Motion — New Jersey v. New York

SEP 29 Wr

No. 120, Original

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

Supreme Court, U.$.

FILED

AUG 21 i997

CLERK

STATE OF NEW JERSEY,

Plaintiff,

STATE OF NEW YORK,

Defendant.

ON EXCEPTIONS TO THE SPECIAL MASTER'S REPORT

RESPONSE OF PROPOSED NEW YORK

LANDMARKS AMICI TO OBJECTIONS

OF THE STATE OF NEW JERSEY TO

MOTION FOR LEAVE TO FILE

BRIEF AS AMICI CURIAE

JOHN J. KERR, JR.

Counsel of Record

SIMPSON THACHER & BARTLETT

(a partnership which includes

professional corporations)

425 Lexington Avenue

New York, New York 10017-3954

(212) 455-2000

Attorneys for Amici Curiae New

York Landmarks Conservancy,

Preservation League of New

York State, and Historic

Districts Council

=

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..............

ARTICLE III IS BEFORE THE COURT 0.0... ceeeceeeees

PROPOSED AMICT'S ARGUMENTS ARE RELEVANT

TABLE OF AUTHORITIES

CASES

Brown-Forman Distillers Corp. v. New York

State Liquor Auth.

476 U.S. 573 (1986)

Colorado v. New Mexico,

467 US. 310 (1984)

Elgin, J. & E. Ry. Co. v. Burley,

327 U.S. 661 (1946)

Maryland v. Craig,

497 U.S. 836 (1990)

O'Lone v. Estate of Shabazz,

482 U.S. 342 (1987)

South Carolina v. Catawba Indian Tribe,

476 U.S. 498 (1986)

Turner v. Safley,

482 U.S. 78 (1987)

United States v. Maine,

475 U.S. 89 (1986)

STATUTES AND RULES

Sup. Ct. Rule 37.1

TREATISES AND ARTICLES

Pobert L. Stern, et al., Supreme Court Practice (1993)

PAGE(S)

Nm

ie)

Nm

Nw

No. 120, Original

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF NEW JERSEY,

Plaintiff,

v

STATE OF NEW YORK,

Defendant.

RESPONSE OF PROPOSED NEW YORK LANDMARKS

AMICI TO THE OBJECTIONS OF THE STATE OF NEW

JERSEY TO MOTION FOR LEAVE TO FILE

BRIEF AS AMICI CURIAE

The New York Landmarks Conservancy, the Preservation League of New York

State, and the Historic Districts Council (collectively, "Proposed New York Landmarks Amici" or

"Proposed Amici") respectfully respond to the Objections of the State of New Jersey to their

Motion for leave to file a brief as amici curiae (the “Landmarks Brief") in support of the State of

New York's Exceptions to the reports filed by the Special Master in this case on March 31 and

May 30, 1997 (together, the "Report" or "R."). Proposed Amici seek to file the Landmarks Brief

to proffer to the Court their expertise with respect to New York history and landmarks so as to

aid the Court in addressing several of the novel issues raised by this original case. New Jersey

opposes the filing of the Brief on the grounds that (1) the Special Master's interpretation of

Article III, which Proposed Amici challenge, is "not before the Court" and (2) the Landmarks

Brief addresses issues that are "irrelevant to the issues to be decided in this matter." (Objections

at 6, 8.) New Jersey is wrong on both counts.

ARTICLE III Is BEFORE THE COURT

New Jersey's contention that Article III is not properly before this Court is utterly

at odds with the record in this case The Special Master's analysis and conclusions concerning

Article III fill more than a dozen pages of the Report. (R. at 44-45, 56-60, 63-68, 77-80.) New

York has expressly made its Article II arguments turn on a construction of Article III that differs

significantly from that of the Special Master. (NY Br., Question Presented | (premising Article II

argument on assumption that a “central purpose of the Compact was to confirm New York's

control of commerce and navigation in New York Harbor")) And New Jersey itself has taken

great pains to embrace the Special Master s interpretation of Article III as vesting only limited

jurisdiction in New York on the New Jersey side of the Article | boundary (NJ Br at 8-9)

Under such circumstances, it is difficult to understand how this Court can—to the extent that it

does not find for New York on any other ground—avoid addressing the propriety of the Report's

Article III conclusions

Even if this were not the case, however, Proposed Amici would still not be

precluded from making arguments based on Article Ill. Under Supreme Court Rule 37.1, which

provides that an amicus brief should “bring relevant matter to the attention of the Court that has

not already been brought to its attention by the parties," the scope of an amicus brief is not limited

to the facts relied upon or the arguments made by the party in whose support the brief is filed To

the contrary, the Court has many times “rel[ied] on factual information, cases or analytical

approaches provided only by an amicus.” Robert L. Stern, ef al, Supreme Court Practice 564

(1993), see, e.g., O'Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987) (relying on amicus brief

for information regarding Muslim religious practices), Turner v. Safley, 482 U.S. 78, 93, 95

(1987) (citing amicus brief in support of argument for prison mail regulation), Maryland v. Craig,

497 U.S. 836, 855-58 (1990) (relying on amicus brief for information concerning child abuse),

Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 589 n.3 (1986)

(dissent) (relying on amicus brief for facts concerning liquor industry pricing), Elgin, J. & E. Ry.

