Amicus Curiae Brief — New Jersey v. New York

No. 120, Original

—_

IN THE 7 ——

Supreme Court of the United States

OCTOBER TERM, 1997

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an | Seemed Ns,

A

’ Tv

STATE OF NEW JERSEY,

Plaintiff,

v.

STATE OF NEW YORK,

Defendant.

ON EXCEPTIONS TO THE SPECIAL MASTER’S REPORT

MOTION FOR LEAVE TO FILE BRIEF OF

AMICI CURIAE IN SUPPORT OF THE

EXCEPTIONS OF THE STATE OF NEW

YORK AND BRIEF OF AMICI CURIAE

JOHN J. KERR, JR.

Counsel of Record

SIMPSON THACHER & BARTLETT

(a partnership which includes

professional corporations)

425 Lexington Avenue

New York, New York 10017-3954

(212) 455-2000

Attorneys for Amici Curiae New

York Landmarks Conservancy,

Preservation League of New

Of Counsel: York State, and Historic

JENNIFER A. HAND Districts Council

LINDA H. MARTIN

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE BRIEF OF

MTS CD wictiicireinhssinciinsiniictaiesiniaeaniistisiaibaidibiidadaaticimmndidaais ili

FAs Ge AT eee I cecsrctccetcseminicnsesnnincannetiinngs Vill

OCTET GP SEITE CCIE cvceccscvesccoceresvvevtanssssicensoosns l

SUMMARY OF ARGUMENT ...............::cccssssessesesesesseensens 2

POINT I

THE REPORT'S EQUATION OF

"PROPERTY" AND "SOVEREIGNTY"

BES WSR: © COSENTINO cnesecnssitnsqticsticnermsinsinntsnineciavitien 4

A. Article III] Granted To New Jersey Only

Jus Privatum Rights In The Underwater

Lands On The Western Side Of The

SE STO cctenscnvtcieiceinauineiiasienaiialinaninitiiilinianbiensénnis 5

B. Jus Privatum Rights Of Property Have

Never Been Equated With Sovereignty ................ 13

POINT II

IN THE ALTERNATIVE, THE COURT SHOULD

AFFIRMATIVELY DETERMINE THAT ARTICLE

III GRANTED TO NEW YORK, AT THE VERY

LEAST, "POLICE POWER" JURISDICTION ON

THE NEW JERSEY SIDE OF THE ARTICLE I

OUISEAUEG FEA UEB vveceressescevesestencinneninnotnnitininesecneotastinnti 17

A. At The Very Least, New York Retained

Under Article III Broad Regulatory

Powers Over The Waters And Underwater

Lands Of The Hudson River .................cccccccssssseees 18

B. The Broad Regulatory Powers Retained By New

York Under Article III Are Synonymous

With The "Police Power" Of State And

EEA EER 21

C. The "Police Power” Jurisdiction Retained By

New York Under Article III] Gives It Current

Jurisdiction Over Historic Preservation Matters

On The New Jersey Side Of The Article |

Et eS IT tin 25

1. The Scope Of The "Police Power"

Jurisdiction Retained By New York

Under Article III Has Expanded Since

Execution of the Compact.........cccccccocceeoeeoeeoee 25

2. New York Is Entitled To Exercise

Jurisdiction To The Full Extent Of

le pe 28

RR TSE OT A a 30

No. 120, Original

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF NEW JERSEY,

Plaintiff,

v.

STATE OF NEW YORK,

Defendant.

MOTION OF NEW YORK LANDMARKS

CONSERVANCY, PRESERVATION

LEAGUE OF NEW YORK STATE, AND

HISTORIC DISTRICTS COUNCIL FOR

LEAVE TO FILE BRIEF AS AMICI CURIAE

Pursuant to Rule 37 of the Rules of this Court, the New

York Landmarks Conservancy, the Preservation League of

New York State, and the Historic Districts Council

(collectively, "Proposed New York Landmarks Amici" or

"Proposed Amici") respectfully move for leave to file the

accompanying brief as amici curiae in support of the State of

New York's Exceptions to che reports filed by the Special

Master in this case on March 31 and May 30, 1997 (together,

the "Report" or "R."). The State of New York has consented

to the filing of this Brief. The consent of the State of New

Jersey has been requested and refused.

The Proposed New York Landmarks Amici are local and

state organizations dedicated to historic preservation. This

iv

action, and the result recommended by the Special Master in

the Report, raises the question of whether Ellis Island's

historic structures are properly subject to the well-established

and consistently-enforced historic preservation regulations of

New York City or the less protective regulations of Jersey

City, New Jersey. As organizations that have for years

fought to safeguard the landmarks of New York State and

City, the Proposed Amici have a demonstrable interest in the

answer to this question.

Ellis Island, the gateway to this nation for millions of

Americans, is an irreplaceable part of New York's cultural

heritage. It was originally a part of New York, and, Proposed

Amici believe, the Compact's drafters intended for it to

remain a part of New York. The Report's conclusions to the

contrary are unsupported by the plain meaning of the

Compact, contemporaneous construction of its terms, the

record in this case, and relevant precedent. Its

recommendations must consequently be rejected.

The Proposed Amici possess a unique store of

knowledge about historic preservation generally and the

history of the New York City region in particular:

NeW YORK LANDMARKS CONSERVANCY

The New York Landmarks Conservancy is a not-for-profit

civic organization chartered by New York State. It is

dedicated to the preservation of structures of architectural,

cultural and historic significance as well as to the

designation and revitalization of historic districts. The

Conservancy furthers these objectives by making grants

workshops, distributing publications, and sponsoring

restoration and rehabilitation projects. The Conservancy

is an experienced advocate for sound policies that

encourage preservation as an integral part of urban

planning. In this capacity, the Conservancy testifies

frequently before the New York City Council, Board of

v

Standards and Appeals, City Planning Commission and

Landmarks Preservation Commission on issues pertaining

to historic preservation.

PRESERVATION LEAGUE OF NEW YORK STATE

The Preservation League of New York State is a New

York not-for-profit corporation. Its mission is to protect

and enhance historic values and property in the State of

New York. Its 2,000 members throughout the state are

concerned with the application and interpretation of

preservation laws as well as environmental laws that

impact upon historic resources. The League offers advice

to hundreds of citizens every year who are concerned

about the fate of historic properties in their region. It also

maintains grant programs to assist in the rehabilitation and

use of historic properties. The League has appeared as

amicus curiae in numerous cases, such as the present one,

concerning New York's landmarks preservation laws.

Historic DisTRICTS COUNCIL

The Historic Districts Council is the citywide voice for

New York City's 66 designated historic districts and for

other neighborhoods meriting preservation. The Council's

mission, to promote preservation awareness and

involvement among New Yorkers, is implemented

through a program of education, conferences,

publications, and technical assistance. The Council's 28-

member Board of Directors includes representatives from

all five boroughs, 19 historic neighborhoods and three

county-wide organizations, as well as from the design,

planning and legal professions. The Council is the only

grassroots association in New York City singularly

dedicated to historic districts and the landmarks

preservation laws that protect them.

vi

The Proposed Amici participated at trial and in summary

judgment and post-trial briefing before the Special Master.’

Having now reviewed the Report, the record, and the

applicable statutes and case law, the Proposed Amici believe

that the Report should be rejected for at least two reasons.

First, the Report incorrectly equates “property,” as used in

Article III, with "sovereignty," a term which appears nowhere

in the Compact. No court or commentator at the time of the

Compact would have found "sovereignty" in a mere "right of

property." And it was for "property" rights, and "property"

rights alone, that New Jersey settled in the Compact. This

Court should not hold otherwise.

Second—and in the alternative—even if Article III did

not give New York "sovereign" jurisdiction to the low water

mark on the New Jersey shore, af the very least it gave New

York "police power" jurisdiction over the same area. The

Report's failure to address this issue is of particular

significance to the Proposed Amici because what the Report

acknowledges to be New York's “police jurisdiction” on the

New Jersey side of the Article I boundary line is, in Proposed

Amici's view, enough to give New York jurisdiction over,

inter alia, “historic preservation” matters on the New Jersey

side of the boundary. However, all indications are that New

Jersey would think otherwise. Thus, the Court must fill this

gap in the Report's conclusions, by affirmatively determining

that New York has, af the very least, “police power"

jurisdiction over the landfilled portions of Ellis Island.

