Opposition Brief — Virginia v. Maryland

Supreme Court, U.S.

FILED

LY \APR 2 1 2000

No. 129 Original

CLERK

IN THE

Supreme Court of the United States

_ ¢

COMMONWEALTH OF VIRGINIA,

Plaintiff,

V.

STATE OF MARYLAND,

Defendant.

¢

On Motion For Leave To File Bill Of Complaint

+

BRIEF IN OPPOSITION TO

MOTION FOR LEAVE TO FILE BILL OF

COMPLAINT

+

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

ANDREW H. BAIDA*

Assistant Attorney General

200 St. Paul Place

Baltimore, Maryland 21202

(410) 576-6318

ADAM D. SNYDER

Assistant Attorney General

2500 Broening Highway

Baltimore, Maryland 21224

(410) 631-3034

Attorneys for Defendant

*Counsel of Record State of Maryland

Le

i

QUESTIONS PRESENTED

1. Is the exercise of original jurisdiction appropriate

when (a) the waterway construction permit request that

triggered Virginia’s complaint is the subject of an ongoing

administrative proceeding in which no final determination

has yet been made; (b) the same Compact issues asserted in

this case have been raised by a political subdivision of

Virginia in that proceeding and must be resolved there if the

permit request is to be denied; and (c) Maryland has never

denied Virginia a permit to withdraw water from the

Maryland portion of the Potomac River ?

2. Has Maryland violated interstate compacts entered

into with Virginia by regulating construction activity on,

and water withdrawals from, Maryland territory in the

Potomac River?

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................... i

STATEMENT OF THE CASE .................. I

A.

C,

EEE l

Maryland Regulation Of Construction

Within The Potomac ..................... 2

The Present Administrative Litigation ...... 3

REASONS FOR DENYING THE MOTION ...... 7

I.

THE CONTROVERSY IN THIS CASE IS

NOT JUSTICIABLE AND CAN BE

RESOLVED IN A _ PENDING

PROCEEDING IN WHICH THE SAME

CLAIMS BROUGHT HERE HAVE

BEEN RAISED BY A_ VIRGINIA

POLITICAL SUBDIVISION .............. 7

Virginia’s Complaint Does Not Allege A

Justiciable Controversy .................. 8

An Alternative Forum Exists In Which

Virginia's Claims Have Been Asserted And

Can Be Resolved ....................... 10

THE RIPARIAN RIGHT TO BUILD

FROM THE VIRGINIA SHORE INTO

THE POTOMAC IS A PRIVATE RIGHT

THAT IS SUBJECT TO MARYLAND'S

POLICE POWER AUTHORITY TO

REGULATE THE ENVIRONMENT ...... 16

Maryland Has Not Surrendered Its Police

Power Authority To Regulate The

Submerged Lands Beneath The Potomac... 16

B. The Authority Has No Compact Right To

Build The Proposed Intake Because The

Compact Does Not Apply To The Non-

Tidal Portion Of The Potomac ........... 22

C. Maryland Has The Authority To Regulate

Water Withdrawals From Its Territory .... 25

REE ee ee 26

TABLE OF AUTHORITIES

CASES

Air France v. Saks, 470 U.S. 392 (1985) ........... 21

Alabama v. Texas, 347 U.S. 272 (1954) ........... 16

Arizona v. New Mexico, 425 U.S. 794 (1976) . 8,10,11,12

Atlantic Coast Line R. Co. v. City of Goldsboro,

ED «sccedbeeteuss o6eedse 18

Baltimore & Ohio R. Co. v. Chase,

ER i piece di ti cennndenesede 17

Barney v. Keokuk, 94 U.S. (4 Otto) 324 (1876)...... 24

Binney 's Case, 2 Bland 99 (Md. Ch. 1829) ......... 22

Bostick v. Smoot Sand & Gravel Corporation,

260 F.2d 534 (4th Cir.1958) ............... 20

Bowen v. Public Agencies Opposed to Social Security

Entrapment, 477 U.S. 41 (1986)... 2.6.6.6... 19

Browne v. Kennedy, 5 Harris & J. 195 (Md. 1821) ... 24

Bureau of Mines of Maryland v. George's Creek

Coal & Land Co., 272 Md. 143,

Ry TTT TTT Ie 18

Burford v. Sun Oil Co., 319 U.S. 315 (1943)... ..... 13

California v. Nevada, 447 U.S. 125 (1980) ......... 23

California v. Washington, 358 U.S. 64 (1958) ...... 16

Choctaw Nation v. United States,

DPE occdeccecdocesccccnse 21

Dept. of Commerce v. United States House

of Representatives, 525 U.S. 316(1999) ..... 12

Dutton v. Strong, 66 U.S. (1 Black) 23 (1861) ...... 17

iV

Harbor Island Marina, Inc. v. Board of County

Com 'rs of Calvert County, 286 Md. 303,

Gr I ov ccaceedecesseedece 17

Hayes v. Howell, 251 Ga. 580,

DD CUE wetccecceceseecbers 18

Hinderlider v. La Plata River & Cherry Creek Ditch

Ps SP EEE necceceenceoceeess 12

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ...... 14

Jefferson Branch Bank v. Skelly,

66 U.S. (1 Black) 436 (1861) .............. 19

Illinois Central R. Co. v. Illinois,

ER 21

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ..... 8

Kansas v. Colorado, 206 U.S. 46 (1907) ........... 25

Kepo'o v. Watson, 87 Hawaii 91,

ES 18

Louisiana v. Mississippi, 488 U.S. 990 (1988) ...... 12

Louisiana v. Texas, 176 U.S. 1 (1900) .............. 7

McCready v. Virginia, 94 U.S. (4 Otto) 391 (1876) .. 25

McDonald, Sommer & Frates v. Yolo County,

Sy EE cei cecadenineeuneconds )

Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842) ..... 21

Maryland v. Louisiana, 451 U.S. 725 (1981) ...... 8,11

Massachusetts v. Mellon, 262 U.S. 447 (1923) ..... 9,10

Massachusetts v. Missouri, 308 U.S. 1 (1939) ....... )

