Amicus Curiae Brief — New Jersey v. New York

Supreme Court, U S.

f 47 ) es i Se as

/ JUL 31 1997

No. 120, Original

IN THE i

Supreme Court of the United States

OCTOBER TERM, 1997

STATE OF NEW JERSEY,

Plaintiff,

Vv.

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

EDWARD M. NorTONn, JR.

ELIZABETH S. MERRITT

Counsel of Record

LAURA S. NELSON

NATIONAL TRUST FOR

HISTORIC PRESERVATION

IN THE UNITED STATES

1785 Massachusetts Avenue, NW

Washington, D.C. 20036

(202) 588-6035

Of Cousnsel.: EDWARD N. COSTIKYAN

ANTONIO ROSSMANN BETH F. GOLDSTEIN

380 Hayes Street MUNICIPAL ART SOCIETY OF

San Francisco, California NEW YORK

94102 457 Madison Avenue

(415) 861-1401 New York, New York 10022

(212) 935-3960

Attorneys for Amici Curiae National Trust for Historic

Preservation and Municipal Art Society

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TABLE OF CONTENTS

MOTION OF NATIONAL TRUST FOR

HISTORIC PRESERVATION AND

MUNICIPAL ART SOCIETY FOR LEAVE

TO FILE BRIEF AS AMICI CURIAE ...........0c0cc0cc0ce00e

TABLE OF AUTISUORRI TERS coccosccccrccscsvscoessssosenssosenseese

SUMMARY OF ARGUMENT ............ccscsessssssssssssessees

POINT I

SPLITTING SOVEREIGNTY OVER ELLIS

ISLAND WOULD BE IMPRACTICAL AND

WOULD, IN THE EVENT OF FEDERAL

RELINQUISHMENT OF JURISDICTION,

IMPROPERLY ENGAGE THIS COURT IN

A ROLE OF "CONTINUING SUPERVISION"

FURIES CREED CREEPER? carencssenssnensvctteipintiiiiinssenimnalesiningsens

POINT II

IN THE ABSENCE OF FEDERAL CONTROL,

EFFORTS AT JOINT ALLOCATION OF

PRESERVATION RESPONSIBILITY WOULD

BE FRUSTRATED BY DISPARITIES

BETWEEN NEW YORK'S AND NEW JERSEY'S

HISTORIC PRESERVATION PROGRAMS ..............

A. Disparities Between The New York

City And Jersey City Landmarks

Programs Would Hinder Future

Preservation Efforts On The Island................

Page

B. The Disparities Between The Two Cities’

Historic Preservation Programs Would

Be Compounded By Substantive Differences

In Their Respective Landmarks Laws .................. 17

POINT Ill

TO THE EXTENT THAT EQUITY

MAY BE INVOKED IN AN ORIGINAL

CASE, IT SHOULD BE INVOKED HERE

TO KEEP ELLIS ISLAND SUBJECT TO

A SINGLE SOVEREIGN .........ccccsccssssseseeseeeeneensenees semecteens 22

CONCLUSION .nccscosscsccssecccesscccvcccsescccscvesseessesosesseesse exsssusaes 27

No. 120, Original

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF NEW JERSEY,

Plaintiff,

Vv.

STATE OF NEW YORK,

Defendant.

MOTION OF NATIONAL TRUST FOR HISTORIC

PRESERVATION AND MUNICIPAL ART SOCIETY

FOR LEAVE TO FILE BRIEF AS AMICI CURIAE

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

National Trust for Historic Preservation in the United States,

and the Municipal Art Society of New York ("Amici")

respectfully move for leave to file the accompanying 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.").

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.

Amici are national and local 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

iv

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 and the Federal

Government with regard to this boundary in the ensuing

century and a half.

The National Park Service, as the Report recognizes (R. 8-

9), currently holds legal title to and exercises exclusive

jurisdiction over Ellis Island. So long as that remains the

case, the Island's historic sites and buildings will remain

subject to a single and responsible preservation program, as

required by federal law. Federal law will govern preservation

of these sites and buildings and federal officials will ensure

that these laws are effectively implemented. If, however—in

the scenario envisioned by the Special Master—the Federal

Government were to relinquish control of all or part of the

Island and the Report's “split sovereignty" remedy were

adopted, the integrity of Ellis Island's historic character

would be in jeopardy. Thus, this action, and the result

recommended by the Report, raise issues as to whether the

landmark buildings of Ellis Island can be adequately

protected if sovereignty over the Island is divided between

New York and New Jersey.

Amici possess a unique store of knowledge about historic

preservation generally and Ellis Island in particular, and can

offer a distinct perspective on the landmark preservation

issues raised in this case:

NATIONAL TRUST FOR HISTORIC RESERVATION

The National Trust for Historic Preservation in the

United States was chartered by Congress in 1949 as a

private not-for-profit organization to facilitate public

participation in the preservation of our nation's historic

resources. 16 U.S.C. § 468. The National Trust's

mission is to provide leadership, education, and advocacy

to save America's diverse historic places and revitalize

our communities. With more than 280,000 individual

Vv

members throughout the country, including 25,000

members in New York and 11,000 members in New

Jersey, the Trust has a vital interest in safeguarding the

integrity of local historic preservation ordinances as

essential tools to encourage the preservation of

significant historic, cultural and aesthetic resources. To

that end, the National Trust has participated in more than

100 cases of local, state and national importance in the

last 25 years, including 5 cases involving the

interpretation and enforcement of the New York City

THE MUNICIPAL ART Society Or New York

The Municipal Art Society of New York is a 105-year

old civic organization dedicated to improving the

physical environment of New York City and the quality

of its urban life through planning and preservation. The

Society has several thousand members. Its efforts over

the years led to the creation of New York's first zoning

ordinance, air quality and noise controls, as well as the

establishment of the New York City Planning

Commission and the New York City Landmarks

Preservation Commission. As a constant advocate for

careful planning and the preservation of the great

structures, spaces and historic districts of the city

throughout its history, the Society has often participated

as an amicus curiae in cases regarding landmarks issues,

including appearances before this Court in Penn Central

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

(1978), and City of Boerne v. Flores, No. 95-2074, 1997

WL 345322 (U.S. June 25, 1997).

As organizations dedicated to the preservation of

landmarks, Amici also have a significant interest in the

outcome of this litigation. Few landmarks have touched the

lives of more Americans than Ellis Island. Ellis Island forms

an integral ensemble of historic buildings, and it should be

vi

treated as such, subject to a single set of preservation laws

and comprehensive preservation planning and administration.

Any other solution would, if the Federal Government

relinquished control over Ellis Island, raise issues of

administrative impracticality, frustrate effective preservation

and planning on the Island, and likely result in the dispute

reappearing in this Court.

It would also ignore the symbolic significance of the

Island. This Court cannot turn the clock back to 1834, when

only a small fort stood on a much smaller Island. It should

look at Ellis Island, as it exists today, after a federal presence

of more than a century, and in the context of the "immigrant"

experience that has transformed a federal installation into an

icon of American history and culture and a unit of the

National Park System. It should recognize that it is Ellis

Island as a whole, and not just its individual buildings, that is

etched into the memories of millions of Americans as the

Gateway to America. The Island's buildings could, as the

Report recommends, be partitioned; the memories of millions

of Americans should not be.