The Proposed Amici are in a unique position to provide

the Court with incisive views on these issues. The Proposed

' The amicus group in which the Proposed New York Landmarks

Amici participated below also included the National Trust for Historic

Preservation in the United States and the Municipal Art Society of New

York. The latter of these organizations is filing a separate Brief in

support of New York's Exceptions, in which Proposed Amici herein

elected not to join because of their desire to address the distinct issues

raised by the Report outlined in the accompanying Brief.

vii

Amici possess a unique store of knowledge about historic

preservation generally and the history of New York City and

Ellis Island in particular. Their experience in the area of

historic preservation should be helpful (in combination with

the views of Proposeu Preservation Amici) in the full

presentation to the Court of the novel issues raised by this

action. Their access to scholars familiar with and research

materials concerning New York City history give them the

resources to subject the Report's premises and conclusions to

searching analysis. In an original case of this type, where the

Court's mandate is to not reach any decisions of necessarily

far-reaching import before exhausting all valid avenues of

inquiry, the participation of the Proposed Amici will,

consistent with Supreme Court Rule 37.1, be of “considerable

help" to the Court's review of the Report while allowing the

Proposed Amici to fulfill their mission of speaking out

forcefully to safeguard New York's landmarks, including the

historic structures of Ellis Island.

WHEREFORE, the Proposed New York Landmarks

Amici respectfully move this Court that leave be granted to

file the annexed brief as amici curiae.

Dated: New York, New York

July 30, 1997

JOHN J. KERR, JR.

Counsel of Record

SIMPSON THACHER & BARTLETT

(a partnership which includes

professional corporations)

425 Lexington Avenue

New York, New York 10017-3954

(212) 455-2000

Attorneys for Amici Curiae New

York Landmarks Conservancy,

Preservation League of New York

State, and Historic Districts Council

Viii

TABLE OF AUTHORITIES

CASES PAGE(S)

Arnold v. Mundy,

I iti rsa tatiana dinniatatnisianespaiiliealinias 5, 6,7

Barr v. United States,

I ita oat crac ehmriaaiitlicegaalial 29

Bell v. Gough,

RE EE a nee mem 7

Berman v. Parker,

EE EL CRE URE een Dr Oe 26, 27

City of Boerne v. Flores,

No. 95-2074, 1997 WL 345322

SEE, Sn ants ETD citattinciidinndnesechenepeeenansvectunnineneniediauieets 26

City of Hoboken v. Pennsylvania R.R.,

EE Ee Te 14

Central R.R. v. Jersey City,

Ee TUITE <ociietnsdistitaiicinnaiedinsinidiieneenaninnnnemiaiebegsees 3

Coates v. Mayor of New York,

ee ee 22

Corfield v. Coryell,

we BF en 7

Corporation of the Brick Presbyterian Church

v. Mayor of New York,

ee KR een 22

Diamond vy. Chakrabarty,

ee See STEED cccccrncnariciorerntnnenibnneancstginionbienaiinesonintan 29

Ferguson v. Ross,

Ts EN Es UEEEED erncichonetsenceembiionndidenbeidnanauabdionnbatl 20

Gibbons v. Ogden,

Fa ES IID crnscenecoreretniennienninimnaenemmnataiinienel 22, 23

iX

PAGE(S)

Idaho v. Coeur d'Alene Tribe,

No. 94-1474, 1997 WL 338603

NSE SE ee EE 7,9

Kiernan v. The Norma (The Norma),

| | Ae a 17

Lewis Blue Point Oyster Cultivation |

Co. v. Briggs, 91 N.E. 846 (N.Y. 1910),

I cs hs 29

Martin v. Waddel,

kt RE aS Sen eeE SES ALT ut 5,7,9

Massachusetts v. New York,

SAORI I hah es 12, 28, 29

Mayor of New York v. Miln,

hc), SR SINE re EAS 22, 24

Mayor of New York v. Slack,

3 Wheel. Cr. Cas. 237

ft ee te REISS Ie Petia aT? 15,21, 22

Noble State Bank v. Haskell,

PO IE thiiitdintinikini sie ne ee 26

Penn Cent. Transp. Co. v.

City of New York,

Se NS STD hckicinscstssintiéscaabiat te ecco bere 27

People v. Central R.R.,

re IE pith te tn 17, 20

Ross v. Mayor of Edgewater,

180 A. 866 (N.J. Sup. Ct. 1935),

aff'd, 184 A. 810 (N.J.), cert.

CEU, Sr Wes UP IO eccinsinesieicsetininetceseec ec 20

State v. Babcock,

ae Se icniticiatniibiiteiesnsiaet a ane 17, 20

PAGE(S)

Tennant v. State Bd. of Taxes and Assessments,

RE Ts, SUED ctvestvensstiondenicepinechiiempitentintnivconipeseitiin 20

Texas v. New Mexico,

SD -scisiieninretciciiphinerdniiinedaietpenantintinbinsindcnptaateadans 28

The Santissima Trinidad,

ee NII nc ste nestensitinscnpentnnsienninsedibtaaayenninidentensens 14

United States v. Johnson,

994 F.2d 986 (2d Cir.),

cert. denied, 510 U.S. 959 (1993) .......cccccsscseesesceeeeeeenes 29, 30

United States v. Oregon,

Se RL TE titi deciteniesticiibicevicitieneanendiistatianiveaniuibeiieas ecieontnasiiens 29

Village of Euclid v. Ambler Realty Co.,

ee ee EE ciercieietetis hack innitoninecoennenacctntiasmiiticniavs 26, 27

Willson v. Black Bird Creek Marsh Co.,

Bee SI eahincebctniintccnsignstencninintcinancnuensiani 22, 23, 24

TREATISES AND OTHER MATERIALS

All the Proceedings in Relation to the New

South Ferry between the Cities of New York

and Brooklyn from December 1825 to

FEE En nD eee 16

Elizabeth Blackmar, Manhattan For Rent, 1785-

PITTI -siisicstnetidatesitchahinseedtindaqunielispeliibiesauninanaremetsiithidas 15

Thomas M. Cooley, A Treatise on

Constitutional Limitations (1868) ...............ccccccccceeeeeeeeeeees 22

East Jersey Proprietary Titles: Abstract of Title

and Opinions of Chancellor Kent and E.

Fe EN GED cccnnstaenistettencientinintiicne 8,9, 13,15

Lucius Q.C. Elmer, The Constitution and

Government of the Province and State of

FP TO CTE evicaneccinientcsncssdesastieninciitantnianianennniain 20

xi

Ernst Freund, The Police Power: Public Policy

and Constitutional Rights (1904) .......c.cccccccecececeseseeecee. 22, 26

Hendrik Hartog, Public Property and Private

Power: The Corporation of the City of New

York in American Law, 1730-1870 (1983) ...... 11, 15, 22, 28

John Jay, Memorials of Peter A. Jay: Compiled

Sor his Decendamts (1929) .......ccccccccecessssecsecsescseseeeeseseeececen, 19

James Kent, Commentaries on American Law

Ree er es UN Ret RON a Ee 22

Maureen Kordesh, "/ Will Build My House With

Sticks": The Splintering of Property

Interests Under the Fifth Amendment May

Be Hazardous to Private Property, 20 Harv.

i at lt IEE a 26

Richard D. Lazarus, Changing Conceptions of

Property and Sovereignty in Natural

Resources: Questioning the Public Trust

Doctrine, 71 lowa L. Rev. 631 (1986) ...cccccccccccccccoseseoeeee. 7,9

Minutes of the Common Council of the City of

FOO FI FEF E TO CID wttrninetertennsimmieenicrsbinnseiiann cs 1]

Stuart A. Moore, History of the Foreshore

SD ssebiieiisansilldctiinattincndiaiiea aia ie Doel i aw 7

William J. Novak, Common Regulation: Legal

Origins of State Power in America, 45

Hastings L.J. 1061 (1994) o.oo. ccccccccccecesesecscsseeseeeeeeeees 21, 26

The Papers of Alexander Hamilton (Harold C.

Me RO Gg IPO ioc etitrnsee sescdactnccinsercnirs ens cs 1]

Christopher Tiedemann, A Treatise on the

Limitations of the Police Power in the

TT SE I NN re Se a 22

No. 120, Original

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF NEW JERSEY,

Plaintiff,

Vv.

STATE OF NEW YORK,

Defendant.

