Opposition Brief — New Jersey v. Delaware

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IN THE OCT 27

Supreme Court of the United States:

STATE OF NEW JERSEY,

Plaintiff,

STATE OF DELAWARE,

Defendant.

On Motion To Reopen and for a Supplemental Decree

BRIEF OF THE STATE OF DELAWARE IN OPPOSITION

TO THE STATE OF NEW JERSEY’S MOTION TO

REOPEN AND FOR A SUPPLEMENTAL DECREE

M. JANE BRADY DAV C. FREDERICK

Attorney General Counsel of Record

CARL C. DANBERG SCOTT H. ANGSTREICH

KEVIN P. MALONEY Scort K. ATTAWAY

DELAWARE DEPARTMENT PRIYA R. AIYAR

OF JUSTICE KELLOGG, HUBER, HANSEN,

Carvel State Office Building TobD, EVANS & FIGEL,

Wilmington, DE 19801 P.L.L.C

(302) 577-8338 1615 M Street, N.W

Suite 400

COLLINS J. SEITZ JR. Washington, D.C. 20036

MATTHEW F. BOYER (202) 326-7900

KEVIN F. BRADY Special Counsel to the

MAX B. WALTON State of Delaware

CONNOLLY BOVE LODGE

& Hutz LLP

The Nemours Buiuding

1007 N. Orange Street

Suite 878

Wilmington, DE 14801

(302) 658-9141 |

Special Counsel to jhe

State of Delaware October 27. 2005

Per HN SERRE MIRE

EEA KAA DEG ARR OORT 2D OE

-~-—+*

re ee

QUESTIONS PRESENTED FOR REVIEW

1. Whether New Jersey has suffered any injury by

Delaware's denial of a permit to B.P. p.l.c. (“BP”) suffi-

cient to warrant the exercise of this Court's original juris-

diction, when administrative reviews of BP’s Crown Land-

ing project are still pending before New Jersey and United

States administrative agencies.

2. Whether original jurisdiction exists where BP, not

New Jersey, is the real party in interest, and New Jersey

could obtain all the benefits of the project by permitting it

to be located at another site that does not encroach on

Delaware's sovercign territory.

3. Whether a 1905 Compact between Delaware and

New Jersey that authorizes each State “on its own side of”

the Delaware River to “continue to exercise riparian ju-

risdiction of every kind and nature, and to make grants,

leases, and conveyances of riparian lands and rights un-

der the laws of the respective States,” gives New Jersey

“exclusive” riparian jurisdiction that prohibits Delaware

from applying its coastal zone management laws to deny

BP’s proposal to construct a massive bulk transfer facility

on Delaware's subaqueous lands.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW....................... i

ee Ce Ce OED citisccccccscstccsintertntensmnannetatsinnteds vil

IED ctinencesntenitichsensnsnteiscnésijimssinachdiitenenieninnebneeee

Fe intindntccircintsnacintinetntinannntignesonmnmessinnniieitioniniiiin 2

CONSTITUTIONAL AND STATUTORY

Fe CEE erciciccensensnsecttacectsnecccnsstnoccessesnesie’ 3

CLE GS CO EE Cece cecttnenossessnnssosnscsennesenienssensie 4

A. Delaware’s Sovereignty Over The Dela-

ware River Within The Twelve-Mile Circle ............4

BT INI a ccicsnitnemivesiicitdenicttiniintndeiattomiasensnen lll

C. The Current Dispute Between BP And

NN iccncisthstisnstenapapiitinniaienn OY ]

1. Delaware's Permitting Process........................ 14

2. New Jersey's Permitting Process..................... 16

%’. The FERC Process for Approval of the

Crown Landing Project .................c0cccceceeceeeeeees 17

SUMMARY OF ARGUMENT ....................... ae

IE snschthecniintibiiintpidieinetanectaiiipeninninininandilans ———

I THE COURT SHOULD DENY NEW

JERSEYS MOTION FOR LACK OF

JURISDICTION ... scihpalieindlisiabeininsehiiinteinhidaicahsda

;

A. New Jersey's Motion Does Not Invoke

This Court’s Retained Jurisdiction To

Enforce The 1935 Decree .....................cc000e0e0-0- 23

B. This Court Lacks Origina) Jurisdiction

Over New Jersey's Motion, Even If

Treated As A Motion For Leave To File A

New Original Action....................cc00000- intend 25

1. New Jersey cannot demonstrate any

“injury” caused by Delaware ......................25

2. BP, not New Jersey, is the real party

C. Even If This Court Has Original Juris-

diction Over New Jersey's Motion, It

Should Decline To Exercise That Juris-

Il. DELAWARE HAS THE AUTHORITY UN-

DER THE 1905 COMPACT TO REGULATE

RIPARIAN STRUCTURES ERECTED ON

DELAWARE’S SUBMERGED LANDS................. 35

A. Prior To The 1905 Compact, Delaware

Unquestionably Had The Authority To

Regulate Or To Exclude Altogether On

Delaware Submerged Lands A Struc-

ture Such As BP’s LNG Bulk Transfer

SSE ne ae ar 36

1. As owner of the tidal lands in ques-

tion, Delaware holds the lands in a

public trust for the people 00.0000... 36

Even without a public trust relation-

ship, Delaware has police authority

to regulate uses of its submerged

ES ae eee wees oe ee

Under New Jersey law, the owner of

riparian lands could not build struc-

tures on navigable waters on sub-

merged lands the landowner did not

Nothing in pre-1905 riparian rights

law would have led the States to

think that Delaware lacked authority

to regulate a massive 2,000-foot-long

structure extending onto its sover-

i ircticinrsicitecinicteptntiidisitstictstcnssnseve

. The 1905 Compact Did Not Alter Dela-

ware’s Authority To Regulate Structures

Built On Its Subaqueous Lands

Use of “continue” indicates that the

States intended to maintain the

Use of “on its own side” indicates

that the States intended to preserve

existing rights pending the outcume

of the boundary dispute ..................00....

Nothing in the 1905 Compact dimin-

ished Delaware's pre-existing author-

ity over its subaqueous lands..................

. New Jersey's Arguments For “Exclusive”

eee eee eee ee eee eee

Riparian Jurisdiction Are Unpersuasive ....... 56

1. The States intentionally did not con-

fer “exclusive” authority with respect

CO riparian Tights occ ccc seeeeesesese-s... 56

2. The meaning of “riparian jurisdic-

tion” cannot extend beyond the

State’s boundary ooo ecco. 58

3. New Jersey's invocation of other mis-

cellaneous Compact provisions is un-

ett

4. New Jersey's argument that the

States’ “contemporaneous construc-

tion” of the Compact supports its ex-

clusive jurisdiction has no ee |

5. New Jersey's reliance on Delaware's

alleged “concessions” in the 1934

boundary is misplaced... a 68

D. Virginia v. Maryland Does Not Deny

Delaware The Right To Exercise Its

Coastal Zone Laws And To Reject A

Structure Built On Delaware Subaque-

ous I sescccsssnicsenessnsertensststneenssasenesssscanee,.... 00

If. APPOINTMENT OF A SPECIAL MASTER

IS WARRANTED IF THE COURT TAKES

JURISDICTION OVER THIS CASE BUT

CANNOT RESOLVE IT SUMMARILY

AGAINST NEW JERSEY

]

APPENDIX

TABLE OF AUTHORITIES

Page

CASES

Alabama v. Arizona, 291 U.S. 286 (1934) ................... 25, 26

Ampro Fisheries, Inc. v. Yaskin, 588 A.2d 879

(N.J. Super. Ct. App. Div. 1991), aff'd in part

and rev'd in part, 606 A.2d 1099 (N.J. 1992)................ 7

Arizona v. New Mexico, 425 U.S. 794 (1976) .................... 34

Axline v. Shaw, 17 So. 411 (Fla. 1895).................00.....200 42

Bailey v. Driscoll, 112 A.2d 3 (N.J. Super. Ct.

App. Div.), aff d in part and rev'd in part, 117

Ny Ce iiesdnceditinipntsenintinnined 42, 43, 44, 45

Bennis v. Michigan, 516 U.S. 442 (1996) .......0......0.:0.0000- 71

Bouquet v. Hackensack Water Co., 101 A. 379

I i a ell 44

California v. Texas, 457 U.S. 164 (1982)..........ccccccecereeeneee D2

California v. United States, 457 U.S. 273 (1982) ............. 77

City of Wilmington v. Parcel of Land Known as

Tax Parcel No. 26.067.00.004, 607 A.2d 1163

(Del. 1992)... snecidaapalibaemaaiiiibitiniinimineenmial

Coastal Barge Corp. v. Coastal Zone Indus.

Control Bd., 492 A.2d 1242 (Del. 1985)....................... 55

Cuyler v. Adams, 449 U.S. 433 (1981)................---. 45

Delaney v. Boston, 2 Harr. 489, 1839 WL 165

As I ala 8

Dut.on v. Strong, 66 U.S. (1 Black) 23 (1861)................... 44

viii

Florida v. Mellon, 273 U.S. 12 (1927) .......ccccccccc00c000-------.. 29

Georgia v. Pennsylvania R.R. Co., 324 U.S. 439

RT Se ae OTE TO eee Te PC eS 28

Georgia v. Tennessee Copper Co., 206 U.S. 230

SENSES Ene Se SS aR ON ae ee eS 40

Green v. Biddle, 21 U.S. (8 Wheat.) 1 (1823) .......0000..0.0000. 45

Harlan & Hollingsworth Co. v. Paschall, 5 Del.

Ch. 435, 1882 WL 2713 (Del. Ch. 1882)... 8

Harris v. Elliott, 35 U.S. (10 Pet.) 25 (1836)..................... 46

Heckler v. Community Health Servs. of Crawford

County, Inc., 467 U.S. 51 (1984) occ cccceceeee 42

Henderson Bridge Co. v. Henderson City, 173

U.S. 692 (1899) ...................... iqustipubestoansetbninssiattineacests +39

Hoboken v. Pennsylvania R.R. Co., 124 U.S. 656

SIE EET Tee SOTO ET 43

Hudson County Water Co. v. McCarter, 209 U.S.

ss A —

Idaho v. Coeur d'Alene Tribe of Idaho, 521 US.

261 (1997) .. a

Idaho ex rel. Evans v. Oregon, 462 US. 1017

EEE re eee a 74

Illinois v. Michigan, 409 U.S. 36 (1972)............ 27, BO, 34

Illinois Central R.R. Co. v. Illinois, 146 U.S. 387

ET A Sa as § Fl

Kansas v. Colorado, 543 U.S. 86 ee 75

Karam v. New Jersey Dep't of Envtl. Protection,

Super. Ct. App. Div

1998), aff'd, 723 A.2d 943 (N.J. 1999).....................

Lee v. Munroe, 11 U.S. (7 Cranch) 366 (1813)

Louisiana v. Mississippi, 488 U.S. 990 (1988).....0.........0068

Louisiana v. Texas, 176 U.S. 1 (1900)...................22, 27,

Lujan v. Defenders of Wil

dlife, 504 U.S. 555

B. & R. Enters.,

181 A.2d 541 (N.J. Super. Ct. Ch. Div. 1962) ........... |

Main Assocs.,

Martin v. Lessee of Waddell, 41 U.S. (16 Pet.) 367

Louisiana, 451 U.S. 725 (1981)...................

Massachusetts v. Missouri, 308 U.S. 1 (1939).......2!

S 352 (1917)

Rambo, 515 U.S.

Mississippi t

Missouri v. Illinois, 200 S. 496 (1906)...........

United State

Wyoming, 515 U

Hampshire

.38

..67

New Jersey v. Delaware:

ey I cccrinactinsenssicinctinietinniteinsivsdasiinsebmabictiial 6

291 U.S. 361 (1934)............ 4, 5, 6, 23, 24, 49, 50, 63, 68

eee UT ciiicdesincncsscenstosseisivibenintas 1, 5, 23, 24, 70

New Jersey v. New York, 523 U.S. 767 (1998) ............45, 75

New York v. Illinois, 274 U.S. 488 (1927) .....cccccccccccceeeeees 29

New York v. New Jersey, 256 U.S. 296 (1921) ............23, 29

Newark Plank Road & Ferry Co. v. Elmer, 9 NJ.

