Amicus Curiae Brief — New Jersey v. New York

No. 120, Original

In the CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1996

STATE OF NEW JERSEY.

Plaintiff,

STATE OF NEW YORK,

Defendant.

BRIEF FOR THE CITY OF NEW YORK, AS AMICUS

CURIAE, IN SUPPORT OF THE STATE OF NEW

YORK’S EXCEPTIONS TO THE REPORT OF THE

SPECIAL MASTER

PAUL A. CROTTY,

Corporation Counsel of the

City of New York,

Attorney for the Amicus

Curiae City of New York,

100 Church Street,

New York, N.Y. 10007.

(212) 788-1072

LEONARD J. KOERNER, *

STANLEY BUCHSBAUM,

KRISTIN M. HELMERS,

of Counsel.

* Attorney of Record

July 30, 1997.

TABLE OF CONTENTS

ARGUMENT

PROPERLY INTERPRETED BOTH IN

LIGHT OF THE CONTEMPORANEOUS

LEGAL CLIMATE, AND IN LIGHT OF

THE NATURE OF THE DEBATE

BETWEEN THE TWO _ STATES

REFLECTED IN THE 1807 AND 1827

CORRESPONDENCE OF THE

COMMISSIONERS, THE LANGUAGE OF

THE 1834 COMPACT COMPELS THE

CONCLUSION THAT NEW YORK,

RATHER THAN NEW JERSEY,

ULTIMATELY POSSESSES SOVEREIGN

POWERS OVER THOSE PORTIONS OF

ELLIS ISLAND CREATED BY FILL IN

THE POST-RATIFICATION YEARS .....

CN ok ca vihusw sas tae

TABLE OF AUTHORITIES

Cases Page

Alabama v. Georgia,

64 U.S. (23 How.) 505

hls iS Seen ee 7, 10

Armold vy. Mundy,

ERE a ee 16

23 N.J.L. 624 (1852) ......... 14, 15, 16, 26

Boise Cascade vy. U.S.E.P.A.,

942 F.2d 1427 (9th Cir.

OR Ec a ere eae 21

Central R.R. Co. v. Jersey City,

i an 27

Collins v. Promark Products,

763 F. Supp. 1204 (S.D.N.Y.

1991), affd, 956 F.2d 383

i atG cloned die wed ale 28

Corfield v. Coryell, 6 Fed. Cases

546 (4 Wash. C.C. 371) (1823) ...... 3, n.2; 17

ecetin » Sut Contin

ee es ED: clea ealeala' id Yee 24

U.S. , 115 S. Ct.

oy rd ec aweseaka tel 20

Us. (5 Wheat.) 374 (1820) ........ 11, 16

US. _. era 350603 Saree 26

ek eee Sie Son ia ee 27

Es she) 367 (1842) .........00- 16

ta PPane earl e ) 10, 13

Ma a ae eee re een 26

ETO OTER.....< oss cee i”

42 N.Y. 283 (1870), dismd,

79 U.S. (12 Wall.) 455 (1872) ........ 21, 28

37 U.S. (12 Pet.) 657 (1838) ......... 10, 13

Cases Page

Ross v. Mayor,

180 A. 866 (N.J. Sup. Ct., 1935) ......... 25

State v. Babcock,

30 N.J.L. (1 Vroom)

a ees 15, 16, 17, 19, 23

State v. Davis,

1 Dutcher 386 (N.J. Sup. Ct., 1856) 3, n.2; 11; 17

Stryker v. Mayor,

I 25

Udall v. Trustees of Brooklyn,

OS a ee ae ee 24

United S California.

I cs oF AS ie 25

482 U.S. 193 (1987) ................. 26

Statutes

Administrative Code of the City

of New York, § 2-202(1) (1996) .......... 5

Colonial Laws of N.Y., Ch. 17 (1691) ......... 3

eT aS ape eee ere 4

ce WG I i 4

a Se i De) TE 4

SF NY 8 Se ee 4

-jv-

S 8098 Gh BOS OLY.) . 2... ccc cen ccsceess 4

= SY i sree 4

S s00® Gh GEOGLY.).. 0c ccc ccccwecens 5

B e088 Ch SIOGLY.).. 0. cnc ccccccten: 5

L 1001. Ch. 466 (.Y.) 0... eee eee ees 5

Treatises

Vattel, The Law of Nations

(J. Chitty, ed.) (7th Am. Ed., 1849) ..... 11, 12

and passim

-Vy-

No. 120, Original

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1996

STATE OF NEW JERSEY,

Plaintiff,

STATE OF NEW YORK,

Defendant.

= =

BRIEF FOR THE CITY OF NEW YORK, AS AMICUS

CURIAE, IN SUPPORT OF THE STATE OF NEW

YORK’S EXCEPTIONS TO THE REPORT OF THE

SPECIAL MASTER

INTEREST OF AMICUS CURIAE

As authorized by Rule 37.4, the City of New York

(the “City”) submits this brief in support of the defendant

State of New York, urging that the Special Master's

resolution of this case in favor of the State of New Jersey

be rejected by this Court as contrary to law and without

support in the record.

ae

New York City’s compelling interest in this

litigation was recognized by the Special Master. Although

denying the City’s motion seeking formal intervenor status,

he nevertheless invited it to participate as an “active

amicus.” See, Docket Item No. 70. The concerns

prompting the City to participate in the defense of this case,

to the extent permitted, are rooted in the historical record,

which clearly reveals that, until the Special Master

undertook to recommend its division, Ellis Island, as an

entity, was always considered within the physical

boundaries and under the local governmental jurisdiction of

the City of New York.

