York along their common boundary.

Anthony M. Kennedy:

My only observation about that, and it helps your case, I think, I was a little puzzled that the Special Master did not pay more of a… put more weight on the Holmes’ opinion in Central–

Joseph L. Yannotti:

Well, we certainly did place a great deal of weight on the Holmes’ opinion and we do think–

Anthony M. Kennedy:

–The Special Master didn’t seem to think… it seems to me it… on the sovereignty issue that if New York is right we have to overrule that.

Joseph L. Yannotti:

–Well, they certainly did make that argument below before the Special Master.

Some of the amici have made that point.

I did not see a direct attack on the Holmes’ opinion or request to see it overruled in the Exceptions, so I’m not sure that’s an issue–

Anthony M. Kennedy:

We would have to overrule it were New York to have sovereignty, would we not?

Joseph L. Yannotti:

–Yes, I think so, Your Honor.

I think that case squarely decides the question of sovereignty over the submerged lands.

What the Court rejected in that case was an argument that all New Jersey had under the Compact was a right of property under these submerged lands.

Anthony M. Kennedy:

Now, as to the meaning of the jurisdiction that remains, Holmes’ opinion is not quite clear, and I think that probably needs further elaboration.

Joseph L. Yannotti:

Under Article III?

Anthony M. Kennedy:

Yes.

Joseph L. Yannotti:

Yes, well–

Anthony M. Kennedy:

Well, or whether there is a difference in Article III jurisdiction or Article II jurisdiction is not clear from Central Railroad.

Joseph L. Yannotti:

–Well, Justice… Justice Holmes indicated in the Central Railroad case that under Article II, New York had retained its present jurisdiction of and over Ellis Island, which he interpreted to mean was the States intended to preserve the status quo ante, and the status quo that existed in 1834 was a situation where Ellis Island was on the New Jersey side of the boundary, it was a 2-3/4 acres of fast land to mean high water, it was owned by the Federal Government, who had acquired it in 1808 from the State of New York, and it was utilized as a military fort.

New York, in fact, had ceded jurisdiction to the Federal Government in those conveyances, and retained only the right to serve civil and criminal process, so that was the jurisdiction that was retained by the State of New York.

That was the… what we contend was the present jurisdiction in 1834 when the agreement was made, and moreover, our view is that the States recognized that the island then in existence which was, as I said, 2-3/4 acres, was the Ellis Island that was being addressed by the terms of that Compact, so I do–

Ruth Bader Ginsburg:

Mr. Yannotti, at least as to the land that was once submerged and has now been filled in, there was a significant argument made that Holmes was wrong, at least to the extent that he defined exclusive rights of property to mean sovereignty.

Joseph L. Yannotti:

–Well, I respectfully argue that Holmes was not wrong, and that he reached the correct conclusion.

In fact, what he did in that opinion for the… for a unanimous Court was to base his judgment upon the prior decision of the New York Court of Appeals of 1870, which had concluded essentially that the territorial line was the principal and dominant purpose of this agreement, that the State of New Jersey was sovereign on its side of the boundaries–

Ruth Bader Ginsburg:

Well, that part I understand, the equation of boundary with sovereignty.

Joseph L. Yannotti:

–Yes.

Ruth Bader Ginsburg:

But Holmes also said something about exclusive right of property.

Joseph L. Yannotti:

Yes.

Ruth Bader Ginsburg:

And you know the three-way division that was offered in some of the briefs, of the property right and the public access right and the governing right.

Joseph L. Yannotti:

The argument was made that all New Jersey had was the sovereign right of property, and he found that that actually supported the notion that New Jersey was sovereign in this territory, and he said that the ownership of submerged land was indicative of the division of sovereign territory and actually furthered and supported the notion that this was a line not only of territory but of jurisdiction and sovereignty, so I think the… what Justice Holmes said–

Antonin Scalia:

So property means jurisdiction and exclusive jurisdiction doesn’t mean exclusive jurisdiction.

Joseph L. Yannotti:

–Well–

Antonin Scalia:

Is… would there have been a clearer way to say that one of the States had governing authority–

Joseph L. Yannotti:

–Well, I think it–

Antonin Scalia:

–than to use the phrase, exclusive jurisdiction?

Joseph L. Yannotti:

–The… I think it’s important to focus also, not only on that but also on the notion exclusive jurisdiction over the waters, and I think that is the key element of that Article III, because New Jersey had recognized that New York had exclusive jurisdiction, but it was limited.

It wasn’t full sovereign governmental authority.

It was limited to control of the waters, and that’s how the New York Court of Appeals interpreted Article III in 1870, to mean–

David H. Souter:

Well, it was control of the waters.

It also referred to the submerged lands.

Joseph L. Yannotti:

–That’s correct.

David H. Souter:

And isn’t there a fair argument to be made that when the submerged lands become in effect the basis for filled land, in place of what had been water subject to New York’s jurisdiction, that that same territory now newly created above the ground becomes subject to the same exclusive jurisdiction?

Joseph L. Yannotti:

Well, our argument is that that is not the case, and we rely in that regard upon, again, that 1870 decision of the New York Court of Appeals, which said that although there was in Article III a reference to jurisdiction over the submerged lands, that was merely subordinate to and in furtherance of the power over the waters, and it was… the New York Court of Appeals gave it a very limited reading in that case, and in fact in the 1908 decision by Justice Holmes the Court specifically upheld the taxation of submerged lands–

Stephen G. Breyer:

Yes, but how could it have no meaning?

That is, let’s assume you’re right.

You’re right that… I’m assuming… that this is within the sovereign… your sovereign… New Jersey has sovereignty.

Joseph L. Yannotti:

–Yes.

Stephen G. Breyer:

Because of Article I.

Still, isn’t there some kind of jurisdiction to do something–

Joseph L. Yannotti:

Our view of–

Stephen G. Breyer:

–given by Article III, and is… you want an injunction, which injunction says New York can do nothing.

Joseph L. Yannotti:

–Yes.

Stephen G. Breyer:

All right.

How can it be that they could do nothing when Article III says they have jurisdiction over the land below the water and the water?

I mean, maybe that jurisdiction doesn’t mean sovereignty.

Maybe it only means a few things, like just serve process even, but doesn’t it mean something?

Joseph L. Yannotti:

Well, again I think the… we go back to the decision of the New York Court of Appeals in 1870, and what the court said was that this was a jurisdiction over navigation.

Stephen G. Breyer:

All right, so–

Joseph L. Yannotti:

And once the waters were filled there was no basis upon which to exercise jurisdiction over ships and vessels on the water, that the jurisdiction essentially… there was no basis upon which to exercise that jurisdiction when the land was filled.

Stephen G. Breyer:

–In other words, exclusive jurisdiction doesn’t mean that.

It means that the only thing you could deal with is a ship, so that it–

Joseph L. Yannotti:

It does mean exclusive related to ships, related to navigation.

Stephen G. Breyer:

–So suppose there is a ship, a ferry boat tied up at the pier that now is in New Jersey’s sovereign territory next to that immigration house, all right.

Doesn’t New York have jurisdiction over that?