Fq. 754, 1855 WL 122 (N.J. 1855) occccccccseccscesseeseee 43-44

Norfolk & N.B. Hosiery Co. v. Arnold, 45 A. 608

Norfolk Southern Corp. v. Oberly, 822 F.2d 388

I TI ictal i laces 55

North Dakota v. Minnesota, 263 US. 365

ETE ee RT ON OCTET 25, 30, 31

Northern Pine-Land Co. v. Bigelow, 54 N.W. 496

a aihes caicahaideleaaia tat A an 41

O'Connor wv. United States, 479 U.S. 27 (1986) .........00005. 46

Oklahoma v. New Mexico, 501 U.S. 221 (1991).......... 46, 75

Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387

ESTEE RSE CNR ne ESET TT: 30

Pea Patch Island, In re, 30 F. Cas. 1123 (Arb. Ct.

I i 4

Pennsylvania v. New Jersey, 426 U.S. 660 (1976)............ 25

Pennsylvania v. West Virginia, 262 U.S. 553

CTBBED ...cecrcccccesscescsornscrcssescossescccssonssoscssvecsorsvssesesesesseooess 27

Phillips Petroleum Co. v. Mississippi, 484 U.S.

BOD (IDOE) ....202000000000000-esesccesssccsccssncovossnseserrevesesesssssossoes 37

Proprietors of Charles River Bridge v. Proprietors

of Warren Bridge, 36 U.S. (11 Pet.) 420 (1837)........... 46

Rhode Island v. Massachusetts, 37 U.S. (12 Pet.)

GBT CIGD) ..ccrccccscccccvsecscoccccesescsccesessoscccsccsssosssssssoscsereeces 37

Russello v. United States, 464 U.S. 16 (1983).........00000297

Shields v. Keystone Cogeneration Sys., Inc.,

611 A.2d 502 (Del. Super. Ct. 1992 «00... cece ceeeeeeeeees 33

Shively v. Bowlby, 152 U.S. 1 (1894).......ccceeceeererens 37, 43

Sporhase v. Nebraska ex rel. Douglas, 458 U.S.

ee 74

State v. Federanko, 139 A.2d 20 (N.J. 1958)...........ccccceeee 66

State v. Reybold, 5 Harr. 484, 1854 WL 847

BT TI cisscccnseescsbedsnidoninivisenisseinnintnisacninicianasensatqrestenenl 8

Stevens v. Paterson & Newark R.R. Co., 34 N.J.L.

532, 1870 WL 5140 (N.J. 1870) ........ cece ceeeeeceeeeree ee 44, 46

Texas v. New Mexico, 482 U.S. 124 (1987) ...........0cceeeeee TB

TRW Inc. v. Andrews, 534 U.S. 19 (2002) .........ccec cere BG

United States v. Alaska, 521 U.S. 1 (1997) .................36, 37

United States v. Cherokee Nation, 480 U.S. 700

CBDBAD ccccccescccessscccrsscecescsssncsnesssesessconcscnccsostnbsssoncnsscossess 46

Virginia v. Maryland, 540 U.S. 56 (2003)..... 31, 32, 36, 47,

50, 51, 61, 72, 73, 74, 75, 77

Weber v. Board of Harbor Comm'rs, 85 US.

West 205th Street in City of New York, In re.

re ee I, i 4)

Wyoming v. Oklahoma, 502 U.S. 437 (1992)........ 29, 30, 34

Yates v. City of Milwaukee, 77 U.S. (10 Wall.) 497

ADMINISTRATIVE DECISIONS

Decision and Order, Jn re Coastal Zone Status

Decision on the Application of Crown Landing

LLC, Appeal No. C2 2005-01 (Del. Coastal

Zone Indus. Control Bd. Apr. 14, 20085) ................ 15, 64

CONSTITUTION, STATUTES, REGULATIONS,

AND RULES

Federal

U.S. Const. art. I, § 8, cl. 3 (Commerce Clause) ......... 55, 74

Act of June 28, 1834, ch. 125, 4 Stat. 708

(1834 New Jersey-New York Compact)......0....0.0........ 57

RRO RON eee A 57

Act of Jan. 24, 1907, ch. 394, 34 Stat. 858

(1905 Delaware-New Jersey Compact) ............... passim

Clean Air Act, 42 U.S.C. §§ 7401 et seq. ooo.ccccccccccecccee 19, 26

ees

Clean Water Act of 1977, § 404, 33 U.S.C. § 1344......11, 20

Coastal Zone Management Act of 1972, 16 U.S.C.

a icing 11

16 U.S.C. § 1456(C)(3)(A)........c0ecesserersereeseserssenenrrers 11, 26

Energy Policy Act of 2005, Pub. L. No. 109-58,

TBD Beet. GOG.....ccccccccccccocccccsscocccsvssscecscscescvsssccssonccoee sees 13

§ B11(c)(2), 119 Stat. G86... reeceeereerstenererrereennees 13

National Environmental Policy Act of 1969,

42 U.S.C. 65 4321 €8 200. ..-20.00000000s000-.ssccserserecrererssseoess 13

4B U.S.C. § 4BBB .....00.c0ecesccccer-rerrescrverrenesessoerensnsoese 13, 17

Natural Gas Act, 15 U.S.C. §§ 717 et seq.:

§ 3(a), 15 U.S.C. § 71 Tf a)........cccceeereeeeneseernennennees 11,17

§ BA), 15 U.S.C. § PL TDA) .....eercecsesceeeerenseserererstneeetnnns 13

§ Ble)(1), 15 U.S.C. § TL TD(C)L) -...eececcerseeeereteneesceeenenes 13

River and Harbor Act of 1899, § 10, 33 U.S.C.

MATERIA TET RITES 11, 20

33 C.F.R.:

BR a sccccvenecicssnnncinnnentitccicnsdssatiitunnpeticnamanaintenaninaientintcn il

Oe DIF vecsnctcncnsecnnvesecnsnseccousnienbttmncnesonnenentniverocenniitaien 17, 20

Pt. 325:

§ BZ. 2M D)Cii).....---csssoesssecesorssrererensssrsensessseenenseres 13

40 C.F.R. § 1501.6 «0.0... eee senttniaannnneiin 17

KIV

Delaware

8 8

Coastal Zone Act, Del. Code Ann. tit. 7,

GRRE EAT Pe A ee Pn a RT Os 12

ER a ee A. © 1, 55

REC ay nee a ne a 12,14

TET ida iatniecitetaielabiaate adalat oan 12, 55

SE eee ee nee en ae NOE Ny. 33, 34

Subaqueous Lands Act, Del. Code Ann. tit. 7,

Underwater Lands Act, Del. Code Ann. tit. 7,

§§ 6151-6159 (repealed 1986) 0000.00... ccceeeeeeuee 61, 68

Del. Code Ann. tit. 7:

RET 61, 68

TRI TID IT a ieisacennhiniseteidiieignmontiieialiatsel 66

23 Del. Laws ch. 5 (1905) sanedennennashnasensnenmensevesssinnntotsecnsantonel 6

BB IGE. EO a, BO CIGBN) 00. csecsscosesesscccsccensesconsssoveesd 61, 68

eT 6]

65 Del. Lawa ch. 6808 (1986)..............ccccccccsccossssssssocsessseesseee 61

New Jersey

4.N.J. Comp. St., Riparian Rights (1911):

§ DD .........scecrssersssosessecessoceveseerscsessessonerssnenssssasenenessnenssesenss 9

§G DG......cccrssccosesescessocesenconssvcessreesncersnssssssasenssacesenserssenseess 54

GBT... ccscseccsscererrssccssseseoerenrsrersernsenessasessssssonesensnsssssaenseoes 9

1851 N.J. Laws 335 (Wharf Act) ........:ccccceeeseneeeeeeerteeneeeres 44

1871 Nid. Laws ch. 307, § 1 .........::ccssercesrsesssresseserrerersenes 4

1905 N.J. Laws Ch. 42 .......cccccssecsscesessetesetenreenersenateraneennnnes 6

N.J. Stat. Ann.:

§§ 22:3-1 — 1223-25000... ee ceeseeeeeeeeneneneenessnenneneenenreenees 44

§ 1213-9... eceeessseeceeseceeenetseeeesrnestecsrseneneesnenesssesnnenennes 49

B 1B:B-2O....ccececccescvessseesensessesserovensessoussessesnnonvcsossoussosssenens i)

§ 1223-18000... esssesseserenereeeeeerseesenstrremarenstaereseesnennnanneass 49

§ 1223-21... .cerssseccsscersersensesenerersecnrsensrssntensensesusnensenenens 49

§ 12:3-BL..........rcccsrsesssereevesseorerescsoesesssssnsessrossoseseoeneses 9, 49

§ 12:3-2B 0.0... cersesseccesssssnsnserenenenessrrsssneesanenenaserssemesnsenes 49

§ 1228-24... cesecceceeessnsensenseneeerserercensssestresensesssnaensennens 49

§ 1223-25... ccceceesceeerssenestersesennsesereguessentesenessenaserenens 49

Tidelands Act, N.J. Stat. Ann. §§ 12:3-1 et seq. ........006 13

Waterfront Development Act, NJ. Stat. Ann.

I III. oscossoastennishcesaibaiecemseincersemeidaocenmuaiatinii 12-13

xvi

Wetlands Act of 1970, N.J. Stat. Ann. §§ 13:9A-1

SUSIE tiaelihthtbichhdedacuindadnebeunénuadbesanttmnmntyermeneibacetscenecudantiiens 13

N.J. Admin, Code §§ 7:76 et sq. ......2....ccccecseccecceeseeseeeseens 16

ITED itis ialiod esiciatnellanaiipnndendicinnisintsneiennaidoceviatninti 16

EERE SE I ne 16

i arash ioadtineriea ities esiineanoneitintni 16

EEF ESSE ON I eh ee a 16

SE ae ee 16

I Laieiiiniicictiecildaidi abit beasinsnditneisibepnnctwenepieenniaiiin 16

ADMINISTRATIVE MATERIALS

Application of Crown Landing LLC for Section 3

Authorization To Construct Liquefied Natu-

ral Gas Import Facility, Crown Landing LLC,

Docket No. CP04-411-000 (FERC filed Sept.

Se ET tntiistebiiceniittdenidiinepmibithehiatadeintbbeennineseinaenseess 17, 31

Crown Landing Response to FERC May 16, 2005

Additional Information Request, Docket No.

CP04-411-000 (FERC filed May 26, 2005).................. 15

Federal Energy Regulatory Commission:

Draft Environmental Impact Statement:

Crown Landing LNG and Logan Lateral

Projects (Feb. 2006) ................s.seseeceeeeee 10, 11, 17, 18, 19

Draft General Conformity Determination,

Crown Landing LNG and Logan Lateral

Projects, Docket Nos. CP04-411-000 & CP04-

I 19

LNG - Laws and Regulations: States’ Rights

in Authorization of LNG Facilities (updated

Aug. 17, 2005), available at http://www_-ferc.

gov/industries/Ing/gen-info/laws-:egs/state-

SIO ecececcccenecesctencecenssesenesescsuserscenssosvecsussssenecsesees 13

Findings of Robert W. Knecht, Assistant Admin-

istrator for Coastal Zone Management,

National Oceanic and Atmospheric Admini-

stration, Approval of the Delaware Coastal

Management Program (Aug. 21, 1979) ...........c0008 12

Formal Opinion 1954 — No. 3, 1954 N.J. Op. Atty.