The Special Master’s decision effectively reverses a

situation dating back to the March 12, 1664 grant to the

Duke of York from his brother, King Charles II of

England, of the territory which now comprises, inter alia,

the states of New York and New Jersey. The Duke, in

turn, almost immediately devised a tract, called “New

Caesarea” or “New Jersey,” to Lord Berkeley and Sir

George Carteret (PE 280 at 12).' By 1676, Berkeley and

Carteret had partitioned their holdings into West Jersey and

East Jersey, respectively. Id. Two years later, Carteret

devised East Jersey to certain trustees, who in turn parceled

the holding to twelve proprietors. On November 23, 1683,

confirming the rights of these East Jersey proprietors,

Charles I] described the eastern riparian limits of the

territory, in pertinent part, in the same language as the

original 1664 grant, ie., as “extending eastward and

' Parenthetical references prefaced by “PE” refer to numbered items

on plaintiff's evidence list, followed by specific page references within

those items; “DE” denotes items on defendant's evidence list; and “R”

indicates a citation to the Special Master’s Final Report.

2.

northward all along the sea coast and Hudson’s river,”

within specified northern and southern limits (id.) (emphasis

added).

The province of New York, meanwhile, was not

similarly limited to the eastern shore of the Hudson by the

terms of any devise; it retained the river within its

territorial boundaries because of the Hudson’s inclusion, as

an entity, within the original royal grant to the Duke (PE

280 at 11). Accordingly, as early as 1691, Chapter 17 of

the Colonial Laws of New York for that year located the

three Oyster Islands, one of which later became known as

Ellis Island, in the City and County of New York. By the

time a new Charter for the City was issued on January 15,

1730, by John Montgomerie, then governor of both New

York and New Jersey, the City’s limits were not only

defined as including the Oyster Islands, but as extending to

at least low-water mark on the opposite, or East Jersey

shore (DE 824 at 137, 146-147). There is no evidence that

during this pre-Revolutionary period the proprietors of East

Jersey, or any other governmental authority within that

territory, attempted to counter-assert jurisdiction over the

Hudson River or Bay and any island, like Ellis Island, west

of center.’

* In 1721, the West Jersey proprietors, on the other hand, had sought

to settle their boundary and assert rights to at least the midpoint of the

Delaware by consulting with Crown counsel (PE 271 at 55) -- only to

be told that (unlike the grant of the Hudson to the Duke of York) the

royal grants on both sides of the Delaware ran only to the river.

Hence, at that time, the Delaware River itself, and any islands in it,

“remained in the crown” and were within the territorial boundaries of

neither New Jersey nor Pennsylvania. Corfield vy. Coryell, 6 Fed.

Cases 546, 554 (4 Wash. C.C. 371) (1823); State v. Davis, 1 Dutcher

386, 387 (N.J. Sup. Ct., 1856).

-3-

After New York’s emergence as a state at the

conclusion of the Revolution, Ellis Island remained

identified as part of the State and City of New York. In

Chapter 63 of the Laws of 1788, setting up the counties of

the State, New York County, which embraced New York

City, still included Ellis Island. Three years later,

legislation establishing wards within the City placed Ellis

Island in the First Ward (L. 1791, ch. 18). By 1794, Ellis

and Bedloe’s Islands had been transferred by the City of

New York to the State of New York, together with the soil

between high-water and low-water mark surrounding Ellis

Island (DE 740; 938 at 23). The grants were subject to a

reverter whenever “the Premises shall no longer be used for

the purposes of fortification.” Id.

The 1794 cession, as well as a further cession by the

State of New York to the federal government in '800 and,

finally, the State’s conveyance of full title in 1808, had no

effect on the status of Ellis Island as part of New York

City. Even as legislation was passed in 1803, 1817, and

1825 to accommodate the need for new wards within the

City, Ellis Island continued to be deemed part of the First

Ward (L. 1803, ch. 29; L. 1817, ch. 285; L. 1825, ch.

195). Furthermore, Chapter 2, Title 1, sec. 2, par. 5 of the

New York Revised Statutes (1829) described the County of

New York as including Ellis Island, and Chapter 2, Title 5,

sec. 1 described the City of New York as all of that part of

the State within the bounds of the County of New York,

placing Ellis Island in the City of New York.

Nor did ratification of the 1834 Compact change the

situation: the description of Ellis Island in the 1829 statutes

appears, unchanged, in the 1836, post-Compact version.

See, Chapter 2, Title 1, § 5 and Title 5, § 1, N.Y. Rev.

-4-

Stat. (1836). Likewise, after New York State, in 1880,

relinquished title and jurisdiction over the subaqueous lands

surrounding Ellis Island to the United States (with the

reservation that the cession of jurisdiction would continue

only as long as the United States owned the Island and the

adjacent subaqueous lands), Ellis Island continued to be

legally part of the City of New York. See, e.g., New York

Consolidation Act of 1882 (L. 1882, Ch. 410, § 1); the

Greater New York [City] Charter (L. 1897, Ch. 378; L.

1901, Ch. 466, § 1). Again, that status continued despite

New Jersey’s 1904 transfer of subaqueous lands (without

retention of any reversionary interest), even as the Island’s

size was increased by the filling operations undertaken by

the federal government after 1890, and it remains in effect

today. See, Administrative Code of the City of New York,

§ 2-202(1).°

SUMMARY OF ARGUMENT

As the State of New York has emphasized in its

Exceptions to the Special Master’s Report, Article Second’s

provision that Ellis Island, as an entity, would remain under

the sovereign jurisdiction of New York effectively disposes

of New Jersey’s current claims to the landfilled areas based

on Articles First and Third. The Report reaches the

contrary conclusion, inter alia, because it ignores the

contemporary meaning of the language chosen by the

drafters, language which is based on concepts of

sovereignty and jurisdiction current in the late 18th and

* We note, in passing, that the only post-1834 attempt by a political

subdivision of the State of New Jersey to claim Ellis Island for its own

was the 1924 decision of a single Hudson County administrator to add

both Ellis and Bedloe’s Islands to the county’s tax rolls as exempt

property. See, State of New York’s Exceptions at pp. 33, 38.