Amici are in a unique position to fully present the various

aspects of these important issues to the Court. Amici

participated at trial and in summary judgment and post-trial

briefing before the Special Master, see Docket Nos. 256 &

368, and offer in the accompanying brief precisely what they

have offered throughout the course of these proceedings, i.e.,

to “bring to the attention of the Court relevant matter not

already brought to its attention by the parties." Sup. Ct. Rule

37.1. The issue of landmark preservation is, as the Special

' Amici participated in the proceedings before the Special Master in an

amicus group that also included the New York Landmarks Conservancy,

the Preservation League of New York State, and the Historic Districts

Council. These latter organizations are filing a separate Brief in support

of the Exceptions of the State of New York, in which the National Trust

and the Municipal Art Society elected not to join.

vii

Master acknowledged, plainly relevant to a case, such as the

present one, involving the future of a recognized national

treasure. (R. 163-67.) The parties are unlikely to address

this issue in their Briefs, but Amici are ready and willing to

furnish the Court with an independent and informed

assessment of how the outcome recommended by the Report

would affect the preservation future of Ellis Island.

WHEREFORE, 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

EDWARD M. NORTON, JR.

ELIZABETH S. MERRITT

Counsel of Record

LAURA 5S. NELSON

NATIONAL TRUST FOR HISTORIC

PRESERVATION

1785 Massachusetts Avenue, NW

Washington, DC 20036

(202) 588-6035

EDWARD N. COSTIKYAN

BETH F. GOLDSTEIN

MUNICIPAL ART SOCIETY

457 Madison Avenue

New York, New York 10022

(212) 935-3960

Attorneys for Amici Curiae

National Trust for Historic

Preservation in the United States

and Municipal Art Society of New

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TABLE OF AUTHORITIES

CASES PAGE(S)

383 Madison Assocs. v. City of New York,

598 N.Y.S.2d 180 (App. Div.), appeal

dismissed, 622 N.E.2d 307 (N.Y. 1993),

review denied, 632 N.E.2d 461 (N.Y.),

cert. denied, 511 U.S. 1081 (1994) ......cccccecsecesesseeeeneennees 14

Anfuso v. Seeley,

579 A.2d 817 (N.J. Super.

Se, FG SENET ciieentrricecnncceneecenemnscecemneneneseninstennignomesnesees 21

Application of North Jersey Dist.

Water Supply Comm'n, 417 A.2d 1095

(N.J. Super. Ct. App. Div.), cert.

denied, 427 A.2d 559 (N.J. 1980) ......cccccecccsecseeseesseneenens 19, 21

Arizona v. California,

Sn ITD tint iene ceinatcepatiatacmannegnenmmmmnnensiniins 23

Cardinal v. United States,

Sa I ia esta ecnserinticanias x

Church of St. Paul & St. Andrew v. Barwick,

496 N.E.2d 183 (N.Y.), cert. denied,

aI sinc sicneshesndecncbscedsecrtvectenatasterinmapnentioiane 14

City of New York v. Willcox,

SPREAD HE GIIEIID Gls, BITEIED scrssccsessccssccssaneosesctacesenssntoess 10

Collins v. Promark Prods., Inc.,

PEI DIIUED dncticcervcezentonscecsncssnvecctenssosnert 4,6,7

DeCoteau v. District County Court,

ED writrniecisisnentniaiscenssesiotneotosnsesnenemaciorniees 8,12

Downtown Residents for Sane Dev.

v. City of Hoboken, 576 A.2d 926

(N.J. Super. Ct. App. Div. 1990) ........ccccsscssrcsresseressrensereees 19

Hoboken Env't Comm., Inc. v.

German Seaman's Mission, 391 A.2d 577

ibe Us GIR, GER, Bate BPE cecencassncccccsecennsssteenesenesnvenseniee 21

ix

PAGE(S)

King County v. Washington State

Boundary Review Bd.,

OED P.Db 1GBS C Wala. 1DBS) .occececrerceccsescccrecsesecnssescorsescsnenseses 7

Laclede Gas Co. v. Amoco Oil Co.,

eam Bil) Lee, . | en ween 7

Last Chance Dev. Partnership v. Kean,

STS A.Bi GBT GT. BGGOD nceccrescesecesescescressctmasevesssossuvsnsasonen 21

Lutheran Church in America v.

City of New York, 316 N.E.2d 305

EY, TODD cceccesaceenssseccsisccntesnivnnsnitisiinctutinninieisnneniantinnatinnsin 14

Maryland v. Louisiana,

GEE TEE, Fae CD cccercccensctsinnciniicninscsncietniniaaniiitvicinniianenietii i)

Maryland v. West Virginia,

ee We 6 IED dceenetitninininstinitniintcianinniiinnauiaiemmimmatia 25

Moe v. Confederated Salish & Kootenai

Tribes of Flathead Reservation,

a Ee, Ga Ge eincctnictrcennnintsemnnitnininiireinivinineanninns &

Nebraska v. lowa,

GE TER, CE CIGD cecneenectstnstsntantcccscrnicisnstscvnisiiniienanininn 7

Nebraska v. Wyoming,

TAG UD. FE CIID) vceveccsscnscccncecsnscicsssomarscrsensnanerivetatemmenni 6

New Jersey v. Delaware,

y ol ef) 25

New Jersey v. New York,

EF UD. FE CID cececccssnccensecnieniencctanwessnssenteadinnianinnwnticien )

New Mexico v. Colorado,

BEF UE. FO CGT ccccencemsennctieenatinianeniaintnnninnnnaaian 25

Offutt Hous. Co. v. County of Sarpy,

DE TET, BO CODD cxceccnstnsacsesicstpereannins-<csnnveessscnnsergeveenenmennn 11

Penn Cent. Transp. Co. v. City of New York,

BIB UB. 106 CIGTE) .n.ccccoccrscrccrseececssesenscncresessnsneenecesvense 13,14

Pennsylvania v. West Virginia,

EF Oe ee SE 9

Rector, Wardens & Members of the Vestry

of St. Bartholomew's Church v. City of

New York, 914 F.2d 348 (2d Cir. 1990),

I es te I ED cereseeencccscentintcnccesesvsnencestenes 14

Seymour v. Superintendent of Washington

State Penitentiary, 368 U.S. 351 (1962) .......ccccccccccccsceeeeseeees 8

Shubert Org., Inc. v. Landmarks

Preservation Comm'n, 570 N.Y.S.2d

504 (App. Div.), review denied,

587 N.E.2d 289 (N.Y. 1991),

cert. denied, 504 U.S. 946 (1992) .......cccccccccccccceseeseeeseees 14, 18

S.R.A., Inc. v. Minnesota,

EE ER ae oP SON OOO 11

Teachers Ins. & Annuity Ass'n v. City

of New York, 623 N.E.2d 526

8 RES SIGE Se ee 14, 16, 18

Texas v. New Mexico,

I ni 6, 9, 23

Texas v. New Mexico (Il),

I in eal 9

United Coin Meter Co. v. Johnson-Campbell

Lumber Co., 493 S.W.2d 882

ERIS, SCE On CR: 7

United States v. Johnson,

994 F.2d 980 (2d Cir.),

BE Se a 11

Vermont v. New Hampshire,

Sn EIN UII cocsinrnitinnnsctnssonsntihinnubeibiaiadintiinlnidmmediiidilahes 25

Vermont v. New York,

ITED scsnicesevectecesitenicensinniatieihiinentariiiiadtindi 5, 6,9, 10

xi

PAGE(S)

Wisconsin v. Illinois,

UE. FEB CIGD ncccctcncnmneseanevencrsmniviniitinsinininiginectpiaie’ 6

Wyoming v. Colorado,

BOO UB. FID CIGD cccecetnsstspcesntnsnntsisimnstiianimanimimniwain 6

Wyoming v. Oklahoma,

SE EB, GF Ge etetenicerrccnicccinesectenctninttenascsnctniciciviaaninvien a)

Yonan v. Oak Park Fed. Sav. & Loan Ass'n,

596 WEDS TFS GER. AG. ESTE) cxcccceccccvcsesesnceesscsscesescesevenanecs 7

CONSTITUTIONAL PROVISIONS

CRS, Coat GR FI BD ceccsncesiniessinivcendeinabtnninncstitiantnninitanciivcnmianenivene 2

STATUTES AND RULES

36 C.F.R. §§ 800.1(C)(1 (ii) & (CH 2A) ...ceecccccereeeeseeenerenerenenees 11

Historic Sites Law, N.J. Stat.