EE Se 53, 58, 67

Letter from Michael Chezik, U.S. Dep’t of Inte-

rior, to Magalie Salas, Federal Energy Regu-

latory Commission (Apr. 13, 2005)... cee 18

Letter from Clifford Day, U.S. Dep't of Interior,

to LTC Robert J. Ruch, U.S. Army Corps of

Engineers (Apr. 29, 2005) ...........0:c0::c:ccesssssesererererenees 20

Letter from John Filippelli, U.S. Environmental

Protection Agency, to Magalie Salas, Federal!

a ee Commission _ 14,

Letter from John Hughes, Delaware Dep't of

Natural Resources and Environmental Con-

trol, to Magaliec Salas, Federal Energy Regu-

latory Commission (Apr. 13, 2005)......................+ 19

Letter from Susan Kennedy, Nationa! Oceanic

and Atmospheric Administration, to Magalie

Salas, Federal Energy Regulatory Commis-

SRE, Gt IE coneccannsespenscecssvevececvccssecenszccecsecscesses 18

Letter from Kenneth Koschek, New Jersey Dep't

of Environmental Protection, to Magalie

Salas, Federal Energy Regulatory Commis-

| __ RE T Sl Aa 19

Lever from David Q. Risilia, Office of Dredging

and Sediment Technology, to David Blaha,

Environmental Resources Management (Feb.

A STE erbiicntandnscitadapinitinniasnamtasiiaentnttii ane tai ai, 16, 65

Letter from David Q. Risilia, Office of Dredging

and Sediment Technology, to David Blaha,

Environmental Resources Management (July

ne SPITE eviianihddltinineiniiiabihaieiabinlaieiniid einen intents 16-17

letter from John Sherman, Planner ill, Dela-

ware Planning Office, to Richard Sullivan,

Commissioner, New Jersey Dep't of Envi-

ronmental! Protection (Feb. 23, 1972)... occ. 63

Letter from Herbert Ward, Attorney General of

Delaware, to John Hunn, Governor of Dela-

Sr i veceee OO

Memorandum from David S. Swayze and

Michael W. Teichman, Parkowski, Guerke &

Swayze (counsel for Crown Landing), to John

A. Hughes, Secretary, Delaware Dep't of

Natural Resources and Environmental Con-

I i ileal 14

Memorandum of Law of Appellant Crown Land-

ing, LLC, Coastal Zone Act Status Decision

published February 3, 2005 in Respect of the

Application of the Crown Landing LLC,

Docket No. 2005-1! (Del. Coastal Zone Indus.

Control Bd. filed Mar. 23, 2005) 000.000 occoccccccecccccecees 15

New Jersey Dep't of Environmental Protection &

National Oceanic and Atmospheric Admini-

stration, New Jersey Coastal Management

Program and Final Environmental Impact

Statement (Aug. 1980)...........00..---ececcceeesnenenennenes

Notice of Applications, Crown Landing LLC,

69 Fed. Reg. 59,906 (Oct. 6, 2004)...................

Notice of Availability of the Draft Environmental

Impact Statement, Crown Landing LLC,

70 Fed. Reg. 9297 (Feb. 25, 2008)...........:ceccereeees

Office of Ocean and Coastal Resource Manage-

ment, Nationa! Oceanic and Atmospheric

Administration, Summary of Provisions of the

Energy Policy Act of 2005 (Pub. L. No. 109-58)

Relating to the Coastal Zone Management Act

a i calemeltieanatin

Opinion No. 78-018, 1978 Del. Op. ae Gen.

(Dect. &, 297B).....2.20---cerecooes++ssecereesenenecenversersesorsrsces

State of Alaska, Department of Natural Re-

sources, Fact Sheet: Material Sale in Alaska

(Feb. 2004), at http://www.dnr.state.ak.us/

mlw/factsht/material_sites.pdf ........................66

OTHER MATERIALS

Joseph K. Angell, A Treatise on the Right of

Property in Tide Waters and in the Soul and

Shores Thereof (1847)...... ‘dtieistinanaasil

Robert E. Beck, Waters and Water Rights (2001

Replacement Volume) ...............c0ccceceeeeeneneenneens

Charles S. Boyer, Waterways of New Jersey: His-

tory of Riparian Ownership and Control Over

the Navigable Waters of New Jersey (1915) .......-....00-.-. 8

BP Press Release, BP Announces Plans for US

East Coast LNG Import Terminal (Dec. 4,

2003), available at http://www.bp.com/generic

article.do?categoryld=201 2968&contentId=

Crown Landing Informational Website, “What

is the current status of the project?,” at

http://www. bpcrownlanding.cum/go/doc/569/

83864/ (last visited Oct. 21, 2005) 0000. 20

1 Henry P. Farnham, The Law of Waters and

Water Rights (1904)... csccecsseessn35, 36, 38, 39, 41

Oral Arg. Tr., Virginia v. Maryland, No. 129,

Orig., 2003 WL 22335915 (U.S. Oct. 7, 2003)............. 74

Robert L. Stern, et al., Supreme Court Practice

eT etetatitetdctnitnaniceniatiinaiiiaihiteineschtin cai i 76

A. Dan Tarlock, Law of Water Rights and

EET AS IE NI seidnineal 9

Webster's International Dictionary (1898) ............ cece 48

18 Charles A. Wright, et al., Federal Practice and

EA LER aan aR 71

INTRODUCTION

New Jersey brings this action so that a subsidiary of

B.P. p.l.c. CBP”) can build a massive liquefied natura! gas

(“LNG”) processing terminal on lands within Delaware's

border, in a coastal area determined by Delaware's Gen-

eral Assembly to be among “the most critical areas for the

future of the State in terms of the quality of life.” Del.

Code Ann. tit. 7, § 7001. The lands are submerged lands

owned by Delaware in trust for the people of the State.

New Jersey, however, claims that Delaware cannot dis-

charge its responsibilities as a sovereign and trustee be-

cause under a 1905 interstate compact Delaware ceded all

jurisdiction over these lands for any structure originating

on the New Jersey shore. At both the procedural and sub-

stantive levels, New Jersey's action is flawed and should

be rejected by this Court.

Procedurally, New Jersey improperly invokes this

Court's original jurisdiction. New Jersey styles its action

as a “Motion to Reopen and for a Supplemental Decree”

ostensibly to modify a decree issued by this Court in 1935

that settled a longstanding boundary dispute between the

two States. See New dersey v. Delaware, 295 U.S. 694

(1935). This case does not concern the boundary at all,

however, but rather the interpretation of a provision con-

cerning the exercise of riparian rights in a 1905 Compact

entered into between the two States. The 1935 Decree

addressed only the boundary, not the exercise of riparian

rights. Even if this Court were to accept New Jersey's al-

ternative form of pleading by treating this case as a com-

plaint proceeding, New Jersey's invocation of the Court's

jurisdiction should be rejected. Neither New Jersey itsclf

ner various agencies of the United States government

have completed their administrative reviews vetting BP's

proposed LNG bulk transfer facility. Given that any oi

those reviews could result in a rejection of BIP’s proposal,

it is completely speculative at this time that Delaware's

decision to reject the proposal is the cause of any injury

that BP might suffer. The “injury” to New Jersey is also

speculative, given that alternative sites exist where the

facility could be located that would not encroach on Dela-

ware’s lands and yet would produce the very same finan-

cial benefits to New Jersey and its citizens. In short, this

case is being invoked by New Jersey for the commercial

convenience of a large corporation that is not even a citi-

zen of that State.

Substantively, New Jersey's action is flawed because

the 1905 Compact cannot be read fairly as denying Dela-

ware the authority to regulate the dredging and construc-

tion of a massive bulk product transfer facility within its

fragile coastal zone. As the law stood prior to 1905, Dela-

ware unquestionably could deny BP permission to build

this facility. Nothing in the 1905 Compact changed that

result. Rather, Article VII confirmed that each State

would “continue to exercise” riparian jurisdiction “on its

own side of the river.” NJ App. 5a. That language pro-

vided that the status quo would remain in place and that,

whenever the boundary between the two States was fi-

nally resolved, each State would “continue to exercise” ju-

risdiction within its own border. Nothing in the Compact

confers on New Jersey the extraordinary right it seeks

here — to approve unilaterally a project that would dis-

place 800,000 cubic yards of Delaware soil on a plot 27

acres large and to bar Delaware from having any say in

the matter. The fact that this land borders New Jersey

does not warrant a departure from the longstanding prin-

ciple that each State has sovereign control and public

trust obligations over its own lands within its boundary.

JURISDICTION

This Court lacks jurisdiction over New Jersey's Motion

to Reopen and for a Supplemental Decree in No. 11,

Original. New Jersey does not seek to enforce any provi-

sion of this Court's 1935 Decree, which pertained exclu-

sively to the boundary dispute between the States and did

not adjudicate their respective powers to define and regu-

late the exercise of riparian rights. Its Motion therefure

does not properly invoke this Court's retained jurisdiction

over that decree. Nor does New Jersey's Motion properly

invoke this Court’s original jurisdiction, if the Motion is

viewed as a request for leave to file a new complaint. New

Jersey has not identified any cognizable injury to itself or

its citizenry caused by Delaware. Indeed, neither New

Jersey nor the United States government has issued all of

the permits necessary for federal and state approval of

BP’s proposed LNG terminal. New Jersey's allegation

that Delaware's action has caused injury to New Jersey is

therefore premature. Absent a definitive conclusion that

the BP project will in fact be approved by the other neces-

sary federal and New Jersey authorities, New Jersey's

claim that Delaware's refusal to approve BP’s Crown

Landing project is causing New Jersey's injury is purely

speculative. This Court also lacks jurisdiction because

New Jersey is suing to further the interests of a private

party — BP — that is not even a New Jersey citizen. But.

even if this Court has original jurisdiction over the in-

stant dispute, it should decline to exercise that jurisdic-

tion, because BP, the real party in interest, had (but pur-

posefully declined to pursue) an adequate alternative fo-

rum in which to resolve the claims New Jersey presents

here and that forum could have produced an appeal) ulti-

mately to this Court upon a petition for writ of certiorari.

See infra pp. 32-35.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In addition to the constitutional and statutory provi-

sions cited by New Jersey, this case involves Article VIII

of the 1905 Compact, which states:

Nothing herein contained shall affect the territo-

rial limits, rights, or jurisdiction of, cither State of,

in, or over the Delaware River, or the ownership of

the subaqueous soil thereof, except as herein ex-

pressly set forth.

STATEMENT OF THE CASE

A. Delaware’s Sovereignty Over The Delaware

River Within The Twelve-Mile Circle

Delaware traces its sovereign title to lands within the

State's boundary to a 1682 grant to William Penn from

the Duke of York. See New Jersey v. Delaware, 291 U.S.

361, 365 (1934). That grant embraced the lands within a

twelve-mile circle of the New Castle, Delaware court-

house, a description that extended across the Delaware

River to points at the low-water mark of the New Jersey

shoreline. From the outset, Penn insisted on his owner-

ship of the subaqueous soil of the Delaware River, while

acknowledging common rights, such as to navigation on

the river. For example, Penn instructed one of his com-

missioners involved in boundary negotiations with the

Province of New Jersey as follows: “Insist upon my Title

to ye River, Soyl and Islands thereof according to Grant.

... They have ye Liberty of ye River, but not ye Propri-

ety.” See id. at 374.

Between the time of the Duke of York’s grant to Penn

and this Court’s 1934 decision in New Jersey v. Delaware,

Delaware's sovereignty over the subaqueous Jand within

the twelve-mile circle was upheld in several lawsuits. In

a 1732 case, the Lord Chancellor Hardwicke upheld

Penn's title against a challenge from Lord Baltimore. Sze

id. at 367-68. More than a century later, /n re Pea Patch

Island, 30 F. Cas. 1123 (Arb. Ct. 1848) (No. 18,311), af-

firmed Delaware's sovereignty, in an analysis that this

Court later praised as a “careful and able statement of the

conflicting claims of right.” 291 U.S. at 373, 377.