-5-

early 19th centuries. Instead of looking for guidance in

construing the Compact to how the nature and legal viability

of the claims which gave rise to the underlying dispute

might have dictated their resolution, or to how the drafters

were influenced by leading commentetors, such as Vattel,

whose theories are referenced in the 1807 and 1827 formal

correspondence of the Commissioners, the Report begins

with an abstract construct and then disregards any internal

or external evidence that might not fit within this model.

When the proper analysis is undertaken, it becomes

clear that the Compact incorporates Vattel’s discussion of

how, in sovereign states, rights of property may be

separated from sovereign, or jurisdictional, powers. The

rights of property which can be so separated are of the type

which belong to an individual in the state, as distinct from

the “high domain,” which can never be separated.

However, a state cannot possess the “high domain” -- or

sovereign rights of property -- without also possessing the

power of command, or jurisdiction. In Article Third, the

drafters of the Compact gave exclusive rights of property

with respect to the underwater lands west of the

to New Jersey, but granted to New York the crucial power

of command, or “exclusive jurisdiction,” over the same

territory. In so doing, the drafters would have understood

that they were establishing a situation in which New York

held sovereign powers over the underwater lands up to the

low-water mark on the Jersey shore. This is confirmed by

the fact that the Compact grants New Jersey similar

sovereign control, or “exclusive jurisdiction,” over any

improvements “to be made” on its shore, a grant which

y%

Under the scheme set out in the Compact, New

York also possesses sovereign rights with respect to the

landfilled portions of Ellis Island, which were constructed

on the very same underwater lands, and in the very same

waters, over which the Compact gives that state “exclusive

jurisdiction” or control. However, assuming, arguendo, that

New York’s power were less than sovereign in nature, i.e.,

assuming that it is properly characterized as the “police

power” suggested by the Report, the Report still does not

explain why that power should suddenly be negated by the

fact that the underwater lands have been reclaimed.

Moreover, even under a theory of New Jersey as sovereign,

not much is left of the general sovereign power after

subtracting the sweeping “police power” specifically

granted to New York over the underwater lands, whether

filled or in their original state.

Article First presents no obstacle to these

conclusions. Far from establishing an “invariable”

boundary, and hence allegedly investing New Jersey with

absolute sovereign rights over the territory indicated, the

Compact itself contains an “exception” clause indicating -

that variances will follow. The Report simply ignores this

fact.

In short, interpreting the Compact in the context of

the applicable principles of law as they were understood at

the time of its drafting, and turning to contemporary

commentators for guidance, as this Court has indicated is

proper, Alabama v. Georgia, 64 U.S. (23 How.) 505, 513

(1859), compels the conclusion that the Special Master’s

resolution of t.3 case in favor of New Jersey cannot stand.

ARGUMENT

PROPERLY INTERPRETED BOTH IN

LIGHT OF THE CONTEMPORANEOUS

LEGAL CLIMATE, AND IN LIGHT OF

THE NATURE OF THE DEBATE

BETWEEN THE TWO STATES

REFLECTED IN THE 1807 AND 1827

CORRESPONDENCE OF THE

COMMISSIONERS, THE LANGUAGE

OF THE 1834 COMPACT COMPELS

THE CONCLUSION THAT NEW

YORK, RATHER THAN NEW JERSEY,

ULTIMATELY POSSESSES

SOVEREIGN POWERS OVER THOSE

PORTIONS OF ELLIS ISLAND

CREATED BY FILL IN THE POST-

RATIFICATION YEARS.

(1)

As the City of New York reads the Special Master’s

Final Report (the “Report”), it upholds New Jersey’s claims

to sovereignty over Ellis Island on the ground that the

territorial boundary set by Article First of the 1834

Compact, a boundary which is described in the Report as

“unambiguous” (R31) and “unvarying” (R55), ipso facto

endows New Jersey with an equally “unambiguous” and

“unvarying” sovereignty over everything to the west of that

line. Such an interpretation must, of course, completely

ignore the qualifying phrase used by Article First with

respect to the establishment of this “unambiguous”

boundary: the boundary is stated to be the midpoint of the

Hudson River and New York Bay, “except as hereinafter

otherwise particularly mentioned.” If, as the Report

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maintains, sovereignty is both defined by and flows

inexorably from boundary, those qualifying words can only

mean that the Compact explicitly provides for situaucas in

which, because other Articles effect a boundary change,

sovereignty is similarly affected.

The Report implicitly admits that this is the case

with respect to Article Second’s proviso that New York

“shall retain its present jurisdiction of and over” Ellis and

Bedloe’s Islands, as well as its “exclusive jurisdiction” over

the other islands west of Article First’s boundary “now

under the jurisdiction of that state.” This, the Report

concedes, means that, under the Compact, sovereignty, i.e.,

what is termed in Article Second “exclusive jurisdiction,”

over lands geographically located within New Jersey’s

territorial limits was vested in New York (R60). Despite

being characterized as “unvarying,” the Article First

boundary was thus obviously changed to that extent.

The “exclusive jurisdiction” which signifies

sovereignty in Article Second reappears in Article Third,

where it is granted to New York with respect to the waters

and the land under water west of Article First’s midpoint

boundary, up to the low-water mark on the Jersey shore;

and to New Jersey over the piers, wharves, and

improvements annexed to its fast lands and projecting out

into the same waters. In this context, however, the Report

insists that the adjective “exclusive” somehow loses its

primary meaning, becoming a qualifier denoting a power

less than sovereign (R89). No reason is provided for this

alleged change in meaning, other than the assertion that it

must be so if the Article First boundary is indeed absolute

and unvarying (R89). In fact, the Report recognizes that

“[thhe plain and ordinary import of jurisdiction without

-9.

exception is the authority of a sovereign” (R60) (emphasis

added); agrees that the “exclusive jurisdiction’ referred to

in the opening paragraph of Article Third “should be

interpreted to convey a similar meaning in Article Second”

(R60); concedes that what is referred to by the term in

Article Second is sovereignty (R60); but states that

“exclusive” is used as a qualifier (R89), and therefore, in

Article Third, cannot indicate sovereignty (R60).