Am. § 15: TBB-ES.128 68 806 ..ccccecreescessesesvocossesevsscsssccsssuvscenss 21

National Historic Preservation Act,

16 UBC. 6 SIRRI IGS) encccccsccvescescssecsccnscnsecsnniemnsevnnete 11

Reee 8 en 13, 14

N.Y.C. Landmarks Preservation and

Historic Districts Law, N.Y.C.

Addanin. Cate $ 25-SB1 68 BBG. ccxcccecccscscccscsersesscesesovesscsesssveens 13

Reo” he Le ee 16

N.Y .C. Adanin. Code § ZS-SUEIIB) occccccececseccecsensserescevssnscnsononanee 18

DEF. Adenia, Cae BZ BD ceveccscresscsscsesnscovesemnssenssnvarsssnonions 20

eee 8 een 19, 20

N.Y.C. Adianin. Codie § 2S-S0 TIE acccecescssccscssesersscsecescsssconessopnense 20

IVC. Adamie, CeBe 6 ESTO cccceccceccesersssesesenssecevssovevsrensesenconee 19

N.Y. Addition. Catia © 2S > SED cerececrcsssersssessmsenessecsssintecertoscensen 19

WY. Adiaaitn, Cain 6 BSB 8S cncecccccesseservsceecenesvessossconssnssasiooenen 19

N.Y.C. Rules & Regulations, Tit. 63 ........cccsssccssssssessesseeeessssssee 20

xii

PAGE(S)

Jersey City Historic Preservation

Law, Jersey City Code § 345-79 ef 8€q. .....cccccccccsseeseseseesenees 15

Lk ESR STE ER CRE CIC AE 20

a ine caeiatenelionaiall 15

gt. RARER Cs OP ar ee Pes RR POE 15

SN i 20

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a ee 21

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SO ay GRE PD cerincecceneceestucensernninentntsectavetansainun 16

I I etait ii 16

eI II insienicccreecsntnienicipeiceniaieiseniintsiaideicands 17

I I i ncincninscesiaciiasitinsin iterates a od 20

Open Public Meetings Act,

NR EE Tae ie eie ee BER 19

a Ns IIIT exeicteisisiiteneisinareliainaiintieipetnieniichatliaaaliiec 19

ef Ran reer Tre oe AN Oe ae a TE. l

Waterfront Development Law, N.J. Stat.

Pe a a cnsaissliiticndiainniontiniatind 21

TREATISES AND OTHER MATERIALS

Note, Congressional Supervision of Interstate

Compacts, 75 Yale L.J. 1416 (1966) ........ccccccccccssecsseseesereees 10

For Ellis Island, New Talk of a Hotel,

a Bridge and Masses Yearning to Get

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No. 120, Original

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF NEW JERSEY,

Plaintiff,

STATE OF NEW YORK,

Defendant.

BRIEF OF AMICI CURIAE NATIONAL TRUST FOR

HISTORIC PRESERVATION AND MUNICIPAL ART

SOCIETY IN SUPPORT OF THE EXCEPTIONS

OF THE STATE OF NEW YORK

The National Trust for Historic Preservation in the

United States and the Municipal Art Society of New York

(the "Preservation 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.").

1 Pursuant to Rule 37.6 of this Court, the Preservation Amici

state that this Brief was not authored in whole or in part by

counsel for a party, and no person or entity other than the

Amici and their counsel made a monetary contribution to the

preparation of this Brief.

2

INTEREST OF AMICI CURIAE

Amici are national and local 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 and the Federal

Government with regard to this boundary in the ensuing

century and a half. More important, however, this action, and

the result recommended by the Special Master in the Report,

raise issues as to whether the historic integrity of Ellis Island

can be effectively protected if sovereignty over the Island,

which is currently exercised solely by the Federal Government

through the National Park Service, is divided between New

York and New Jersey.

Amici possess a unique store of knowledge about historic

preservation generally and Ellis Island in particular, and can

offer a distinct perspective on the issues raised in this case. As

organizations dedicated to the preservation of national and

local landmarks, Amici also have a significant interest in the

outcome of this litigation. Few landmarks have touched the

lives of more Americans than Ellis Island.

SUMMARY OF ARGUMENT

The original jurisdiction bestowed on this Court by

Article III, § 2 of the Constitution was intended to be used to

resolve rather than create boundary disputes between States.

Yet the Report filed by the Special Master in this case asks

this Court to endorse an outcome that, under circumstances

where the Federal Government relinquished legal title and

control over Ellis Island, would engender more disputes than

it would settle. The Report recommends that sovereignty

3

over Ellis Island be split between New York and New Jersey,

but it makes no meaningful attempt to take into account or

obviate in any way the adverse consequences that the "split

sovereignty" remedy it proposes will have on Ellis Island as a

National Historic Landmark.

The National Park Service, as the Report recognizes (R.

8-9), currently holds legal title to and exercises exclusive

jurisdiction over Ellis Island. So long as that remains the

case, the Island's historic sites and buildings will remain

subject to a single and responsible preservation program, as

required by federal law. Federal law will govern preservation

of these sites and buildings and federal officials will ensure

that these laws are effectively implemented. If, however—in

the scenario envisioned by the Special Master—the Federal

Government were to relinquish control of all or part of the

Island, and the Report's “split sovereignty" remedy were

adopted, the integrity of Ellis Island's historic character could

be in jeopardy. Under the Solomon-like resolution proposed

by the Special Master, the Island—which will undeniably

experience further private development pressure in the near

term—would be split between the two States along a jagged

and irregular border likely to spark serious practical and legal

conflicts.

The Special Master pays lip service to these concerns by

“equitably reconstituting" the “original island" so as not to

split the Main Building into several pieces, but this half-

measure falls far short of a sai.sfactory solution. Ellis Island

forms an integral ensemble of historic buildings, and it

should be treated as such, subject to a single set of

preservation laws and comprehensive preservation planning

and administration. Any other solution, including the Special

Master’s “reconstitution,” would, in the event of federal

relinquishment of control, raise issues of administrative

impracticality and the impossibility of applying two sets of

laws and regulations to different components of the same

4

structural compound. It would also ignore the symbolic

significance of the Island. This Court cannot turn the clock

back to 1834, when only a small fort stood on a much smaller

Island. It must look at Ellis Island, as it exists today, after a

federal presence of more than a century, and in the context of

the “immigrant” experience that transformed a federal

installation into an icon of American history and culture and

a unit of the National Park System. It must recwyi ize that it

is Ellis Island as a whole, and not just i individual

buildings, that is etched into the memories of millions of

Americans as the Gateway to America.

Nothing in the record suggests that splitting sovereignty

over Ellis Island would have anything but deleterious effects

on the Island's historic resources. This is so for at least two

reasons. First, as a matter of administration, dividing the

Island would create, as the Second Circuit has already found,

an impractical, indeed nonsensical, situation. Collins v.