When the question of Delaware's sovereignty over the

Delaware River subaqueous lands came before this Court

in the 1930s, after a similar 1877 suit was dismissed in

1907 prior to resolution of the issue, the Court conclu-

sively resolved the long-festering bowndary dispute be-

tween the two States. The Court held that Delaware has

sovereignty over the Delaware River within a circle of 12

miles about the town of New Castle, up to the low-water

mark on the east, or New Jersey, side of the river (the

“twelve-mile circle”). See id. at 365. The Court rejected

each of the bases on which New Jersey claimed Litle to the

subaqueous soil of the Delaware River within the twelve-

mile circle. See id. at 370-78. Of particular relevance

here, the Court rejected New Jersey's claim that a com-

pact entered into between the two States in 1905 caused

Delaware to relinquish ownership of the land to New Jer-

sey. See id. at 377-78.

On June 3, 1935, the Court entered a decree confirming

its determination of the boundary between the States.

See New Jersey v. Delaware, 295 U.S. 694 (1935). In the

decree, the Court retained jurisdiction to issue “any sup-

plemental decree, which it may at any time deem to be

proper in order to carry into effect any of the provisions of

this decree, and for the purpose of a resurvey of said

boundary line in case of physical changes in the mean low

water line within said circle, or in the middle of the main

ship channel below said circle, which may, under estab-

lished rules of law, alter the location of such boundary

line.” Jd. at 698. The decrce stated that it was “without

prejudice to the rights of either state, or the rights of

those claiming under either of said states, by virtue of the

compact of 1905 between said states.” Id. at 699.

B. The 1905 Compact

New Jersey and Delaware entered into the 1905 Com-

pact after a long dispute between the States over fishing

rights. In the spring of 1872, Delaware officials enforcing

a Delaware fishing statute arrested New Jersey fisher-

men on the Delaware River within the twelve-mile circle.

New Jersey protested that action and in 1877 filed a com-

plaint in this Court challenging Delaware's exercise of

such authority. See Lodging, Tab 1, at 6-50 (Rec. 1, No. |

Orig., Oct. Term, 1884). That case remained dormant for

many years until, in 1901, the Clerk of this Court directed

that the case should be “forthwith proceeded with.” See

id., Tab 3, at 4 (Letter from Herbert Ward, Attorney Gen-

eral of Delaware, to John Hunn, Governor of Delaware, at

4 (Jan. 31, 1903)); see New Jersey v. Delaware, 291 U.S. at

377.

Concurrent with the litigation in this Court, Delaware

und New Jersey appointed commissioners to negotiate a

settlement of the case. In 1905, the Delaware and New

Jersey legislatures approved the Compact as proposed by

the commissioners to resolve the fishing rights dispute

within the twelve-mile circle, See Lodging, Tab 6 (23 Del.

Laws ch. 5; 1905 N.J. Laws ch. 42, p. 67). Congress ap-

proved the Compact in January 1907. See NJ App. la-7a.

In April 1907, New Jersey dismissed its complaint. See

New Jersey v. Delaware, 205 U.S. 550 ( 1907).

As this Court explained in 1934 when adjudicating the

States’ boundary dispute, the 1905 Compact “provides for

the enjoyment of riparian rights, for concurrent jurisdic-

tion in respect of civil and criminal process, and for con-

current rights of fishery,” but “/bjeyond that it dues not

go.” 291 U.S. at 377-78. Indeed, this Court found New

Jersey's assertion that the 1905 Compact cedes Dela-

ware’s ownership of the subaqueous lands within the

twelve-mile circle to be “wholly without force.” Jd. at 377.

In reaching that determination, the Court made special

note of Article VIII of the 1905 Compact, see id. at 377-78,

which expressly states that “[njothing” in the Compact

“shall affect the territorial limits, rights, or jurisdiction of

either State of, in, or over the Delaware River, or the

ownership of the subaqueous soil thereof, except as herein

expressly set forth.” NJ App. 5a. This Court’s 1935 De-

cree concerned only title to the Delaware River subaque-

ous land, and not any rights or authorities of the States

that are the subject of the 1905 Compact.

The 1905 Compact contains nine articles. As Dela-

ware's counsel explained in submitting the Compact to

the Court as grounds for, dismissing the 1877 original] ac-

tion filed by New Jersey, the “main purpose” of the Com-

pact ts “to provide for enacting and enforcing a jvint code

of laws regulating the business of fishing in the Delaware

River and Bay.” Lodging, Tab 7, at 10 (Statement of

Reasons).

Articles I and I] resolve the issue that precipitated the

filing of New Jersey's complaint in 1877: the arrest, by

officials of one State, of citizens of the other State while

on the Delaware River within the twelve-mile circle.

Those articles set forth each State’s jurisdiction to serve

criminal process on the river. See Nd App. 2a-3a. Dela-

ware and New Jersey can serve process based on crimes

committed on, respectively, the western and eastern

halves of the river. See id. Because the 1905 Compact

does not resolve the boundary line within the twelve-mile

circle, those Articles also give each State the right to serve

process based on “an offense committed upon the soil of

said State.” /d.

Articles LI through V create a framework for resolving

the other portion of the controversy tha: had led to New

Jersey's complaint: fishing rights. Article II] declares the

general principle that the inhabitants of both States

“shall have and enjoy a common right of fishery” between

the low-water marks on the river. /d. at 3a-4a. Article [V

commits each State to the appointment of commissioners

to draft uniform laws to regulate the catching and taking

of fish in the Delaware River and Bay. See id. at 4a.

Those uniform laws, upon adoption, were to become the

sole laws regulating fishing in the river and bay. See id.

Article IV also provides each State, in language that ap-

pears only in this article, with “exclusive jurisdiction

within said river to arrest, try, and punish its own inhabi-

tants for violation of the concurrent legislation relating to

fishery.” Jd. at 5a.' Article V permits laws not inconsis-

tent with the common right to fish to continue in force

! The States never effectuated the terms of Article IV. See, e.g.

Ampro Fisheries, Inc. v. Yaskin, 588 A.2d 879, 883 (N.J. Super. Ct.

App. Div. 1991) (describing New Jersey's contention that “the 1905

Compact has been mutually abandoned by ceason of the fact that the

two states have never enacted complementary fishing laws”), aff'd in

part and rev'd in part on other grounds, 606 A.2d 1099 (NJ. 1992).

until the enactment of the concurrent legislation regard-

ing fishery. See id.

Article VI provides that Articles LII through V do not

apply to the oyster and shellfish industries, See id. The

States agreed to defer resolution of any disagreements

regarding those industries. As Delaware's counsel stated

to the Court, the Compact is “not a settlement of the dis-

puted boundary, but a truce or modus vivendi.” Lodging,

Tab 7, at 10 (Statement of Reasons). A dispute over oys-

ter beds in the Delaware Bay caused New Jersey to file

the complaint in this Court that ultimately resolved Dela-

ware's sovereignty over the lands within the twelve-mile

circle.

Article VII addresses each State’s power to define and

to regulate the exercise of riparian rights, providing that

each, “on its own side of the river, [may] continue to exer-

cise riparian jurisdiction of every kind and nature, and to

make grants, leases, and conveyances of riparian lands

and rights under the laws of the respective States.” NJ

App. 5a. At the time of the Compact, New Jersey exer-

cised jurisdiction over riparian lands by statute rather

than by common law. See id. at 26a-27a (Castagna Aff.

{ 3).° Under the statutory regime in effect at the time, an

owner of riparian lands* could obtain a “lease, grant or

* At the time of the Compact, Delaware exercised jurisdiction over

riparian rights by application of common law. See, .g., Harlan &

Hollingsworth Co. v. Paschall, 5 Del. Ch. 435, 1882 WL 2713, at *10

(Del. Ch. 1882); State v. Reyboid, 6 Harr. 484, 1854 WI 847 (Del.

1854); Delaney v. Hoston, 2 Harr. 489, 1839 WL 165 (Del. Super. Ct.

1839). Delaware continues to recognize riparian rights at common law,

subject to the State's “power to regulate or restrict private riparian

property rights for public purposes.” City of Wilmington v. Parcel of

Land Known as Tux Parcel No. 26.067 00.004, 6O7 A.2d 1163, 1168-69

(Del. 1992).

’ New Jersey appears to refer to “riparian lands” as submerged

lands, see Charles S. Boyer, Waterways of New Jersey: History of Ripar-

ian Ownership and Control Over the Navigable Waters of New Jersey

75 (1915), whereas most States use that term to describe the lands

from the shore to the high-water mark or the low-water mark, see

Robert E. Beck, Waters and Water Rights § 7.02(a) (2001 Replacement

conveyance” from New Jersey “of any lands under water

in front of his lands,” including the right to dredge out to

navigable waters, but only on “lands of the state.” DE

App. 159a, 168a (4 N.J. Comp. St., Riparian Rights §§ 21,

37 (1911) (currently codified at N.J. Stat. Ann. §§ 12:3-10,

12:3-22)).4. The Compact thus preserves New Jersey's

ability to enforce, on “its own side of the river,” NJ App.

5a, these statutes governing the use of riparian lands.

Article VIII generally reserved the States’ rights, pro-

viding that “|njothing herein contained shall affect the

territoria) limits, rights, or jurisdiction of either State of,

in, or over the Delaware River, or the ownership of the

subaqueous soil thereof, except as herein expressly set

forth.” Id.

Finally, Article 1X sets forth a process for execution by

the commissioners and ratification by Congress, stating

that upon ratification the Compact would become “binding

in perpetuity” upon both States and that the suit then

pending would he “discontinued” without prejudice. Id. at

6a.

C. The Current Dispute Between BP And Delaware

In 2002, BP contacted the Delaware Department

of Natural Resources and Environmental Control

(“DNREC”) regarding a proposal to construct a new LNG

terminal on the Delaware River within Delaware's coastal

zone, with associated onshore structures in New Jersey.

See DE App. 4a (Cherry Aff. 4 8).° Despite the avail-

ability of other New Jersey sites outside Delaware's

coastal zone, BP preferred the site within Delaware

largely because of its proximity to natural gas pipelines.

Volume) (“Beck's Waters and Water Highis”); A. Dan Tarlock, Law of

Water Rights and Resources § 3.35 (2005).

‘ These statutes are largely still in place and are compiled under

Tithe 12 of the New Jersey Statutes entitled, “Commerce and

Navigation.”

* “Cherry Aff.” refers to the Affidavit of Philip Cherry, which can be

found at DE App. la-Gla

Id. On December 4, 2003, BP formally announced its

plans to construct the new LNG terminal. See RP

Press Release, BP Ar..iounces Plans for US East Coast

LNG Import Terminal (Dec. 4, 2003), available at

http://www.bp.com/genericarticle.do?category!d=20 12968

&contentid=2015800. BP expected the terminal to

transmit up to 1.2 billion cubic feet of natural gas daily,

and to connect to major pipeline systems serving the

Northeast. See id.

BP’s proposed terminal, named the Crown Landing pro-

ject, would consist of an offshore unloading facility located

in New Castle County, Delaware, in the Delaware River,

as well as onshore LNG storage and processing tanks and

buildings located in Gloucester County, New Jersey. The

unloading facility would be designed to handle supertank-

ers with cargo capacities of up to 200,000 cubic meters

(more than 40 percent larger than the largest LNG ships

in today’s world fleet). BP expects that a ship would off-

load LNG at the facility every two to three days. See

FERC, Draft Environmental Impact Statement: Crown

Landing LNG and Logan Lateral Projects at 2-1 (Feb.

2005) (“Draft EIS”). The unloading facility would consist

of a structure with a 2,000-foot-long trestle and a 6,000-

square-foot unloading platform. See DE App. 5a (Cherry

Aff. 9 14). An LNG transfer system would be installed on

the unloading platform to transfer the LNG from the ship

to three 150,000-cubic-meter storage tanks located on-

shore. The transfer system located on a structure built on

Delaware's subaqueous lands would consist of three

“unloading arms” for transfer of liquid ww the storage

tanks, an arm for the return of vapor to the ship, a “cryo-

genic transfer line” connecting the liquid unloading arms

to the onshore tanks, a “vapor return line” connecting

those tanks to the vapor return arm, and an additional

cryogenic line.