BRIEF OF AMICI CURIAE IN SUPPORT OF THE

EXCEPTIONS OF THE STATE OF NEW YORK

The New York Landmarks Conservancy, the Preservation

League of New York State, and the Historic Districts Council

(collectively, the "New York Landmarks Amici") submit this

brief, as amici curiae, in support of the Exceptions of the State

of New York to the reports filed by the Special Master in this

case on March 31 and May 30, 1997 (together, the "Report" or

"R.").

INTEREST OF AMICI CURIAE'

The New York Landmarks Amici are local and state

organizations dedicated to historic preservation. This action

concerns whether the State of New York or the State of New

Jersey has “sovereign” jurisdiction over Ellis Island. The

dispute turns on the interpretation of the terms of a compact

entered into between New York and New Jersey in 1834

concerning their Hudson River/New York Harbor boundary

(the "Compact"), and the course of conduct of the two states

with regard to this boundary in the ensuing century and a half.

' Pursuant to Rule 37.6 of this Court, the New York Landmarks Amici

state that this Brief was authored entirely by counsel for the Amici, and

no person or entity other than the Amici and their counsel made a

monetary contribution to the preparation of this Brief.

2

More importantly, however, this action, and the result

recommended by the Special Master in the Report, raise the

question of whether Ellis Island's historic structures are

properly subject to the well-established and consistently-

enforced historic preservation regulations of New York City or

the less protective regulations of Jersey City, New Jersey.

As organizations that have for years fought to safeguard

the landmarks of New York State and City, the New York

Landmarks Amici have a demonstrable interest in the answer

to this question. Ellis Island, the gateway to this nation for

millions of Americans, is an irreplaceable part of New York's

cultural heritage. It was originally a part of New York, and,

Amici believe, the Compact's drafters intended for it to remain

a part of New York. The Report's conclusions to the contrary

are unsupported by the plain meaning of the Compact,

contemporaneous construction of its terms, the record in this

case, or relevant precedent. Its recommendations

consequently must be rejected.

The New York Landmarks Amici possess a unique store

of knowledge about historic preservation generally and the

history of the New York City region in particular. Their

experience in the area of historic preservation and local history

will be helpful in the full presentation to the Court of the

issues raised in this action. Their access to scholars familiar

with and resources relevant to the history of the period will

ensure that all factors of consequence are considered by the

Court in assessing the Report's recommendations.

SUMMARY OF ARGUMENT

Article II of the Compact dictates, as New York ably

argues, that New York has the "jurisdiction" of a "sovereign"

over both the original and the landfilled portions of Ellis

Island. Quite simply, Article II bestowed on New York

jurisdiction that was coterminous with the entity of "Ellis

Island" no matter how its physical boundaries might change

3

over time. It is on this basis, and this basis alone, that this

case should be decided as a matter of compact construction. If

the Court thinks otherwise, however, and deems it necessary

to address Articles I and III of the Compact, it cannot do so on

the basis of the Report's conclusions, for two alternative

reasons.

First, the Report incorrectly equates "property," as used in

Article III, with "sovereignty," a term which appears nowhere

in the Compact. Notwithstanding Justice Holmes’ dictum to

the contrary in Central Railroad Co. v. Jersey City, 209 US.

473 (1908), no court or commentator at the time of the

Compact would have found "sovereignty" in a mere "right of

property," especially where, as was the case in Article III, the

right at issue was no more than what the 1833 Commissioners

would have understood as a jus privatum entitlement that had

been expressly stripped of any jus publicum obligations or jus

regium powers. Thus, while the Commissioners and their

contemporaries may or may not have considered "jurisdiction"

as always synonymous with "sovereignty," the Commissioners

would never have equated "property" with "sovereignty." And

it was for "property" rights, and "property" rights alone, that

New Jersey settled in the Compact.

Second—and in the alternative—even if Article III did not

give New York “sovereign” jurisdiction to the low water mark

on the New Jersey shore, at the very least it gave New York

"police power" jurisdiction over the same area. The Report,

which confines itself to the “sovereign” effect of the Article I

boundary line, never reaches this issue. It makes no attempt to

define the scope of New York’s residual (and facially

"exclusive") jurisdiction on the New Jersey side of that

boundary under Article III]. The Special Master several times

alludes to this jurisdiction as "limited," “legal,” and, most

significantly, as "police" jurisdiction. But the Report makes

no effort to further circumscribe it, or determine its

relationship to New Jersey’s purportedly "sovereign" powers

4

over the waters and underwater lands in the vicinity of Ellis

Island.

This omission is of particular significance to the New

York Landmarks Amici because what the Report

acknowledges to be New York’s “police jurisdiction” on the

New Jersey side of the Article I boundary line is, in the

Amici's view, enough to give New York jurisdiction over,

inter alia, planning, development and historic preservation

matters on the New Jersey side of the boundary. All

indications are, however, that New Jersey would not agree

with this view of the scope of New York's residual powers.

Hence, the Report’s proffer of the Article 1 boundary as a full

resolution of the dispute is far from such a full resolution. The

Court must fill this gap in the Report's conclusions by

affirmatively determining that New York has, af the very least,

"police power" jurisdiction over the landfilled portions of Ellis

Island.

POINT I

THE REPORT'S EQUATION OF "PROPERTY"

AND "SOVEREIGNTY" IS WHOLLY UNTENABLE

This case should be decided, as a matter of compact

interpretation, on the basis of Article II, and Article II alone.

However, if the Court concludes otherwise and deems it

necessary to examine Article III, it cannot adopt the Report's

Article III conclusions because the equation of “property”

and "sovereignty," on which the Report's Article III analysis

is based, is wholly untenable. Article II] granted to New

York an "exclusive right of jurisdiction" over all the waters

and the lands covered by such waters on the western side of

the Hudson. New Jersey, by contrast, was granted only an

"exclusive right of property" in the same subaqueous land,

and it relinquished this ownership interest when it sold the

landfilled areas to the Federal Government in 1904. If either

of these rights can properly be equated with "sovereignty," it

5

is—as the State and City of New York argued before the

Special Master—New York's "exclusive right of

jurisdiction."

However, regardless of whether this Court is willing to

equate “jurisdiction” with “sovereignty,” there is no basis

whatsoever for the Court to accept the Report's equation of

New Jersey's "right of property" in the underwater lands

around Ellis Island and "sovereignty" over those underwater

lands. The plain meaning of Article Ill, which expressly

distinguishes between all-inclusive "jurisdictional" and more

limited “property” rights, does not permit such an equation.

See Brief of Preservation Amici dated Mar. 25, 1996 (Docket

No. 256). Nor—as Amici show below—would courts or

commentators at the time of the Compact have found

"sovereignty" in a mere "right of property," especially where,

as was the case in Article III, the right at issue was no more

than what the 1833 Commissioners would have understood

as a jus privatum entitlement in underwater lands that had

been expressly stripped of any jus publicum obligations or

jus regium powers. This Court should not hold otherwise.

A. ARTICLE III GRANTED TO NEW JERSEY

ONLY JUS PRIVATUM RIGHTS IN THE

UNDERWATER LANDS ON THE WESTERN

SIDE OF THE HIUDSON RIVER

Essential to understanding the nature of the “exclusive

right of property" granted to New Jersey by Article Ill is a

more general understanding of the meaning “rights of

property" in “underwater lands" had for the Commissioners

and their contemporaries in the 1820s and 1830s. The most

compelling evidence of the meaning such terms had in this

period is to be found in the language of the debate concerning

rights in lands under navigable waters that was ignited by the

New Jersey Supreme Court's 1821 decision in Arnold v.

Mundy, 6 N.J.L. 1 (1821), and not resolved until this Court's

decision in Martin v. Waddel, 41 U.S. 367 (1842). That

6

debate, which involved conflicting claims of title to the

underwater lands in New Jersey's Raritan Bay, was well-

known to Commissioners from New York and New Jersey

who drafted the Compact, and necessarily affected their

understanding of the “right of property" that Article III

granted to New Jersey.

For many years prior to 1821, the Board of Proprietors

of East Jersey had claimed title to all lands under water in the

northern half of New Jersey. The Proprietors were among

the successors in interest to Lord Berkeley and Sir George

Carteret, the original grantees of what is now New Jersey,

and purported to derive title to these underwater lands from

Berkeley's and Carteret's 1664 grant from the Duke of York,

which included, inter alia, “all rivers, harbours, waters,

fishings, &c."" in New Jersey. Arnold, 6 N.J.L. at 70. That

grant had originally conferred both "soil" and "self-

government" (i.e., "property" and “jurisdiction") on Berkeley

and Carteret, and thus on the Proprietors as their successors.