Given the primacy of the terms “boundary,”

“jurisdiction,” “sovereignty,” and “rights of property” in

the Report’s analysis of the Compact, the City of New

York, in its role of amicus curiae, has chosen to concentrate

its efforts in this brief on elucidating how the drafters of the

Compact would have understood these concepts. as this can

be determined from an analysis of the nature of the dispute

the Compact was intended to resolve and the

contemporaneous legal climate. This approach is dictated

by almost two centuries of decisions by this Court

indicating that where an agreement involves an interstate

dispute regarding a river, the agreement “must be

interpreted by the words of it, according to their received

meaning and use in the language in which it is written, as

that can be collected from judicial opinions concerning the

rights of private persons upon rivers, and the writings of

publicists [commentators] in reference to the settlement of

controversies between nations and states aS to their

ownership and jurisdiction on the soil of rivers....”

Alabama v. Georgia, 64 U.S. (23 How.) 505, 513 (1859).

Cf., Rhode Island v. Massachusetts

, 37 U.S. (12 Pet.) 657,

722 (1838); Massachusetts v. New York, 271 U.S. 65, 87

(1926). In other words, although we agree with the State

of New York’s persuasive argument that the doctrine of

laches, as well as priaciples of prescription and

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acquiescence, demand rejection of the Special Master’s

conclusions, it is our position that these issues need not be

reached if the Compact is properly interpreted as a matter

of law.

(2)

In discussing the 1834 Compact in context, it is

important to note that during the immediate post-

Revolutionary period, many former colonies, now States,

were attempting to settle border disputes by means of

compacts or treaties. In 1783, New Jersey itself entered

into just such an agreement with Pennsylvania concerning

the Delaware. Because, as noted in footnote 2, gupra, the

Delaware river and bay, unlike the Hudson, had remained

in the Crown, “ungranted to any of the colonies,” these

bodies of water “became vested in the adjoining states at the

declaration of independence, so that the boundary of each

extended to the middle.” State v. Davis, supra, 386

Dutcher at 387. By the 1783 compact, the two states

agreed, inter alia, to the exercise of “concurrent

jurisdiction” over the water itself, but not over the lands

under water on their respective sides of the boundary. Id.

Since boundary was not an issue, retention by each state of

exclusive jurisdiction over its underwater lands must here

have been the operative indicia of sovereignty -- and this

exclusive jurisdiction, of course, is what New York retained

over the underwater lands specified in Article Third.

This point is underlined by reference to Vattel’s The

Law of Nations, a contemporary legal treatise cited by the

Commissioners from New Jersey at various points during

both the 1807 and the 1827 negotiations, see, ¢.g., PE 271

at 20, 44, and relied upon by this Court at least as early as

1820. See, ¢.g., Handley’s Lessee v. Anthony, 18 U.S. (5

-11-

Wheat.) 374, 379-80 (1820). Vattel defines sovereignty as

political authority , Se ee

body. Law of Nations, Bk. I, c.1, §§ 2, 5 GJ. Chitty,

ed.)(7th Am. Ed., 1849). Sovereignty also encompasses

“empire,” or the right of “command” and regulation in all

places of the country belonging to the nation. Id. at c.20,

§ 245. “Empire,” in turn, is synonymous with the term

“jurisdiction,” and each nation “naturally possesses it over

the whole or part of which it possesses the ‘domain.’” Id.

at c.22, § 278.

According to Vattel, “the empire and the domain or

property, are not inseparable in their own nature, even in a

sovereign state.” Id. at 295 (emphasis in original). In

language immediately following this statement which

equates sovereignty with empire and jurisdiction, Vattel

writes: “As a nation may possess the domain or property of

a tract of land or sea, without having the sovereignty of it,

so it may likewise happen that she shall possess the

sovereignty of a place, of which the property, or the

domain, with respect to use, belongs to some other nation.”

Id. at § 295 (emphasis added). Later in the treatise, he

expands on this observation by pointing out that a state

“cannot have full and absolute domain of a place where she

has not the command” -- or, put differently, where the state

does not possess the “empire” or jurisdiction. Id. at Book

Il, c.7 § 83. Thus, Vattel makes a distinction between

“high domain,” which is “nothing but the domain of the

body of the nation,” and which is “everywhere considered

inseparable from sovereignty,” and “useful domain,” which

can be severed. “Useful domain” is confined to “the rights

that may belong to an individual in the state,” and “nothing

prevents the possibility of its belonging to a nation in places

that are not under her jurisdiction.” Id. at § 83.

82.

These concepts are directly reflected not just in the

1783 compact between New Jersey and Pennsylvania

discussed above, but in other treaties of the same era --

notably, the Hartford Con act, considered by this Court in

Massachusetts v. New Yoru, 271 U.S. 65 (1926), in which

it was held that New York ceded to Massachusetts private

ownership of, but not sovereignty or jurisdiction over, the

western half of territory claimed by both states; and in the

1782 Decree of Trenton, which, although it stated that

“Connecticut had not the jurisdiction over the disputed

territory,” did not prevent that state from claiming “the

right of soil” for another eighteen years. Rhode Island v.

Massachusetts, 37 U.S. 657, 724 (1838). While the

separability of sovereign power and property interests is

certainly, we submit, reflected in the 1834 Compact, Vattel

is perhaps even more useful in his explicit equation of

sovereignty and jurisdiction -- an equation which appears

not only in the extant records of the 1807 and 1827

negotiations, but in the language of the Compact itself.

(3)

As reflected in the official correspondence of the

Commissioners appointed in 1807, New York took the

position that the respective rights of each state “must in

some measure serve as the grounds of any proposed

compact” (PE 222 at 1, 4). According to New York,

“coeval with the commencement of the colonial

governments of the two states,” it had actually and

constantly exercised and possessed “jurisdiction” over the

Hudson River and New York Bay as part of its rightful

territory. Id. By the right of jurisdiction, New York

specifically stated that it meant the sovereign right of

government, as distinct from an estate or property interest

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IBEST AVAILABIF COPY

in territory (PE 222 at 19, 31). According to New York,

New Jersey was entitled to “jurisdiction” only to the extent

she was entitled to property, and the territorial grant from

the Duke of York to Berkeley and Carteret was bounded by

the western shores of the Hudson and New York Bay (PE

222 at 4).