Joseph L. Yannotti:

That’s specifically addressed in Article III, where New York’s jurisdiction is recognized, at least to the extent–

Stephen G. Breyer:

Fine.

If New York has jurisdiction over that, on your theory, how can you receive an injunction, which is what you requested, saying that they couldn’t enforce their law at all?

Joseph L. Yannotti:

–Well, I think… again, my point is that this is a jurisdiction as it relates to vessels, and if they’re tied to a port facility on the New Jersey side that creates an entirely different situation than to have filled land, because they cannot–

Stephen G. Breyer:

So what sort of injunction… this is what’s confusing me.

The injunction that you requested is an injunction that says New York cannot enforce its laws or assert its jurisdiction.

Then once you say that there is something at least they could do, even if it’s just to a boat that’s tied up, then how could you be entitled to that injunction?

Joseph L. Yannotti:

–That is not… again, the request that we sought relates to exercise of jurisdiction on the land.

Not on the waters, not on boats who are still on the waters that may very well be tied up on… to a New Jersey pier, or to a portion of land that is subject to the jurisdiction of the State of New Jersey.

Stephen G. Breyer:

And I didn’t find in the Special Master’s report a discussion of what exclusive jurisdiction meant.

I understood that he gives… he believes that New Jersey is sovereign, and I accept that, so what are we to do to decide whether exclusive jurisdiction means you can do zero, New York can still do zero in respect to the submerged land?

Joseph L. Yannotti:

Well, again it relates to the–

Stephen G. Breyer:

Related to the land.

Joseph L. Yannotti:

–It relates to the subject matter of that jurisdiction and as it’s been interpreted by the courts, that jurisdiction relates to… the subject matter is navigation, pertains to vessels while they are on the waters, and that is the… that is the limit there of the jurisdiction.

Anthony M. Kennedy:

Well, the master touched that in part at page 67, when he said interpreting exclusive jurisdiction in Article Third to mean police or legal jurisdiction as the only reading of Article III that prevents such serious anomalies, but he… and he… but he addressed it no further than that.

Is that–

Joseph L. Yannotti:

Right.

Well, I think this specific argument that’s now being offered with regard to the… some residuum of Article III jurisdiction over the filled lands is not an issue that was really raised very much by the State of New York.

It’s only come in now in the context of the Exceptions, so the master did not really… it was not an argument that was pressed before the Special Master.

Antonin Scalia:

–Mr. Yannotti, I’m a little curious as to why New Jersey did not make the argument which seems to me available that the Compact only gives New York exclusive jurisdiction over lands covered by the Hudson, and these lands are not any more covered by the Hudson.

If you read that phrase as meaning covered from time to time–

Joseph L. Yannotti:

Well, I think that essentially what–

Antonin Scalia:

–you’d be home free.

Joseph L. Yannotti:

–Essentially what we have been saying.

You put it better than I did.

But I think the point is that once they are covered, once they are filled, there is no… there is no… nothing upon which to exercise that jurisdiction.

It is… it is… we made it–

Antonin Scalia:

I did not understand you as having made that argument.

Joseph L. Yannotti:

–Well, that has been our point, and I do believe we have that in our brief, but it is our argument that once the lands were filled, that there is no basis upon which New York may exercise that jurisdiction under Article III.

And let me add further with regard to these, what we perceive to be sound interpretations of the Compact that were reached by the New York court in 1870, and also by the New Jersey Court of Errors and Appeals, our highest court, these rulings, which were the basis upon Justice Holmes’ decision in 1908 have been accepted by both States, and they have… they have become over time the… a meeting of the minds between these two States as to the meaning of this particular compact, and we think for that reason, too, the Court should reaffirm what Justice Holmes said in his… in the 1908 decision and apply that principle to the submerged lands here once they are filled.

Let me–

Anthony M. Kennedy:

One point on jurisdiction.

Is it your point that Article III exclusive jurisdiction is of somewhat lower order than the word present jurisdiction in Article II?

Joseph L. Yannotti:

–Well, in order to determine the present juris–

Anthony M. Kennedy:

Because if so that’s a strange use of words, as Justice Scalia pointed out.

Exclusive jurisdiction seems to me broader.

Joseph L. Yannotti:

–Well, present jurisdiction, really in order to ascertain precisely the meaning of that you have to go back to the situation as it existed in 1834 to determine what was the jurisdiction, and at that time New York had virtually no jurisdiction.

They had ceded everything to the Federal Government, and the island had been used in those days as a military fort for the exclusive purposes of the Federal Government.

It was a Federal enclave, and New York had no presence there, and New York exercised no jurisdiction there, and so therefore that is the present jurisdiction.

And if you perceive that to be a lower, some lesser element of jurisdiction, it certainly is supported by the factual record, which shows that this was a Federal enclave subject to Federal jurisdiction.

The Special Master also determined that New York had failed to establish its affirmative defense of prescription and acquiescence, and on this point, too, we think that the Special Master’s analysis was correct.

We urge the Court to accept it.

Again, as I mentioned, this was an island that was under the Federal Government’s exclusive control.

This was true prior to the filling in 1890, which commenced in 1890, and it was certainly true right on through the period, the immigration period which New York focuses on so strenuously.

There was little opportunity for either State to exercise jurisdiction in the Federal enclave, and our view is that that being the case, New York could not establish the requisite degree of government dominion and control in order to place New Jersey on notice that it was prescribing jurisdiction over this territory.

What is more, New Jersey did not acquiesce in the purported assertion of jurisdiction by the State of New York, and as the record amply demonstrates, there were extensive instances where New Jersey either took prescriptive acts, or asserted claims to the territory which were sufficient enough to establish New Jersey’s assertion that there was nonacquiescence in New York’s claims, so on this point, too, we think the Special Master was correct.

Sandra Day O’Connor:

Mr. Yannotti, are you going to talk about the recommendation of the master that the actual territorial boundary he proposes be adjusted to take care of certain buildings and improvements?

Joseph L. Yannotti:

Yes, I do, Your Honor.

I think… I understand from the Chief Deputy Clerk that the Court does have the map in front of it today, and that map illustrates, as does Appendix K in the Special Master’s report, it illustrates this proposed boundary to which we’ve taken exception.

As you can see on that map, the original island to the mean high water is indicated there, and that is not the line of demarcation that has been recommended to the Court by the Special Master.

Our view is that the Court’s role–

William H. Rehnquist:

What’s North and what’s South on this map?

Joseph L. Yannotti:

–North would be to the right, West would be to the top of that map.

William H. Rehnquist:

Thank you.

Joseph L. Yannotti:

And the Special Master, of course, has completely departed from the line, the mean high water line from 1834, which is what New Jersey contends is the line which should be employed.

The Court has said that when the States make a boundary agreement, and when such an agreement is approved by Congress, that the… an agreement of that sort is a law, a Federal law, and the Court is without authority to depart from the terms of that agreement, and regrettably that is what the Special Master has recommended here.

We think that that is not an appropriate exercise of the Court’s power in this regard, that the Court should abide by the boundary that was agreed to by the States.

If there are practical concerns that relate to that in its implementation, that remains to the States, with the oversight of Congress, to make whatever adjustments might be deemed appropriate.