!d at 19. In 1702, however, the Proprietors—who had

encountered difficulties governing the colony—ceded all

rights of "government" back to the Crown, while purporting

to retain their property rights in all the previously granted

lands, including, the Proprietors believed, those lying under

the navigable waters of the State. /d at 27-29.

In 1821, however, the New Jersey Supreme Court held

in Arnold v. Mundy that the lands under New Jersey's

navigable waters belonged not to the Proprietors but to the

State. The Arnold court concluded that such underwater

lands, which in England had traditionally been the property

of the Crown, had belonged to the Proprietors when they

served as both the property holders and government of New

Jersey, but had been ceded back to the Crown, as part of the

jura regalia, in 1702. The State had succeeded to those

rights after the Revolution, and consequently held the same

-

rights in the underwater lands that the King had held in such

lands in England.

The State's authority over these lands, like those of the

Crown, had three distinct aspects. It held the lands in fee

simple (jus privatum), like any other individual, and could,

arguably, make use of the lands as it desired. However, it

could only make such use of the lands subject to the rights of

the public (jus publicum) to use the waters above these lands

for navigation and fishing. See Stuart A. Moore, History of

the Foreshore 185-211 (1888). The jus publicum obligations

with respect to the underwater lands "passed to the [State] as

one of the royalties incident to the power of government,”

and it required the State to hold the lands as a "public trust

for the benefit of the whole community" and to enforce this

“public trust” through the use of its jus regium or sovereign

regulatory powers. Martin, 41 U.S. at 413; Arnold, 6 N.J.L.

at 77-78. As a result, the Arnold court concluded, such lands

could not be sold or otherwise alienated by the State because

the "sovereign power . . . cannot, consistently with the law of

nature and the constitution of a well ordered society, make a

direct and absolute grant of the waters of the state, divesting

all the citizens of their common rights.” Arnold, 6 N.J.L. at

78: see also Martin, 41 U.S. at 413; Corfield v. Coryell, 6 F.

Cas. 546, 552 (C.C.E.D. Pa. 1823); Bell v. Gough, 23 N.J.L.

624, 655-57 (1852); see generally Idaho v. Coeur d'Alene

Tribe, No. 94-1474, 1997 WL 338603, at *17 (U.S. June 23,

1997); Richard D. Lazarus, Changing Conceptions of

Property and Sovereignty in Natural Resources: Questioning

the Public Trust Doctrine, 71 lowa L. REV. 631 (1986).

Fearful of being compelled to forfeit interests in valuable

underwater lands, the Proprietors contested the outcome in

the Arnold case. The Proprietors accepted the view that the

lands they claimed came encumbered with jus publicum

obligations, but argued that the fee simple interest in such

underwater lands could have been conveyed to the

Proprietors separate and apart from the jura regalia of

government power. The jus privatum right of property, the

Proprietors contended, could plainly be granted without jus

regium powers to enforce the jus publicum trust in such

lands. To make this argument, the Proprietors solicited

opinions in 1824 from several prominent attorneys and jurists

including Chancellor James Kent of New York and future

New York Commissioner Peter Augustus Jay.

The opinions rendered on behalf of the Proprietors tell us

much about contemporary understandings of property rights

in “underwater lands." Most importantly, these opinions

make clear that the “right of property" in lands under

navigable waters was viewed by many (including at least one

of the 1833 Commissioners) as independent of and wholly

“unconnected with attributes of political power." In the

words of Chancellor Kent:

The right of ownership of the soil in the navigable

waters is not per se, an incident to sovereignty. It is

not within the essential powers of government, because

it is a right entirely subordinate to the jus publicum. It

is not in the sense of the best English jurists, nor is it in

the sense and practice of mankind, an incident and

inseparable from royalty; and I am clearly convinced in

my own mind .. . that the Proprietors of East Jersey

were seized of the soil, and had a legal title to the land

under tide waters at the time of their surrender of their

powers of government to Queen Ann.

James Kent, Opinion By Chancellor Kent of New York (Dec.

16, 1824), reprinted in East Jersey Proprietary Titles:

Abstract of Title and Opinions of Chancellor Kent and E.

Van Arsdale 11 (1881) (emphasis added).

In his opinion, Peter Augustus Jay, the future New York

Commissioner, was even more adamant in insisting that

9

"sovereign" and “proprietary” rights in underwater lands

could be segregated:

It is proper to distinguish between the fee simple of the

soil, and a right to exclusive use of it for all purposes.

An individual may be seized in fee of the soil of a

highway, yet the public have a right of passage over it;

so the title to the soil of a fresh water river may be in

one, and the right of fishing it in another. Almost all

the arguments in [Arnold v. Mundy] tend to shew that

use of navigable waters for various purposes is

common to the public, but are inapplicable, (as it

appears to me,) to the question in whom the fee simple

of the soil is vested.

Id. at 2 (P.A. Jay, Opinion (Nov. 26, 1824)).

Viewed in light of the terms of this debate, which was

not finally resolved until this Court's decision in Martin v.

Wadell in 1842,’ the only proper conclusion is that the

"exclusive right of property” granted to New Jersey in Article

Ill entailed no more than a jus privatum right in the

underwater lands on the western side of the Hudson. The

Commissioners and their contemporaries understood fully the

distinction between jus privatum and jus publicum interests

in underwater lands, they used the term “property” to denote

jus privatum rights and the term "jurisdiction" to denote jus

publicum obligations as enforced by jus regium powers, and

they viewed these rights as conceptually segregable even if,

for purposes of the ongoing debate, certain of the

2 In Martin—ten years after the Compact—the Court adopted the

Arnold holding that lands under navigable waters were held "as a public

trust for the benefit of the whole community,” 41 U.S. at 413, and

thereby laid the groundwork for later case law permitting alienation of

such lands (and thus severance of jus privatum and jus publicum

interests) upon satisfaction of a public interest standard. See Coeur

d'Alene Tribe, 1997 WL 338603, at *17; Lazarus, supra, at 633-44

(tracing evolution of “public trust" doctrine).

10

Commissioners’ contemporaries might have been unwilling

to concede that the rights were entirely severable.

This distinction and terms that would be used

consistently to discuss it had become part of the dialogue

between New York and New Jersey as early as 1807. In one

of the Propositions submitted by the New Jersey

Commissioners to their New York counterparts during the

first round of negotiations that year, New Jersey

acknowledged that "[a}rms of the sea and navigable rivers are

subject to a jus publicum, a jus privatum, and a jus regium."

(NJ Ex. 213.) In another Proposition, New Jersey explained

the hases for its claims to New York Harbor and the Hudson

River in the following terms:

[T]he King of Great-Britain possessed, not only the

property in all navigable rivers, but by his

prerogative, claimed and exercised (among his

regalia) jurisdiction over them, and over all shores

below high water mark, and over all ports and

harbors whatsoever within his American colonies. It

is therefore evident that if the grant to the first settlers

of New-Jersey, had contained an express limitation to

high water mark, it would only follow that the

property as well as the jurisdiction over the subject

matter now in controversy was retained by the duke

and again resulted to the crown when he became king

of England, and would be no more than if the crown

had retained originally the property & jurisdiction of

a large lake in the centre of New-Jersey.

(NJ Ex. 209 (emphasis added).) The New Jersey

Commissioners went on to contend that the rights thus

retained by the Crown devolved upon New Jersey after the

Revolution. However, what matters is not the validity of

New Jersey's claims, but the fact that it framed these claims

in terms of two distinct rights, "property" and "jurisdiction,"

which, for the reasons set forth above, can be equated with

Le IT a Ne

ee eee

1]

jus privatum rights and jus publicum obligations as enforced

by jus regium powers.”

The terms of the dialogue would not change significantly

in the ensuing twenty years. In 1828, New Jersey was still

expressing concerns about New York's “ownership and

jurisdiction up to [New Jersey's] very shores," setting forth

distinct bases for its claims to both “property” and

"jurisdiction" in the Hudson River, and contending for "equal

and concurrent rights over the Hudson" and "property

rightfully extend{ing] to the middle of that river." (NJ Ex.