It was New Jersey’s basic position that, by virtue of

the Revolution, it had become vested with authority to

“exercise jurisdiction” over the Hudson “in such manner as

belongs to a sovereign” (PE 222 at 3). Looking to the

model of her Delaware River boundary, New Jersey argued

that if New York was correct, New Jersey would also be

deprived of all “jurisdiction” on her shores adjacent to that

river, which was patently not the case (PE 222 at 38).

Furthermore. according to New Jersey, when King Charles

made his original grant to the Duke of York, it included the

grant of the river, which thereby became the private

property of a subject, permitting future grantees to hold to

the center (PE 222 at 11). See, Bell vy. Gough, 23 N_J.L.

624, 662 (1852). When the Duke in turn became king, the

river reverted to the Crown, which, at the Revolution,

impliedly yielded all “jurisdiction” over the river to the

colonies (PE 222 at 20 et seg., propositions 6 & 7).

Alternatively, New Jersey argued (1) that the early

confirmatory deeds to Berkeley and Carteret, which stated

that they should have “free use” of all bays, inlets, shores,

etc. within the granted territories, included the Hudson

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34); and, interestingly, (3) citing Vattel, New Jersey

suggested that, given the separability of the “empire” of a

country and its right of property in the soil, it did not

necessarily follow that “jurisdiction” over New Jersey’s

shores and harbors belonged to New York, even if the

property belonged to that state (PE 222 at 20).

As the negotiations deteriorated, New Jersey asked

for an “accommodation line” (PE 222 at 40). New York

responded that it preferred to retain the high-water mark on

Jersey’s shores (PE 222 at 40). New Jersey then suggested

that a line be run down the middle of the river and bay, but

leaving the Oyster islands within the “jurisdiction” of New

York (PE 222 at 41). New York would not agree to the

mid-line of the Hudson as the “line dividing the

jurisdiction,” but announced that it would consider an

accommodation with respect to the “benefit and use” to

accrue to New Jersey’s citizens. Id. On October 7, 1807,

the negotiations broke off with New Jersey's announcement

that it was unwilling to “ask and receive” benefits from

New York.

What is interesting and important about this

exchange is (1) the paucity of use of the words “ sovereign”

or “sovereignty,” terms which do not appear at all in the

1834 Compact, the word “jurisdiction” being used instead

to discuss that concept; (2) the references to Vattel, who in

fact frequently used “sovereignty” and “jurisdiction”

synonymously and who also discussed the separability of

jurisdiction and property in sovereign states; and (3) New

Jersey's clear concern for control of the wharves, piers, and

other developments on its own shores. See, State v.

Babcock, 30 N.J.L. (1 Vroom) 29, 32-33 (1862) (control of

these improvements identified as that state’s motivating

-15-

concern in pressing its claims).

(4)

A number of important decisions affecting the legal

viability of New Jersey’s position were issued between

1807, when the first Commissioners were appointed, and

1827, when each state again designated representatives to

attempt a resolution of the issues. In Handley’s Lessee v.

Anthony, 18 U.S. (5 Wheat.) 374 (1820), this Court, citing

Vattel, stated that, “[wJhen a great river is the boundary

between two nations or states, if the original property is in

neither, and there be no convention respecting it, each holds

to the middle of the stream. But when ... one State is the

original proprietor, and grants the territory on one side

newly-created State extends to the river only. The river is

its boundary.” Id. at 379 (emphasis added). The Court

also pointed out that a country bounded by a river extends

to the low-water mark. Id. at 383. Cf. State v. Babcock,

supra, 30 N.J.L. at 33.

The following year, one of New Jersey’s own courts

rejected the validity of the state’s claim, through the

proprietors, to rights over the river and bay, holding that,

under the grant from the king to the Duke of York, the

Hudson did not become a private river, with the subjects on

each side holding to the middle. Arnold v. Mundy, 6

N.J.L. 1 (1821). This Court later adopted a similar

position in Martin v. Waddell, 41 U.S. (16 Pet.) 367

(1842). Cf. Bell v. Gough, supra, 23 N.J.L. at 662.

Finally, in 1823, a federal appellate court held that

the claims of the proprietors of West Jersey to the Delaware

-16-

|

River and Bay were limited by the terms of the original

grant from the Duke of York, which, on its face, extended

only to the lands on the eastern side of the river. Corfield

v. Coryell, 6 Fed. Cases 546, 553-554 (4 Wash. C.C. 371)

(1823), citing Handley’s Lessee, supra. Cf., State v.

Davis, supra, 1 Dutcher at 387 (Elmer, J., describing and

approving the decision). The Court also rejected the idea

that language describing a grant of “all rivers” could

enlarge the limits of the state, holding that these were

confined to rivers within the boundaries of the original

grant, not border rivers. Id. The Court further stated that,

although the right of the Crown to the Delaware had been

extinguished by the Revolution, New Jersey would hold to

the middle only if there was no better title existing in some

other state. Id.‘

(S)

When the new set of Commissioners began

communicating with each other in June 1827, both states

were aware of the decisions in Arnold vy. Mundy, Corfield,

and Handley’s Lessee (PE 280 at 13; PE 271 at 42, 57).

Cf. State v. Babcock, supra, 30 N.J.L. at 33. New York

acknowledged that Handley’s Lessee would make New

Jersey’s border the low-water mark on the western shore of

the Hudson (PE 280 at 14), but included in its First Set of

Propositions only the proposal that New Jersey “shall enjoy

and exercise exclusive jurisdiction on all the wharves and

land now made, or which may hereafter be made ... to the

actual line of low water” (PE 280 at 2), plus limited service

of process. Id. New Jersey countered with a demand that

* Such better title to a portion of the Delaware River was in fact later

found in the State of Delaware. See, New Jersey v. Delaware, 291

U.S. 361 (1934).