Both the unloading structure and the transfer system

are within Delaware's coastal zone. See Draft EIS at 4-92

(“Because the Crown Landing LNG Project would involve

construction of a new pier and other facilities within

Delaware's coastal zone .. . , a determination on whether

the facilities would be a permissible use under the DSCZA

[Delaware State Coastal Zone Act] is required.”) (empha-

sis added). The unloading facility would require the

dredging of 800,000 cubic yards of Delaware subaqueous

soil,” covering an area larger than 27 acres. See NJ App.

135a (Segal Aff. © 4); Draft EIS at 2-15; DE App. 5a

(Cherry Aff. § 13).

Before it can construct its proposed project, BP must ob-

tain approval from the Federal Energy Regulatory Com-

mission (“FERC”) under § 3(a) of the Natural Gas Act, 15

U.S.C. § 717b(a); from the U.S. Army Corps of Engineers

(“Corps”) under § 10 of the River and Harbor Act of 1899,

33 U.S.C. § 403, and § 404 of the Clean Water Act of 1977,

33 U.S.C. § 1344; from the U.S. Coast Guard pursuant w

Coast Guard regulations, 33 C.F.R. Pts. 66 and 127; and

from New Jersey and Delaware under the Coastal Zone

Management Act of 1972 (“CZMA”), 16 U.S.C. §§ 1451 et

seq. See Draft EIS at 1-4 to 1-10 (listing major permits,

approvals, and consultations required for the Crown

Landing project).

The CZMA prevents FERC from granting a permit for

an activity that affects a State’s coastal zone unless the

State agrees with the applicant that the activity complies

with the State's federally approved coustal management

plan, or the Secretary of Commerce specifically finds that

the activity is consistent with the objectives of the CZMA

or necessary for national security. See 16 U.S.C.

§ 1456(c)(3)(A); see also Draft EIS at 4-91 (‘any federal

action (e.g., a project requiring federally issued licenses or

permits) that takes place within a state’s coastal zone

* For comparison, 800,000 cubic yards is the rough equivalent of

67,000 to 80,000 dump trucks worth of soul. See. e.g., State of Alaska,

Department of Natural Resources, Fact Sheet. Material Sale in Alaska

(Feb. 2004) (A standard dump truck has a capacity of 10-12 cubic

vards.”), at http://www.dnr state ak us/mlw/factsht/material sites.pdf.

must be found to be consistent with state coastal policies

before federal action can take place”).

Both Delaware and New Jersey have federally approved

coastal management programs. Delaware's program in-

cludes the Delaware Coastal Zone Act, De). Code Ann. tit.

7, §§ 7001 et seq. (“DCZA"), which prohibits “{hjeavy in-

dustry uses of any kind” and “offshore gas, liquid or solid

bulk product transfer facilities” within the coastal zone,

id. § 7003. The Act defines “bulk product transfer facili-

ties” as

any port or dock facility, whether an artificial island

or attached to shore by any means, for the transfer

of bulk quantities of any substance from vessel to

onshore facility or vice versa. Not included in this

definition is a docking facility or pier for a single in-

dustrial or manufacturing facility for which a permit

is granted or which is a nonconforming use. Like-

wise, docking facilities for the Port of Wilmington

are not included in this definition.

Id. § 7002(f). In 1979, the National Oceanic and Atmos-

pheric Administration (“NOAA”) concluded that Dela.

ware’s coastal management program fulfilled the re-

quirements of the CZMA. See Findings of Robert W.

Knecht, Assistant Administrator for Coastal Zone Man-

agement, NOAA, Approval of the Delaware Coastal Man-

agement Program (Aug. 21, 1979) (“Findings”).’ The prior

year, 1978, New Jersey's coastal management program

had similarly recewed approval from NOAA. New Jer-

sey's program includes its Waterfront Development Act,

* In its findings on Delaware's program, NOAA noted that some

commentators had questioned whether the program “adequately con-

siders the national interest,” Findings at 7, and that FERC specifically

had ecapressed concern about the prohibition of bulk transfer facilities,

id. at 25° However, NOAA concluded that “Delaware recognizes its

role un satisfying the national interest.” and that the prohibition of cer-

tain facilites in a lamited area was “justified on the ground of balanc-

ing the national need for facilities with the national interest in recres-

tien and preservation of natural resources.” Id. at 26

N.J. Stat. Ann. § 12:5-3; Wetlands Act of 1970, N.J. Stat.

Ann. §§ 13:9A-1 et seq.; and Tidelands Act, N.J. Stat. Ann.

§§ 12:3-1 et seq.*

Just as FERC may not approve the Crown Landing pro-

ject without prior certifications from New Jersey and

Delaware, the Army Corps of Engineers similarly may not

grant a permit until the applicant demonstrates compli-

ance with state law. See 33 C.F.R. § 325.2(b)(2)(ii).

State approval, however, does not dictate the outcome of

the federal regulatory process. As the lead agency with

respect to the Crown Landing project, FERC is obligated

under the National Environmental Policy Act of 1969

(“NEPA”) to conduct a detailed review of the project's en-

vironmental impact and to consult with other federal

agencies. See 42 U.S.C. § 4332. The Corps is similarly

“There currently appears to be a disagreement among federal agen-

cies as to whether the Energy Policy Act of 2005, Pub. L. No. 109-58,

119 Stat. 594 (EPAOS"), preempts States’ regulation of LNG facilities

under coastal management plans. Compare EPAOS § 311(c)(2), 119

Stat. 686, to be codified at 15 U.S.C. § 71 7b(d) (Except as specifically

provided in this Act, nothing im this Act affects the rights of States

under ... the Coastal Zone Management Act of 1972"), with id.

§ 311(c)(2), 119 Stat. 686, to be codified at 15 U.S.C. § 717hte1) CThe

Commission shal! have the exclusive authority to approve or deny an

appheation for the siting, construction, expansion, or operation of an

LL.NG terminai.”). FERC has stated publicly that EPA05 does not alter

States’ rights under the CZMA to enforce their coastal management

plans with respect to LNG projects. See FERC, LNG - Laws and Regu-

lations: States’ Rights in Authorization of LNG Facuities (updated Aug.

17, 2005), avatladle at http://www ferc.gov/industres/|ng/gen-mfo/laws-

regs/state-nghis. asp. NOAA, however, has stated that, because of the

“exclusive authority’ language fin the EPAOS)], some State CZMA en.

forceable policies that NOAA previously approved that would specifi-

cally apply to LNG or LNG-type facilities would likely no longer be

enforceable for purposes of CZMA |federal] consistency reviews.”

Office of Ocean and Coastal Resource Management, NOAA, Summary

of Provisions of the Energy Polwy Act of 2005 (Pub. L. No. 109-58) Re-

lating to the Coastal Zone Management Act at 1 (Sept. 25, 2005).

Although Delaware believes that FERC’s stated position correctly in-

terprets EPAO5, it is unclear when this dispute will ultimately be

resolved.

obliged to determine whether the project is in the public

interest. See Notice of Availability of the Draft Environ-

mental! Impact Statement, Crown Landing LLC, 70 Fed.

Reg. 9297, 9298 (Feb. 25, 2005) (“Notice of Draft EIS”)

(“Department of the Army permit(s) will be granted by the

[Corps] unless it is determined that the proposed work

would be contrary to the public interest.”). As explained

below, neither FEKC nor the Corps has completed the

necessary review or made the necessary determinations

with respect to the Crown Landing project. Moreover,

New Jersey itself has not authorized the project under its

coastal management program.

1. Delaware's Permitting Process

On December 7, 2004, BP formally applied to DNREC

for a status determination under the DCZA for its pro-

posal to construct an LNG supertanker terminal partially

within the twelve-mile circle. See DE App. Sa (Cherry Aff.

* 11). In its application, BP claimed that its proposed off-

shore bulk product transfer facility was permissible under

the DCZA. BP argued that its proposed facility fell within

the exception from the prohibition on bulk product trans-

fer facilities for “a docking facility or pier for a single

industrial or manufacturing facility for which a permit

is granted or which is a nonconforming use.” Del. Code

Ann. tit. 7, § 7002(f). BP, however, expressly elected not

to raise any claims that, as a result of the 1905 Compact,

Delaware lacked jurisdiction to enforce the DCZA with

respect to BP’s proposed facility.”

On February 3, 2005, DNREC issued a status decision

determining that BP’s proposed project was prohibited

* See Memorandum from David S. Swayze and Michael W

Teichinan, Parkowski, Guerke & Swayze (counsel for Crown Landing).

to John A. Hughes, Secrétary, DNREC, at | n.3 (Dec. 7, 2004) (accom-

panying Request for a Coastal Zone Status Decision (Nov. 30, 2004))

(stating that “Crown Landing and KP reserve any and all mghts with

respect to the relative ability of the State of Delaware to regulate

withan the riparian yurisdiciion granted under the Compact to the state

ot New Jersey”).

under the DCZA. See DE App. 6a (Cherry Aff. 18). On

behalf of DNREC, Secretary Hughes found that the “pro-

posed facility represents a prohibited offshore bulk prod-

uct transfer facility and does not meet the exemption un-

der the bulk product transfer facility definition in that the

facility cannot be considered a ‘manufacturing use’ under

the Act.” /d. at 33a (Cherry Aff. Ex. G (DNREC Feb. 3,

2005 Legal Notice)).

On February 15, 2005, BP filed an administrative ap-

peal to the Delaware Coastal Zone [Industrial Control

Board (“CZICB” or “Board”). Before the Board, BP again

claimed only that its proposed facility was permitted un-

der the DCZA and declined to raise any claims it might

have based on the 1905 Compact."© On April 14, 2005, the

Board unanimously affirmed DNREC’s status decision.

The Board found that the onshore component of the pro-

posed facility was not a manufacturing facility, that the

onshore component existed solely to support the offshore

component, and that “|t}he real sole purpose of the pro-

posed facility is to serve as a bulk product transfer facil-

ity.” /d. at 57a (Cherry Aff. Ex. H at 7 (CZICB Decision

and Order)); id. at 6a-7a (Cherry Aff. ¢ 19). The Board

therefore concluded that “the proposed construction 1s ab-

solutely prohibited by the Act.” Jd. at 61a (Cherry Aff. Ex.

H at 10 (CZICB Decision and Order)).

BP chose not to exercise its right to appeal the decision

of the CZICB to state court. Despite the fact that Dela-

ware’s denial of a permit under the DCZA was sufficient

to require FERC w deny BP’s permit, BP urged FERC to

approve the Crown Landing project conditionally. See

Crown Landing Response to FERC May 16, 2005 Addi-

tional Information Request at 3, Docket No. CP04-411-000

(FERC filed May 26, 2005). BP advised FERC that “New

’ See Memorandum of Law of Appellant Crown Landing, LLC at 1

n.1, Coastal Zone Act Status Decision published February 3, 2005 in

Respect of the Application of the Crown Landing LLC, Docket No. 2005-

1 (CZICB filed Mar. 23, 2005)

Jersey would undertake whatever appropriate action is

necessary to confirm chat Delaware lacks the authority to

require any Delaware permits” for the Crown Landing

project. NJ App. 141la (Segal Dec]. # 27).

2. New Jersey's Permitting Process

On January 7, 2005, pursuant to New Jersey's Coastal

Zone Management Rules,'' which implement New der-

sey's federally approved coastal management plan, BP

filed a Waterfront Development Application with the New

Jersey Department of Environmental Protection’s Office

of Dredging and Sediment Technology CODST”’). Like the

permit BP sought under the DCZA, approval of BP's Wa-

terfront Development Application is a necessary precondi-

tion to FERC authorization of the Crown Landing project.

New Jersey, however, has yet to approve BP’s application.