273, at 10; NJ Ex. 278, at 40, 44.) Similarly, in its 1829 Bill

in this Court, New Jersey's repeated refrain was for "property,

sovereignty, and jurisdiction," with the Bill's only efforts to

distinguish among these rights suggesting that "sovereignty"

could not be differentiated fiom “jurisdiction” and that

"property" was something that the State could hold in the

> That there were always two interests in these underwater lands at

issue is also evidenced by the terms of the 1804 dispute between the

Associates of the Jersey Company and the Corporation of the City of

New York that is referenced in several of the Commissioners’ reports.

(NJ Ex. 272, at 6-7.) Concerned that the City of New York might claim

some interest in the underwater lands adjacent to Powles Hook (now

Jersey City) on which it planned to build wharves and piers, the Jersey

Company retained Alexander Hamilton to evaluate both New York City's

“property” and "jurisdictional" claims to these lands. Hamilton declined

to opine concerning the "jurisdictional" claims, but he had no doubts that

"the Corporation of the City of New York have no right of soil in or title

to the land, under the water to and adjoining Powles Hook." 26 The

Papers of Alexander Hamilton 22\, 224, 227-31 (Harold C. Syrett et al.

eds., 1961-79). Attorneys later retained by the City of New York agreed

with Hamilton's conclusion as to the City's lack of property rights, but

believed that the State had both property and jurisdictional rights in these

lands, and ultimately persuaded the New York Attorney General to bring

a suit that was litigated for years afterwards with inconclusive results. 3

Minutes of the Common Council of the City of New York, 1675-1776, at

§20-23, 552, 693-94, 712-13 (1905); see also Hendrik Hartog, Public

Property and Private Power: The Corporation of the City of New York in

American Law, 1730-1870, at 115-16 (1983).

12

same manner as an individual, and therefore, a mere jus

privatum right. (NJ Ex. 293, at 26 (contending that

historically "no right of property existed or could exist" in the

Hudson River, as demonstrated by the fact that "all the

ancient grants made by the Duke of York to individuals while

he remained Duke .. . [were] limited to the low-water mark"

on the New York side of the river).)

In light of contemporaneous understandings of the rights

at issue and the terminology of the longstanding dialogue

between the States, the terms of compromise reached in 1833

appear unambiguous. New Jersey had sought both

"property" and "jurisdiction" in the lands under the waters

dividing the states, with a full understanding of the

distinction between these two rights. It settled for a mere

"property" right, with none of the trappings of "jurisdiction."

If granted, the right of "jurisdiction" would have given New

Jersey both the jus privatum rights of a private owner and the

jus publicum obligations of a sovereign in these underwater

lands. However, it was not granted. Instead, "exclusive

jurisdiction," and therefore the obligation to use jus regium

powers to protect jus publicum rights, were expressly left in

the hands of New York.*

Much as the New Jersey Proprietors had ceded the "right

of government” back to the Crown in 1702 in exchange for a

4

The agreement reached in the Compact of 1834 with respect to

underwater lands is to be contrasted with the agreement reached between

New York and Massachusetts in the earlier Hartford Compact. In the

Hartford Compact, which this Court addressed in Massachusetts v. New

York, 271 U.S. 65 (1926), “property rights” in “underwater lands" were

not expressly mentioned, so the Court invoked the presumption that any

rights not expressly granted by a sovereign are retained by the sovereign

to hold that lands under Lake Ontario, in which Massachusetts claimed a

proprietary interest, remained the property of New York by virtue of its

retention of jurisdiction over the Lake. /d at 90. Here, by contrast,

“property” and “jurisdictional” rights in underwater lands are expressly

segregated, and should be so regarded by this Court.

ee eee

13

continued "right of property" in lands granted to them by the

Duke of York, New Jersey's 1833 Commissioners allowed

New York to retain the power of governmental jurisdiction

over the underwater lands on the western side of the Hudson

in exchange for an "exclusive right of property" in the same

lands. That right, which Article III expressly strips of any

jurisdictional powers, cannot be construed any more broadly

than the property rights of the Proprietors after their 1702

renunciation of the "right of government."®

B. JuS PRIVATUM RIGHTS OF

PROPERTY HAVE NEVER BEEN

EQUATED WITH SOVEREIGNTY

Accepting that Article III granted to New Jersey no more

than a jus privatum right of property in the waters and

underwater lands west of the middle of the Hudson River

undermines entirely the Report's conclusion that New

Jersey's "exclusive right of property" must be equated with

"sovereignty" over those waters and underwater lands. The

jus publicum obligation, with its correlative jus regium power

of enforcement, constitutes the authority of a sovereign. Jus

privatum rights, by contrast, are not the equivalent of

This is not to say that New Jersey did not attribute great value to the

rights it obtained under Article II]. By virtue of Article III, New Jersey

acquired title to property that could generate revenues in two ways: by

sale for future filling and development, and for use as “Oyster grounds."

With respect to the former, Peter Augustus Jay, in the Opinion he

rendered on behalf of the Proprietors in 1824, acknowledged that a jus

privatum right in underwater lands could have value notwithstanding jus

publicum limitations on its use because "if the soil is private property,

then no one can, without the consent of the owner, erect upon it wharves,

mill-dams or other erections." Opinion of P.A. Jay, supra, at 3. As to the

latter, one contemporary source suggests that New Jersey's interest in a

“right of property" in the Hudson River and New York Bay was chiefly

provoked by a desire to control the valuable "Oyster grounds” in those

waters. Letter from John Rutherford to Peter D. Vroom dated June 10,

1832 (Southard Papers, Princeton University).

14

sovereignty, and no court or commentator, at the time of the

Compact or since, has held otherwise.

In the understanding of the 1820s and 1830s, the

distinction between the state as a sovereign and the state as a

private property holder was well-established and fully

appreciated. Indeed, Vattel, Chancellor Kent, and other

commentators readily acknowledged that a "sovereign" could

hold property like an individual, but, in the same instant,

observed that such proprietary activities were wholly

independent of its powers as a sovereign: See, e.g,

Emmerich de Vattel, The Law of Nations, bk. Il, § 83 (1792)

("[M]any sovereigns have fiefs, and other properties, in the

lands of another prince; and they therefore possess in the

manner of individuals."). The decisions of this Court, at the

time of the Compact and since, reflect a_ similar

understanding of the distinction between a government's

“sovereign” and "proprietary" activities. See The Santissima

Trinidad, 20 U.S. 283, 353 (1822) (recognizing that a

sovereign may “hold a private domain within another

territory"), City of Hoboken v. Pennsylvania R.R., 124 US.

656 (1888) (distinguishing between the "public easement of

access to navigable waters," which "inheres in the state in its

sovereign capacity," and the "title of the state in land under

tide-waters" which is "strictly proprietary").

The Commissioners in the 1833 negotiations shared fully

this understanding of the distinction between a sovereign

entity's "sovereign" and more limited "proprietary" activities.

Indeed, the 1807 New Jersey Commissioners, among whom

was future 1833 Commissioner James Parker, had cited

Vattel in one of their letters to their New York counterparts

for the proposition that "the empire of a country and the

property in-its soil are not inseparable," and that therefore,

"nothing prevents the possibility of property belonging to a

nation in places not under its obedience." (NJ Ex. 209, at 43

(citing Vattel, supra, § 43).)

———

15

On the New York side of the table, both Peter Augustus

Jay and Benjamin F. Butler, had confronted this distinction

more than once in dealing with the affairs of the Corporation

of the City of New York, an entity whose property-holding

powers were as important as and, in an age of increasing

regulatory activity, sometimes difficult to distinguish from its

governmental or jurisdictional powers. See generally

Hendrik Hartog, Public Property and Private Power: The

Corporation of the City of New York in American Law, 1730-

1870 (1983); see also Elizabeth Blackmar, Manhattan for

Rent, 1785-1850 (1989).

Thus, in Mayor of New York v. Slack, 3 Wheel. Cr. Cas.

237 (N.Y.C.P. 1824), Jay, who often represented the

Corporation in the 1820s, had a part in persuading a New

York court to hold that "in respect to a corporation invested

with the local government of a place, a distinction is to be

made between its capacity for holding and transferring

property, and its capacity to legislate for the good of the

place with whose government it is invested." Slack, 3 Wheel.

Cr. Cas. at 258-59. As a property holder, the sovereign entity

could buy, hold and sell property like an individual, and be

bound by the property-holding obligatious of an individual,

but these obligations were distinct from and always trumped

by its obligations to use its entirely distinct "legislative

power" for the public good.”