David H. Souter:

Do you think we have any choice at all?

You say we should.

Joseph L. Yannotti:

Well, I think–

David H. Souter:

Isn’t it the case… I thought your position would be that we must.

Joseph L. Yannotti:

–Yes, it is, Your Honor.

David H. Souter:

We must because of what?

Joseph L. Yannotti:

We must… you must because that is the essential role of the Court in this case, to define the boundary.

This is a case about boundaries, not about buildings, and the Court’s–

David H. Souter:

Well, isn’t it also because we’re bound by an act of Congress?

Joseph L. Yannotti:

–Yes, they said that.

What the Court said in Texas v. New Mexico was that once an act of Congress, an agreement like this which is approved by Congress, it becomes a Federal law, and the Court cannot enter relief that is inconsistent with the terms of that law, and for that reason we think that the Court is limited in providing relief in this case to the boundary that was agreed by the States, and cannot employ practical considerations to write or create a boundary, what the Court may perceive to be a better boundary.

That judgment’s already been made by the States, and recognized by Congress, and we think it ought to be respected by the Court.

Ruth Bader Ginsburg:

May I ask you once more to clarify… I’m still fuzzy about it… what authority New York… what authority does New York have and enjoy… those are the words of Article Third… as a result of that grant of exclusive jurisdiction?

Joseph L. Yannotti:

It has jurisdiction… a navigational jurisdiction over the waters, and it would pertain to vessels, ships, and passengers as they are on those waters in New York Bay and the Hudson River in this particular area.

Ruth Bader Ginsburg:

So with respect to the ferry going back and forth to Ellis Island, New York has control of that, is that–

Joseph L. Yannotti:

Well, yes.

So long as it’s on the waters.

Then New York would have some measure of jurisdiction over that, exclusive jurisdiction.

Ruth Bader Ginsburg:

–What’s some measure?

Joseph L. Yannotti:

Exclusive jurisdiction.

Ruth Bader Ginsburg:

Which sounds to me like only.

Joseph L. Yannotti:

Well, yes.

We’re not saying New Jersey would have jurisdiction over it, but the exact parameters of it, the extent to which they would exercise control, that is not… has not been elucidated in any particular decision, but I’m not sure that the Court needs to address the full extent of the jurisdiction of New York while a ship is on the waters.

Antonin Scalia:

Oh, I assume they can exercise control to the maximum extent that any State can ever exercise controls.

Joseph L. Yannotti:

Within the subject matter limitation.

Stephen G. Breyer:

What was the submerged land?

What do you think they can do, the exclusive jurisdiction over the lands covered by said waters?

Joseph L. Yannotti:

It relates also to navigation.

For example, the case of State v. Babcock, which was an early decision by the New Jersey trial court in [= 1852], what happened in that case was there were vessels which were sunk onto the underwater land, and the… an action was brought in New Jersey for criminal… a criminal action to prosecute that, and the Court held that that was within the jurisdiction of the State of New York.

William H. Rehnquist:

Thank you, Mr. Yannotti.

Mr. Minear, we’ll hear from you.

Jeffrey P. Minear:

Mr. Chief Justice, and may it please the Court:

The master correctly rejected New York’s contention that Article Second of the Compact of 1834 gives New York sovereignty over the filled areas of Ellis Island.

The Compact was written against a back-drop of common law rules respecting coastal boundaries, and those rules recognized that avulsive changes such as the addition of fill did not change the location of the boundary.

The Compact does not address fill, and it does not purport to alter the common law rules.

As a result, the Compact should be interpreted as following the common law and therefore granting and preserving New Jersey’s sovereignty over the filled areas.

Now, the master was also correct in rejecting New York’s contention that the filled portions of Ellis Island became territory of New York through the doctrine of prescription and acquiescence, and we think the single most important consideration on this score is the fact that the United States exercised dominant and virtually exclusive jurisdiction over the island during the relevant time period.

Now, the United States presence is important for two reasons.

First, the United States recognized New Jersey’s claim to the filled lands by purchasing that area from New Jersey and by indicating in subsequent maps that it was situated in New Jersey.

Second, the United States’ dominant sovereign presence prevented New York from taking those acts of sovereignty that would have established its claim of entitlement to the filled areas, and likewise would have put New Jersey on notice of the fact that New York was making such a claim.

Now, New York also makes a claim that New Jersey is guilty of laches in this case, but that really adds nothing to New York’s claim in this case at all.

As this Court indicated in Illinois v. Kentucky, the equitable defense of laches is subsumed within the doctrine of prescription and acquiescence, so nothing is added by making those types of charges here.

Now, although we agree with the Master’s determination of the historic boundary on Ellis Island, we disagree with his ultimate remedy, which would reconfigure the boundary based on considerations of practicality and convenience.

We think it’s important to note at the outset that New Jersey asked this Court to determine the historic boundary line.

It did not request that the Court withdraw the boundary.

Neither did New York make such a request, as well.

But equally important, the master’s proposal would require this Court to exceed its historic role in determining–

Antonin Scalia:

Do you think our position would be altered if they had asked us to redraw the boundary?

Jeffrey P. Minear:

–If they had, then I think you’d be faced squarely with the question of whether you have that power or not, and we think that–

Antonin Scalia:

Oh, I see.

I see–

Jeffrey P. Minear:

–you do not.

Antonin Scalia:

–That’s your point.

I thought your point was that if they had asked us, we would have the power.

Jeffrey P. Minear:

No, that’s not, but they have not even asked in this case.

Jeffrey P. Minear:

[Laughter]

William H. Rehnquist:

I agree with Justice… what difference does it make, Mr. Minear, at this point in the litigation, if we were to say that we reject the master’s drawing of the boundary line because neither party ever asked for it?

I mean, presumably there could be further… some sort of an amendment to the complaint and they could bring it up again.

Jeffrey P. Minear:

Well, that might be the… that might be the case, but we think that ultimately the Court lacks the power to draw that boundary in any event–

William H. Rehnquist:

Then it really doesn’t make any difference whether they asked for it or not.

Jeffrey P. Minear:

–Ultimately it does not, but we do think it’s significant that neither party asked for it, and this Court does not often grant relief that neither party requested.

Now, in the past this Court has decided boundary disputes based solely on its interpretation and application of relevant law, and the Court explicitly recognized that limitation in Washington v. Oregon, where Washington had asked this Court to change a boundary based on changed circumstances, and this Court refused to do so.

It refused to do so even though the adjustment would implement an underlying policy that Congress might have preferred.

As that case indicates, once this Court determines the location of a boundary, its judicial role is at an end.

Ruth Bader Ginsburg:

But that case involved a variable boundary, a boundary that could be here today and some place else tomorrow, as opposed to what the Special Master has done here.

He has fixed or recommended fixing a boundary that would not be variable.

Jeffrey P. Minear:

That’s correct, but in this case what we’re saying is the historic boundary should be fixed by the original contours of the island, because that’s what Congress and the parties intended by virtue of the Compact of 1834.

Ruth Bader Ginsburg:

I’m just suggesting that there’s a little space between the Washington v. Oregon case and this one.