On February 4, 2005, ODST notified BP that its appli-

cation was deficient. See DE App. 84a-138a (Letter from

David Q. Risilia, ODST, to David Blaha, Environmental

Resources Management (Feb. 4, 2005)). ODST explained

that the Crown Landing application lacked sufficient in-

formation to demonstrate comphance with numerous New

Jersey rules, including, for example § 7:7E-3.5, regarding

finfish migratory pathways; § 7:7K-3.7, regarding naviga-

tion channels; § 7:7E-3.15, regarding intertidal and sub-

tidal shallows; § 7:7E-3.23, regarding filled water's edge,

§ 7:7E-3.27, regarding wetlands; and § 7:7E-3.38, regard.

ing endangered or threatened wildlife or plant species

habitats.

BP submitted a response to ODST's deficiency letter on

May 16, 2005. On duly 15, 2005, ODST sent BP a second

deficiency letter, Stating that its application was stil) in-

adequate under the Coastal Zone Management Rules, and

accordingly “is not deemed complete for final review at

this time, or for a public hearing pursuant to NJAC.

4.4(6)(2).” Letter from David Q. Risilia, ODST, to David

"' See NJ. Admin. Code §§ 7:7E et seg

Blaha, Environmental Resources Management, at | (July

15, 2005).

3. The FERC Process for Approval of the Crown Land-

ing Project

On September 16, 2004, BP filed with FERC an applica-

tion under § 3(a) of the Natura) Gas Act, 15 U.S.C.

§ 71 7b(a), requesting that FERC authorize construction of

the Crown Landing LNG facility in Delaware's coastal

zone, See Application of Crown Landing LLC for Section

8 Authorization To Construct Liquefied Natural Gas Im-

port Facility, Crown Landing LLC, Docket No, CP04-411-

000 (FERC filed Sept. 16, 2004) (“BY September 16, 2004

FERC Application”). On September 29, 2004, FERC is-

sued a “Notice of Applications” and invited comments in

support of or in opposition to the project. See Notice of

Applications, Crown Landing LLC, 69 Fed. Reg. 59,906

(Oct. 6, 2004).

FERC is serving as the lead agency im conducting the

environmental review of the Crown Landing proposal re-

quired by NEPA. FERC is cooperating with the other

agencies whose regulatory responsibilities encompass the

project, such as NOAA, the Fish and Wildlife Service

(“FWS”), and the Environmental Protection Agency

(“EPA”). See 42 U.S.C. § 4332 (requiring “the responsible

Federal official” to “consult with and obtain the comments

of any Federal agency which has jurisdiction by law or

special expertise with respect to any environmental im-

pact involved”), 46 C.F.R. § 1501.6 (“the lead agency shall

_. . (ujse the environmental analysis and proposals of co-

operating agencies with jurisdiction by law or special ex-

pertise, to the maximum extent possible consistent with

its responsibility as ‘ead agency”).

On February 18, 2005, FERC released a draft Environ-

mental Impact Statement (“EIS”) for the Crown Landing

project. The Draft EIS concluded that the adverse envi-

ronmental impacts of the project would be hmited if

Crown Landing were to adopt FERC’s recommended miti-

yution measures. See Draft EJS at ES-9. As part of its

analysis, FERC examined seven alternative sites for an

LNG import facility in the mid-Atlantic region. ‘Two of

the alternative sites are south of the twelve-mile circle

but within Delaware’s coastal zone, whereas five are

north of the twelve-mile circle and thus outside Dela-

ware’s coastal zone (because Delaware borders Pennsyl-

vama at the north end of the twelve-mile circle). See id.

at 3-32 to 3-41. FERC determined that the various alter.

natives were not preferable to the Crown Landing site be-

cause they did not offer “significant environmental advan-

tages.” Id. at 3-29; see also id. at 3-47 (rejecting pipeline

system alternatives because they “would not offer any

significant environmental benefits over the proposed fa-

cilities”).

Several of the cooperating agencies have expressed res-

ervations about the Draft EIS. For example, the Depart-

ment of the Interior (“DOI”) requested that FERC recon-

sider altefnatives such as relocating the facility downriver

or offshore in the Atlantic Ocean. See Letter from Michael

Chezik, DOI, to Magalie Salas, FERC, at 5 (Apr. 13,

2005). DOI concluded that “fish and wildlife issues have

not been adequately addressed” by FERC and that “new

information is needed to adequately address those issues.”

See id. at 8-9. NOAA recommended that FERC more

thoroughly investigate alternatives, see Letter from Susan

Kennedy, NOAA, to Magalie Salas, FERC, at 5 (Apr. 18,

2005), and that it develop a mitigation plan for the loss of

habitat, see id. at 4. EPA similarly indicated that it had

“environmental concerns and that further information as

described above is necessary,” because the Draft EIS “dues

not include detailed mitigation plans, a discussion of gen-

eral conformity, or thoroughly analyze the cumulative ef-

fects on navigation and the environment.” Letter from

John Filippelli, EPA, to Magalie Salas, FERC, at 3 (Apr.

14, 2005).

Both the New Jersey Department of Environmental

Protection (“NJDEP”") and DNREC have voiced concerns

about the Crown Landing project and the Draft EIS.

NJDEP suggested that FERC consider the alternative of

locating the facility offshore and noted that the proposed

facility would block as much as 50 percent of the naviga-

ble portion of the river to commercial and recreational

boating. See Letter from Kenneth Koschek, NJDEP, to

Magalie Salas, FERC (Apr. 19, 2005).'° DNREC, in addi-

tion to observing that the project is prohibited under the

Delaware Coastal Zone Act, pointed out various deficien-

cies in the Draft EIS’s analysis of alternatives. See Letter

from John Hughes, DNREC, to Magalie Salas, FERC, at 2

(Apr. 13, 2005) (“[t]he Alternatives Analysis section of the

(Draft} EIS was broad in scope but lacked specificity . . .

lejnviron-mental impacts were not quantified”). DNREC

further observed that it was “premature to evaluate this

project” from the perspective of marine safety “due to gaps

in information pertaining to safety and security issues”:

“The U.S. Coast Guard has not weighed in on the feasibil-

ity of this project.... [I]t seems that the Coast Guard

would be far from issuing a letter of recommendation.”

Id. at 4.

Not only has FERC yet to address these and other com-

ments on the Draft EIS and to release a final EIS, it also

has yet to complete its analysis of the Crown Landing pro-

ject with respect to air quality. As required by the Clean

Air Act, FERC prepared a Draft General Conformity De-

termination to assess the Crown Landing project’s impact

on air quality. See Draft General Conformity Determina-

tion, Crown Landing LNG and Logan Lateral Projects,

Docket Nos. CP04-411-000 & CP04-416-000 (Aug. 26,

2005). FERC specifically noted that, because documenta-

tion supporting conformity with the applicable state plans

for implementation of the Clean Air Act had not been filed

with FERC, FERC’s analysis was incomplete and it could

not make a determination of conformity. See id. at 13.

2 The Delaware River is approximately ore mile wide at the Crown

Landing site. See DE App. 142a (Dratt EIS at 3-25, Figure 3.3.3-1)

Moreover, the Corps has not yet evaluated whether the

Crown Landing project is in the public interest, and there-

fore has not issued the necessary permits to BP under

§ 404 of the Clean Water Act, 33 U.S.C. § 1344, and § 10

of the River and Harbor Act of 1899, 33 U.S.C. § 403.

See Notice of Draft EIS, 70 Fed. Reg. at 9298 {explaining

that the Corps’ decision on whether to issue a permit “will

be based on an evaluation of the probable impacts, includ-

ing cumulative impacts, of the proposed projects on the

public interest,” and that factors considered include “con-

servation, economics, aesthetics, general environmental

concerns, wetlands, cultural values, fish and wildlife val.

ues, flood hazards, floudpiain values, land use, navigation,

shore erosion and accretion, recreation, water supply, ...

property ownership, and in general, the needs and welfare

of the people”). Just as they did before FERC, federal

agencies have urged the Corps to withhold its approval

pending further analysis of alternatives and mitigation

plans. See, e.g., Letter from Clifford Day, DOI, to LTC

Robert J. Ruch, Corps of Engineers, at | (Apr. 29, 2005)

(summarizing FWS concerns, recommending “that the

Corps resolve the below issues prior to any issuance of a

Department of the Army (DA) permit,” and enclosing cop-

ies of the NOAA and DOI comments on the Draft IS).

Finally, the Coast Guard has yet to approve the Crown

Landing project. See Crown Landing Informational Web-

site, “What is the current status of the project?,” at

http://www. bperownlanding.com/go/doc/569/83864/ (last

visited Oct. 21, 2005) (“The US Coast Guard is continuing

its review of the river transit issues, working with the

Area Maritime Security Committee to review safety and

security issues associated with the river transit.”): see also

33 C.P.R. Pt. 127, “Waterfront Facilities Handling Lique-

fed Natural Gas and Liquefied Hazardous Gas” (estab-

lishing safety and security requirements regarding water.

front LNG facilities to be enforced by the Coast Guard).

The various federal agencies involved in considering the

Crown Landing project have not issued a timetable for

when a decision will be made on the project.

SUMMARY OF ARGUMENT

J. This Court lacks jurisdiction over this dispute,

which in reality is between BP and Delaware, not two

States. Indeed, New Jersey cannot identify any concrete

injury to itself or its citizenry directly caused by Dela-

ware’s denial of a permit under the DCZA. Unmentioned

in New Jersey's filing is that BP has yet to secure a per-

mit under New Jersey's equivalent Coastal Zone Man-

agement Rules, and that FERC and other federal agencies

cannot approve the BP plant unless and until the New

Jersey permit is issued.

In an attempt to avoid this plain jurisdictional defect,

New Jersey claims that its filing merely invokes this

Court’s retained jurisdiction to enforce its 1935 Decree.

But that claim fails because the Decree did not address,

much less adjudicate, the nature and scope of each State's

riparian rights under the 1905 Compact, which is the rul-

ing New Jersey seeks here. In any event, even if New

Jersey had properly invoked this Court's original jurisdic-

tion, this Court should decline to exercise that jurisdiction

because BP, the real party in interest, had an adequate,

alternative forum in which the issues presented here

could have been litigated.

II. If this Court reaches the merits, it should reject

New Jersey's broad assertion that it has “exclusive ripar-

ian jurisdiction” to approve projects that encroach on

Delaware submerged lands without any say by Delaware.

The law as it existed prior to 1905 would have rejected

that assertion, because States traditionally have sover-

eignty over lands within their boundaries. The 1905

Compact, which expressly provides that each State shall

“continue to exercise” riparian jurisdiction “on its own

side of the river,” did not alter the background legal rules.

Although the parties conferred “exclusive” power in a

State in certain circumstances, they did not do so with

respect to riparian rights. Thus, even if New Jersey has -

jurisdiction to decide certain aspects of riparian projects

that traverse both States, the Compact does not divest

Delaware of its sovereign right to determine whether a -

massive bulk transfer facility resting primarily on Dela. |

ware lands is consistent with the public trust and state

laws implementing that trust.

Hil. Assuming this Court accepts jurisdiction over tis

case and chooses not to resolve it against New Jersey

summary grounds in this preliminary round of briefing,

the Court should appoint a Special Master, consistent

with its practice in comparable cases. A Special Master

would be best positioned to consider, in the first instance,

evidence about the status of each State's riparian rights

within the twelve-mile circle prior to the 1905 Compact,

the intent of each State in signing that Compact with re-

spect to rmparian rights, and the course of performance

during the 100 years since the Compact was approved. A

Special Master also would be best positioned to ensure

that Delaware's right to pursue discovery on these com-

plex, historical issues is protected.

ARGUMENT

i. THE COURT SHOULD DENY NEW JERSEY’S

MOTION FOR LACK OF JURISDICTION

This Court long ago held that its original jurisdiction “is

of so delicate and grave a character” that it “was not con-

templated that it would be exercised save when the neces-

sity was absolute and the matter in itself properly justici-

able.” Louisiana v. Texas, 176 U.S. 1, 15 (1900); see also

Missouri v. Illinois, 200 U.S. 496. 52) (1906) (“Before this

court ought to intervene the case should be of serious

magnitude, clearly and fully proved, and the principle to

be apphed should be one which the court is prepared de.

liberately to maintain against all considerations on the

other side.”).