Co. v. Burley, 327 U.S. 661, 669-75 (1946) (dissent) (citing aguments made by amici curiae

concerning Railway Labor Act)

There is even greater reason to apply this liberal standard in a case over which the

Court has original jurisdiction, like the present one, involving construction of an interstate

compact. In an original jurisdiction case, unlike in a circuit court appeal or an appeal on

certiorari to this Court, all of the findings and conclusions of the Special Master remain subject

to de novo review, see United States v. Maine, 475 U.S. 89, 97-98 (1986), Colorado v. New

Mexico, 467 US. 310, 317 (1984), so there can be no basis for a finding of appellate waiver

When the Court conducts (as it must) its own review of all the Report's conclusions, there should

be no reason to exclude from consideration any amicus brief that would offer the Court

“considerable help” with respect to any of these conclusions Sup. Ct. Rule 37.1

Adopting such a standard in this case is further warranted by the fact that the

Compact of 1834 must, as even New Jersey concedes, “be interpreted as a whole so that all of its

parts are harmonized" (NJ Br at 31, citing South Carolina v. Catawba Indian Tribe, 476 U.S

498, 509 (1986) ) Thorough consideration and understanding of the relationship among all of the

various components of the Compact is necessary in order to settle on an appropriate approach to

disposition The Court should no more focus on certain Articles and exclude others than it should

exclude from consideration related provisions in any case involving statutory construction. In this

context, an amicus brief, like the Landmarks Brief, which focuses on an Article not extensively

evaluated by the parties, should prove of substantial assistance to the Court

PROPOSED AMICI'S ARGUMENTS ARE RELEVANT

New Jersey's claim that the Landmarks Brief addresses issues that are “irrelevant”

to the disposition of this case is equally unfounded To the extent that the Court deems it

necessary to reach Article Il, coming to terms with the issues explored in the Landmarks Brief is

essential to full resolution of the boundary dispute between New York and New Jersey Indeed,

as a matter of compact construction, that dispute turns entirely on the Compact's use of two

terms—"property” and "jurisdiction." And it is to an analysis of contemporaneous understandings

of these very terms to which the Landmarks Brief is chiefly dedicated

Point I of the Landmarks Brief addresses a major flaw in the Report's analysis of

the “exclusive right of property” granted to New Jersey by Article II] The Report equates this

right of “property” in “underwater lands” with “sovereignty” over those underwater lands

However, the Report reaches this conclusion without taking into account abundant

contemporaneous evidence that the Commissioners who drafted the Compact (1) understood that

a State could have either “proprietary” or “sovereign” property rights in “underwater lands" and

(2) used language in the Compact that demonstrates that all they intended to grant to New Jersey

in the underwater lands surrounding Ellis Island was a “proprietary” right of property The merits

of Proposed Amici's argument as to this issue are for the Court to decide, but New Jersey cannot

credibly contend that this argument is “irrelevant” to disposition of this case.

Point Il of the Brief targets an even more significant gap in the Report's

conclusions. The Report concludes simply and bluntly that New Jersey has “sovereignty” over

Ellis Island and the western half of the Hudson River. At the same time, however, the Report

acknowledges that Article II] permits New York to retain some measure of residual jurisdiction

on the New Jersey side of the Article | boundary The Special Master several times alludes to this

jurisdiction as “limited,” “legal,” and, most significantly, as “police” jurisdiction, but the Report

makes no effort to further circumscribe its scope, or determine its relationship to New Jersey's

purportedly “sovereign” powers, over the underwater lands in the vicinity of Ellis Island

The Report's failure to address this issue is of particular significance to the

Proposed Amici because what the Report acknowledges to be New York’s “police jursdiction”

on the New Jersey side of the Article I boundary line is, in Proposed Amici's view, enough to give

New York jurisdiction over, inter alia, “historic preservation” matters on the New Jersey side of

the boundary. The merits of this argument are, once again, for the Court to decide, but the fact

remains that resolution of this question is both relevant to this case and essential to full

adjudication of the New York-New Jersey boundary dispute. Indeed, the very fact that New

Jersey now feels compelled to take issue with Proposed Amici's view of the scope of New York's

residual jurisdiction demonstrates that (a) this issue has not been definitively addressed by the

Report and (b) there remains room for disagreement as to its proper resolution. Under such

circumstances, it is difficult to understand how it can be claimed that the Report facilitates a full

resolution of the dispute when an issue of such potential significance remains unresolved The

Landmarks Brief undertakes to fill this gap in the Report's conclusions and urges the Court to do

the same

WHEREFORE, the Proposed New York Landmarks Amici respectfully request

that New Jersey's Objections be overruled and their motion for leave to file the Landmarks Brief

as aici curiae be granted in its entirety

Dated. New York, New York

August 20, 1997

JOHN J. KERR, JR

Counsel of Record

SIMPSON r= HER sae ETT

(a partnership which includes

professional corporations)

425 Lexington Avenue

New York, New York 10017-3954

(212) 455-2000

Attorneys for Amici Curiae New

York Landmarks Conservancy

Preservation League of New York

State, and Historic Districts

Council

CERTIFICATE OF SERVICE

i hereby certify that the annexed Response of Amici Curiae New York

Landmarks Conservancy, Preservation League of New York State, and Historic Districts

Council to Objections of The State of New Jersey to Motion for Leave to File Brief as Amici

Curiae was served via U.S. Mail on August 20, 1997, upon the following counsel of record:

Joseph L. Yannott, Esq

Assistant Attorney Genera!

State of New Jersey

Richard J. Hughes Justice Complex

25 Market Street CN112

Trenton, New Jersey 08625-0112

Kristin M. Helmers, Esq

Assistant Chief, Appeals Division

New York City Law Department

100 Church Street, Room 6F9

New York, New York 10007

Barbara G. Billet, Esq

Solicitor General

The Capitol, Room 220

Albany, New York 12224

Carol Zylbert, Esq.

Assistant Corporation Counsel

City of Jersey City

Law Department

280 Grove Street

Jersey City, New Jersey 07302

oe ( esp Ke. oh Me

v :

ETS