Jeffrey P. Minear:

That might be, but we think ultimately the general principle at stake in Washington v. Oregon does control here, which is that this Court should respect the power of the political branches to determine boundaries and draw those boundaries and, in fact, the Constitution provides for adjustments of boundaries if need be.

There is a Compact Clause of the Constitution that does allow the States to agree, with Congress’ consent, to the alteration of the boundary, and that’s in fact what actually happened in Washington v. Oregon.

That is how that dispute was ultimately settled, was by virtue of a compact between the two States to alter the boundary.

Stephen G. Breyer:

How do you do this little… maybe it’s just a minor… I don’t know.

The problem’s still bothering me.

In the first three paragraphs of the Complaint for Relief, New Jersey wants boundaries drawn in a certain way, and you basically agree.

Jeffrey P. Minear:

That’s correct.

Stephen G. Breyer:

Assuming that right, what do we do about paragraph 4, where they ask for an injunction that no New York law at all can be enforced on the filled land?

Jeffrey P. Minear:

I think–

Stephen G. Breyer:

That’s what was disturbing me because of the concern that I had that exclusive jurisdiction might mean something in respect to that filled land.

Jeffrey P. Minear:

–I think that takes us back to the suggestion that the United States made at the point when the complaint was first filed in this case and the Court asked for our views on this matter, and at that point we explained that there might be a number of issues that can only be resolved in a specific factual context, and so those issues are simply not ripe at this point.

We think that–

Stephen G. Breyer:

So what are we supposed to do, then, about that?

Jeffrey P. Minear:

–We think all the Court can do at this point, all the Court should do at this point is draw the… describe where the historic boundary is, and just simply indicate that any other dispute that might arise can be handled by the parties seeking further relief, as the Court has decreed.

Stephen G. Breyer:

So we should not… I think the master, but I’m not certain, recommended that we accept that paragraph 4, but we should not, in your opinion, do that.

Jeffrey P. Minear:

As a–

Stephen G. Breyer:

I’m not sure about–

Jeffrey P. Minear:

–My recollection might be… might not be completely accurate, but I’m not sure the master specifically addressed that question, but he… his proposed decree does leave it open to the parties to seek further relief at the foot of the decree, which is common in the case of original actions and original decrees.

Antonin Scalia:

–I can’t think of an original action since I’ve been here in which the issue is not who owns the land but where one State is simply suing, claiming that the other State has no jurisdiction over a particular action over a particular thing.

Usually that issue comes up in the context of a private party defending against the asserted jurisdiction by one State or the other.

Jeffrey P. Minear:

That is correct, and that’s… this case is unusual insofar as the United States owns title to all of the land in question here.

Antonin Scalia:

I understand, but you’re saying we don’t have to decide that question now because the States can come back later when there is more factual context to it, and I’m not entirely sure they can come back later to present us the question of which State has jurisdiction.

I–

Jeffrey P. Minear:

Well, it’s likely that the issue could arise between a State and a private party.

Antonin Scalia:

–Right.

Jeffrey P. Minear:

But ultimately the issue would ultimately return to this Court, and the Court would make a resolution of law in that context.

Whether there would be a direct clash between two States over a particular power of regulation is perhaps less likely.

It would actually require some situation where both States purport to have the power to regulate over a particular area, and I think that’s unlikely to occur in this area simply because the United States does have title and continues to exercise dominant control.

Ruth Bader Ginsburg:

So Mr. Minear, in view of that, what practically is at stake?

I mean, you said the United States has been there since it was a fort, and now, and it’s continuing, so the States want the boundary set, but what consequence does that have as long as the United States owns and exercises jurisdiction over the island?

Jeffrey P. Minear:

Oh, there are some modest consequences with regard to certain activity, such as the collection of tax revenues and the like.

Even if the United States has exclusive jurisdiction over the entire island, which is not something that we’re asserting, but even if it did, under the Buck Act the States can still collect certain types of taxes from activities that take place on the land.

Ruth Bader Ginsburg:

For example?

Jeffrey P. Minear:

Sales taxes from concessions on the island would be one example.

Both States would have no doubt claimed some interest in the renovation of the southern portion of the island here, but ultimately we think that Congress will make those determinations, taking into account the concerns and considerations of both States.

Much of what’s at stake here, and I think we indicated this at the time that we filed our initial amicus brief in response to the complaint, is a concern over a notion of the sovereign boundary as it relates to the history of the two States, and the Court has allowed this action to proceed, and we do think that’s a significant question, but its practical implications are likely to be limited by–

Anthony M. Kennedy:

Is the jurisdiction of the United States limited to certain purposes?

Could the United States build an office building and rent it out to private developers if the United States wanted to?

Jeffrey P. Minear:

–Well, our perspective on the jurisdiction on the island is as follows.

The United States has exclusive jurisdiction over the original 3 acres of the island that was granted by New York in 1800 as to… with respect to–

Anthony M. Kennedy:

Now, when you say exclusive, do you mean exclusive jurisdiction as defined in Article III of the Compact, or some other meaning of exclusive jurisdiction?

Jeffrey P. Minear:

–No.

We mean the more conventional description of–

William H. Rehnquist:

Really exclusive jurisdiction.

[Laughter]

Jeffrey P. Minear:

–We actually are referring to the exclusive jurisdiction as it’s described in the interdepartmental study on legislative jurisdiction in 1957, which deals with this issue quite comprehensively.

But as with respect to the filled lands the United States has concurrent jurisdiction over those areas.

Jeffrey P. Minear:

Thank you.

William H. Rehnquist:

Thank you, Mr. Minear.

Mr. Smirlock, we’ll hear from you.

Daniel Smirlock:

Mr. Chief Justice, and may it please the Court:

The Compact of 1834 and the events thereafter show that all of Ellis Island is in New York.

No other interpretation of that compact or of those events makes sense.

I’ll redirect the Court’s attention to Article II of the Compact, which we think is the key here, and to which very little attention was paid in the arguments of the United States and New Jersey.

William H. Rehnquist:

Where do we find that in the papers?

Daniel Smirlock:

The appendix to our main brief, our brief on exceptions, page 51… 52, I guess, is where… 51 is where Article Second appears.

Article II of that Compact says that Ellis Island, without reservation, is in the State of New York, and as New Jersey conceded in its 1829 complaint in this Court during the negotiations for the Compact and again conceded in this action, the present action–

William H. Rehnquist:

Well, Article II doesn’t say what you just said in so many words, certainly.

Daniel Smirlock:

–No, but the parties both interpret it that way as to, there is no dispute that the grant to New York of jurisdiction over Ellis Island was in the nature of a grant of sovereignty.

The only question in this case is whether that grant of jurisdiction extends to the landfilled portions of Ellis Island as well as the original portion.

There is absolutely no dispute between the parties as to the fact that–

Anthony M. Kennedy:

Well–

Daniel Smirlock:

–jurisdiction in Article Second of the Compact means sovereignty.

Anthony M. Kennedy:

–In other words, New Jersey did not concede that prescriptive rights had given New York that added jurisdiction.

Daniel Smirlock:

I–

Anthony M. Kennedy:

In other words, prescriptive rights played no part in New York’s jurisdiction over the original island.

Daniel Smirlock:

–Correct, Your Honor.