New Jersey's request for declaratory and injunctive re-

lief against Delaware — in which it can identify no con-

crete injury to itself and, instead, seeks only to further the

interests of a private party that is not even a New Jersey

citizen — cannot satisfy the prerequisites for the exercise

of this Court's “extraordinary power under the Constitu-

tion to control the conduct of one state at the suit of an-

other.” New York v. New Jersey, 256 U.S. 296, 309 (1921).

Apparently recognizing this jurisdictional defect, New

Jersey has captioned its request as one to re-open this

Court’s 1935 Decree resolving a prior boundary dispute

between these two States, asserting that the current case

is within this Court's retained jurisdiction over the 1935

Decree. New Jersey, however, has no serious argument

that the supplemental decree it seeks here is one to “en-

force” the 1935 Decree. Nor can New Jersey meet this

Court’s standard for invoking its original jurisdiction if

its petition is to be treated as equivalent to an original

complaint.

A. New Jersey’s Motion Does Not Invoke This

Court’s Retained Jurisdiction To Enforce The

1935 Decree

The dispute between Delaware and New Jersey that re-

sulted in the 1935 Decree was exclusively about the

boundary between the States. See, e.g., 291 U.S. at 363

(explaining that New Jersey “prays for a determination of

the boundary in Delaware Bay and river”). To the extent

this Court discussed riparian rights in reaching the deci-

sion that gave rise to the Decree, such discussion wa3 only

in the context of New Jersey's unsuccessful attempt to

demonstrate its ownership of the land below the surface of

the water. See id. at 376-78. Accordingly, this Court's

1935 Decree is limited to establishing the “real, certain,

and true boundary line separating the states of New Jer-

sey and Delaware.” 295 U.S. at 694. This Court “re-

tainled] jurisdiction” insofar as any future orders would

be necessary for “the purpose of a resurvey of said bound-

ary line” or “to carry into effect any of the provisions of

this decree.” Jd. at 698.

New Jersey's latest dispute with Delaware pertains to

riparian rights on subaqueous Jands indisputably owned

by Delaware. It does not call into question any aspect of

this Court’s determination of the boundary line between

the two States or any other provision of the 1935 Decree.

Indeed, New Jersey's motion identifies only two provisions

of that Decree, neither of which is relevant to the instant

dispute.

First, New Jersey points (at 18) to paragraph 6 of the

Decree, which sets forth that both States are respectively

enjoined from “disputing the sovereignty, jurisdiction, and

dominion” of the other State over property that this Court

held is owned by that State. See 295 US. at 698. New

Jersey, however, does not claim that Delaware is disput-

ing New Jersey's dominion over property owned by New

Jersey. Instead, it claims that Delaware is infringing on

New Jersey's rights over property owned by Delaware.

Because those rights were not at issue in the prior case,

they were not “adjudged to the state of New Jersey by

thie) decree.” Jd. An order with respect to New Jersey's

asserted right to approve BP’s project on land owned by

Delaware without a veto by Delaware, therefore, would

not be an order enforcing paragraph 6 of the 1935 Decree.

Second, New Jersey (at 18) points to statements in the

Decree and this Court’s 1934 Order that the resolution of

the earlier boundary dispute was made “without prejudice

to the rights of either state... by virtue of the compact of

1905 between said states” > Ane ahaa 291 U.S.

at 385 (noting that Delawa ights of ownership

“[wlithin the twelve-mile circle” are “subject to the Com-

pact of 1905”). Contrary to New Jersey's claims, those

statements did not create riparian rights that this Court

could enforce through a later decree. Instead, this Court

noted only that the riparian rights under the 1905 Com.

pact - - whatever they were —- remained unaffected by the

resolution of the boundary dispute. Determining the

scope of New Jersey's riparian rights, therefore, is not en-

forcing the 1935 Decree."*

For these reasons, New Jersey's motion does not fall

within this Court’s retained jurisdiction to enforce the

1935 Decree.

B. This Court Lacks Original Jurisdiction Over

New Jersey's Motion, Even If Treated As A

Motion For Leave To File A New Original

Action

When New Jersey's motion is viewed as a request to ini-

tiate a new original action, it is clear that New Jersey has

not satisfied its burden of demonstrating that a case or

controversy exists between New Jersey and Delaware.

1. New Jersey cannot demonstrate any

“injury” caused by Delaware

As this Court has repeatedly held, for a case to come

within this Court's original jurisdiction, the “complaining

State” must allege that it “has suffered a wrong through

the action of the other State,” Massachusetts v. Missouri,

308 U.S. 1, 15 (1939), and “must first demonstrate that

the injury for which it seeks redress was directly caused

by the actions of another State,” Pennsylvania v. New

Jersey, 426 '\.S, 660, 663 (1976) (per curiam). In making

that showi .. “the burden on the complainant state of

sustaining the allegations of its complaint is much greater

than that imposed upon a complainant in an ordinary suit

between private parties.” North Dakota v. Minnesota, 263

U.S. 365, 374 (1923); see also Alabama v. Arizona, 291

U.S. 286, 292 (1934) (‘The burden upon the plaintiff state

fully and clearly to establish all essential elements of its

case is greater than that generally required to be borne

\ Nor is there reason for this Court “to confirm that the 1935 Decree

protects New Jersey's mghts under the Compact.” Nd Br. 15. Dela.

ware does not argue that the 1935 Decree altered or reduced New Jer-

sey's rights under the Compact. except insofar aa this Court's clarifiea-

tion of the proper boundary between the two States necessarily af-

fected the States’ rights as addressed in the 1905 Compact

by one seeking an injunction in a suit between private

parties.”).

As an initial matter, New Jersey has not demonstrated

that it has suffered any injury that was “directly caused”

by Delaware. New dersey cannot demonstrate injury from

Delaware's denial of the DCZA permit for the Crown

Landing project because New Jersey itself has yet to ap-

prove BI"s application for approval under New Jersey's

Coastal Zone Management Rules. See supra pp. 16-17.

Instead, the New Jersey agency has twice found BP’s ap-

plication to be deficient, with the most recent notice of de-

ficiency sent just two weeks before New Jersey filed the

instant Motion. Under the federal CZMA, approval of

BP’s New Jersey application is a necessary prerequisite to

FERC’s approval of the Crown Landing project.

In addition, even aside from the Delaware and New

Jersey coastal zone permits, FERC could well deny BP the

necessary federal permit on other grounds. See 16 U.S.C.

§ 1456(c3)(A). As discussed above, FERC has not yet

completed its review of the Crown Landing proposal and

is still considering numerous comments —— including from

the NJDEP —- in opposition to its Draft EIS. FERC also

has not made determinations under the Clean Air Act

that are necessary for the ultimate approval of the Crown

Landing project. FERC, therefore, could refuse to author-

ize construction irrespective of Delaware's denial of a

permit. The same is true of the Corps and the Coast

Guard, both of which have yet to complete their reviews of

the project. See supra pp. 17-20.

Until the administrative processes before the New Jer-

sey and federal agencies are completed, it is completely

speculative whether Delaware's action is the conclusive

event in causing BP’s permit application to ‘« denied.

Therefore, New Jersey has not suffered any injury at this

time, let alone one directly caused by Delaware. See, e.g.,

Alabama ». Arizona, 291 U.S. at 292 (origimal jurisdiction

will not be exercised unless the “threatened injury is

clearly shown to be of serious magnitude and imm-

nent”).'*

In addition, as discussed above, the record compiled be-

fore FERC shows that there are five other locations in

close proximity to the Crown Landing site on the New

Jersey coastline, all of which are outside the twelve-mile

circle, where BP could have chosen to build its proposed

LNG terminal. See supra pp. 17-18. Because those loca-

tions would not involve the use of Delaware's lands,

Delaware would not have authority to require BP to ob-

tain the same types of permits under Delaware laws as

are required for the Crown Landing site. BP's selection of |

the Crown Landing site was based on its commercial rea-

sons, see supra pp. 9-10, not because of any sovereign in-

terest of New Jersey. Those alternate locations would

provide the same economic benefits to New Jersey that

the State claims it is being denied due to Delaware's ac-

tion, everything from jobs for its citizens to lost revenue

for its school programs. See NJ Br. 21-22. But, because

BP could construct the bulk product transfer facility at a

location that would not implicate Delaware's sovereign

interests, the only conceivable injury sustained by Dela-

ware’s action is to BP’s economic interest in obtaining the “4

Crown Landing site. The invocation of this Court's origi- ‘

nal jurisdiction, however, rests on the State's injury, and

not that of a private party. See, e.g., Illinois v. Michigan,

409 US. 36, 37 (1972) (per curiam); Louisiana v. Texas,

176 U.S. at 16; infra pp. 30-31."

* This is not a case like Pennsylvania v. West Virgunta, 262 U.S. 553

(1923), in which the Court exercised orginal yurisdicuon based on its ™

finding that the threatened injury — from a West Virginia statute that

placed a “direct and certain,” “positive duty” on pipelines mm West Vie- Ph ra

ginia, on pain of “penal” sanctions, to satisfy im-state demand before ’

selling to out-of-state consumers — was “certainly impending” 1d at

543. Here. in contrast, the DCZA permit that was denied 1s only one of ; .

a number of required approvals that BP has not yet obtained and may «#

not obtain. sal

the United States government that could cause the relocation of BP's

»-

Given that Delaware's denial of permits required for the

Crown Landing project does not foreclose the possibility

that New Jersey could obtain the same benefits for its

citizens if the LNG facility were located elsewhere, New

Jersey cannot establish the injury requisite to an invoca-

tion of this Court's original jurisdic:ion. In any event, any

dispute that might ultimately arise if New Jersey were

somehow injured concretely clearly is not ripe now.

New Jersey's other claims of injury from Delaware's ex-

ercise of its authority within the twelve-mile circle with

respect to projects other than Crown Landing are plainly

insufficient to support the exercise of this Court's original

jurisdiction.

Other than BP’s request for a permit, New Jersey

points to only two instances in which Delaware has re-

quired a permit under either the DCZA or the DSLA for

projects built out from New Jersey's coastline and within

the twelve-mile circle. As New Jersey concedes, Delaware

&ranted those other permits. See Petition ©§ 23, 25

(Logan Generating was granted DCZA and DSI.A per-

mits); id. § 25 (Fenwick Commons was granted a DSLA

permit). Therefore, New dersey suffered no cognizable

injury with respect to those projects.

Left without any concrete injury, New Jersey falls back

on the assertion that Delaware's insistence on exercising

its rights within the twelve-mile circle “threaten|s}] the

construction of projects by the State of New Jersey itself.”

Id. © 37. Tellingly, New Jersey does not identify a single

such project, pending or contemplated. This Court has

previously treated such allegations of “injury to the State

as proprietor merely as a ‘makeweight."” Georgia v. Penn-

sylvania R.R. Co., 324 US. 439, 450 (1945): see also, e.g.,

Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992)

(“Such ‘some day’ intentions {to visit locations to observe

animal species} - without any description of concrete

proposed LNG facility amplify the speculative nature of New Jersey's

proffered mjurv at this Lime

plans, or indeed even any specification of when the some

day will be — do not support a finding of the ‘actual or

imminent’ injury that our cases require”).

Similarly, New Jersey asserts that Delaware's exercise

of its permitting authority within the twelve-mile circle

“may discourage economic development along this part of

New Jersey's shoreline,” which in turn may “diminish the

income received by the State of New Jersey for convey:

ances and leases of riparian lands.” Petition 94 36, 38.

This Court has previously rejected invocations of its origi-

nal jurisdiction based on such “purely speculative, and, at

most, only remote and indirect” allegations of injury.

Florida v. Mellon, 273 U.S. 12, 18 (1927).