Promark Prods., Inc., 956 F.2d 383, 388 (2d Cir. 1992). As

the May 14, 1997 “remedy” hearing on Ellis Island

demonstrated, the solution recommended by the Report

would cause portions of the Island's historic core (the

complex of structures including the Main Building, the

Kitchen & Laundry Building, the Baggage & Dormitory

Building, several connecting structures and stairways, and

unexcavated portions of Fort Gibson) to straddle the

proposed boundary between the two States, compelling both

States to share a responsibility for the complex's

preservation, which history suggests could not be allocated

amicably or effectively. Second, even assuming that an

allocation could be agreed to, those responsible for managing

and maintaining the Island's buildings would be saddled with

the burden of answering to two historic preservation

9 with di a 7 ;

landmarks laws. New York's landmarks laws are well-

established and consistently enforced; the corresponding

5

New Jersey laws, on both the local and state levels, are

neither as proven nor as extensively developed. In the

absence of federal control, conflicts between the two States’

laws and policies would be certain to arise in connection with

reuse and further restoration of the Island, and these conflicts

would likely lead the States to seek further relief in this

Court. The landmark structures and overall historic integrity

of Ellis Island would be the victims of such protracted and

contentious disputes.

Thus, in addition to all the other reasons for rejecting the

Report proffered by the State of New York and the other

amici, the Court should reject the Report because the remedy

recommended by the Special Master is impractical and

unworkable. In the alternative, to the extent that "equity" can

be properly invoked in this case, it should be invoked to

protect Ellis Island's historic past by keeping it subject to a

single sovereign. If that sovereign does not continue to be

the Federal Government, it should be the State of New York.

POINT I

SPLITTING SOVEREIGNTY OVER ELLIS ISLAND

WOULD BE IMPRACTICAL AND WOULD, IN THE

EVENT OF FEDERAL RELINQUISHMENT OF

JURISDICTION, IMPROPERLY ENGAGE THIS

COURT IN A ROLE OF "CONTINUING

SUPERVISION" OVER THE ISLAND

Adopting the remedy recommended by the Report

would, in the event that the Federal Government relinquished

control of Ellis Island, violate one of this Court's cardinal

tenets in exercising its original jurisdiction over disputes

between the States. In such cases, any need for “continuing

Court supervision over decrees" has long been deemed

"undesirable." Vermont v. New York, 417 US. 270, 277

(1974). Engaging in such an oversight role,

6

[W]ould materially change the function of the Court

in these interstate contests. Insofar as [the Court]

would be supervising the execution of the consent

decree, [it] would be acting more in an arbitral

rather than a judicial manner. [The Court's] original

jurisdiction heretofore has been deemed to extend to

adjudication of controversies between States

according to principles of law, some drawn from the

international field, some expressing a “common

law" formulated over the decades by this Court.

Id. at 277.

The record in this case conclusively demonstrates that, if

the Report's recommendations were adopted, and the Federal

Government relinquished control over Ellis Island, such

"continuing supervision” by the Court would be difficult to

avoid. Hence, this Court should reject the Report's

recommendation to split Ellis Island along a jagged and

irregular boundary, just as it has rejected similarly

unmanageable remedies in the past. See Texas v. New

Mexico, 462 U.S. 554, 566 (1983) (continuing supervision of

decrees would test the limits of proper judicial functions);

Nebraska v. Wyoming, 325 U.S. 589, 616 (1945) (continuing

Court supervision over decrees between States was

undesirable); Wyoming v. Colorado, 298 U.S. 573, 585-86

(1936) (refusing to order water measuring devices or to

appoint “water master" to keep records); Wisconsin v.

Illinois, 289 U.S. 395, 412 (1933) (denying request to

appoint commissioner to execute decree between States).

There can be little doubt that adopting the "strange and

difficult" boundary proposed by the Report would entangle

the Court in mediating numerous collateral disputes between

New York and New Jersey. Collins v. Promark Prods., Inc.,

956 F.2d 383, 388 (2d Cir. 1992). Indeed, in Collins, which

concerned a suit by a private plaintiff against, inter alia, the

7

Federal Government—rather than a suit between two

States—the Second Circuit rejected as inherently

controversial and ultimately unworkable the very solution

that the Report currently proposes. The Second Circuit

feared that the "haphazard and uneven" boundary, proposed

there by the Federal Government in seeking dismissal of a

tort action on Ellis Island, would "make it necessary for

every person injured on Ellis Island to engage in litigation to

establish the exact spot on the island where the injury was

sustained.” /d. at 388. The dilemma would be even more

acute in a preservation context: tort victims happen along

relatively infrequently; but the maintenance and development

of landmark sites invariably entails frequent decisions about

proper design, rehabilitation, demolition, and use. Such

decisions would likely involve state and local government

scrutiny, necessarily transforming any disagreements into

disputes between sovereigns.

The Court's reluctance to engage in “continuing

supervision" in boundary cases is a specific application of the

principle that courts should undertake to grant only such

relief as can be effectively administered without undue cause

for additional disagreement or need for judicial oversight.

See Nebraska v. lowa, 406 U.S. 117, 119 (1972) (courts

should not grant relief that is likely to "prove{] impossible to

apply in all cases").” More broadly speaking, the solution put

2 See also King County v. Washington State Boundary Review

Bd., 860 P.2d 1024, 1040 (Wash. 1993) (courts should not

uphold administratively-determined boundaries that are

“abnormally irregular” and thus administratively

“impractical"); Laclede Gas Co. v. Amoco Oil Co., 522 F.2d

33 (8th Cir. 1975); Yonan v. Oak Park Fed. Sav. & Loan

Ass'n, 326 N.E.2d 773 (Ill. App. 1975); United Coin Meter

forward by the Report is similar to what this Court has

elsewhere (in the context of Indian reservation territorial

disputes) condemnes as "checkerboard" jurisdiction. See

Moe v. Confederated Salish & Kootenai Tribes of Flathead

Reservation, 425 U.S. 463 (1976); Seymour v. Superintendent

of Washington State Penitentiary, 368 U.S. 351 (1962). In

Moe, Seymour, and their progeny, the fear concerning such

"checkerboard" jurisdiction was that "law enforcement

officers operating in the area will find it necessary to search

tract books in order to determine whether criminal

jurisdiction over each particular offense, even though

committed within the reservation, was in the State or Federal

government." Seymour, 368 U.S. at 358; see Moe, 425 U. S.

at 478 (applying same principle in civil taxation context).”

On Ellis Island, absent the presence of the Federal

Government, those responsible for and affected by the

Island's preservation (e.g., preservation commissioners, staff,

and private applicants) would need to overlay and scrutinize

jurisdictional and historical maps of Ellis Island, as well as

individual building floor plans, in order to ascertain which

State's preservation law should govern maintenance,

construction, reconstruction, alterations, and demolition on

the Island. The Report's description of the proposed

boundary and the difficulties already encountered by both

States in undertaking to map it out across and around the

Island's historic structures is a harbinger of problems to

(...continued)

Co. v. Johnson-Campbell Lumber Co., 493 S.W.2d 882 (Tex.

App. 1973).

3 See also DeCoteau v. District County Court, 420 U.S. 425,

466 (1975) (Douglas, J., dissenting) (discussing problems

with "crazy quilt" or "checkerboard jurisdiction"); Cardinal

v. United States, 954 F.2d 359 (6th Cir. 1992).