The Compact itself, by its own force of the language of Article Second, and New Jersey concedes this, gave New York rights of sovereignty over Ellis Island as it existed in 1834.

William H. Rehnquist:

Well, but it doesn’t say sovereignty in Article Second.

Daniel Smirlock:

It doesn’t, but in fact that’s how it’s been interpreted, and that’s… and there is no disagreement that that is what jurisdiction in that article means, and the only question is whether that jurisdiction which is of the nature of sovereignty is sufficient to encompass the landfilled portions of the island that got added after 1834.

Antonin Scalia:

I find it interesting that that provision also uses the magic words, exclusive jurisdiction, which later turn up in Article III, and where they’re used in Article Second they quite clearly mean sovereignty, don’t they?

Daniel Smirlock:

I, too, find it very–

Antonin Scalia:

And shall also retain exclusive jurisdiction over the other islands–

Daniel Smirlock:

–Yes, and the reason that there’s a distinction, by the way, between the retention of jurisdiction as to Bedloe’s and Ellis Island and the exclusive jurisdiction without qualification over the other islands of the bay, which is all the islands, is that Bedloe’s and Ellis have had a measure of jurisdiction over them ceded to the United States, and the Special Master made that clear.

We go a long way with the Special Master, or can go a long way.

We don’t think that Article III… that it must be interpreted, the grant of exclusive jurisdiction must be interpreted to be in the nature of sovereignty for us to prevail.

We think that Article II does that of its own force, and we think that’s because the Compact intended with respect to expansion of the Article II islands in the harbor, what the Compact intended is clear from what was happening in the harbor at the time, from the structure and purpose of the Compact.

Daniel Smirlock:

What was happening in the harbor at the time is that landfill was in wide use.

As the Special Master found, and the parties have joined issue on this in their briefs, Ellis Island actually had landfill on it at the time of the Compact.

There was also substantial landfill on both–

John Paul Stevens:

–May I interrupt you with just one question that puzzles me.

We can’t ignore Article First, either, can we?

Daniel Smirlock:

–No, you can’t, Your Honor.

John Paul Stevens:

The boundary is in the middle of the river, and now the portion of the river between the middle and the shore of New Jersey has exclusive jurisdiction in New York under Article Third, but how can that be… how can you say there’s a boundary there if exclusive jurisdiction in Article Third means what you say it does?

Daniel Smirlock:

Let me try to parse the first three articles of the Compact for you, because I think their structure proves our point.

Article I of the Compact establishes the sovereign boundary between the States as the midpoint of the bay, with, as it makes clear, certain exceptions.

The first of those exceptions appears in Article II, which gives the islands… the islands which, if they are on the western portion of the bay might under Article First otherwise have fallen to New Jersey, gives those islands without exception to New York.

Antonin Scalia:

Might… would, under–

Daniel Smirlock:

Would, without Article Second, but as it’s agreed, Article Second gave them to New York.

Article Third deals with the waters, the underwater land, and the New Jersey shoreline.

It gives exclusive jurisdiction which, we argue, is in the nature of police power, over navigation and commerce in the harbor, and there’s Compact history that supports this, and the Special Master cites it, and so do we in our brief, gives exclusive jurisdiction over both the lands under water, which we would argue probably refers to dumping, refers to ships on the ocean floor, and probably refers to landfill, because landfill gets put on subaqueous land.

Antonin Scalia:

–Or anchoring buoys, I suppose–

Daniel Smirlock:

Probably.

That–

Antonin Scalia:

–would be necessary if you’re going to maintain navigation.

Daniel Smirlock:

–That sort of thing, and it refers both to underwater land and to the waters in the harbor.

Now, New Jersey says that exclusive jurisdiction is extinguished as soon as there is more land, there was new land put in the harbor, but that seems most improbable.

Jurisdiction over navigation and commerce obviously entails jurisdiction over both the waters per se and the lands in those waters, used as anchorage, used for docking, used as storage areas, used for lighthouses, and that’s–

David H. Souter:

Well, New Jersey’s… as I understand it, New Jersey’s answer to that argument is that New York through its courts, it already held that the whole point of that is simply in effect a navigational commercial jurisdiction, and when something was not on or moving over the water, that was the end of it.

What’s your response to that?

Daniel Smirlock:

–Conceding that arguendo… that’s Article III… we still have to deal, we think dispositively, with Article II, because this case isn’t about Article III, really.

It’s about Article II’s grant to New York of those islands without reservation, islands that already had… or Ellis Island did… already had landfill on it.

So the question is, and really the only question–

David H. Souter:

The landfill being the wharf on the–

Daniel Smirlock:

–The pier was built on landfill, yes.

It was about a… 4/10ths of an acre of landfill, as the Special Master found, and what was going on in the harbor at the time of the Compact was that landfill was extensively in use on both sides of the harbor.

New Jersey, and Jersey City, and Hoboken, had been extensively expanded by landfill, 750 acres of made land, as it’s called, on Manhattan Island by the time of the Compact, the 4/10ths of an acre that I mentioned on Ellis Island already.

Daniel Smirlock:

Moreover, as a… as the 1836 coastal survey map that’s part of the record very vividly shows, the water around Ellis Island was extremely shallow.

It was a foot or two deep around Ellis Island at the most.

Simply to get out to 3 feet of water, which is the minimum necessary for a barge to have gotten there at the time to supply the fort, they had to build that pier, which is… was between 60 and 100 feet out into the bay.

So the use of landfill not only was foreseeable on Ellis Island, but had already occurred, so it certainly was something that the compactors had in their mind, and it is referred to in the Compact.

William H. Rehnquist:

–Now, you made this argument to the Special Master, I take it.

Daniel Smirlock:

Yes, Your Honor.

William H. Rehnquist:

And he rejected it, in effect.

Daniel Smirlock:

He did.

William H. Rehnquist:

And wherein do you disagree with his rejection?

Daniel Smirlock:

I disagree with it because he said the evidence of landfill… that landfill was used… well, he agreed, frankly, with us that landfill had been added to Ellis Island.

He agreed with it, but he made nothing of that.

He disagreed with us… he said the evidence that landfill had been extensively used in the harbor was ambiguous, and frankly, Your Honor, it is overwhelming.

Ruth Bader Ginsburg:

So–

–But that’s not all he said.

Didn’t he also say, if he were to take your position, then you could extend forever, and we’re not talking about just a little filling in.

We’re talking about enlarging that island nine times.

Daniel Smirlock:

Well, there are two answers to that.

The island was tiny, and it’s still tiny.

It’s still less, even with the filling, than [= 4/100ths] of a square mile, but beyond that, we think the Compact addresses that.

There’s a very elaborate system of checks and balances in it.

First of all, just as a practical matter, if Ellis Island, or any island in the bay, gets extended too far in the direction of New Jersey, it’s New Jersey, and that’s in the western direction.

If it gets extended to the east, true, it was very shallow around Ellis Island, but very soon there was a sharp drop-off off the Jersey Flats, which is what Ellis Island is on, into the main ship channel, which was 20 feet deep, and which would have been very, very hard to fill.

Moreover, there was, as I say, a system of checks and balances.