® Among the properties held by the Corporation of the City of New

York in its “proprietary” role were the underwater lands bordering lower

Manhattan (to a distance of 400 feet from the shore) that had been

conveyed by the City to individuals in “waterlot grants" since the late

17th century. See Hartog, supra, at 44-59. In the Opinions rendered on

behalf of the New Jersey Proprietors in 1824, both Chancellor Kent and

Jay pointed out that these underwater lands—like those granted to New

Jersey by Article I1I—had been granted to the City as "property," and not

as part of any sovereign prerogative. See Opinion of Chancellor Kent,

supra, at 14; Opinion of P.A. Jay, supra, at 7.

16

Butler recognized the same distinction, with the same

effect, in rendering an opinion in January 1834 as to whether

the Corporation of the City of New York could grant a

license for a second ferry to Brooklyn:

The authority to establish ferries granted to the city by

the charter, is a branch of the sovereign power, and like

all the other legislative and administrative powers

conferred on them, was granted to the Corporation "for

the good rule and government of the City," and not as

a subject of property. In this respect, it is to be

carefully distinguished from the express grant of the

Old Ferry, contained in the first charter, and

subsequently confirmed. The franchise of keeping up

that ferry for ever, is granted to the Corporation as an

incorporeal hereditament, to be held by them on the

same tenure as if the same had been granted to an

individual. They have a freehold property in it. But

the general power to establish other ferries is delegated

to them as depositories in this respect of the

prerogative of the government.

All the Proceedings in Relation to the New South Ferry

between the Cities of New York and Brooklyn from December

1825 to January 1835 (1835) (emphasis added).

It is this same distinction between "sovereign" and

"proprietary" rights, so familiar to the Commissioners and

their contemporaries, that is embodied in the Compact's grant

of jus privatum rights to New Jersey in underwater lands with

respect to which New York retained jus publicum obligations

and jus regium powers. By settling for an “exclusive right of

property" in lands expressly subject to New York

jurisdiction, New Jersey accepted what Vattel called "fiefs,

and other properties, in the lands of another prince," and New

Jersey cannot now be held to "possess" such lands other than

oe

17

"in the manner of [an] individual." Vattel, supra, at bk. Il, §

83.

Subsequent courts have so held. See State v. Babcock,

30 N.J.L. 29, 31 (1862) ("New Jersey is bounded by the

middle of the Hudson river, and the state owns the land

under the water to that extent," with "exclusive jurisdiction"

retained by New York) (emphasis added); Kiernan v. The

Norma (The Norma), 32 F. 411 (S.D.N.Y. 1887) ("[T]he state

of New Jersey has nothing more than the mere right of

property,—the naked legal title."); see also People v. Central

R.R., 42 N.Y. 283, 312 (1870) (Earl, J. dissenting) ("By this

provision simply property is given to New Jersey, and the

governmental jurisdiction and authority of New York is not

interfered with.").

New Jersey cannot claim more now. It was property

rights, and property rights alone, that New Jersey bargained

for and obtained in Article III. The Report's conclusions to

the contrary must consequently be rejected.

POINT Il

IN THE ALTERNATIVE, THE COURT SHOULD

AFFIRMATIVELY DETERMINE THAT ARTICLE III

GRANTED TO NEW YORK, AT THE VERY LEAST,

"POLICE POWER" JURISDICTION ON THE NEW

JERSEY SIDE OF THE ARTICLE I BOUNDARY LINE

Should the Court conclude that neither Article II nor

Article III gives New York full "sovereignty" over all of the

current Ellis Island, it should alternatively determine that

Article III left to New York, at the very least, "police power"

jurisdiction over all of the Hudson River's waters and

underwater lands, including the landfilled portions of Ellis

Island. The Report, which confines itself to the "sovereign"

effect of the Article I boundary line, never reaches this issue.

It makes no attempt to define the scope of New York’s

residual (and facially “exclusive") jurisdiction on the New

18

Jersey side of that boundary under Article III. The Special

Master several times alludes to this jurisdiction as "limited,"

"legal," and, most significantly, as "police" jurisdiction. (R.

at 57, 65, 67, 76, 78.) But the Report makes no effort to

further circumscribe it, or determine its relationship to New

Jersey’s purportedly "sovereign" powers over the waters and

underwater lands in the vicinity of Ellis Isiand or at any other

point along the boundary line's more than twenty-mile length.

The Court must fill this gap in the Report's conclusions, by

affirmatively determining that New York has, af the very

least, "police power" jurisdiction over the landfilled portions

of Ellis Island.

A. AT THE VERY LEAST, NEW YORK RETAINED

UNDER ARTICLE III BROAD REGULATORY

POWERS OVER THE WATERS AND UNDERWATER

LANDS OF THE HUDSON RIVER

If New York did not retain "sovereign" jurisdiction over

the whole of the Hudson River under Article III, it did retain,

at the very least, jurisdiction over a broad array of regulatory

matters affecting both the waters and underwater lands of that

river. Such regulatory powers, contemporaneous evidence

shows, are the least that the New York Commissioners

bargained for in the 1833 negotiations and what both the

New Jersey Commissioners and subsequent commentators

and case law concede New York retained in the Compact.

The New York Commissioners set forth what they

believed they had secured for New York in an October 20,

1833 letter to New York Governor William L. Marcy:

[W]e trust that the jurisdiction necessary for the

health, improvements, and police of that City has been

amply secured, and that the agreement herewith

delivered to you will be satisfactory to the legislature

and to our fellow-citizens generally.

19

(NJ Ex. 312 (emphasis added).) This post-negotiation

account of New York's objectives accords with the

assurances offered by Benjamin F. Butler, the lead New York

Commissioner, to fellow Commissioner Peter Augustus Jay

in March 1833, that "what is due to the commerce, health,

police and improvements of your city . . . [is] to be carefully

considered in the propositions we may submit or receive."

Letter from Butler to Jay quoted in John Jay, Memorials of

Peter A. Jay: Compiled for his Descendants (1929)

(emphasis added).’

It also accords with what the New Jersey Commissioners

conceded as early as 1827 New Jersey was willing to

relinquish to New York:

In terms of settlement submitted by your

commissioners, they endeavored to remove any just

ground of exception, by yielding to New-York exclusive

jurisdiction over the adjoining waters in several

important matters, which the health and commercial

welfare of the city of New-York seemed to require.

(NJ Ex. 273, at 10 (emphasis added).) It is also what Justice

Lucius Q.C. Elmer, one of the New Jersey Commissioners,

acknowledged years later had, at a minimum, been retained

by New York in Article III:

It being suggested on behalf of New Jersey, that,

waiving all considerations 0: 2bstract right, New York

should acknowledge the true boundary line to be the

middle of the river, and that New Jersey should agree

Butler's statements to Jay in early 1833 also accord with statements

Butler made to 1828 New Jersey Commissioner John Rutherford in June

1832, to the effect that New York had no interest in the “Oyster grounds”

of New York Bay (ie, property rights) but was “anxious for some

regulation relative to quarantine and jurisdiction near the city of New

York.” Letter from Rutherford to Peter D. Vroom dated June 10, 1832

(Southard Papers, Princeton University).

20

that New York should have all such rights west of that

line as might be deemed important to secure to that

State the right to regulate the police and the

quarantine on the whole of the waters dividing the

States; this proposition, after time had been taken for

full consideration and consultation, was acceded to by

the New York commissioners.

Lucius Q.C. Elmer, The Constitution and Government of the

Province and State of New Jersey 459 (1872) (emphasis

added); see also State v. Babcock, 30 N.J.L. 29, 33 (1862).

Subsequent case law has described the rights and powers

retained by New York in comparable terms. Thus, in the

1870 Central Railroad case, the New York Court of Appeals

concluded that Article II] granted to New York a “police

jurisdiction" for the "protection of passengers and property,

and all fit governmental control designed to secure the

interests of trade and commerce in said port of New York."

People v. Central R.R., 42 N.Y. 283, 300 (1870). Later cases

have followed suit. See Ferguson v. Ross, 27 N.E. 954 (N.Y.