Michigan v. Wisconsin, 270 U.S. 295 (1926) ..... 22,23

Middlekauff v. LeCompte, 149 Md. 621,

IS on cane cks cavekecuets 13,22

Miedzinski v. Landman, 218 Md. 3,

PP os chccntcadeedeed cones 20

Mississippi v. Louisiana, 506 U.S. 73 (1992) ....... 7,8

Merrion v. Jicarilla Apache Tribe,

ee SE Secncncanschonekceces 19

New Jersey v. New York, 523 U.S. 767 (1998) ...... 21

New York v. New Jersey, 256 U.S. 296 (1921) ....... 9

Norfolk City v. Cooke, 68 Va. (27 Gratt.) 430 (1876) . 17

O'Neal v. Virginia & M. Bridge Co.,

PGE WEEE G6K5s66enenedcscserecees 20

Ohio v. Kentucky, 410 U.S. 641 (1973) .......... 16,23

Vv

Ohio v. Wyandotte Chemicals Corp.,

i & Ee 8,14

Olds-Olympic, Inc. v. Commercial Union Ins. Co.,

129 Wash.2d. 464, 918 P.2d 923 (1996) ..... 18

Phillips Petroleum Co. v. Mississippi,

A 21

Proprietors of Charles River Bridge v. Proprietors of

Warren Bridge, 36 U.S. (11 Pet.) 420 (1837)... 19

Providence Bank v. Billings,

29 US. (4 Pet.) 514 (1830) ................ 19

Pennsylvania v. New Jersey, 426 U.S. 660 (1976) .... 9

Railroad Comm'n of Texas v. Pullman Co.,

TT 13

Shively v. Bowlby, 152 U.S. 1 (1894) ........ 17,21,23

Sporhase v. Nebraska ex rel. Douglas,

ee in eens bee ie 25

State ex rel. Dyer v. Sims, 341 U.S.22 (1951) ...... 12

Stone v. Mississippi, 101 U.S. 814 (1879) .......... 18

Strother v. Lucas, 37 U.S. (12 Pet.) 410 (1838) ...... 24

Taylor v. Commonwealth, 102 Va. 759,

8 ES 17,25

The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870) ..... 24

The Genessee Chief v. Fitzhugh,

53 U.S. (12 How.) 443 (1851) ............. 24

The Thomas Jefferson,

23 U.S. (10 Wheat.) 428 (1825) ............ 24

United States v. Cherokee Nation of Oklahoma,

EE TE 19

United States v. Nevada, 412 U.S. 534 (1973) ...... 10

United States v. Percheman,

nn. + ssccseentanden: 24

United States v. Rio Grande Dam & Irrigation Co.,

in. cn. os Canin eenehese-6+ 25

United States v. Winstar Corp.,

er 18

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc.,

ED cccntccebkuceedusess ows y

Vermont v. New Hampshire, 289 U.S. 593 (1933) ... 21

vi

Virginia v. Maryland, 355 U.S. 269 (1957) ......... 23

Virginia v. West Virginia, 234 U.S. 117(1914)...... 16

West River Bridge Co. v. Dix,

47 U.S. (6 How.) 507 (1848) .........0055. 18

Williamson County Regional Planning

Commission v. Hamilton Bank

of Johnson City, 473 U.S. 172 (1985)... ...... 9

Wyoming v. Oklahoma, 502 U.S. 437 (1992) ........ 7

Yates v. Milwaukee, 77 U.S. (10 Wall.) 497 (1870) .. 17

Younger v. Harris, 401 U.S. 37 (1971) .........4.. 13

CONSTITUTIONAL PROVISIONS

19D. CURE. AGB. TOS cc ccccccccccccesescceses 8

MARYLAND STATUTES AND REGULATIONS

Mb. CODE ANN., ENV’T ART. (1996 Repl. Vol.)

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| ERATE TEER IERIE 3,4

SET ia. ccccsdsnnecsuadaceueiacouie 3,4

ee ea ea ed 1,3,4

fF OS RRGGRIRR SELES EY 3,6

Mb. CODE ANN., STATE GOV’T ART. (1999 Repl. Vol.)

DET cc cdickimecuscnmamebastecst 4

DEED oid cusdeeeecasasGmilaeenunaes 4

FPR RIRRRE ST Oe: SERCH OR 5

RE RERTIEELNLELS 5

CODE OF MARYLAND REGULATIONS (COMAR)

| ___ A RRRRRRRRBRpsllattie peste aga 6

IRIN 4

ARSE AIL Aes ae ais 5

I es eb ee 3

| DTS OSS 1

7 ERERTERRASSHNNE ANON 1

RIES Se epee 1

RRRERIR RENE HINT Fe 7 a 1

PETITE cccccccccccoseccsecscoveceses 2

STATEMENT OF THE CASE

The original 1632 charter from Charles | to Cecilius

Calvert, Lord Baltimore, included within the territory of

Maryland the entire width of the Potomac River to the high

water mark on the Virginia side. (App. 19a.) However, in

recognition of Virginia’s historical use of the south shore of

the river, the Black-Jenkins Award arbitrators subsequently

set the final boundary between the two States at the low

water mark on the Virginia side of the Potomac River.

(App. 29a.) The territory of the State of Maryland,

therefore, now extends to the low water mark. (App. 45a.)

A. Maryland Regulation Of Potomac Water Use.

Maryland regulates the appropriation of water from all

territorial waters of the State, including the Maryland

portion of the Potomac. See MD. CODE ANN., ENV’T ART.

§ 5-502 (1996 Repl. Vol.). Maryland law requires any

person seeking to appropriate or use the waters of the State

to obtain a permit from the Maryland Department of the

Environment (MDE). /d., §§ 5-502, 5-507. The Maryland

permitting program is based on the riparian water law

principle of “reasonable use.” Under the Maryland

program, MDE allows all riparian users an appropriation

that is reasonable in relation to their projected level of use

over a 12-year permit period so long as the use does not

harm other riparian users or degrade the waters of the State.

Code of Maryland Regulations (COMAR) 26.17.06.05A.

Maryland considers a number of factors in determining

“reasonableness,” including the cumulative impact that all

uses may have on the water resource. COMAR

26.17.06.05B(2). The purpose of the program is to

conserve the State’s water resources while ensuring that all

riparian users have sufficient water for their needs.

COMAR 26.17.06.02A

Virginia users have for years applied to Maryland for

permits to withdraw water from the Maryland portion of the

Potomac. For example, a permit was issued in 1964 to the

Great Eastern Utilities Corporation, a Virginia entity. Other

Virginia users include the Town of Leesburg, Virginia

(1968), the Fairfax County Water Authority (the Authority)

2

(1974), and the Northern Virginia Regional Park Authority

(1976). As Virginia acknowledges, Maryland has never

denied a Virginia user a permit to appropriate water from

the Potomac. Br. at 29.

In addition to regulating water withdrawals, Maryland

has worked cooperatively with other regional jurisdictions

and water utilities in devising a plan, known as the Low

Flow Allocation Agreement (LFAA) (App. 78a), for

allocating water use in the Metropolitan Washington area

during times of low flow in the Potomac. The LFAA is

designed to balance water use and “instream”

environmental values by maintaining a minimum base flow

in the river during times of drought. The effectiveness of

the LFAA, he-vever, is limited by its jurisdictional reach,

which extends only to an 18-mile stretch of the Potomac

between Little Falls within the District of Columbia and the

“Seneca Pool.” (App. 82a 4 A.1.) This is problematic

because intense development has occurred, and rapid

growth is expected to continue, in the areas along the

Potomac upstream of the portion governed by the LFAA.

The Maryland permitting program is the only mechanism in

place for allocating and monitoring water use from this part

of the Potomac ~ a distance of approximately 250 miles. In

these upstream areas, Maryland includes in all permits low

flow augmentation provisions that are designed to ensure

adequate water supply for all water users on the Potomac.

COMAR 26.17.07.02. The LFAA specifically recognizes

the Maryland permitting program and declares that nothing

in the LFAA restricts or limits Maryland’s authority to

regulate water use from the Potomac River. (App. 79a, 94a

1.)

B. Maryland Regulation Of Waterway

Construction Within The Potomac.

Maryland also regulates the construction of bridges,

wharves, pipelines, cables, and other structures in all

territorial waters of the State, including the Maryland

portion of the Potomac. See MD. CODE ANN., ENV’T ART.