:

-17-

the “waters of the Hudson River,” within a geographically

delimited area, “be the boundary between the two states and

a common highway,” with concurrent jurisdiction. It

“to low water mark of the same, be held to be and remain

within the exclusive jurisdiction of the State of New York”

(PE 280 at 3).

In the Second Set of Propositions, New York

continued to state that New Jersey could have “exclusive

jurisdiction” to low-water mark on her own shores, and that

New Jersey’s inhabitants could enjoy the right of the

fisheries on the west side of the river “in common with the

inhabitants of the State of New York;” provided for limited

service of criminal and civil process; and stated that the

right to exercise all “jurisdiction, power, and authority over

the said waters, other than such as are herein secured to the

state of New Jersey,” would lie with New York (PE 280 at

3-4). New Jersey’s response was to propose, inter alia, that

the “waters” of the Hudson (no longer geographically

deliminated) be the “boundary,” with “exclusive

jurisdiction” over them reserved to New York, except that

New Jersey would have “exclusive jurisdiction” over the

docks and wharves on its own shores (with no mention of

a limitation to low-water mark) (PE 220 at 4). Ellis Island

is not mentioned -- presumably because New York’s

“exclusive jurisdiction” over the waters would include any

such lands.

When the Third Set of Propositions was tendered,

New York’s position had not changed much, except that,

again without mentioning a boundary, it proposed exclusive

jurisdiction of New Jersey not only in the “wharves and

land now made, or which may be hereafter made,” on its

-18-

Be EAP ee ce me ee test <

own shores, but also “to low water mark along the whole

of the said shore” (PE 220 at 5). It also proposed that New

Jersey have the right to regulate the fisheries on her shore.

Id. As pertinent here, New Jersey’s proposal again

suggested that the “waters” of the Hudson be the boundary;

relinquished all claims to Staten Island and the other

islands; and provided for concurrent jurisdiction in the

service of process (PE 220 at 6).

The Fourth (and last) Set of Propositions differed

only in minor details from the Third. After they had been

exchanged, and apparently out of patience, New Jersey

informed New York that, based on the “true construction of

the original grants” and the rights acquired after the

Revolution, it claimed: (1) a “right of territory and

jurisdiction” to the middle of the Hudson; Rago go

and the three Oyster Islands (including Ellis Island),

allegedly included within its territory by the same nang

and (3) the waters between Staten Island and the mainland

(PE 220 at 8). According to New Jersey, New York was

only willing to accord to New Jersey certain favors and

privileges she already enjoyed (id.). New York admitted as

much, and negotiations broke down with suggestions by

New Jersey that the matter be referred to an impartial

tribunal (id. at 9).

As in the case of the 1807 discussions, what is

interesting here is the approach to the problem in terms of

“jurisdiction” rather than “sovereignty.” And what is

particularly striking is that the term “exclusive jurisdiction”

is used by both states in reference to New Jersey’s rights

over her wharves and other improvements to low-water

mark -- or, after Handley’s Lessee, to what would have

been considered that state’s sovereign boundary.

-19-

“Exclusive jurisdiction,” therefore, is again used here as

synonymous with sovereignty, and reappears, we submit, in

the same guise in the 1834 Compact itself.

(6)

In turning to the Compact, we note that it must be

construed not only against the conceptual backdrop of the

contemporary legal and political debates which led to its

genesis, but according to accepted principles of statutory

interpretation. The Compact must, in other words, be

interpreted as a whole, Vv

__ US. __, 115 S. Ct. 1061, 1067 (1995), with any given

term construed consistently throughout. Id. Indeed, this

Court has recently emphasized that it is a “normal” rule of

Statutory construction that “identical words used in different

parts of the same act are intended to have the same

meaning.” Id.

Before discussing the application of these principles,

it may be wise to review again the Compact’s main

provisions. Article First states that the “boundary line”

between the two states “shall be the middle of the said

[Hudson] river, of the bay of New York, of the waters

between Staten Island and New Jersey, and of Raritan Bay,

to the main sea; except as hereinafter otherwise particularly

mentioned.” Contrary to the position taken in the Report,

this language clearly fixes a part of the boundary as the

middle of the river and of various other waters, but it

leaves the other parts of the boundary to be defined as

“otherwise particularly mentioned.” That the boundary is

not limited to the specific provisions of Article First, but is

determined by that article and by whatever exceptions are

“particularly mentioned,” is plain from the language of

Article First itself. Any other meaning would make the

-20-

article absurd. If the boundary were confined to the middle

of the river, etc., the exception provision would be

meaningless. It simply could not apply to anything in the

rest of the agreement. Contrary to the principle that no

provision in a statute should be treated as meaningless, see,

e.g., Boise Cascade v. U.S.E.P.A., 942 F.2d 1427, 1432

(9th Cir. 1991), the Report’s approach effects precisely this

result.

The exception clause in Article First clearly relates

to Article Second, which provides that New York shall

“retain its present jurisdiction of and over Bedloe’s and

Ellis’s Islands” and shall also retain exclusive jurisdiction

over the other islands lying in the waters mentioned in

Article First and “now under the jurisdiction of that state.”

The Report correctly concludes that this language refers to

and confirms New York’s sovereignty over the enumerated

islands, although it still will not concede that Article Second

constitutes the change in boundary recognized in Article

First.°

Portions of Article Third also clearly come within

the exception in Article First. This article provides that

New York shall have and enjoy “exclusive jurisdiction” of

and over the waters of the bay of New York and all the

waters of the Hudson River lying west of Manhattan Island

and to the south of the mouth of Spuytenduvel creek, and

> New York's highest court held otherwise in v.

Railroad Co., 42 N.Y. 283 (1870), dism’d, 79 U.S. (12 Wall.) 455

(1872), where it pointed out that the exception in Article First “limits

and restricts the boundary line,” followed by the observation that the

Commissioners established the boundary line between the two states “as

fixed and defined in said first and second articles of sai treaty.” Id. at

294 (emphasis added).