9

come. (Supplement to Final Report dated May 30, 1997;

Transcript of Hearing on May 14, 1997). Should the Report's

recommendations be adopted, such trial and error speculation

could become a frequent occurrence, thereby providing

numerous occasions for further disputes between New York

and New Jersey—which (as controversies between States)

would likewise fall within the original jurisdiction of this

Court. See Wyoming v. Oklahoma, 502 U.S. 437 (1992)

(Supreme Court jurisdiction over dispute between States

concerning impact of one State's statute on other State's

citizens); Maryland v. Louisiana, 451 U.S. 725 (1981)

(same); Pennsylvania v. West Virginia, 262 U.S. 553 (1923)

(same). That is exactly the result this Court has sought to

avoid in the past. Vermont, 417 U.S. at 277; Texas, 462 U.S.

at 566. It should do no less in this case.*

4 On the rare occasion when the Court has consented to

anything resembling an “ongoing supervision" role, it has

done so through functionaries with purely ministerial powers.

See, e.g., New Jersey v. New York, 347 U.S. 995, 1002-03

(1954) (river master appointed to measure diversions,

compile data, and apply computational formulae); Texas v.

New Mexico (Il), 482 U.S. 124, 134 (1987) (river master

appointed whose sole purpose was to "make the calculations

provided for in this decree, annually and as promptly as

possible as data are available, and to report the calculations to

appropriate representatives of New Mexico and of Texas”).

By contrast, the Court or a Court-appointed administrator in

this case would have to do more than simply make

calculations and compile data. The Court or an administrator

would have to determine the applicable law in each specific

dispute and to determine the rights of the parties involved.

Thus, the result recommended by the Report would place the

Court in the position of acting as an arbitrator—a position

which the Court has said has “no relation to [the]

10

The prior history of relations between New York and

New Jersey strongly suggests that further resort to this Court

would be likely. History shows that, even where cooperative

arrangements have been put into place, productive alliances

have been difficult. For example, the disputes between New

York and New Jersey over the affairs of the Port Authority of

New York and New Jersey (a bi-state agency created by

compact in 1921 to develop and manage joint transportation

facilities) have been long-standing and well-publicized. See

City of New York v. Willcox, 189 N.Y.S. 724 (Sup. Ct. 1921);

Mayor Seeks $400 Million For Airports, N.Y. TIMES, Jan. 16,

1996 (Appendix, Tab 1)’; Giuliani Seeks Arbitration With

N.Y.-N.J. Port Agency, BOND BuyER, Dec. 12, 1995

(Apperdix, Tab J); $7 Toll To Cross Hudson River? Report

Sparks Border Feud, THE RECORD (Northern New Jersey),

Aug. 24, 1995 (Appendix, Tab K); Board Backs Pataki

Appointment To Port Authority on Split Vote, A.P., Feb. 9,

1995 (Appendix, Tab L); see generally Note, Congressional

Supervision of Interstate Compacts, 75 YALE L.J. 1416, 1419

(1966). The very fact that a suit was filed in this matter, for

what appear to be symbolic rather than practical motivations,

leaves little room for doubt that a return to the courtroom

could occur.

Conflicts between the two local preservation programs

concerning Ellis Island are likely to occur even if the Federal

(...continued)

performance of [its] Article II] functions." Vermont, 417

U.S. at 277.

5 Citations to "Appendix, Tab __" refer to the Appendix filed

by the Preservation Amici in connection with their Post-Trial

Brief filed with the Special Master on October 3, 1996

(Docket No. 368).

— a a A a at en

11

Government does not relinquish its control of the Island in

the near future. The New York City or Jersey City landmark

laws could apply to any private developer who enters into a

long-term lease (depending on its terms) with the Federal

Government for development of any portion of the Island.

See S.R.A., Inc. v. Minnesota, 327 U.S. 558, 565 (1946)

(private entity developing federal property held under an

executory contract of sale subject to state taxation); Offutt

Hous. Co. v. County of Sarpy, 351 U.S. 253, 260 (1956)

(value of housing project built by private developer on land

leased from Federal Government subject to state taxation); cf

United States v. Johnson, 994 F.2d 980, 986 (2d Cir.)

(Federal Government can continue to exercise jurisdiction

over ceded land only so long as used for purposes ceded),

cert. denied, 510 U.S. 959 (1993). Past development

efforts—and the dearth of federal resources—suggest that

such private development is an unfortunate but plausible

scenario for the Island's future. In the event that the Federal

Government were to relinquish control of the Island, the

conflict would devolve into a two-way contest concerning

whose law and administrative process should control further

development decisions.°

6 Even if private development was deferred or precluded,

consistent, comprehensive planning could be difficult, if not

impossible. As a matter of comity, the Federal Government

currently consults with both New York and New Jersey

concerning matters affecting Ellis Island as a whole, even

when it is not required to do so by federal statute or

regulation. See, e.g., Ellis Island Rehabilitation Project-

Phase II, NPS Document (Dec. 17, 1991) (Appendix, Tab

M); cf National Historic Preservation Act ("“NHPA"), 16

U.S.C. § 470a(b\(3\ 1995); 36 C.F.R. §§ 800.1(c\1 ii),

(cX2\i) (requiring federal officials to review and consult

with "State Historic Preservation Officer" and local

12

Either way, the historic buildings of Ellis Island and the

United States citizens who cherish them would be the victims

of the Report's current effort to rewrite history. The process

of constantly re-ascertaining sovereignty, which would be

required by the proposed boundary, would be "uncertain and

hectic,” likely to benefit “only those who benefit from

confusion and uncertainty," and equally likely to hamper

legitimate efforts at ensuring Ellis Island's historic integrity

for future generations. See Decoteau, 420 U.S. at 466. The

tortured border that the Report urges the Court to accept

would make it inordinately difficult to determine under

whose authority or preservation laws such decisions should

be made, could subject different parts of a single historic

district to different standards, and could generate duplicative

administrative procedures. A return to this Court would be

all but unavoidable, a result which in and of itself is enough

to justify rejecting the impractical remedy recommended by

the Report.

(...continued)

governments regarding impact of federal undertakings on

historic properties). If the Report's recommendations were

adopted, federal authorities could become entangled in

disputes between the States over which State's law should

guide the National Park Service in its administration of

matters within each State's difficult-to-discern boundaries on

the Island.

« ee A ee Oe eee ae

13

POINT II

IN THE ABSENCE OF FEDERAL CONTROL,

EFFORTS AT JOINT ALLOCATION OF

PRESERVATION RESPONSIBILITY WOULD BE

FRUSTRATED BY DISPARITIES BETWEEN NEW

YORK'S AND NEW JERSEY'S HISTORIC

PRESERVATION PROGRAMS

Even if the practical difficulties inherent in the Report's

proposed remedy could be overcome, efforts at joint

administration would, in the absence of federal control of

Ellis Island, ultimately be frustrated by the disparate

resources of New York's and New Jersey's historic

preservation programs and substantive differences in their

respective state and local landmarks laws and regulations.

A. DISPARITIES BETWEEN THE NEW YORK

CITY AND JERSEY CITy LANDMARKS

PROGRAMS WOULD HINDER FUTURE

PRESERVATION EFFORTS ON THE ISLAND

The disparity between the expertise and overall approach

to preservation that New York City and Jersey City would

bring to Ellis Island, and the resources each could dedicate to

the Island, would hinder future preservation efforts on the

Island. New York City's landmarks law was adopted in

1965, and it has since been acknowledged as one of the most

comprehensive in the nation. See N.Y.C. Charter § 3020 and

New York City Landmarks Preservation and Historic

Districts Law, N.Y.C. Admin. Code § 25-301 ef seg.

(collectively, the "New York Landmarks Law" or "NYLL")

(Appendix, Tab N); see generally Penn Cent. Transp. Co. v.