3

§ 5-503, 5-504. Maryland law requires any person seeking

to place any structure within the Maryland portion of the

Potomac to obtain a waterway construction permit from

MDE. See id. at §§ 5-504, 5-507. Applications for these

permits are evaluated under a public interest standard that

requires MDE to “weigh all respective public advantages

and disadvantages and make all appropriate investigations,”

and to base its permit decision on whether the proposed

construction is in the “best public interest.” /d., § 5-507(a).

In determining whether a proposed project is in the best

public interest, MDE evaluates a variety of factors,

including the project’s flood risk and its effect on fish,

aquatic habitat, and other instream values. See COMAR

26.17.04.11.

As in the water use context, out-of-state users have for

years applied for permits to build structures on Maryland

territory in the Potomac. In 1967, the Town of Leesburg,

Virginia applied for and obtained a permit to construct a

drinking water intake in the Potomac. In 1977, the

Authority applied for and obtained a permit to construct a

drinking water intake structure on the Potomac shoreline.

In 1985, the Town of Harper’s Ferry, West Virginia,

likewise obtained a permit to construct a water intake

structure. In none of these cases did the out-of-state user

contest Maryland’s jurisdiction over the Potomac within its

territory.

C. The Present Administrative Litigation.

In 1996, the Authority again applied for a permit from

the Water Management Administration (WMA), a division

of MDE, this time to build a second water intake structure

reaching more than a third of the way across the Potomac

into Maryland. The primary purpose of the project,

according to the Authority, was to move its intake point far

enough out into the Potomac to avoid sediment plumes and

other pollutants from Broad Run and Sugarland Run, two

Potomac River tributaries located just upstream of the

existing intake on the Virginia side of the river. The

4

Authority’s application was based on the premise that,

during the localized flood events that generate the sediment

plumes from these Virginia tributaries, water quality at the

middle of the river would be better than at the Virginia

shore.

The Authority’s proposal raised complicated issues

concerning how water quality and quantity in the Potomac

are being affected by rapid development within the river

basin. In July 1997, the WMA stated that it was not

inclined to issue a permit for a mid-river intake without a

more careful consideration of these larger basin-wide issues,

and suggested that the Authority consider withdrawing its

application pending the completion of the appropriate

studies. The Authority declined to withdraw its application.

In December 1997, the WMA issued a preliminary denial of

the permit on the grounds that there existed alternatives to

disturbing the river that would address water quality

problems at their source, and that, based on all of the

information submitted, the purported benefits of the

proposed construction did not justify its environmental

impacts. .

The Authority exercised its rights under Maryland law

to contest the WMA’s denial in an administrative contested

case hearing. MDE is the final decision maker in matters

involving waterway construction permits, see MD. CODE

ANN., ENV’T ART. §§ 5-503, 5-504, 5-507, and has

delegated to an Administrative Law Judge of the Maryland

Office of Administrative Hearings the authority to hold

trial-type adjudicatory hearings, render findings of fact and

conclusions of law, and issue a Proposed Decision

recommending how MDE should rule. See MD. CODE

ANN., STATE GOV’T ART. §§ 10-205, 10-220 (1999 Repl.

Vol.). The parties have the right to file “Exceptions” to the

Proposed Decision and to request oral argument. /d., § 10-

216; COMAR 08.01.04.23. Based on the evidence

collected at the hearing, the exceptions, and oral argument,

MDE may either adopt, revise, or reverse the Proposed

Decision within 30 days of the exceptions hearing. MD.

5

CODE ANN., STATE GOV’T ART. § 10-221; COMAR

08.01.04.24. MDE’s final decision in a contested case

constitutes final agency action that is subject to judicial

review, and may be reversed if the reviewing court

determines that the agency’s decision, among other things,

is unconstitutional, exceeds the statutory authority or

jurisdiction of the final decision maker, results from an

unlawful procedure, or is affected by any other error of law.

MD. CODE ANN., STATE GOV’T ART. § 10-222(h).

The contested case concerning the Authority’s permit

application began in September 1998 with a pre-hearing

conference at which the Authority raised the same

arguments that Virginia raises in its bref concerning the

effect of the Compact of 1785. The parties then briefed the

Compact issue, with the Authority arguing, as does Virginia

here, that it was entitled to a permit pursuant to its Compact

rights.

Prior to the administrative hearing, the Administrative

Law Judge ruled that, under the Maryland waterway

construction statute, MDE could not consider the

applicant’s “need” or justification for its proposed project in

deciding whether to issue a waterway construction permit.

(App. 143a.) Accordingly, the WMA was limited at the

hearing to putting on evidence describing the environmental

impact that construction of the intake would have, and

neither party could address the purported benefits of a mid-

river intake. (App. 152a-153a.) At the close of WMA’s

case, the Authority moved for judgment on the strength of

the ALJ’s pre-trial ruling. (App. 144a.) The ALJ granted

the Authority’s motion and issued a Proposed Decision

recommending that MDE issue a permit for the intake.

Because the ALJ ruled in the Authority’s favor on the

merits, she did not reach the Compact issue. (/d.)

The WMA exercised its right to file exceptions to the

ALJ’s Proposed Decision, arguing that the ALJ’s pre-trial

ruling conflicted with the statute’s mandate that MDE

“weigh the respective advantages and disadvantages of the

6

proposed construction” and base its decision on the

outcome. MD. CODE ANN., ENV’T AR1. § 5-507(a). Oral

argument on the exceptions was held on April 30, 1999

(App. 146a), and the final decision maker issued his

Opinion and Order on June 7, 1999, remanding the case to

the ALJ to hear evidence on the “need” issues (i.e., the

project’s benefits or “advantages”) that the ALJ had ruled

were irrelevant. (App. 166a-169a.)

On remand, the parties agreed upon a November 12,

1999 date for resumption of the hearing, which was held

over six days ending on November 23, 1999. The hearing

focused on a comparison of water quality at both the middle

of the river and at the Virginia shore, and also addressed

differences in water quality that may affect the efficiency of

the water treatment process and the relative health risks

posed by the potential presence of Cryptosporidium in

different spots within the Potomac — precisely those issues

that Virginia cites in support of the gravity of its claim.

Br. at 28-29. At the ALJ’s request, the parties filed post-

hearing Proposed Findings of Fact and Conclusions of Law,

including extensive briefing of the Compact issue. The ALJ

is required to issue a Proposed Decision by May 30, 2000.

COMAR 08.01.04.22C. The parties will then have the

opportunity to file exceptions to the proposed decision. A

final decision is expected this Fall.

7

REASONS FOR DENYING THE MOTION

I. THE CONTROVERSY IN THIS CASE IS NOT

JUSTICIABLE AND CAN BE RESOLVED IN

A PENDING PROCEEDING IN WHICH THE

SAME CLAIMS BROUGHT HERE HAVE

BEEN RAISED BY A VIRGINIA POLITICAL

SUBDIVISION.