1891) ("the purpose of vesting exclusive jurisdiction over

these waters in the state of New York was to promote the

interests of commerce and navigation"); Ross v. Mayor of

Edgewater, 180 A. 866, 870 (N.J. 1935) (Article III

permitted New York to retain "a general police jurisdiction,

for the promotion of the interests of commerce and

navigation, over the waters of the bay and river to the low-

water mark of the New Jersey shore"), affd, 184 A. 810

(N.J.), cert. denied, 299 U.S. 543 (1936); Tennant v. State

Bd. of Taxes and Assessments, 113 A. 254 (N.J. 1921) ("this

jurisdiction has been held by the courts of both New York

and New Jersey to be a jurisdiction simply for the exercise of

the police power").

21

B. THE BROAD REGULATORY POWERS

RETAINED By NEW YORK UNDER

ARTICLE III ARE SYNONYMOUS

WITH THE "POLICE POWER" OF

STATE AND LOCAL GOVERNMENTS

The broad powers that all parties thus concede were

retained by New York under Article II] are synonymous with

what this Court has since come to recognize as the "police

power” of state and local governments. In fact, the "police

power" doctrine had its origins in the same period as the

Compact, and was being vigorously debated in this and other

courts during the years when New York and New Jersey were

moving toward a resolution of their boundary dispute. See

William J. Novak, Common Regulation: Legal Origins of

State Power in America, 45 HASTINGS L.J. 1061 (1994). The

terms of that debate, and the scope of the evolving doctrine,

are echoed in what the Commissioners and others described

at the time as the powers New York retained under Article

Il.

This crossover between the developing "police power"

case law and the Compact is not surprising for a number of

reasons, not the least of which is the fact that Peter Augustus

Jay, the New York Commissioner with the greatest interest in

the "commerce, health, police and improvements" of New

York City, represented the Corporation of the City of New

York in a trio of cases in the early 1820s, the so-called

"cemetery cases," that legal scholars acknowledge laid the

groundwork for much subsequent "police power"

jurisprudence.* See Mayor of New York v. Slack, 3 Wheel.

* The "cemetery cases” concerned the validity of a New York City

ordinance prohibiting burials in cemeteries the City had granted to

various New York City churches more than a century before. The

religious groups made a variety of arguments based on vested rights and

real property theories while the City, represented by Jay, argued that the

22

Cr. Cas. 237 (N.Y.C.P. 1824); Corporation of the Brick

Presbyterian Church v. Mayor of New York, 5 Cow. 538

(N.Y. Sup. Ct. 1826); Coates v. Mayor of New York, 7 Cow.

585 (N.Y. Sup. Ct. 1827); see generally Hendrik Hartog,

Public Property and Private Power: The Corporation of the

City of New York in American Law, 1730-1870 (1983); Ernst

Freund, The Police Power: Public Policy and Constitutional

Rights 565 (1904); Christopher Tiedemann, A Treatise on the

Limitations of the Police Power in the United States 427, 583

(1886); Thomas M. Cooley, A Treatise on Constitutional

Limitations 127, 206-7, 283, 595 (1868); 2 James Kent,

Commentaries on American Law 274-76 (1826-30).

The holdings of the New York courts in the "cemetery

cases" are echoed in various contemporaneous and later

“police power” cases in this Court. In these cases, the main

inquiry is the line between state and federal power, but in

pursuing this inquiry, the Court often found itself compelled

to define the scope of the powers that are left to the states. In

doing so, it circumscribed the powers reserved to the states in

the same broad terms that contemporaneous accounts

describe the powers that New York retained under Article III.

Most interesting in this respect are Gibbons v. Ogden, 22

U.S. 1 (1824), Willson v. Black Bird Creek Marsh Co., 27

U.S. 245 (1829), and Mayor of New York v. Miln, 36 U.S.

102 (1837). All three of these cases examined the scope of

the “police power" in the context of the development,

statute entailed a legitimate exercise of the City's power to enact “police

regulations.” Coates v. Mayor of New York, 7 Cow. 585, 597-601 (N.Y.

Sup. Ct. 1827) (Argument of P.A. Jay). The New York court upheld the

City ordinance as validly targeted at the “health, welfare and

improvement” of the City, and therefore, among the array of regulations

properly categorized as “police regulations." See Slack, 3 Wheel. Cr.

Cas. at 243-45, 249-52 (enumerating the many areas in which New York

City had validly legislated for the public good).

23

maintenance and management of rivers, harbors and

underwater lands—the same setting that it was contemplated

New York would exercise the “exclusive jurisdiction”

retained by it in Article III. In so doing, these cases confirm

that what the Commissioners believed New York had

retained in Article III can properly be equated with what this

Court was coming to define, with ever greater specificity, as

the "police power.”

Gibbons, with which the Commissioners and their

contemporaries were undoubtedly familiar, concerned the

federal power to regulate commerce and navigation in

interstate navigable waterways like the Hudson River. In

Gibbons, Chief Justice Marshall mapped out the contours of

most commerce clause and police power jurisprudence to

come, and, in so doing, left to the states precisely the powers

over New York's rapidly developing harbor that the New

York Commissioners retained for New York in Article III—

"that immense mass of legislation, which embraces every

thing within the territory of a State, not surrendered to the

general government: all of which can be most

advantageously exercised by the States themselves,"

including "[i]nspection laws, quarantine laws, health laws of

every description, as well as laws for regulating the internal

commerce of a State, and those which respect turnpike roads,

ferries, &c." 22 U.S. at 203.

Willson confirmed that the filling and improvement of

underwater lands, like those over which Article III gave New

York "exclusive jurisdiction,” was within the "police power"

of the States. Confronted with a “commerce clause”

challenge to a Delaware statute authorizing the erection of a

dam across a coastal creek, the Court looked to the object and

likely effect of the legislation and found that "the value of the

property on its banks must be enhanced . . . and the health of

the inhabitants probably improved." 27 U.S. at 251. Without

clear indication that any issue of federal concern was

24

implicated, this Court upheld the challenged statute,

concluding that "\:*]Jeasures calculated to produce these

objects [ie., the filling and improvement of underwater

lands], provided they de not come into collision with the

powers of the general government, are undoubtedly within

those which are reserved to the states." /d at 251. The

Commissioners on both sides of the 1833 negotiating table—

on the basis of over a century of landfilling in New York

Harbor—also believed that the power to authorize

improvements of underwater lands was in the States, and by

the terms of Article III, expressly reserved this power (to the

extent that the underwater lands were not immediately

contiguous to the New Jersey shore) to New York.

Miln expanded the scope of the police power still further,

to permit the States to regulate with respect to all matters that

were essential to "the health and commercial welfare" of the

community. In Miln, this Court upheld a New York statute

requiring masters of vessels arriving in the same New York

Harbor with which the Compact dealt to report the names of

foreign passengers. It did so, in part, by looking to a broadly-

worded Federalist pronouncement that "the powers reserved

to the several states, will extend to all the objects, which in

the ordinary course of affairs, concern the lives, liberties, and

properties of the people; and the internal order, improvement

and prosperity of the state." 36 U.S. at 133 (quoting The

Federalist No. 45).

In a passage that echoes clearly the words of the

Commissioners concerning what New York had retained in

Article III, this Court held in Miln that the states have

"undeniable and unlimited jurisdiction" to “advance the

safety, happiness, and prosperity of its people, and to provide

for its general welfare, by any and every act of legislation,

which [they] may deem to be conducive to these ends." /d. at

139. The “undeniable and unlimited jurisdiction" that this

Court thus expressly reserved to the States is no different

25

from the narrowest reading of the "exclusive right of

jurisdiction" at issue in Article IIl, which the New York

Commissioners told New York's Governor in October 1833

had been "secured" for New York and was "necessary for the

health, improvements, and police" of New York City. (NJ

Ex. 312.)

C. THE "POLICE POWER" JURISDICTION RETAINED

By New YORK UNDER ARTICLE III Gives IT

CURRENT JURISDICTION OVER HISTORIC

PRESERVATION MATTERS ON THE NEW JERSEY

Sipe OF THE ARTICLE I BOUNDARY

The "police power" jurisdiction that, at a minimum, New

York retained in Article III gives it current regulatory control

over many matters, including historic preservation issues, on

the New Jersey side of the Article I boundary. The already

expansive definition of the "police power" developed by the

time of the Compact expanded still further throughout the

19th and into the 20th century. The measures required to

address the “health, welfare and improvements" of the

community grew more numerous as society grew more

complex, and this Court, with consistent flexibility,

repeatedly lengthened the list of subjects properly subject to

the "police power." Under its Article III grant, New York is

now entitled to exercise jurisdiction on the New Jersey side

of the boundary line (including on the landfilled portions of

Ellis Island) over all these subjects.