On the one hand, if New York had wanted to fill any of those islands they would have had to buy the subaqueous land from New Jersey, which had, under Article III, an exclusive right of property in that subaqueous land, and that’s what we think it means.

We think property means exactly what–

Anthony M. Kennedy:

Why do you say that if the island is extended too far toward New Jersey it’s New Jersey’s?

Daniel Smirlock:

–Because they’re islands.

New York was given the islands, and we think once they stop being islands, they stop having Article II, Article Second apply to them.

If somehow or other they became annexed to the New Jersey shore, we don’t think that they would–

Anthony M. Kennedy:

Well, but you… so far as Ellis Island, it’s still an island until it touches the New Jersey shore.

Daniel Smirlock:

–Very much so, and that’s why we still think it’s New York.

William H. Rehnquist:

So it could extend over, all the way, right to the New Jersey shore, and even though it ultimately connected, the boundary then would be the New Jersey shore.

Daniel Smirlock:

Yes.

If it… if somehow or other–

William H. Rehnquist:

That isn’t much of a check and balance.

[Laughter]

Daniel Smirlock:

–Well, wait a second.

I mean, one check and balance, as I say, is that to fill anything we would have had to obtain the right to fill on the subaqueous land that belonged to–

William H. Rehnquist:

But that’s true of any kind of fill you put in, anybody.

Daniel Smirlock:

–Well, that’s true, but that was a check that New Jersey could apply.

No, we’re not going to sell you this land to fill on it.

Antonin Scalia:

Wait, couldn’t New York condemn it?

Daniel Smirlock:

Frankly, I don’t see how New York could condemn it.

Antonin Scalia:

Why?

Daniel Smirlock:

Because the subaqueous land, insofar as it was subaqueous–

Antonin Scalia:

You say New Jersey just had a property right–

Daniel Smirlock:

–No, no, no.

Under Article Third it had a property right.

We concur that under the First Article, the article that establishes the boundary… as I thought I indicated, that territory was sovereign territory of New Jersey, so New York… it was not in New York.

Insofar as it was Ellis Island, or any island, Bedloe’s Island, any of the other islands in the bay, those were New York, when it became above water and part of those islands.

Antonin Scalia:

–Mr. Smirlock, here’s what troubles me about your argument.

We do not normally, when an island is referred to in a compact of this sort, or in any deed, interpret that to mean, the island as it may exist from time to time.

I mean, that would have solved a whole lot of our cases if that’s the way we interpret a reference to an island.

All of these avulsion cases where we have to decide, you know, where was the original island and so forth, if we simply interpreted island to mean, as it may exist from time to time, all those cases would go away.

Why should we give Ellis Island that strange meaning in this case?

Daniel Smirlock:

Well, the meaning isn’t so strange.

You’re interpreting, of course, a compact, which is both a contract–

Antonin Scalia:

Right.

Daniel Smirlock:

–and a statute.

Antonin Scalia:

Right.

Daniel Smirlock:

And this Compact gives Ellis Island, including the landfill, as I’ll explain, to New York.

Not only was landfill in wide use, so the commissioners would have known about it–

Antonin Scalia:

It was the island then.

I mean, it might have been fill, but that was Ellis Island at that time.

Daniel Smirlock:

–Well, here’s the question, Your Honor.

Could the compactors actually, knowing that landfill would probably be added to those islands, could they really have imagined that as soon as 5 feet were added to that pier, 5 feet of landfill added to Ellis Island–

Ruth Bader Ginsburg:

Whatever that may have provided then, what Article Second clearly does… it uses the word present… it seems to preserve the status quo, what was at the time, and it’s silent as to anything else, as far as I can tell.

Daniel Smirlock:

–I think it preserves the status quo as to the scope of New York’s jurisdiction.

That is, Bedloe’s and Ellis, as to which the phrase present jurisdiction is used, had already had a measure of jurisdiction ceded to the United States.

I don’t think it can be taken as a spatial limitation, and the Special Master agreed with that, Justice Ginsburg.

William H. Rehnquist:

How about the common law rule that avulsion doesn’t change boundaries?

Daniel Smirlock:

Avulsion doesn’t apply here.

The common law avulsion rule, as this Court has recognized in Shapleigh v. Mier, applies only when the… it’s a default rule.

It applies only when the Compact doesn’t address–

William H. Rehnquist:

Well, I’m not at all sure you’re correct that that is… you’re saying that something is presumed to be accretion if you don’t know how it happened?

Daniel Smirlock:

–Well, no, not–

William H. Rehnquist:

No.

Then it’s not a default rule.

Daniel Smirlock:

–I’m not saying that, Your Honor.

I’m not saying it’s presumed to be accretion.

I’m not saying anything about avulsion.

I’m saying that the compact deals with Ellis Island.

William H. Rehnquist:

Yes, but when you’re talking about what happens when an island is extended by landfill, and as Justice Scalia points out in a number of cases we’ve had to try to analyze where were the original boundaries of the island, that sort of thing, certainly if this was a compact that didn’t specify, you would think that it would follow the common law rule that an avulsion doesn’t change a boundary.

Daniel Smirlock:

You would, except that I am saying that it is a compact that does specify, that the grant of Ellis Island in its entirety and without exception to New York, coupled with the foreseeable use of landfill and the great–

William H. Rehnquist:

That’s where… the master disagreed with you about the foreseeable use of landfill, so you’re arguing on a factual question.

Daniel Smirlock:

–Well, I am, but of course this Court has independent de novo review–

William H. Rehnquist:

Yes.

Daniel Smirlock:

–of that very thing–

William H. Rehnquist:

We rarely second-guess a master on a factual issue.

Daniel Smirlock:

–You very rarely reinvent the wheel, because generally Special Masters get the wheel right, but when the wheel’s badly designed, I think you’ve got to go back and redesign it, and–

John Paul Stevens:

But Counsel, just the language of Article Second itself doesn’t seem to me to support your notion that whatever happens to the island… it says, shall retain its present jurisdiction, and shall also retain.

It’s a matter of retaining what now exists–

Daniel Smirlock:

–Mm-hmm.

John Paul Stevens:

–rather than acquiring what may be added in the future.

Daniel Smirlock:

Well–

John Paul Stevens:

Just in terms of the language.

Daniel Smirlock:

–Let’s look at the rest of the Compact, because I think it supports our–

John Paul Stevens:

It’s only Article Second that really supports your position.

Daniel Smirlock:

–No.

Article Third does as well, and I’ll tell you why.

Article Third mentions the fact that New Jersey will have exclusive jurisdiction over the improvements on its own shore, and improvements, it’s agreed by New Jersey, encompasses landfill.

Now, there are two possible ways to read that.

The com… the commissioners either somehow or other envisioned that there would be improvements only to the New Jersey shore, and to the Staten Island shore, which is dealt with similarly in Article V, and not to islands where landfill had already been added, or for some reason or other they didn’t… they envisioned it, but didn’t have to deal with it in the Compact, and I think the answer to that is the latter.

The improvements mentioned on the Jersey Shore over which New Jersey had exclusive jurisdiction would have abutted overwater and underwater land over which New York had exclusive jurisdiction and that might otherwise have given New York over the… authority over the landfill placed on the New Jersey shore.