Virginia’s motion for leave should be denied for the

principal reason that this Court’s original jurisdiction

extends to “Controversies between two or more States,” and

no controversy exists between Maryland and Virginia other

than the one that is the subject of an ongoing administrative

proceeding in which the exact claims asserted in this case

can be and have been raised on behalf of Virginia by one of

its political subdivisions. The resolution of that controversy

has not resulted in any actual, concrete injury because no

conclusive determination has been made whether to issue a

permit allowing the construction of the water intake facility

that lies at the heart of that case and this one. The need for

such a determination is critical because the issuance of the

requested permit would eliminate the dispute giving rise to

Virginia’s complaint against Maryland. Stripped of that

dispute, this case involves only an abstract disagreement

between these States as to the proper interpretation of the

Compacts they previously executed. Such disagreements do

not give rise to a justiciable controversy warranting the

exercise of this Court’s original jurisdiction.

Recognizing the “delicate and grave” nature of its

original jurisdiction, Louisiana v. Texas, 176 U.S. 1, 15

(1900), and the concern that the Court not “reduce

drastically” its “attention to those controversies for which

this Court is a proper and necessary forum,” Ohio v.

Wyandotte Chemicals Corp., 401 U.S. 493, 505 (1971), the

Court has stated “more than once that our original

jurisdiction should be exercised ‘sparingly.”” Mississippi v.

Louisiana, 506 U.S. 73, 76 (1992) (citing Wyoming v.

Oklahoma, 502 U.S. 437, 450 (1992); Maryland vy.

8

Louisiana, 451 U.S. 725, 739 (1981); Arizona v. New

Mexico, 425 U.S. 794, 796 (1976)). It is “justified only by

the strictest necessity,” Ohio v. Wyandotte Chemicals Corp.,

401 U.S. at 505, and “obligatory only in appropriate cases”

that present a claim of sufficient “seriousness and dignity,”

Illinois v. City of Milwaukee, 406 U.S. 91, 93 (1972), and

lack “an alternative forum in which the issue tendered can

be resolved.” Mississippi v. Louisiana, 506 U.S. at 77.

Virginia’s request for leave should be denied because the

issues it asks this Court to resolve have been asserted

prematurely, and those issues are not only pending in

another forum in which appropriate relief may be obtained,

but must be addressed there if the permit request triggering

this suit is to be denied.

A. Virginia’s Complaint Does Not Allege A

Justiciable Controversy.

As Virginia makes clear in its brief, this case has been

filed because the Fairfax County Water Authority has not

prevailed in proceedings it commenced to obtain from the

Maryland Department of the Environment a waterway

construction permit allowing it to build a new water intake

facility in the Potomac River. See, e.g., Br. at 19 (“For

more than four years Maryland has refused to grant Virginia

a permit to build a new intake in the waters of the

Potomac.”); id. at 10 (“Maryland’s treatment of Virginia

over the course of the past four years gives rise to the

present controversy.”). Virginia acknowledges, however,

that the Maryland administrator responsible for making a

conclusive determination on the Authority’s permit request

has not yet rendered such a decision. Br. at 16. Without a

final decision, Virginia’s complaint does not present a

justiciable “controversy” within the meaning of Article III,

§ 2 of the Constitution.

Article III, § 2 does not “confer jurisdiction upon the

court merely because a state is a party, but only where it is

a party to a proceeding of judicial cognizance. Proceedings

not of a justiciable character are outside the contemplation

9

of the constitutional grant.” Massachusetts v. Mellon, 262

U.S. 447, 480 (1923). “To constitute such a (justiciable)

controversy, it must appear that the complaining State has

suffered a wrong through the action of the other State,

furmshing ground for judicial redress.” Massachusetts v.

Missouri, 308 U.S. 1, 15 (1939). The complaint should be

dismissed because Virginia has not suffered any concrete

injury and so cannot “demonstrate that the injury for which

it seeks redress was directly caused by the actions of

another State.” Pennsylvania v. New Jersey, 426 U.S. 660,

663 (1976).

Despite Virginia’s complaints about the ongoing

Maryland administrative permit proceeding, that proceeding

has not generated any “actual or threatened injury amenable

to judicial remedy.” Valley Forge Christian College v.

Americans United for Separation of Church and State, Inc.,

454 U.S. 464, 475 (1982). On the contrary, the Authority’s

permit request is still pending and awaiting from the

administrative decision maker “a final and authoritative

determination.” McDonald, Sommer & Frates v. Yolo

County, 477 U.S. 340, 348 (1986). Until such a “conclusive

determination” is rendered this Fall, neither the Authority

nor Virginia can claim that “the initial decisionmaker has

arrived at a definitive position on the issue that inflicts an

actual, concrete injury.” Williamson County Regional

Planning Commission v. Hamilton Bank of Johnson City,

473 U.S. 172, 193 (1985).

“Before this court can be moved to exercise its

extraordinary power under the Constitution to control the

conduct of one state at the suit of another, the threatened

invasion of rights must be of serious magnitude and it must

be established by clear and convincing evidence.” New

York v. New Jersey, 256 U.S. 296, 309 (1921). Such an

invasion simply does not exist here. Rather, Virginia asks

this Court “to adjudicate, not rights of person or property,

not rights of dominion over physical domain, not quasi

sovereign rights actually invaded or threatened, but abstract

questions of political power, of sovereignty, of

10

government.” Massachusetts v. Mellon, 262 U.S. at 484-

85. That is not a sufficient basis for the exercise of this

Court’s original jurisdiction because that jurisdiction can be

asserted “only when the justification for some direct injury

suffered or threatened, presenting a justiciable issue, is

made. ...” /d. Virginia points to no such injury here.

While Virginia complains that thousands of dollars in

“unnecessary solids treatment expenses” have been incurred

annually during the pendency of the Authority’s waterway

construction permit request (and, presumably, the 14 years

prior to that request), Br. at 10, 28, virtually any permit

applicant sustains some kind of opportunity costs while

awaiting a final decision, but that is not enough to constitute

an actual or concrete injury warranting judicial relief. The

theoretical “increased health risks” that Virginia cites (Br. at

29) similarly do not establish a justiciable controversy,

particularly in light of Virginia’s acknowledgment that “the

Authority currently produces finished drinking water that

complies with all federal and state water quality

standards ....” Br. at 11. The motion for leave should thus

be denied because no justiciable controversy exists between

Virginia and Maryland.

B. An Alternative Forum Exists In Which

Virginia’s Claims Have Been Asserted And Can

Be Resolved.

Original jurisdiction should not be exercised for the

additional reason that the Maryland proceeding “provides

an appropriate forum in which the issues tendered here may

be litigated.” Arizona v. New Mexico, 425 U.S. at 797.

This Court has stated in similar contexts that it is

“particularly reluctant to take jurisdiction of a suit where the

plaintiff has another adequate forum in which to settle his

claim.” United States v. Nevada, 412 U.S. 534, 538 (1973).

The ongoing Maryland proceeding is such a forum and

confirms the absence of any need to exercise original

jurisdiction in this case.