-21-

“of and over the lands covered by said waters to the low

water-mark on the westerly or New Jersey side thereof.”

This provision is made subject to specific rights of property

and jurisdiction of New Jersey. The first gives New Jersey

an exclusive right of property in “the land under water

lying west of the middle of the bay of New York and west

of the middle of that part of the Hudson river which lies

between Manhattan Island and New Jersey.” The second

deals with wharves, docks and improvements made or to be

made on the shore of New Jersey and to vessels aground on

that shore or fastened to any such dock, placing them under

the “exclusive jurisdiction” of New Jersey. The third gives

New Jersey the exclusive right of regulating fisheries on the

westerly side of the middle of the waters involved, provided

that navigation not be obstructed or hindered.

Interestingly, these latter two rights are taken

directly from the Third and Fourth Sets of Propositions

submitted by New York in 1827, which New Jersey

objected to on the ground that (1) they were made on the

assumption that New York had full sovereign rights of

territory and jurisdiction to the low-water mark on the

Jersey shore; and (2) they did not grant New Jersey

anything other than she already had -- Le. “exclusive,” and —

therefore “sovereign,” jurisdiction down to low-water mark

on those same shores (PE 220 at 8-9). The identical

analysis is applicable here. If, as the Report maintains,

New Jersey obtained “sovereignty” over everything to the

west of the boundary line by virtue of Article First, there

would be no need to provide her with “exclusive

jurisdiction” over the improvements on her own shores

extending out into waters over which she already possessed

sovereign powers.

i, ee ee ere. Pee oe ee

Accordingly, far from being a sovereign or

jurisdictional boundary, the boundary of Article First

obviously serves, inter alia, as the demarcation point for the

limits of the property rights in the lands under water

elsewhere granted to New Jersey. See, State v. Babcock,

supra, 30 N.J.L. at 31-32 (Elmer, J., commenting that the

midpoint of the Hudson is New Jersey’s boundary only “for

some purposes,” one of these being to indicate the limits of

her ownership of Article Third’s underwater lands). Under

the Compact, New Jersey gained rights of property it did

not otherwise possess, as well as rights of sovereign, or

“exclusive,” jurisdiction over the improvements which,

after many years of wharfing out, had changed the natural

coastal boundary existing at the time of the Duke of York’s

grant, extending that boundary further into the Hudson

River and New York Bay. New Jersey could not have

gained full sovereign rights over the underwater lands

indicated in Article Third because “exclusive jurisdiction”

over the same property was granted to New York. As

Vattel put it, and as the drafters of the Compact would have

understood, a state cannot have the “high domain,” or

sovereign rights of property, where another state or nation

possesses the jurisdiction or “command.” What New Jersey

received under the Compact was the “useful domain,” the

property rights possessed by an individual citizen. Only

these rights, according to Vattel, are separable, and clearly,

under the Compact, property rights in the underwater lands

have been separated from the rights of jurisdiction.

(7)

The Report articulates a variety of reasons for

rejecting the conclusion that the “exclusive jurisdiction”

over the underwater lands vested in New York in Article

Third is sovereign jurisdiction, which by definition would

give New York ultimate control over the same underwater

-23-

lands held by New Jersey in a proprietary capacity. We

address these, and certain other relevant issues, seriatim.

First, the Report rejects any such interpretation on

the ground that if New York’s sovereign jurisdiction, and

hence its boundary, extended to the low-water mark on the

Jersey shore (the limit of New York’s exclusive jurisdiction

stated in Article Third), the boundary would be subject to

change, shifting as New Jersey reclaimed and filled in the

lands along her shoreline. The Report finds such a result

abhorrent, quoting this Court’s observation in Georgia v.

South Carolina, 497 U.S. 376, 396 (1990), that “a regime

of continually shifting jurisdiction” does not “comport{ } ...

with the respect for settled expectations that .-

attends the drawing of interstate boundaries” (R67).

the settled expectations in Georgia v. South Carolina, io

the boundary was defined in relation to islands existing in

1787, would certainly have been disturbed by the

appearance of new islands years later, the same is not true

of the Compact: Article Third specifically envisions such

shifts by providing that New Jersey possesses exclusive

jurisdiction not only over the improvements on its borders

existing in 1834, but over those “to be made.”

Furthermore, the idea that jurisdictional boundaries

may be affected by reclamation of subaqueous lands was not

particularly shocking in the legal climate of 1834. As early

as 1821, New York’s highest court had ruled that, as

between New York County and Kings County, the latter

included all “made land” on the East River, even though

this would change New York County’s boundary, which,

like New York’s boundary here, extended to low-water

mark on the opposite shore.

19 Johns. 175, 178 (1821). The Court was even more

-24-

principle has been applied to the sovereign boundaries

between the United States and individual states on the

coastal waters of this country. In United States v.

U.S. 139 (1965), this Court ruled that,

when a state extends its land domain by reclaiming

subaqueous lands on its seacoast, the fact that this would

permit the state to unilaterally effect changes in the

boundary between federal and state submerged lands was of

no moment. Id. at 176-177.

In a second attempt to discount the idea that the

“exclusive jurisdiction” which refers to sovereignty in

several meanings, “not all of which imply sovereignty”

(R58, note 20). We have no problem with this as a general

influence of his thinking on the drafters. Nor does it

advance the argument when the issue is the meaning, not of

“jurisdiction” in general, but of “exclusive jurisdiction.”

We have difficulty perceiving how the term “jurisdiction,”

when modified by the adjective “exclusive,” can be

considered anything but unqualified -- particularly since,

when the Compact in fact wishes to indicate that it is

referring to a limited exercise of power, as in Article

Fourth’s restriction of New York’s power there to

-25-

quarantine laws, etc., it has no trouble doing so.