1. The Scope of the "Police Power"

Jurisdiction Retained By New York

Under Article III Has Expanded

Since Execution of the Compact

The scope of the "police power" doctrine has expanded

significantly since execution of the Compact. As a result, the

distinct powers contained in the "police power," or which

may exist beyond its scope, have grown less and less

26

susceptible of precise or exhaustive definition. In 1911,

Justice Holmes could describe the "police power" as

"extend[ing] to all the great public needs [and] . . . be[ing]

put forth in aid of what is sanctioned by usage, or held by the

prevailing morality or strong and preponderant opinion to be

greatly and immediately necessary to the public welfare."

Noble State Bank v. Haskell, 219 U.S. 104, 111 (1911). By

1954, its parameters had grown broader still, provoking

Justice Douglas to observe that the "purposes" served by the

"police power" are "neither abstractly nor historically capable

of complete definition." Berman v. Parker, 348 U.S. 26, 32

(1954).

What is clear, however, is that in the years since the

Compact, this Court has upheld a broad array of social and

economic regulation under the rubric of the "police power,"

in the face of challenges that these regulations violated vested

property rights. See generally William J. Novak, Common

Regulation: Legal Origins of State Power in America, 45

HASTINGS L. J. 1061 (1994); Maureen Kordesh, “/ Will Build

My House With Sticks”: The Splintering of Property Interests

Under The Fifth Amendment May Be Hazardous To Private

Property, 20 HARV. ENV. L. REv. 397 (1997); see also Ernst

Freund, The Police Power: Public Policy and Constitutional

Rights (1904).

Most significantly for this case, the "police power" has

become the bedrock upon which historic preservation law has

developed. In a line of cases commencing with Village of

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), and

running through City of Boerne v. Flores, No. 95-2074, 1997

WL 345322 (U.S. June 25, 1997), this Court has consistently

looked to state "police power" to validate regulations

concerned with historic and aesthetic land-use and zoning

issues. In Euclid, the Court upheld a zoning ordinance

prohibiting commercial development in a residential area,

concluding that "[t]he ordinance now under review, and all

27

similar laws and regulations, must find their justification in

some aspect of the police power, asserted for the public

welfare." /d. at 387-88.

Historic preservation law came into its own when the

Court similarly invoked the "police power" to uphold land-

use controls based on aesthetic considerations in Berman v.

Parker. \n Berman, the question raised was whether the

District of Columbia could raze a salvageable building in a

deteriorating neighborhood as part of an aesthetically-driven

urban renewal plan. Looking to the broad scope of the

"police power," Justice Douglas answered on behalf of the

Court with a resounding yes, concluding that "[iJt is within

the power of the legislature to determine that a community

should be beautiful as well as healthy, spacious as well as

clean, well-balanced as well as carefully patrolled." 348 U.S.

at 33.

All doubt as to whether historic preservation regulation

was within the scope of government police power was

dispelled by the Court’s 1978 decision in Penn Central

Transportation Co. v. City of New York, 438 U.S. 104

(1978). Specifically, the Court held that restrictions imposed

by New York City’s Landmarks Preservation Law on New

York's Grand Central Station did not effect a taking of the

property in violation of the Fifth Amendment. In upholding

the New York law, the Court explicitly dismissed the idea

that aesthetic considerations alone are not a proper basis for

the exercise of the government’s police power. To the

contrary, the Penn Central court affirmatively concluded

that—on the basis of the "police power"—a state could

constitutionally promote historic preservation goals because

such goals undoubtedly served the public interest.

28

2. New York Is Entitled To Exercise

Jurisdiction To The Full

Extent of The "Police Power"

New York is entitled to reap the benefits of the expanded

scope of the "police power" by being permitted to use its

Article III jurisdiction to regulate with respect to, inter alia,

historic preservation matters on New Jersey's side of the

Hudson. This is the case for two separate sets of reasons.

First, to the extent that the Compact is construed as a

contract, such a construction accords with the intent of its

drafters, and should be given effect. See Texas v. New

Mexico, 462 U.S. 554, 564 (1983) (compacts are construed as

both contracts and statutes); Massachusetts v. New York, 271

U.S. 65 (1926) (object of compact interpretation is

construction in accordance with contemporaneous

expectations). The jurisdiction that New York retained in

Article II] reaches at least as far as controls on such

"improvements" of the underwater lands surrounding Ellis

Island as were within the contemplation of the 1833

Commissioners. In the 18th and 19th century, the

Corporation of the City of New York imposed on the

recipients of "waterlot grants" parameters for development

with zoning-like specifications that included exact street

dimensions and development timetables. See Hendrik

Hartog, Public Property and Private Power: The

Corporation of the City of New York in American Law, 1730-

1870, at 44-59 (1983) (discussing terms of 18th Century

waterlot grants). The New York Commissioners, who were

familiar with the terms of such waterlot grants, would have

expected New York to have at least this measure of control

over the development of the underwater lands surrounding

Ellis Island, and, translated into contemporary terms, this

means that New York's historic preservation regulations

29

should apply to the landmark structures on both the "original"

and landfilled portions of Ellis Island.”

Second, to the extent that the Compact is construed, as it

properly may be, as a federal statute, the rights that New

York obtained in the bargain it struck with New Jersey in

1833 are no different from the rights conferred by other

federal statutes. This Court has repeatedly expanded the

scope of the rights and protections derived from such sources

to adapt to changed circumstances, so there is no reason that

the "police power" conferred by Article III should not be

interpreted in similarly contemporary terms. See Diamond v.

Chakrabarty, 447 U.S. 303 (1980) ("This Court frequently

has observed that a statute is not to be confined to the

‘particular application . . . contemplated by the legislators."");

Barr v. United States, 324 U.S. 83 (1945) ("If Congress has

made a choice of language which fairly brings a given

situation within a statute, it is unimportant that the particular

application may not have been contemplated by the

legislators."); see, e.g, United States v. Johnson, 994 F.2d

980, 986 (2d Cir.) (construing statute ceding land to Federal

* To the extent any uncertainty exists as to the scope of the powers the

Commissioners contemplated for New York, New York should be given

the benefit of the doubt and acknowledged to hold any powers not

expressly granted to New Jersey. Grants from sovereign to subject or

another sovereign have traditionally been interpreted most strongly

against the grantee. See United States v. Oregon, 295 U.S. 1, 14 (1935);

Massachusetts v. New York, 271 U.S. 65, 89 (1926); Lewis Blue Point

Oyster Cultivation Co. v. Briggs, 91 N.E. 846, 847 (N.Y. 1910), aff'd 229

U.S. 82 (1913). Here, this presumption operates against New Jersey,

since it was New York who had acknowledged sovereignty over the

whole of the Hudson until 1833, and was thus parting with a measure of

its sovereign jurisdiction in Article II]. Thus, any ambiguity as to the

meaning of Article III's “exclusive right of jurisdiction” in "lands covered

by said waters" must be construed against New Jersey and in New York's

favor to include all past and present rights not expressly granted to New

Jersey by the Compact.

30

Government for naval purposes so as to avoid "a rigid

interpretation of antiquated deeds that did not fully anticipate

the complex development of naval operations"), cert. denied,

510 U.S. 959 (1993). The Court should do the same here by

interpreting the “exclusive right of jurisdiction” left to New

York by Article III to extend to the entire array of regulatory

powers ordinarily exercised by a state, including the power to

police the preservation of Ellis Island as a national landmark.

CONCLUSION

The Court should conclude that New York has sovereign

power over Ellis Island by virtue of Article II, and Article II

alone. If the Court proceeds further and turns to Article III, it

must reject the Report's Article III conclusions because the

Report's equation of "property" and "sovereignty" is wholly

untenable. In the alternative, should the Court determine that

neither Article II nor Article III gives New York sovereignty

over Ellis Island and the western half of the Hudson, it

should determine that New York has, af the very least,

"police power" jurisdiction over these areas.

Dated: New York, New York

July 30, 1997

JOHN J. KERR, JR.

Counsel of Record

SIMPSON THACHER & BARTLETT

(a partnership which includes

professional corporations)

425 Lexington Avenue

New York, New York 10017-3954

(212) 455-2000

Attorneys for Amici Curiae New

York Landmarks Conservancy,

Preservation League of New York

State, and Historic Districts Council