First, Virginia’s asserted reason for filing suit would

ll

disappear if the administrative decision maker or the

Maryland courts hold that the Authority is entitled to the

permit it has requested. Indeed, the very issues that

Virginia posits as the basis for the gravity and seriousness

of its claim — water quality at the middle of the river and at

the Virginia shore, the comparative efficiency of the

treatment process at the two locations, and the relative

health risk from Cryptosporidium posed by withdrawing

water from the two locations — are being litigated in this

alternative forum. Br. at 28-29. These are complicated

issues, some of which — most notably, those involving

Cryptosporidium — involve scientific issues of essentially

first impression. Resolution of these issues in favor of the

Authority in the pending Maryland proceeding means that

the Authority and Virginia “will have been vindicated,”

Arizona v. New Mexico, 425 U.S. at 797, and no need would

exist to address the “controversy” Virginia cites as the basis

for filing its suit against Maryland.

Second, much like Arizona was in Arizona v. New

Mexico, 425 U.S. at 794, Virginia is directly represented in

the pending Maryland proceeding because the Authority, as

Virginia acknowledges, is “a political subdivision created

under the laws of the Commonwealth of Virginia.” Br. at

7. See also Maryland v. Louisiana, 451 U.S. at 743

(distinguishing Arizona v. New Mexico on the ground that

“one of the three electric companies involved in the state-

court action in New Mexico was a political subdivision of

the State of Arizona. Arizona’s interests were thus actually

being represented by one of the named parties to the suit.”);

Wyoming v. Oklahoma, 502 U.S. at 452 (stating that “no

pending action exists to which we could defer adjudication

on this issue” and that “[e]ven if such action were

proceeding, however, Wyoming’s interests would not be

directly represented”).

Conversely, the legal support Virginia offers for the

exercise of original jurisdiction in this case misses the mark.

Although Virginia asserts that “[t}his Court is the only

forum sit::ated to pass fairly upon the proper interpretation

12

of the interstate compacts and arbitration awards between

Maryland and Virginia,” Br. at 24, the case that Virginia

cites in support of its contention that “[t]he Maryland

administrative proceeding | is not competent to determine

Virginia’s rights,” id., was not even an original action but

rather was decided after certiorari was granted to the

Supreme Court of Appeals of West Virginia. See State ex

rel. Dyer v. Sims, 341 '' S. 22 (1951). Rather than hold that

the West Virginia court was “not competent” to address the

Compact at issue in that case, this Court simply observed

that “it must have fina/ power to pass upon the meaning and

validity of compacts” and that “[a] State cannot be its own

ultimate judge in a controversy with a sister State.” /d. at

28 (emphases added). In making these observations, the

Court relied on Hinderlider v. La Plata River & Cherry

Creek Ditch Co., 304 U.S. 92 (1938), which also originated

in a State court. The mere presence of an interstate

Compact thus no more warrants the invocation of original

jurisdiction than did the existence of the constitutional claim

in Arizona v. New Mexico in which this Court refused to

intervene in Arizona’s dispute with New Mexico, and

instead deferred to an ongoing State proceeding in which

the same issue had been raised. See also Louisiana v.

Mississippi, 488 U.S. 990 (1988).

There is similarly no merit in Virginia’s contention that

it would be “futile to require that Virginia, through the

Authority, litigate the scope of Virginia’s interstate compact

rights in a Maryland tribunal.” Br. at 25. The administrative

law judge in the ongoing Maryland proceeding did not

reach the Compact issue because it was her view that the

Authority was entitled to the waterway construction permit

as a matter of Maryland law. (App. 144a.) This does not

evidence an improper failure to address the Compact issue,

as Virginia suggests, but rather is in complete accord with

the settled principle that constitutional issues should be

avoided when a case can be decided on a non-constitutional

ground. See, e.g., Dept. of Commerce v. United States

House of Representatives, 525 U.S. 316, 337 (1999).

———— re

= ——$— DS

13

Related principles of federalism and comity reflected in

the Court’s abstention jurisprudence also counsel against

accepting Virginia’s invitation for this Court “to decide an

issue by making a tentative answer which may be displaced

tomorrow by a state adjudication.” Railroad Comm'n of

Texas v. Pullman Co., 312-U.S. 496, 500 (1941). Although

the Maryland administrative law judge was reversed by the

final decision maker in her interpretation of Maryland law,

she initially held and may again reach the conclusion that

the Authority is entitled to a waterway construction permit

as a matter of State law. The Maryland courts could also

render such a determination in the event of an appeal from

the grant or denial of the permit. “The reign of law is

hardly promoted if an unnecessary ruling of a federal court

is thus supplanted by a controlling decision of a state court”

that obviates the need to resolve the federal issue. /d.

Similarly, in light of Maryland’s comprehensive

administrative and judicial review process discussed earlier,

in which Virginia’s Compact claims can be raised and

preserved for this Court’s review, exercising original

jurisdiction also creates needless friction with Maryland’s

“unified method for the formation of policy and

determination of cases” involving water management and

the environment. Burford v. Sun Oil Co., 319 U.S. 315, 333

(1943). This friction is only heightened by the ongoing

nature of the Maryland administrative proceedings. See

Younger v. Harris, 401 U.S. 37 (1971).

Claiming that the outcome of these proceedings has

been influenced by “parochial factors,” Br. at 27, Virginia

complains that “submitting the compact issue to Maryland’s

legal system has been pre-determined by Maryland” (id. at

26) because that issue was decided by the Maryland Court

of Appeals in Middlekauff v. LeCompte, 149 Md. 621, 132

A. 48 (1926). This assertion is fundamentally flawed for

the principal reason that, as stated previously, the waterway

construction permit request can be granted on State law

grounds without regard to the Compact issue.

14

Moreover, Virginia assumes too much in suggesting

that the current Maryland Court of Appeals would follow a

decision issued three-quarters of a century ago if, as

Virginia contends, that case was “wrongly decided.” Br. at

26n.10. Refusing to accept the same “assumption that state

judges will not be faithful to their constitutional

ibilities,” Huffman v. Pursue, Ltd., 420 U.S. 592,

611 (1975), this Court rejected the similar contention “that

exhaustion of state appellate remedies should not be

required because an appeal would have been ‘futile.’” /d.

at 610. See also Ohio v. Wyandotte Chemicals Corp., 401

U.S. at 500 (“While this Court, and doubtless Canadian

courts, if called upon to assess the validity of any decree

rendered [by Ohio courts] against either Dow Canada or

Wyandotte, would be alert to ascertain whether the

judgment rested upon an even-handed application of justice,

it is unlikely that we would totally deny Ohio’s competence

to act if the allegations made here are proved true.”).

There is likewise no merit in Virginia’s complaint that

this Court’s jurisdiction should be exercised because

proposed Maryland legislation “would prevent MDE from

issuing the Authority’s waterway construction permit.” Br.

at 17. That proposed legislation has since been amended,

and the law enacted by the Maryland legislature preserves

MDE’s ability to issue a waterway construction permit to

the Authority in the administrative proceeding. See

Maryland Senate Bill 729 (enrolled April 7, 2000). Even if

this legislation did have the effect, however, of blocking the

Authority’s mid-river intake proposal, the Maryland

administrative and judicial process is fully able to

adjudicate and determine whether the same Compact claim

raised here overrides such a law.’

' There is similarly no merit in Virginia’s contention that

the Maryland Governor’s views of the permit request

constitute evidence of impermissible “partiality” (Br. at 27)

(continued...)