City of New York, 438 U.S. 104 (1978). As of 1995, nearly

1,000 individual landmarks had been designated, together

with 95 significant interiors, 68 historic districts (including

14

Ellis Island), and 9 scenic landmarks, for a total of more than

20,000 properties. See New York City Landmarks

Preservation Commission Fact Sheet (1995) ("LPC Fact

Sheet") (Appendix, Tab F). Moreover, a substantial body of

case law has arisen construing the New York Landmarks

Law. See, e.g., Penn Central, 438 U.S. at 104; Rector,

Wardens & Members of the Vestry of St. Bartholomew's

Church v. City of New York, 914 F.2d 348 (2d Cir. 1990),

cert. denied, 499 U.S. 905 (1991); Teachers Ins. & Annuity

Ass'n v. City of New York, 623 N.E.2d 526 (N.Y. 1993); 383

Madison Assocs. v. City of New York, 598 N.Y.S.2d 180

(App. Div.), appeal dismissed, 622 N.E.2d 307 (N.Y. 1993),

review denied, 632 N.E.2d 461 (N.Y.), cert. denied, 511 U.S.

1081 (1994); Shubert Org., Inc. v. Landmarks Preservation

Comm'n, 570 N.Y.S.2d 504 (App. Div.), review denied, 587

N.E.2d 289 (N.Y. 1991), cert. denied, 504 U.S. 946 (1992);

Church of St. Paul & St. Andrew v. Barwick, 496 N.E.2d 183

(N.Y.), cert. denied, 479 U.S. 985 (1986); Lutheran Church

In America v. City of New York, 316 N.E.2d 305 (N.Y. 1974).

The City's preservation agenda has been overseen by the

Landmarks Preservation Commission, an independent New

York City agency, which is headed by a full-time

Chairperson and includes ten additional commissioners, the

majority of whom must have expert credentials, including as

professional architects, landscape architects, historians, urban

planners or realtors. See N.Y.C. Charter § 3020. The

Commission's work is carried out by a staff of 48, with a

budget for fiscal year 1995-96 of $2.7 million. Most of the

Commission's non-clerical staff have graduate degrees in

architecture, architectural history, historic preservation, urban

planning or law. See LPC Fact Sheet (Appendix, Tab F).

Moreover, the Commission has often been aided in its efforts

by an active and substantial community of urban planning

and historic preservation groups, including the Municipal Art

Society, the New York Landmarks Conservancy, the Historic

15

Districts Council, the Preservation League of New York

State, and the National Trust for Historic Preservation, which

have statewide as well as national reputations for leadership

in historic preservation.

By contrast, Jersey City has had a comprehensive

landmarks law on its books only since 1989. See Jersey City

Historic Preservation Law, Jersey City Code §§ 345-79 er

seq. (the "Jersey City Landmarks Law" or "JCLL")

(Appendix, Tab G). Its preservation and coordination

activities are carried out by a single employee in the City

planning department—the City Historic Preservation Officer.

JCLL § 345-87. As of 1995, only 3 individual landmarks

and 4 historic districts had been designated. No reported

court decision has construed the terms or effect of the Jersey

City Landmarks Law. There have in the past been numerous

vacancies on the Jersey City Historic Preservation

Commission, an entity which, apart from the Commissioners

themselves, does not appear to have a clear-cut existence

separate from the Jersey City Planning Commission. See

JCLL § 345-87; see also Al Frank, Jersey Challenge Fails As

N.Y. Panel Moves Ellis Island Landmark Status, NEWARK

STAR-LEDGER, Feb. 8, 1994 (Appendix, Tab H). The

Commission has nine regular members with a "demonstrated

interest, competence or knowledge in historic preservation."

JCLL § 345-82. However, only four Commissioners are

required to have either "knowledge in building design and

construction or architectural history" or "knowledge or a

demonstrated interest in local history." Jd. This relative lack

of expertise compared to New York is exacerbated by the fact

16

that the Commission has only one staff person and a budget

for fiscal year 1995-96 of only $2,000.’

The disparity between the resources and experience

available to the New York City Landmarks Commission and

the Jersey City Historic Preservation Commission could have

serious consequences on Ellis Island. Structures straddling

the proposed boundary could find themselves the subject of

intense scrutiny on the New York side of line, while their

7 Furthermore, the two Commissions have different

relationships, in terms of power and independence, with

respect to local government. For, example, the Jersey City

law grants great discretion to the Jersey City City Council:

applications for landmark designation are submitted first, not

to preservation professionals, but to the City Council, which

may (but need not) submit them to the Commission. See

JCLL § 345-93(a). In New York City, by contrast, the

Commission designates landmarks and historic districts

(which designations become immediately effective), and

thereafter the City Council has an opportunity to either

disapprove or modify the Commission's designations. See

NYLL § 25-303. The New York City Commission has made

over 1,100 designations (involving more than 20,000

buildings) since 1965, less than 25 of which have been

modified or disapproved.

Property owners also have amplified influence under the

Jersey City law to exempt their property from designation. If

the owner of a building selected for designation or 20% of the

residents in or within 200 feet of a proposed historic district

object to designation, designation requires a 2/3 vote of the

City Council. See JCLL § 345-93(d). In New York, on the

other hand, an objection by property owners or neighbors will

not impede the designation process. This provision of the

New York City law has been reviewed with approval by New

York's highest court. See Teachers, 623 N.E.2d at 526.

17

New Jersey counterparts languish unattended and imperiled.

Further, the still-ruined structures on the Island's southern

half, which remains undeveloped and would fall entirely on

New Jersey's side of the boundary, could be demolished or

inappropriately rehabilitated with minimal protest from New

Jersey—primarily because the Jersey City Historic

Preservation Commission may lack the experience, the

authority, or the resources to dictate otherwise.

B. THE DISPARITIES BETWEEN THE Two

Cit1es' HISTORIC PRESERVATION

PROGRAMS WOULD BE COMPOUNDED By

SUBSTANTIVE DIFFERENCES IN

THEIR RESPECTIVE LANDMARKS LAWS

The problems caused by the disparities in scope of New

York City's and Jersey City's historic preservation programs

would be compounded by substantive differences in their

respective landmarks laws and regulations. Significant

differences between the two laws fall into three categories—

(1) scope, (2) procedures, and (3) standards. Perhaps the most

dramatic and important difference is in the scope of the laws.

In stark contrast to New York City's law, for example, the

Jersey City Landmarks Law exempts landmarks owned by

not-for-profit entities. JCLL § 345-93(n). Thus, if any of

Ellis Island's historic buildings were eventually transferred to

a not-for-profit entity—such as the already-active Statue of

Liberty/Ellis Island Foundation or another cultural

institution—such an owner would be completely exempt

from review by the Jersey City Landmarks Commission, no

matter how destructive the proposed development might be.*

8 New Jersey's contrary contentions notwithstanding, see Letter

Brief of the State of New Jersey dated Apr. 1, 1996 ("Letter

Brief") (Appendix, Tab O), the applicability of related New

18

Nor does Jersey City's law expressly provide for the

landmarking of significant public interiors, whereas New

York City's interior landmarking provision has been

validated by New York's highest court. NYLL § 25-302[m};

JCLL § 345-93; see Teachers, 623 N.E.2d 526 (Four Seasons

Restaurant interior designation upheld); Shubert, 570

N.Y.S.2d 504 (interior designation of Broadway theaters

upheld). New York City has already acted to recognize the

Registry Room in the Main Building on Ellis Island through

interior landmark designation. See Letter dated Nov. 24,

1993 from Landmarks Preservation Commission (Appendix,

Tab P). Absent federal control, if, as the Report

recommends, New Jersey law were to apply to the structures

adjoining the Main Building, such as the Kitchen & Laundry

Building and the Baggage & Dormitory Building—and

especially to the connecting structures between those

buildings and the Main Building—conflicts would be certain

to arise.