David H. Souter:

Or at least would have given New York the authority to stop it.

Daniel Smirlock:

Yes, and the grant of jurisdiction over those improvements to New Jersey assured that they could wharf out and make land on their own shores.

Stephen G. Breyer:

If you lose on your points, those hypothetical–

Daniel Smirlock:

Mm-hmm.

Stephen G. Breyer:

–you lose on Article II–

Daniel Smirlock:

Mm-hmm.

Stephen G. Breyer:

–and suppose I were to think, no, Article II gives sovereignty to New Jersey over the fill.

Well, then is there an additional point, or do you concede then, if New Jersey has sovereignty over the fill, that New Jersey law applies over the fill?

Daniel Smirlock:

I don’t, Your Honor.

I don’t… I mean, I don’t concede that New Jersey has sovereignty over the fill because–

Stephen G. Breyer:

I understand that, but I’m trying to work out a phrase in the injunction.

The State of New York is enjoined from enforcing her laws, if that’s the recommended injunction, and so what I’m trying to figure out is whether you have made some argument… I didn’t see it in your brief… whether you have made some argument below, or whether you have conceded the point that if you’re wrong about sovereignty, and New Jersey is sovereign over the fill, then New Jersey law applies to the fill, not New York law.

Daniel Smirlock:

–I believe the point is conceded, Your Honor, yes.

Stephen G. Breyer:

It is–

Daniel Smirlock:

New Jersey law applies, yes.

Stephen G. Breyer:

–Thank you.

Stephen G. Breyer:

What about the provision in Article Fifth that the State of New York shall have the exclusive jurisdiction of and over the waters, docks, and improvements made and to be made on the shore of Staten Island?

Daniel Smirlock:

Exact… it’s the inverse of the Article Third provision I was talking about a moment ago.

Again, you had Staten Island, over which New York had jurisdiction, sovereignty–

Antonin Scalia:

Right–

Daniel Smirlock:

–and abutting Staten Island you had waters over which New Jersey–

Antonin Scalia:

–Just like Ellis Island.

Daniel Smirlock:

–Right, and that’s… no, not just like Ellis Island.

New York had exclusive jurisdiction over those waters and the underwater land surrounding Ellis Island.

Antonin Scalia:

But not the… not over the waters surrounding Staten Island?

Daniel Smirlock:

No.

If you look at the Compact, New Jersey was given exclusive jurisdiction over those waters, and–

Antonin Scalia:

New York didn’t even have the navigation jurisdiction?

Daniel Smirlock:

–Not in that small territory, and that’s why the compacting parties had to sort out–

Antonin Scalia:

I see.

Daniel Smirlock:

–who had authority over those improvements, so when you see that in the Compact you have to say either, they envisioned landfill on Staten Island in New Jersey but not on islands where it had already been put, which seems to us most improbable, or, they simply didn’t feel they had to deal with it because there was no potential conflict between exclusive jurisdiction under Article Third or Fifth and New York sovereignty over the islands under Article Second.

If you think that New Jersey’s right, you must think… you must think that the commissioners who made the Compact actually thought that when that 5 feet of landfill got added to the pier, that would be in New Jersey, that they agreed to Balkanize the islands, notwithstanding having given them without exception or qualification under Article Second to New York, and that is a very improbable conclusion.

Now, I will turn now to our argument that, notwithstanding the Compact, New York prevails in this case by virtue of the doctrine of prescription and acquiescence.

I’ll recite some of the prescriptive acts in which New York engaged over Ellis Island.

Ellis Island was in United States New York congressional districts, in New York Assembly and Senate districts.

The United States in the New York censuses enumerated Ellis Island in New York.

Ellis Island residents, who lived only on the landfill portion of the island, voted in New York.

The INS, which occupied the island throughout the immigration period from 1890 to 1954, thought, without exception, that it was in New York.

Other Federal agencies doing business on or with Ellis Island, including on the fill, thought that it was in New York.

Congress, in its legislation and in its committee hearings, described it repeatedly as Ellis Island, New York, referring often to the fill.

The Federal courts of New York took jurisdiction over Ellis Island.

The Federal courts of New Jersey not only didn’t take jurisdiction, they rejected it.

They refused it when it was proffered.

The New York Worker’s Compensation law applied both before and after the Buck Act was passed.

New York City wage rates applied to labor on Ellis Island both before and after the Davis-Bacon Act.

The individuals who lived and worked on the island thought, as far as we have their evidence, that it was in New York.

Daniel Smirlock:

When people were born on Ellis Island, in the hospitals that were on landfill, they were born in New York.

When they died in those hospitals, they died in New York.

When they married in… on Ellis Island, they married in New York.

None of those things can be said of New Jersey, and against those things the weight of New Jersey’s counterexamples of nonacquiescence simply isn’t sufficient.

William H. Rehnquist:

Well, how much opportunity did New Jersey have to object to some of these things?

I mean, to what extent did it make any difference?

Daniel Smirlock:

They were… well, I think those are two different questions.

The acts were certainly public.

We’re talking about things that were done by the Federal Government and by the New York legislature, so they knew about them.

To what extent did it make any difference in… I’m not quite sure what you’re asking, Your Honor.

William H. Rehnquist:

Well, I mean, so someone is identified as having been born in a hospital on Ellis Island and born in New York, and this somehow comes to the attention of New Jersey, I mean, is… are… is New Jersey suppose to seek a correction of that record to show the person was born in New Jersey?

Daniel Smirlock:

If they think they’re sovereign over the land, but it’s not… I’m not saying that they–

William H. Rehnquist:

This is a very… that’s a very abstract difference with no consequences to the State.

I mean, it isn’t as if New York and New Jersey were both seeking to tax, or something like that.

Daniel Smirlock:

–Well, as a matter of fact, Ellis Island, erroneously for New Jersey, was on both tax rolls of the State, and in fact, although the tax records are so old that we don’t have them, in fact, at least as of 1940, income tax earned by people who worked on the island would have been taxable by a State.

It wasn’t a completely abstract matter, and it would have been a question as to which State was entitled to tax.

William H. Rehnquist:

Well, that I grant you, but it seems to me some of the examples that you give are things where it really wouldn’t have made any difference in the operations of the State.

Daniel Smirlock:

Well, some are obscure, but some are as… open and notorious, you might say.

Let’s take–

Anthony M. Kennedy:

Are you saying that those acts put New Jersey on notice that it should have filed its suit earlier?

But if you say that, then is that just a laches argument in disguise?

Daniel Smirlock:

–It’s not a laches argument in disguise, it’s–

Anthony M. Kennedy:

Or is it still prescription?

Daniel Smirlock:

–No, it’s not a laches argument in disguise.

I think that’s the separate laches argument.

I’m not arguing at this moment that New Jersey should have… should have filed suit, though I will later on.

But no, all I’m arguing is that the acts of New York that I described, especially the legislative acts, and the censuses, certainly were public acts as to which New Jersey was on notice.

Ruth Bader Ginsburg:

But isn’t it the overwhelming presence of the United States throughout the period that stops New Jersey… what is there to object to?