15

Virginia’s claim that “Maryland’s water appropriation

permitting system violates Virginia’s interstate compact

rights,” Br. at 29, is even less appropriate for the exercise of

this Court’s original jurisdiction. Virginia concedes that

“Maryland, to date, has not denied any Virginia user a

permit to appropriate water from the Potomac River.” /d.

This includes the Authority, which obtained its most recent

appropriation permit in 1996. Br. at 13. This concession

confirms the absence of any justiciable controversy as to the

water appropriation issue.

Moreover, despite Virginia’s assertion that the pending

Maryland administrative proceeding is “not an alternative

forum to resolve Virginia’s claim” with respect to water

appropriation, Br. at 29, that claim would properly be the

subject of a future administrative proceeding in the unlikely

event that a Virginia entity is ever denied an appropriation

permit. As with the pending waterway construction

litigation, Virginia’s Compact claim would have to be

decided in any such future Maryland administrative

litigation if a waterway appropriation permit request is to be

denied. ,

Virginia has simply failed to demonstrate any manifest

need for this Court to exercise its jurisdiction, as an

alternative forum exists in which Virginia’s claims can be

resolved and in fact are now in the process of being decided.

The motion for leave should accordingly be denied.

' (...continued)

that detracts from the adequacy of the ongoing Maryland

proceeding. Indeed, Virginia concedes elsewhere in its

brief that “the Governor of Maryland has no role under

Maryland law in the granting or denying of waterway

construction permits ....” /d. at 15.

16

II. THE RIPARIAN RIGHT TO BUILD FROM

THE VIRGINIA SHORE INTO THE

POTOMAC IS A PRIVATE RIGHT THAT IS

SUBJECT TO MARYLAND’S POLICE

POWER AUTHORITY TO REGULATE THE

ENVIRONMENT.

Even if this case presented a justiciable controversy that

cannot be remedied in another forum, Virginia’s motion for

leave should be denied because Maryland has not

transgressed Virginia’s Compact rights by regulating the

Potomac as it has in this case. As this Court has stated, “the

requirement of a motion for leave to file a complaint, and

the requirement of a brief in opposition, permit and enable

us to dispose of matters at a preliminary stage.” Ohio v.

Kentucky, 410 U.S. 641, 644 (1973) (citing Alabama v.

Texas, 347 U.S. 272 (1954); California v. Washington, 358

U.S. 64 (1958); Virginia v. West Virginia, 234 U.S. 117

(1914)). Referring this case to a special master is

unwarranted and would “needlessly add to the expense that

the litigation must bear,” Ohio v. Kentucky, 410 U.S. at 644,

because Virginia has no cause of action as a matter of law.

A. Maryland Has Not Surrendered Its Police

Power Authority To Regulate The Submerged

Lands Beneath The Potomac.

Virginia places heavy reliance on the Compact of 1785

in arguing that Maryland does not have the authority to

regulate the placement by Virginia citizens of wharves and

improvements beyond the low water mark in the Maryland

portion of the Potomac River. Br. at 22, 30. Nothing in the

Compact, however, strips Maryland of its inherent ability to

exercise regulatory jurisdiction over construction within its

territory.

Article VII of the Compact, upon which Virginia’s

claims rest, provides:

17

The citizens of each state respectively shall have

full property in the shores of [the] Patowmack river

adjoining their lands, with all emoluments and

advantages thereunto belonging, and the privilege

of making and carrying out wharfs and other

improvements, so as not to obstruct or injure the

navigation of the river. . . .

(App. 3a.) The “privilege of making and carrying out

wharfs and other improvements, so as not to obstruct or

injure the navigation of the river” is a private property right,

traditionally referred to as a “riparian right.” See, e.g.,

Yates v. Milwaukee, 77 U.S. (10 Wall.) 497, 504 (1870)

(riparian ownership includes “the right to make a landing,

wharf or pier . . . subject to such general rules and

regulations as the legislature may see proper to impose for

the protection of the rights of the public”); Dutton v. Strong,

66 U.S. (1 Black) 23, 31-32 (1861) (riparian right to

construct wharves and piers limited so as not to obstruct

“the paramount right of navigation”); Norfolk City v. Cooke,

68 Va. (27 Gratt.) 430, 434 (1876) (“These rights both at

common law and by statute, are secured to the riparian

owner, to erect wharves, piers, or bulk heads . . . subject

only to such general rules and regulations as the legislature

may prescribe; and the only limitation upon such right is,

that navigation may not be obstructed, or the rights of others

be injured.”); Baltimore & Ohio R. Co. v. Chase, 43 Md. 23,

35-36 (1875). See generally Shively v. Bowlby, 152 U.S. 1,

18-25 (1894) (summarizing the riparian rights available to

citizens of the original thirteen colonies).

Courts in Virginia, Maryland, and elsewhere have

universally recognized that, like all private property rights,

“riparian rights” such as the property rights reserved in the

Compact are subject to regulation under the government’s

police power. See, e.g., Taylor v. Commonwealth, 102 Va.

759, 47 S.E. 875, 880 (1904) (“we think it well established

that the right to build wharves is one which is subject to

state regulation”); Harbor Island Marina, Inc. v. Board of

County Com'rs of Calvert County, 286 Md. 303, 318-19,

18

407 A.2d 738, 746-47 (1979) (as property, the riparian right

to wharf out is subject to public regulation). It is well-

settled that the States’ police power includes the right to

regulate for environmental protection. See, e.g., Bureau of

Mines of Maryland v. George’s Creek Coal & Land Co.,

272 Md. 143, 175, 321 A.2d 748, 765 (1974) (mining

regulation constitutes a “reasonable regulation under the

State’s police power calculated to protect the environment

and to preserve State-owned land for public use for present

and future generations of citizens”); Kepo’o v. Watson, 87

Hawaii 91, 99, 952 P.2d 379, 387 (1998) (environmental

regulation is an exercise of the State’s police power); Olds-

Olympic, Inc. v. Commercial Union Ins. Co., 129 Wash.2d.

464, 479 n.18, 918 P.2d 923, 930 n.18 (1996) (same); Hayes

v. Howell, 251 Ga. 580, 585, 308 S.E.2d 170, 176 (1983)

(same).

Article VII of the Compact contains no language

waiving the power of either Maryland or Virginia to

regulate those reserved rights, which have always been

subject to governmental regulation on both sides of the

Potomac. On the contrary, the Compact does not give rise

to even a suggestion that either State intended to give up

such a power. Nor could it, as implying an intent to

relinquish such an attribute of sovereignty would directly

contravene two fundamental principles, each of which

confirms that Maryland retained its sovereign right to

reguiate the exercise of riparian rights within its territory.

First, under the “reserved powers” doctrine, a State may

not contract away certain sovereign powers, including its

police power. See, e.g., Stone v. Mississippi, 101 U.S. 814

(1879); West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507

(1848). See also United States v. Winstar Corp., 518 U.S.

839, 874 & n.20, 888-89 & nn.33 and 34 (1996). In these

cases, “the power of the State to establish all regulations

that are reasonably necessary to secure the health, safety,

good order, comfort, or general welfare of the community

. . . Can neither be abdicated nor bargained away, and is

inalienable even by express grant.” Atlantic Coast Line R.