Less dramatic but no less important to the historic

integrity of Ellis Island are procedural differences between

the two landmarks laws. For example, applications for

certificates of appropriateness, which are required to

"construct, reconstruct, alter or demolish any improvement

on a landmark site," must be the subject of a public hearing

(...continued)

Jersey state laws to not-for-profits would not impose any

additional restrictions relating to historic landmarks on such

efforts were commercial or not-for-profit, the inherent

limitations of these state laws would not afford any

protections beyond those provided by the Jersey City

Landmarks Law—which simply does not apply to landmarks

owned by not-for-profit entities.

19

in New York, NYLL § 25-307-08, but not in Jersey City. See

JCLL § 345-89(b)(3) (application for certificate of

appropriateness “deemed approved"—with no need for

hearing—if Historic Preservation Commission fails to act

within 35 days).” The public hearing is uniquely useful for

presenting a proposal in "full view" to the community and for

ascertaining the community's concerns about historic

preservation. Such hearings typically help local officials

identify and resolve troublesome aspects of a proposal, and

9

While New Jersey has argued otherwise, see Letter Brief at

17-18, New Jersey's Open Public Meetings Act (the

"“OPMA") only applies when a government body actually

holds a meeting. See N.J. Stat. Ann. 10:4-6; see also

Downtown Residents for Sane Dev. v. City of Hoboken, 576

A.2d 926, 931 (NJ. Super. Ct. App. Div. 1990) (no violation

of OPMA because “no showing that a meeting occurred").

Where approval can be granted by inaction, as it can be in

Jersey City, no meeting is required, and the OPMA does not

apply. Cf Application of North Jersey Dist. Water Supply

Comm'n, 417 A.2d 1095 (NJ. Super. Ct. App. Div.) (denial

of hearing by Commissioner of Environmental Protection

under state historic preservation law upheld because, inter

alia, applications deemed approved if Commissioner fails to

act within 120 days), cert. denied, 427 A.2d 559 (NJ. 1980).

Moreover, even if the OPMA were applicable, it would

require only that the public be permitted to attend

Commission meetings, not to participate in the

provided by the New York Landmarks Law. Compare N.J.

Stat. Ann. § 10:4-12 (public body may “prohibit or regulate

the active participation of the public at any meeting") with

NYLL § 25-313 (New York City Commission must “afford a

reasonable opportunity for the presentation of facts and the

expression of views by those desiring to be heard").

20

give applicants ideas about how to make their proposals more

appropriate.

Finally, the standards employed under each law differ.

Most significantly, the New York City and Jersey City

landmarks laws have very different criteria for determining

whether alterations to historic structures are appropriate.

Under the New York City Landmarks Law, the specific

criteria to be applied in reviewing proposed changes to

designated buildings are set forth explicitly. See, e.g, NYLL

§ 25-307[b]; see also NYLL §§ 25-306, 307, 310, and New

York City Rules & Regulations, Tit. 63. Overall, application

of the law is predictable and consistent. By contrast, both the

standards to be applied under the Jersey City Landmarks Law

and the relationship among its provisions are often unclear

and susceptible to potential abuse. The standard for issuance

of a “certificate of no effect" ("CNE") demonstrates this

ambiguity. The Jersey City Landmarks Law provides that

issuance of a CNE requires a determination that the work

proposed is “not detrimental." JCLL § 345-80. However, the

procedures for issuance of a CNE list a confusing array of (in

some places contradictory) factors for consideration by the

Jersey City Historic Preservation Commission in making

such determinations. Compare JCLL § 345-89 (procedures

for obtaining a certificate of appropriateness or certificate of

no effect) with JCLL § 345-94 (Standards for the

Commission's Decisions). Compounding the difficulties of

applying these multiple standards simultaneously is the lack

of guidance as to precisely when the various standards apply.

Similar problems exist for certificates of appropriateness,

which are issued when major alterations are proposed. Jd. In

some sections of the law, the appropriate standard for the

21

project is not even specified. See, e.g, JCLL § 345-92{c]

(criteria for "non-commercial" hardship applications).'°

The application of such inconsistent landmarks laws

could prove particularly problematic on Eli: Island. If the

Report's recommendations were adopted, and in the event of

federal abandonment, preservation and rehabilitation of some

of the Island's most important historic structures would

trigger conflicting procedural and substantive standards.

10 Despite New Jersey's contrary contentions, New Jersey state

law would not furnish Ellis Island with any additional

preservation safeguards. See Letter Brief at 15-16. Neither

New Jersey's Historic Sites Law, NJ. Stat. Ann. § 13:1B-

15.128 ef seg., nor its Waterfront Development Law, N.J.

Stat. Ann. § 12:5-1 ef seg., would afford Ellis Island any

greater measure of protection for preservation purposes. To

the contrary, New Jersey's Historic Sites Law protects against

only state and local governmental action, and does not apply

to private development. See Hoboken Env't Comm., Inc. v.

German Seaman's Mission, 391 A.2d 577 (N.J. Super. Ct. Ch.

Div. 1978) (N.J. Historic Sites Law only protects against

governmental and not private encroachment); Application of

North Jersey Dist. Water Supply Comm'n, 417 A.2d 1095

(NJ. Super. Ct. App. Div.) (Historic Sites Law provides for

only limited enforcement by the public and permits the

Commissioner of Environmental Protection to authorize

“encroachment” by pure inaction), cert. denied, 427 A.2d 559

(N.J. 1980). New Jersey's Water Development Law actually

encourages commercial development, Last Chance Dev.

Partnership v. Kean, 575 A.2d 427, 433 (NJ. 1990) (limiting

Water Development Law to protection of “commercial”

interests), but in any event, may well be preempted by Jersey

City's Landmarks Law. Anfuso v. Seeley, 579 A.2d 817 (N.J.

Super. Ct. App. Div. 1990) (Water Development Law

preempted by local land use regulation).

22

Thus, for example, New Jersey officials might deem efforts

to restore a facade on any of the connecting structures that

straddle the proposed New York/New Jersey boundary (such

as between the Main Building and the Baggage & Dormitory

Building) as “not detrimental" to the New Jersey section of

the facade, and endorse the work, while New York officials

might object to the work after concluding that it would

"affect" an architectural feature of the facade on the New

York side of the boundary. Similarly, such a proposal could

be construed as work requiring a public hearing in New

York, but no public hearing in New Jersey. Such conflicts

could, at the very least, cause bureaucratic paralysis, while

officials decided how to avoid violating either City's law. At

worst, disputes arising from these conflicts could

compromise Ellis Island's historic integrity through delayed

repairs and inconsistent preservation or alteration efforts. All

of these differences make it inevitable that, in the absence of

federal control of Ellis Island, even good faith efforts to

harmonize New York's and New Jersey's preservation

programs would be fraught with problems and unlikely to

succeed.