The governing power in fact is the United States, and the one thing that is clear in this Compact is that Congress reserved… the hydra-headed word, jurisdiction, the United States jurisdiction.

Daniel Smirlock:

As to that, Your Honor, as this Court has often made clear, even when the United States has plenary jurisdiction, enclave jurisdiction over particular territory within a State, there’s a good deal of residual jurisdiction that can be exercised by that State.

Daniel Smirlock:

As the Court’s pointed out, territory doesn’t stop being part of a State just because the United States takes it under the Enclave Clause.

The municipal laws of a State, to use the term that this Court has used, laws designed to preserve the good order of society, remain in effect.

Federal law doesn’t supplant them.

And then there are all the areas where, by statute, State law applies.

The Assimilative Crimes Act, the Davis-Bacon Act that I mentioned before, the Buck Act, in all those areas, State law would still apply, so there was plenty of play for New York jurisdiction, and our point is that to the extent there was State jurisdiction to be exercised, and there was plenty of room for it, it was always New York that exercised it.

Ruth Bader Ginsburg:

Well, the Davis-Bacon is mixed, isn’t it?

There was some indication that New Jersey standards were used, too.

Daniel Smirlock:

It depends upon what you mean by mixed, Your Honor.

Up until 1947, New York standards were used exclusively.

In 1947, as New Jersey’s expert explained at trial, because the Federal Government wanted to save some money, and New Jersey rates were lower, there was a brief interregnum of about 2 years when New Jersey rates were applied, erroneously, because they were also applied on the main island, the original island as well.

And then in 1949, and this is a repeated pattern with New Jersey’s supposed acts of nonacquiescence, the Federal Government recognized its error, just as it had many other times before, and said, oh, we made a mistake, back to New York rates, and they started applying them again.

It’s hard to call that mixed.

Antonin Scalia:

Well, I think all of that has less to do with who they thought owned it than with whether the rates are higher or lower and whether they’re seeking union support or not.

Don’t you really think that’s what’s driving all the Davis-Bacon stuff?

Daniel Smirlock:

Possibly with the Davis-Bacon stuff it is, but with much of the… I recited already the examples of New York’s prescription.

John Paul Stevens:

How many people lived on Ellis Island?

Daniel Smirlock:

Between 100 and 200 over the years.

There’s one anomalous… at least while Ellis Island was a going concern as an immigration station, between 100 and 200, all of them on landfill, and they all voted in New… well, they may not all have voted, but they could all have voted in New York.

The examples of acquiescence, or nonacquiescence that New Jersey offers simply don’t measure up.

There’s the 1904 deed that I’ll deal with first, because that’s their Exhibit A, and what’s fascinating about that deed is that at no point, even though in 1904 Ellis Island had 12 acres of landfill on it, at no point did the United States or New Jersey say, oh, and by the way, that 12 acres must be in New Jersey.

The negotiations between those two parties always dealt with the subaqueous land, and we think that supports our view of the Compact, which is, if it was underwater land, it was in New Jersey, but if it became abovewater land by virtue of fill, it was Ellis Island, and because under Article II of the Compact Ellis Island goes to New York–

William H. Rehnquist:

Well, that really wasn’t a very good deal for New Jersey, certainly, if as soon as… if they owned the water… owned the land when it was under water, but as soon as it emerged from the water it went to New York.

Daniel Smirlock:

–Well, it was valuable land, Your Honor.

They still had… for one thing, they still had the right of property in it.

For another thing–

William H. Rehnquist:

How much value is land that’s under water?

Daniel Smirlock:

–As… to wharf out on, extremely valuable.

That was one of the reasons… and this is all in the record… that the Federal Harbor Line Board took over the establishment of harbor lines in the bay was because the States were building out landfill from both sides, and they had to have some kind of plenary control over navigation.

That was very valuable land, Your Honor.

It was not a pittance.

Antonin Scalia:

Mr. Smirlock, you know, I think it’s a hard row to hoe to establish prescription.

It really is a very difficult thing.

I guess I’m more sympathetic to your arguments as simply indicative of what the Compact was understood to mean.

Just as in a normal contract interpretation one can look at the parties’ subsequent behavior after the contract was signed, so also I’m sympathetic to the notion that we can look to New York and New Jersey’s subsequent behavior as indication of what it meant.

Daniel Smirlock:

Right.

Antonin Scalia:

But to establish prescription–

Daniel Smirlock:

Very well, Your Honor.

It’s an easily convertible argument, and in fact in Massachusetts v. New York, among other cases, that’s exactly what this Court did.

It looked as if it was analyzing the case in terms of prescription and acquiescence, and then at the last minute in its opinion it said, well, we think this shows what the Compact meant, and I agree with you, it does show what the Compact meant.

Stephen G. Breyer:

–Are we supposed to go back… I mean, I notice the Special Master says that New York was unable to prove that the births, marriages and deaths she documented occurred on the island, let alone the landfilled portions, so is it your thought that we would go back and read all the evidence on that, and then we come to an opposite conclusion?

Daniel Smirlock:

If you read even any of the evidence you’ll come to an opposite conclusion, Your Honor.

I think that was the single biggest error that the Special Master made.

The evidence is all that those… the marriages, it’s ambiguous.

The evidence as to births and deaths, they occurred, it is pretty clear, in the hospital, and the hospital was on island number 2, and island number 2 was fill.

He is simply mistaken, and I ask you in your–

Ruth Bader Ginsburg:

Well, you said, now, it’s pretty clear.

Daniel Smirlock:

–It is entirely clear.

Forgive me.

It was rhetoric.

It is entirely clear that that’s where those births and deaths occurred because that’s where the certificates say they occurred.

The death certificates say, Ellis Island Hospital, Marine Hospital, Ellis Island, and that hospital was on fill.

It’s undisputed.

As I say, I believe that to be the single most patent error in the Special Master’s report.

Now, I want to return in the moment I have left–

Ruth Bader Ginsburg:

Well, if one concludes that even if that’s so, a few births and a few deaths don’t make Ellis Island filled-in land, under the sovereignty of one State or the other, that’s–

Daniel Smirlock:

–If that were all we have, maybe not, but there is this pattern of everything that happened on Ellis Island that was subject to any State’s jurisdiction or any sort of action by any State was always taken control of by New York.

If all we had were a few birth certificates, that would be problematic, but we have so much more, in addition to those birth certificates, and New Jersey, and this is an important point, has none of those things.

Stephen G. Breyer:

–Don’t they have Mayor Hague?

Didn’t Mayor Hague at some point–

Daniel Smirlock:

Ah, yes, the Mary Norton episode.

Daniel Smirlock:

They have Mayor Hague coming in, and Mary Norton was his cat’s paw, and–

William H. Rehnquist:

–Answer the question.

Daniel Smirlock:

–And Mayor Hague came in and said, I don’t know anything about a compact, but New… Ellis Island, New Jersey workers want Ellis Island, so give us jobs, and even then they couldn’t get away with it, Your Honor.

The United States had to agree with the Second Circuit in Collins, and say that Article II awarded the entire island.

William H. Rehnquist:

Thank you, Mr. Smirlock.

The case is submitted.