The problem, as we see it, is that the Report

implicitly assumes that that possession of property or title

is the controlling indicia of sovereignty. While it is often

said that “ownership of land under navigable waters is an

incident of sovereignty,” Montana v. United States, 450

U.S. 554, 551, citing Martin v. Waddell, 41 U.S. (16 Pet.)

367 (1842), possession of title in this context is considered

an essential attribute of sovereignty only because it is

“important to the sovereign’s ability to control navigation,

fishing and other commercial activity on rivers and lakes.”

Utah Division of State Lands v, United States, 482 U.S.

193 (1987). Accord, Montana v. U.S., supra, 450 U.S. at

552. See also, Idaho v. Coeur d’Alene Tribe of Idaho,

_U.S._, 1997 WL 338603 (U.S.) at 16 (concurring

opinion); Bell vy. Gough, 23 N.J.L. 624, 684 (1852) (right

of the sovereign to underwater property, while commonly

termed a title, “is more properly a power over it, to. . .

protect such lands for the common welfare . . .”).

Under the Compact, the dispositive control was

granted to New York, a fact which argues persuasively for

the conclusion that sovereignty was vested in that state and

that what New Jersey received was Vattel’s non-sovereign

rights of property. In any event, the power to regulate the

underwater lands surrounding Ellis Island, whether in their

filled or natural state, and whether that power is

denominated “sovereign” or not, is surely in New York

under Article Third -- with no indication there, or

elsewhere in the Compact, that the dominant control so

vested could in any way be interfered with by New Jersey.

Indeed, if New Jersey possessed sovereign powers, they

would be sufficient to override what was intended to be the

-26-

permanent and exclusive jurisdiction of New York over the

waters and underwater lands west of the boundary,

including those surrounding Ellis Island. Compare. Illinois

Central Railroad v. Illinois, 146 U.S. 387, 453 (1892)

(while a state, as sovereign, may abdicate its police powers

by delegation to another governmental body, these can

always be revoked and the navigable waters made subject to

direct control).

All these objections to the approach taken by the

Report are, of course, objections to the reasoning in Central

R.R. Co. v. Jersey City, 209 U.S. 473 (1908) (Holmes, J.),

which the Report recognizes has no stare decisis effect but

whose rationale it obviously finds persuasive. We agree

with the result reached in Central Railroad, which is fully

supportable under the exclusive (“sovereign”) jurisdiction

over improvements on its shores, “made and to be made,”

granted to New Jersey in Article Third. As indicated

above, however, we obviously have problems with the

sweeping announcement that “boundary means sovereignty,

since in modern times sovereignty is mainly territorial,

unless a different meaning clearly appears,” id. at 478-479,

where that “different meaning” permeates the Compact;

where other decisions of this Court establish that title is an

incident of sovereignty only insofar as it supports the power

of the state to exercise control, not vice versa; and where

Central Railroad treats the phrase “except as hereinafter

otherwise particularly mentioned” in Article First, which

clearly provides for exceptions from the boundary and,

hence, from the sovereignty allegedly established thereby,

as though it did not exist. Application of Central Railroad's

rationale to the issue of whether New Jersey possessed

taxing authority over underwater lots connected to its own

shores produced a sound result. Application of the same

-27-

To support its reasoning, in the face of a vigorous dissent,

the majority was forced to admit that Article Third was, in

its view, “unnecessary.” Id. at 299. When it nevertheless

addressed that provision, the majority then managed to

misread it badly, stating that “under the concessions of

jurisdiction over the waters of said river and bay,” Article

Third carefully provided that “no right should exist or be

exercised [by New York] . . . over the bed of the river,”

id., despite the language explicitly vesting “exclusive

jurisdiction” in New York over the underwater lands to

low-water mark on the Jersey shore. No such elimination

or rewriting of Article Third is necessary if, as we believe

we have demonstrated, the drafters of the Compact

envisioned that the low-water mark which indicated the

limits of New York’s exclusive jurisdiction would change

as the improvements “to be made,” and subject to New

Jersey's own grant of exclusive jurisdiction, were in fact

realized. Cf., Collins v. Promark Products, 763 F. Supp.

-28-

1204, 1206 (S.D.N.Y. 1991), aff'd, 956 F.2d 383 (2d Cir.

1992).

One final issue remains to be discussed. The State

of New York’s brief exhaustively demonstrates the error in

the Special Master’s refusal to make a factual finding that

the practice of “wharfing out,” i.¢., reclaiming submerged

lands, was taken for granted at the time of the Compact

(R92, note 39). This error is compounded by the Report’s

further insistence that the Compact itself “does not address

expansion by landfill” (R92). To the contrary, Article

Third’s grant to New Jersey of exclusive jurisdiction over

the improvements “made or to be made” on its shores

establishes that the drafters not only were aware of the

operations would be undertaken. New Jersey itself

Compact does not specifically mention the possibility of

future improvements of this sort involving the underwater

lands surrounding Ellis Island, New York’s jurisdiction over

the fast land could not be presumed to extend to any

landfill (N.J. Pretrial Mem. at 6-7).

This proposition simply miscomprehends the

structure of the Compact. At issue in Article Third was

jurisdiction over improvements abutting sovereign land in

New Jersey and extending into waters over which New

York had exclusive jurisdiction. In light of the potential for

conflict between the two states’ claims of jurisdiction in this

area, the Compact’s drafters saw a need to articulate the

scope of New Jersey’s rights of improvement in detail.

(Parallel provisions are contained in Article Fifth, which

addresses improvements upon the shore of Staten Island).

However, future improvements upon Ellis Island -- which

-29-

was New York’s territory, and which was surrounded by

waters over which New York alone had exclusive

jurisdiction -- would create no comparable conflict of

OF THE STATE OF NEW YORK.

Respectfully submitted,

PAUL A. CROTTY

Corporation Counsel of the

City of New York

Attorney for the City of New

York as Amicus Curiae

LEONARD KOERNER, *

STANLEY BUCHSBAUM,

KRISTIN M. HELMERS,

of Counsel.

*Attorney of Record