POINT Ill

TO THE EXTENT THAT EQUITY MAY BE

INVOKED IN AN ORIGINAL CASE, IT SHOULD

BE INVOKED HERE TO KEEP ELLIS ISLAND

SUBJECT TO A SINGLE SOVEREIGN

The facts and the law before the Court lead inescapably

to the conclusion that dividing Ellis Island—as New Jersey

had proposed and on the assumption that the Federal

Government might relinquish control over the Island—would

give rise to conflicts between the two States’ preservation

programs that would improperly engage this Court in a role

of “continuing supervision" with respect to the Island's

landmarks. In a perfunctory effort to ameliorate this

23

objectionable outcome, the Special Master recommends

“equitably reconstituting" the so-called "original island,” so

as not to split the Main Building into several pieces. While

agreeing with this result as to the Main Building, the

Preservation Amici note that "equity" should have no place in

a case that can be decided on the basis of compact

construction and the additional arguments advanced by New

York and the other amici. See Texas v. New Mexico, 462

U.S. 554, 567-68 (1983) ("If there is a compact, it is a law of

the United States, and our first and last order of business is

interpreting the compact."); accord Arizona v. California,

373 U.S. 546, 565-66 (1963). However, to the extent this

Court determines that equitable and historical factors should

be applied to decide this compact case, the Amici

respectfully submit that those factors should be invoked more

readily in favor of a remedy that protects the Island's historic

integrity as opposed to a remedy that appears to serve chiefly

New Jersey's development interests. See For Ellis Island,

New Talk of a Hotel, a Bridge and Masses Yearning to Get In

Free, NEW YORK TIMES, Apr. 3, 1997 (New Jersey officials

opining that the Report's recommendations would rekindle

commercial development plans for Ellis Island).

If anything, the Report construes too narrowly the

remedies that equity would make available if it were properly

invoked in this case. After acknowledging the impracticality

and likely detriment of a "split sovereignty" remedy, the

Report goes on to recommend granting to New York a

fraction of an acre above and beyond the acreage included in

the least generous estimate of the area of the "original" Ellis

Island.'' In the process, it draws a boundary that, without

11 The arbitrary nature of the Report's point of departure for

invoking equity is well-illustrated by its choice of the 1857

map as the best estimation of the size of the “original” Ellis

24

explanation, would cut through the heart of the ensemble of

buildings forming the Island's historic core (including the

Main Building, the Baggage & Dormitory Building, the

Kitchen & Laundry Building and several connecting

structures). Most tellingly, it would cut in half an as-yet-

unrestored exterior staircase connecting the Main Building

and the Baggage & Dormitory Building, thereby highlighting

once again the Preservation Amici's chief concerns. Which

State's law (if the Federal Government were to relinquish

control of the Island) is to govern preservation, restoration

and/or demolition of this structure? Will New York seek to

restore it and New Jersey vote in favor of demolition? Who

but this Court would have the power to resolve this impasse?

The Preservation Amici urge this Court to avoid such a

dilemma by invoking equitable principles to apportion to

New York as much jurisdiction over Ellis Island as is

necessary to safeguard the Island's future as a monument with

more personal connections to more individual Americans

than any other in the nation.

(...continued)

Island. The Report concedes that this choice is "potentially

flawed," but ignores the contradictory premises upon which

this choice is based. (R. 156 n.62.) The Special Master

chose this map—created over twenty years after the Compact

was executed—notwithstanding the availability of what the

Report terms "probative and convincing" testimony from

New York's experts as to the size of the Island in 1836 and

maps (containing more detailed tidal data) created in 1836

and 1841. (R. 160 n.63.) This choice cost New York as a

much as an additional acre in territory, which, the

Preservation Amici submit, would have been enough to

provide an equally plausible baseline for invoking equity to

shelter the Island's historic core.

25

Equity has certainly been utilized to this extent and with

this effect in the cases cited by the Special Master to support

his recommended "reconstitution" of Ellis Island. Indeed, in

each of those cases, the difference between what was

required by the letter of the law and what was deemed

warranted by equitable considerations was far more

substantial than the fraction of an acre the Report offers to

grant to New York. Thus, in Vermont v. New Hampshire,

289 U.S. 593, 595 (1933), for example, the Court's

employment of equitable principles resulted in the addition to

New Hampshire of a strip of land between high and low

water that ran for many miles along the Connecticut River.

Similarly, the adoption of the "thalweg" instead of the

geographical center approach in New Jersey v. Delaware,

291 U.S. 361 (1934), resulted in the effective cession to

Delaware of many square miles of territorial waters. See also

New Mexico v. Colorado, 267 U.S. 30, 37 (1925) (invoking

equity to establish Colorado claim to "large strip of territory"

including "the greater portions of one town and two villages,

and five post offices"); Maryland v. West Virginia, 217 U.S.

1, 46 (1910) (invoking equity to establish Maryland claim to

a strip of territory entailing approximately 50 square miles).

This Court could use equitable principles to fashion any

number of remedies that would much better serve Ellis

Island's future than that proposed in the Report. It could do

so on a territorial basis by looking to any of the several

alternative allocation schemes proffered by New York but

summarily rejected by the Special Master at the May 14,

1997 hearing. See Supplement to Final Report at 15-16.

Any of those proposals would shield from the "split

sovereignty" quandary a greater proportion of the Island's

historic structures than the boundary recommended by the

Report. Alternatively, the Court could, consistent with the

principles of the cases relied upon by the Report, use equity

to leave all of Ellis Island subject to New York's law for all

26

purposes, including historic preservation regulation. The

Court could look to New Jersey's 1904 "sale" of its property

interest in the underwater land surrounding Ellis Island as a

renunciation of any responsible role with respect to the

Island, note New York's ongoing interest in the Island's

affairs, and conclude that equity requires that New York

retain sovereignty over the Island in the event of federal

abandonment of the Island.'”

The Report ignores entirely the fact that Ellis Island has

long been subject to the control of a single sovereign. The

Federal Government—not New Jersey and not New York—

created the landfill that forms the res of this action, built the

Immigration Station, and conducted the activities there that

have given Ellis Island its significance in modern American

history and culture. Keeping Ellis Island subject to the

preservation laws of a single sovereign is the best way to

ensure that Ellis Island survives in a form consonant with the

images of its past that are etched in the memories of millions

of Americans. The Court can reach this result as a matter of

law or as a matter of equity, but, in either event, if that

J2 Asa further alternative, the Court could use equity to reach a

conclusion which the New York Landmarks Amici argue

elsewhere is required by the terms of the Compact—that, at

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

jurisdiction, and thus historic preservation control, over Ellis

Island. See Brief of New York Landmarks Amici, Point II.

Thus, even if the Court were unwilling to extend the

boundaries of New York's territory on the Island beyond

those proposed by the Report, such a remedy would ensure

that New York's demonstrably more protective Landmarks

Law would govern development plans on Ellis Island in the

event of federal relinquishment of control over the Island.

27

sovereign does not continue to be the Federal Government, it

should be the State of New York.

CONCLUSION

For all the foregoing reasons, the Court should reject

use Report of the Special Master because the remedy

recommended by the Report is impractical and unworkable.

In the alternative, to the extent that "equity" is properly

invoked in this case, it should be invoked to protect Ellis

Island's historic past by keeping it subject to a single

sovereign. If that sovereign does not continue to be the

Federal Government, it should be the State of New York.

Dated: New York, New York

July 30, 1997

EDWARD M. NORTON, JR.

ELIZABETH S. MERRITT

Counsel of Record

LAURA S. NELSON

NATIONAL TRUST FOR HISTORIC

PRESERVATION

1785 Massachusetts Avenue, NW

Washington, DC 20036

Of Counsel: (202) 588-6035

ANTONIO ROSSMANN

380 Hayes Street

San Francisco, CA 94102

(415) 861-1401 EDWARD N. COSTIKYAN

BETH F. GOLDSTEIN

MUNICIPAL ART SOCIETY

457 Madison Avenue

New York, New York 10022

(212) 935-3960

Attorneys for Amici Curiae

National Trust for Historic

Preservation in the United States

and Municipal Art Society of New

York