19

Co. v. City of Goldsboro, 232 U.S. 548, 558 (1914) (quoted

in United States v. Winstar, 518 U.S. at 888). Regulation of

riparian rights is no exception to the rule that a State cannot

surrender its police power, as “all contract and property

rights are held subject to its fair exercise.” Jd.

Second, even when a sovereign power can be

relinquished by contract, such a contract is subject to the

well-established canon of construction that no sovereign

power will be considered surrendered absent clear and

unambiguous language set forth in “unmistakable terms.”

Bowen v. Public Agencies Opposed to Social Security

Entrapment, 477 U.S. 41, 52 (1986) (quoting Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982)). See

generally United States v. Winstar, 518 U.S. at 871-79.

Thus, in these cases, “neither the right of taxation, nor any

other power of sovereignty, will be held . . . to have been

surrendered, unless such surrender has been expressed in

terms too plain to be mistaken.” Jefferson Branch Bank v.

Skelly, 66 U.S. (1 Black) 436, 446 (1861); see also

Providence Bank v. Billings, 29 U.S. (4 Pet.) 514 (1830).’

The principles set forth in these cases confirm that

Maryland has not waived its right to regulate the exercise of

> While these principles have been developed under the

Contract Clause, they have been applied to treaties between

sovereigns. See United States v. Cherokee Nation of

Oklahoma, 480 U.S. 700 (1987) (holding that the United

States had not waived its sovereign interest in its

navigational servitude in submerged lands when it entered

into a treaty with the Choctaw Indian tribe of the sovereign

Cherokee Nation conveying title to those lands). Therefore,

“whenever any power of the state is said to be surrendered

or diminished, whether it be the taxing power or any other

affecting the public interest, the same principle applies, and

the rule of construction must be the same.” Proprietors of

Charles River Bridge v. Proprietors of Warren Bridge, 36

U.S. (11 Pet.) 420, 548 (1837).

20

riparian rights within its portion of the Potomac, whether by

Virginians or Marylanders. Virginia retains the same right

with respect to construction within the Virginia portion of

the river. See Compact of 1958, Preamble (App. 60a)

(declaring that “Maryland is the owner of the Potomac

River bed and waters to the low water mark of the southern

shore thereof” and that “Virginia is the owner of the

Potomac River bed and waters southerly from said low

water mark”). The Compact did not surrender or restrict

Maryland’s police powers within its own territory because

those powers cannot be surrendered, and the Compact in

any event contains no language — much less the requisite

“unmistakable terms” — demonstrating that Maryland

intended such a surrender. See also United States v.

Winstar, 518 U.S. at 877-78 (describing Jicarilla Apache

Tribe, 455 U.S. 130, and Cherokee Nation of Oklahoma,

480 U.S. 700, as refusing to infer from silence a waiver of

sovereign power).

Consistent with these principles. courts have repeatedly

upheld Maryland’s jurisdiction over piers, structures, and

other riparian interests extending from Virginia into

Maryland territory. See, e.g., O'Neal v. Virginia & M.

Bridge Co., 18 Md. 1 (1861) (upholding over arguments of

Virginia Attorney General Maryland’s right to tax portions

of cross-Potomac bridge within Maryland); Miedzinski v.

Landman, 218 Md. 3, 145 A.2d 220 (1958) (upholding

Maryland s*atute passed at request of Governor of Virginia

barring the operation of gaming devices on piers built out

into the Potomac from the Virginia shore); Bostick v. Smoot

Sand & Gravel Corporation, 260 F.2d 534 (4th Cir.1958)

(upholding application of Maryland law to Virginians’

riparian right to sand and gravel in the Potomac River).

Similarly, Virginians have for years recognized

Marylarid’s jurisdiction over structures in the Maryland

portion of the Potomac by applying to MDE and its

predecessors for permits. For example, both the Town of

Leesburg, Virginia in 1967, and the Authority in 1977 and

again in 1996, applied to Maryland for permits to undertake

21

waterway construction in the Potomac. These actions

further illustrate that Maryland did not relinquish its police

power authority over the exercise of riparian rights when it

entered into the Compact with Virginia in 1785, as “[i]t is

hornbook contracts law that the practical construction of an

ambiguous agreement revealed by later conduct of the

parties is good indication of its meaning.” New Jersey v.

New York, 523 U.S. 767, 830-31 (1998) (Scalia, J.,

dissenting). See also Air France v. Saks, 470 U.S. 392, 396

(1985), quoting Choctaw Nation v. United States, 318 U.S.

423, 431-32 (1943); Vermont v. New Hampshire, 289 U.S.

593, 619 (1933).

Interpreting the Compact as effecting a surrender of

Maryland’s jurisdiction over the exercise of riparian rights

within the navigable portions of the Potomac would also

conflict with the responsibilities of both Maryland and

Virginia under the public trust doctrine. This doctrine

provides that the States have the responsibility to preserve

the navigable waters and the lands submerged beneath them

for public use. Martin v. Waddell, 41 U.S. (16 Pet.) 367,

410-12 (1842); Shively v. Bowlby, 152 U.S. at 14-16;

Illinois Central R. Co. v. Illinois, 146 U.S. 387, 435 (1892);

Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473-74

(1988). Recognizing that the public trust doctrine is an

aspect of State sovereignty, this Court has observed that

“the State can no more abdicate its trust over property in

which the whole people are interested, like navigable waters

and soils under them . . . than it can abdicate its police

powers in the administration of government and the

preservation of peace.” J/linois Central, 146 U.S. at 453.

This abdication is precisely what Virginia claims was

the intent of both States when they entered into the

Compact. Under Virginia’s interpretation of the Compact,

neither Maryland nor Virginia would be able to act under

the public trust to regulate the exercise of riparian rights

between the low water mark and the navigable channel of

the Potomac River. Virginia would be powerless to act

beyond the low water mark because that is the limit of its

22

jurisdiction. Maryland would similarly be precluded by the

Compact from regulating in the same area for any purpose

other than navigation. Such a construction of the Compact

should be rejected because it directly contravenes public

trust responsibilities that this Court has long held the States

may not relinquish.

B. The Authority Has No Compact Right To Build

The Proposed Intake Because The Compact

Does Not Apply To The Non-Tidal Portion Of

The Potomac.

Virginia’s claim that the Compact surrendered

Maryland’s power to regulate the Authority’s proposed

intake fails for the additional and independent reason that

the 1785 Compact was never meant to apply to the non-tidal

stretches of the Potomac upstream of the District of

Columbia — where the proposed intake would be located. In

two decisions, the first of which dates back more than 170

years, Maryland courts have held that the Compact was

entered into to resolve the two States’ competing claims to

the navigable tidewater and its rich fisheries, and did not

apply to the non-navigable, non-tidal portion of the

Potomac. See Binney’s Case, 2 Bland 99 (Md. Ch. 1829);

Middlekauff v. LeCompte, 149 Md. 621, 132 A. 48 (1926).

Rather than challenge either of these decisiois, Virginia

entered into another Compact with Maryland in 1958 that

replaced the 1785 Compact, limited itself to the tidewater

portions of the Potomac (App. 60a, 66a), and carried

forward prior cases construing Article VII of the 1785

Compact. (App. 75a.) This history has two consequences.

