# Amicus Curiae Brief — New Jersey v. New York

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 767

## Text

No. 120, Original

—_

IN THE 7 ——

Supreme Court of the United States

OCTOBER TERM, 1997

oO
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 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0101%3A13. Public record. Not legal advice.