First, “[t]he rule, long settled and never doubted by this

court, is that long acquiescence by one state in the

possession of territory by another and in the exercise of

sovereignty and dominion over it is conclusive of the

latter’s title and rightful authority.” Michigan v. Wisconsin,

270 U.S. 295, 308 (1926). Since 1829, Maryland courts

have construed the 1785 Compact to be inapplicable to the

non-navigable portion of the Potomac and have upheld

23

Maryland’s right to pass laws regulating that part of the

river. While Virginia argues that the first of the Maryland

courts’ interpretations “was rejected by the Black-Jenkins

arbitrators in 1877” and that the second one “was wrongly

decided,” Br. at 26 n.10, Virginia never initiated any

proceedings in this Court challenging those interpretations,

as it acknowledges it did in 1957 when it sought “to enjoin

Maryland from abrogating the Compact of 1785 by

unilaterally regulating fishing activities in the tidal portion

of the Potomac River.” Jd. at 6 (emphasis added) (citing

Virginia v. Maryland, 355 U.S. 269 (1957)). It is too late

now to challenge Maryland’s right to regulate the non-tidal

portion of the Potomac. See Ohio v. Kentucky, 410 U.S.

641, 650 (1973) (rejecting motion for leave to add claim

when “Ohio for over 150 years has failed to assert, through

proceedings available in this Court, the claim it now would

raise in the face of Kentucky’s legislative and judicial

assertions of sovereignty over the river.”) (footnotes

omitted).°

Second, the Compact does not address the non-tidal

stretches of the Potomac because Maryland did not have the

power to grant riparian privileges to the submerged lands of

the non-navigable Potomac. Upon statehood, Maryland and

the other original colonies succeeded to the King of

England’s title to the land beneath the navigable waters.

Shively v. Bowlby, 152 U.S. at 11-15. Under the English

* See also California v. Nevada, 447 U.S. 125, 132 (1980)

(“If Nevada felt that those [boundary] lines were inaccurate

and operated to deprive it of territory lawfully within it[s]

jurisdiction the time to object was when the surveys were

conducted, not a century later.”); Michigan v. Wisconsin,

270 U.S. at 307 (observing that “for a period of more than

60 years [Michigan] stood by without objection, with full

knowledge of the possession, acts of dominion, and claim

and exercise of jurisdiction on the part of the state of

Wisconsin over the area in question.”’).

24

common law definition of navigability, “navigable waters”

were limited to waters that were subject to the ebb and flow

of the tide — tidewaters. See The Genessee Chief v.

Fitzhugh, 53 U.S. (12 How.) 443, 453-57 (1851). See also

Barney v. Keokuk, 94 U.S. (4 Otto) 324, 336 (1876) (“[I]n

England, no waters are deemed navigable except those in

which the tide ebbs and flows.”). American courts applied

the English common law “ebb and flow of the tide” test to

determine navigability until 1851. Compare The Thomas

Jefferson, 23 U.S. (10 Wheat.) 428 (1825) with The

Genessee Chief v. Fitzhugh, 53 U.S. (12 How.) at 453-57;

The Daniel Ball, 77 U.S. (10 Wall.) 557, 563 (1870);

Barney v. Keokuk, 94 U.S. (4 Otto) at 337-38. Accordingly,

at the time the two States entered into the Compact,

Maryland held title only to the submerged lands beneath the

tidal waters. Browne v. Kennedy, 5 Harris & J. 195 (Md.

1821).

Maryland did not have the power, therefore, to grant

Virginians riparian privileges to the submerged lands in the

non-tidal Potomac because those lands were privately held

as of 1785. Cf. United States v. Percheman, 32 U.S. (7 Pet.)

51, 87 (1833) (in entering into treaties, “[t]he king cedes

that only which belonged to him”). In the tidal Potomac, by

contrast, Maryland could convey Virginians a right-of-way

beyond the low water mark because Maryland owned the

submerged lands. The Compact thus applies only to the

tidal portions of the Potomac. See Strother v. Lucas, 37

U.S. (12 Pet.) 410, 438 (1838) (“No construction of a treaty

which would impair that security to private property which

the laws and usages of nations would without express

stipulation have conferred, would seem to be admissible

further than its positive words require.”).

The rights reserved by Article VII of the 1785 Compact

ensured that Virginia’s citizens would not be cut off from

the navigable portion of the Potomac and would continue to

be able to exercise their riparian rights to wharf out.

Without entering into such an agreement, Maryland could

have reserved the submerged lands beyond the low water

25

mark for the exclusive use of Marylanders. See, e.g.,

McCready v. Virginia, 94 U.S. (4 Otto) 391 (1876)

(upholding conviction of a Maryland citizen under Virginia

statute making it illegal for any non-Virginian to plant

oysters in the submerged lands of Virginia’s navigable

waters); Taylor v. Commonwealth, 102 Va. 759, 47 S.E. at

879 (observing McCready established that “the navigable

waters and the soil under them, within the territorial limits

of a state, are the property of the state, to be controlled by

the state, in its own discretion, for the benefit of the people

of the state”). Thus, the Compact gave Virginians the

valuable right to wharf out beyond the low water mark to

the navigable channel in the Maryland portion of the

Potomac. Such a riparian right, however, had always been

subject to government regulation under the police power

and the States’ paramount interest in lands covered by the

navigable waters.

C. Maryland Has The Authority To Regulate

Water Withdrawals From Its Territory.

Virginia’s claim that Maryland may not regulate the

withdrawal of water from its own territory is similarly

without merit. For support of this remarkable proposition,

Virginia relies entirely on the “equitable apportionment”

doctrine frequently applied to resolve two States’ competing

interests in interstate waters. Br. at 23. But none of the

Court’s equitable apportionment cases have involved a

situation where, as here, one State seeks to withdraw water

from another State’s territory. As the Court declared in a

seminal equitable apportionment decision, “{i]t is enough

for the purposes of this case that each state has full

jurisdiction over the lands within its borders, including the

beds of streams and other waters.” Kansas v. Colorado,

206 U.S. 46, 93 (1907). See also United States v. Rio

Grande Dam & Irrigation Co., 174 U.S. 690, 702-03 (1899)

(“as to every stream within its dominion a state may .. .

permit the appropriation of the flowing waters for such

as it deems wise”); Sporhase v. Nebraska ex rel.

Douglas, 458 U.S. 941, 956-57 (1982) (recognizing State’s

26

police power to regulate water withdrawals within its

boundaries, while striking down Nebraska’s reciprocity

requirement as discriminating against interstate commerce

in appropriated groundwaters). There is simply no authority

to support the proposition that a State may not regulate the

reasonable use of waters within its boundaries.

In sum, even if this case presented a justiciable issue for

which there is no adequate alternative forum, Virginia’s

motion for leave should be denied because Maryland has

not violated any rights in regulating the Potomac as it has

for the past two centuries. This case presents no question

warranting the exercise of this Court’s jurisdiction.

CONCLUSION

For the reasons stated, the motion for leave should be

denied.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

ANDREW H. BAIDA*

Assistant Attorney General

200 St. Paul Place

Baltimore, Maryland 21202

(410) 576-6318

ADAM D. SNYDER

Assistant Attorney General

2500 Broening Highway

Baltimore, Maryland 21224

(410) 631-3034

A s for Defendant

*Counsel of Record State of Maryland