Thus, New Jersey seeks to use this Court's original ju-

risdiction “to consider abstract questions,” such as “ques-

tions respecting the right of the plaintiff state . . . to use

the waters . . . in the indefinite future.” New York v. Thi

nois, 274 U.S. 488, 489-90 (1927). As this Court has held,

it is “not at liberty” to grant such requests. Id. at 490; see

Massachusetts v. Missouri, 308 U.S. at 17 (“Nor does the

nature of the suit as one to obtain a declaratory judgment

aid the complainant. To support jurisdiction to give such

relief, there must still be a controversy in the constitu-

tional sense and as between the two States there is no

such controversy here.”) (citation omitted). Indeed, in a

comparable case, this Court agreed with New Jersey in a

suit brought by New York. This Court held that New

York had not yet suffered any injury and dismissed the

suit “without prejudice to a renewal of the application for

injunction if the operation of the sewer of |New Jersey]

shall result in conditions which the state of New York

may be advised requires the interposition of this court.”

New York v. New Jersey, 256 U.S. at 314."*

\ "Thos ex not a case hke Wyoming v. Oklahoma, 502 US 437 (1992),

where the Court permitted Wyoming to bring suit to challenge an

Oklahoma statute designed te limit immportations of Wyoming coal

There. even though “Wyoming does not itself sell coal, it does umpoxse a

severance tax upon the privilege of severing or extracting coal from

a 0

2. BP, not New Jersey, is the real party in

interest

Wholly apart from New Jersey's lack of a concrete in-

jury caused by Delaware, this Court also lacks original

jurisdiction over New Jersey's motion for an independent

reason: BP, not New Jersey, is the real party in interest.

As this Court has held, “it is not enough that a State is

plaintiff” to invoke this Court's original jurisdiction;

rather, this Court “must look beyond the mere legal title

of the complaining State to the cause of action asserted

und to the nature of the State’s interest.” Oklahoma ex

rel. Johnson v. Cook, 304 U.S. 387, 392-93 (1938). Where

a suit is brought “in the name of the State but in reality

for the benefit of particular individuals” — and even

where “the State asserts an economic interest in the

claims and declares their enforcement to be a matter of

state policy” -- this Court has refused “resort to |its]

original jurisdiction.” /d. at 394: see Illinois v. Michigan,

409 U.S. at 37 (finding that it lacked Original jurisdiction

where a State, “though nominally a party, is here ‘in vin-

dication of the grievances of particular individuals’”);

Massachusetts v. Missouri, 308 US. at 17 (“Massachu-

setts may not invoke our jurisdiction for the benefit of

such individuals.”); North Dakota v. Minnesota, 263 U.S.

at 375-76 (explaining that a State cannot invoke the

Court's original jurisdiction “to present and enforce indi-

vidual claims of its citizens as their trustee against a sis-

ter state"); Louisiana v. Texas, 176 U.S. at 16 (holding

that “to maintain [original] jurisdiction . . . it must appear

that the controversy to be determined is a controversy

arising directly between the State of Louisiana and the

State of Texas, and not a controversy in the vindication of

grievances of particular individuals”).

land within its boundaries,” and Oklahoma's statute had “directly af-

fect{ed} Wyoming's ability to collect severance tax revenues,” by depriv-

mg it of actual revenues. Jd. at 442, 445, 451, 452 & n.10.

" Although this Court has exercised jurisdiction in cases where a

State acts “as the representative of it eits7ens im original actions

‘

...

Here, there can be no serious dispute that the real party

in interest with respect to the construction of the Crown

Landing facility is BP — which is not even a New Jersey

citizen.'® As shown above, it is for BP's commercia) rea-

sons, and not for New Jersey's government interests, that

BP prefers the Crown Landing location to other possible

locations on the New Jersey coastline that would not be

subject to Delaware's permitting authority.”

Contrary to New Jersey's assertion (at 19-20), this case

is not like Virginia v. Maryland, 540 U.S. 56 (2003). In

that case, Virginia sued on behalf of a governmental! en-

tity, the Fairfax County Water Authority (“FCWA"),

rather than a private corporation. See id. at 63-64. In

addition, the FCWA sought a permit from Maryland to

construct a water-intake structure to provide water spe-

cifically for the benefit of residents of Fairfax County, see

where the injury alleged affects the general population of a State im a

substantial way.” Maryland v. Louisiana, 451 U.S. 725, 737 (1981),

that is not the case here, where New Jersey 1s acting for the specific

benefit of » single corporation. Of North Dakota v. Minnesota, 263

US. at 375-76 (recognizing the “nght of a state as parens patriac to

bring suit to protect the general comfort, health. or property rights of

its inhabitants threatened by the proposed or continued action of an-

other state”).

® Neither BP nor Crown Landing, LLC is incorporated in New Jer-

sey or has its principal place of business there. Crown Landing, LLC is

a Delaware LLC formed on November 20, 2003, and its only member is

BP America Production Company, a Delaware corporation that is a

filth-tier subsidiary of BP p.Le., which ts organized under the laws of

England and Wales with its principal place of business in London, Eng-

land. BP formed Crown Landing, LLC specifically te manage the LNG

Terminal site. Crown Landing’s principal place of business is 501

Westlake Park, Houston, Texas. Crown Landing, LUC does not have

any customers, 80 the proposed LNG project does not have any impact

on current customers’ transportation rates or service. See BP Septem-

ber 16, 2004 FERC Application.

It would be no answer for New Jersey to argue on reply that it

has & sovereign mterest in where BP's facility is situated, and that the

assertion of mterest 1s sufficient to create original jurisdiction im thas

Court. Such an mterest surely must give way when reasonable alter-

natives exist to the encroachment on a neighboring States lands.

id., and not for the benefit of a corporation's private

shareholders. Virginia had no alternative sites along the

river that were outside of Maryland’s authority. Finally,

Maryland took more than five years to reach a final deci-

sion on the FCWA’s permit application, which it eventu-

ally granted subject to a condition — uniquely imposed on

that one project — that severely reduced the utility of the

water-intake structure and that was imposed pursuant to

special legislation directed at this project. See id.

C. Even [f This Court Has Original Jurisdiction

Over New Jersey’s Motion, It Should Decline

To Exercise That Jurisdiction

Even in instances in which the Court has both original

and exclusive jurisdiction, it may “exercise{ | {its} discre-

tion not to accept original actions.” Mississippi v. Louisi-

ana, 506 U.S. 73, 77 (1992): see also Louisiana v. Missis-

sippt, 488 U.S. 990 (1988) (declining to exercise its exclu-

sive jurisdiction over a boundary dispute between two

States). If this Court were to find that New Jersey's mo-

tion is within its original jurisdiction, the Court should

exercise its discretion and decline to accept jurisdiction

over that motion.

In “|djetermining whether a case is ‘appropriate’ for

[its} original jurisdiction,” this Court considers two fac-

tors: “the nature of the interest of the complaining State,

focusing on the seriousness and dignity of the claim,” and

“the availability of an alternative forum in which the is-

sue tendered can be resolved.” Mississippi v. Louisiana.

506 U.S. at 77 (internal quotation marks and citation

omitted); see, e.g., California v. Texas, 457 U.S. 164, 168

(1982) (per curiam) (same). Parts 1A and I.B above estab.

lish that New Jersey’s claims of injury based on the al-

leged infringement of its riparian nghts ure speculative

and insubstantial, and that BP (and not New Jersey) is

the real party in interest in this action.

In addition, an alternative forum existed for considera.

tion of Delaware's authority to require a DCZA permit for

the Crown Landing facility — namely, an appeal! to state

court of the CZICB’s decision to affirm the Secretary's de-

nial of the DCZA permit. New Jersey relies on BI’s claim

that such an appeal would have been “futile,” in light. of

Delaware Code Annotated title 7, § 7008, which normally

limits review of a Board decision to “whether the Board

abused its discretion in applying standards set forth by

(Chapter 70] and regulations issued pursuant thereto to

the facts of the particular case.” See NJ App. 140a-l4la

(Segal Decl. 4 19).

But Delaware courts have made clear that the Superior

Court, in an appeal from a decision under the DCZA, has

jurisdiction to hear claims that the Board’s decision “on

the subject of the . . . permit was not a valid decision of

the Board.” Shields v. Keystone Cogeneration Sys., Inc.,

611 A.2d 502, 507 (Del. Super. Ct. 1991). In that case, a

party challenged the grant of a DCZA permit on the

ground that “there was no valid Board action in this mat-

ter.” because the decision was made by the “vote of four

members of the nine member Board,” rather than the ma-

jority of a quorum. Id. at 505, 507. In holding that it had

jurisdiction to hear such a claim, which goes beyond the

specicic matters listed in § 7008, the court explained that

“the customary appeal standard could not be applied”

where there was no valid decision of the Board. /d. at

505.

In this case, BP could have raised on appeal the conten-

tion New Jersey makes in this Court — that the Board

(and the Secretary) had no legal basis to require a DCZA

permit for the Crown Landing project because New der-

sey’s alleged riparian rights prevent the application of

Delaware's DCZA to the Crown Landing project. More-

over, New dersey itself could have appealed the Board's

decision on that ground, even after BP chose not to du

so2” Final judgments of the Superior Court can be di-

” See Del. Code Ann. tit. 7, § 7008 (“[alny person aggrieved by a

final order of the State Coastal Zone Industrial Control Board .. . may

appeal the Board's decision to Superior Court’).

rectly appealed to the Supreme Court of Delaware. See

Del. Const. art. IV, § 11(1)(a). BP or New dersey could

then have sought this Court's review of the issue in the

normal course, through a petition for a writ of certiorari.

This Court has previously refused, in a case alleging a

violation of an interstate agreement with the “dignity of

an interstate compact,” to exercise its original jurisdiction

to hear a dispute between two States where, as here, re-

view could have been sought by a petition for a writ of cer

tiorari, even though it was by then “too late for any such

petition for certiorari to be filed.” Illinois v. Michigan, -

409 U.S. at 36-37. In that case, the Court explained that

its “original jurisdiction . . . is not an alternative to the

redress of grievances which could have been sought in the

normal appellate process, if the remedy had been timely

sought.” Jd. at 37.”"

Although New Jersey asserts (at 20) that “a Delaware

venue clearly would not provide New Jersey an adequate

forum” to raise the issue presented here, this Court bas

previously rejected such a claim. In Arizona v. New

Mexico, 425 U.S. 794 (1976) (per curiam), the Court held

that a “pending state-court action {in New Mexico} pro-

vide|d} an appropriate forum in which the issues tendered

here Jby Arizona] may be litigated.” Jd. at 797; see also id.

(explaining that, if Arizona did not prevail before the

** New Jersey's reliance (Br. 20) on Wyoming v. Oklahoma, 502 U.S.

437 (1992), is misplaced. In that case, Wyoming had alleged a direct

mjury to itself, as sovereign, and this Court found that “Wyoming's

mterests would not [have! belen] directly represented” in u separate

action that anght have been brought by Wyoming companies more db-

rectly affected by the dispute. fd. at 442, 445, 451-54 & n.10. In those

circumstances, this Court exercised its origmal jurisdiction over Wyo-

ming’s challenge to an Oklahoma statute, finding that “ne pending

action exists to which we could defer adjudication on this issue.” /d. at

452. Here. by contrast. the Delaware courts would have permitted BP

or New Jersey to raise on appeal the claim that the Delaware agency's

conclusion that Crown Landing was subject to the DCZA was ultra

tires or otherwise improper because of the 1905 Compact.

—————eETEeee

“New Mexico Supreme Court, ... the issues raised now

may be brought to this Court by way of direct appeal”).

Il. DELAWARE HAS THE AUTHORITY UNDER

THE 1905 COMPACT TO REGULATE RIPAR-

1AN STRUCTURES ERECTED ON DELA-

WARE’S SUBMERGED LANDS

If the Court reaches the merits of New Jersey’s request

at this time, it should reject New Jersey's motion to re-

open or for supplemental decree.” At the time the 1905

Compact was drafted, there was widespread disagreement

over the scope of “riparian” rights enjoyed by a landowner

adjacent to navigable waters. Much depended on the le-

gal context — whether a particular jurisdiction incorpo-

rated the English common law, changed that law by stat-

ute, or developed other principles through other sources of

law. See generally 1 Henry P. Farnham, The Law of

Waters and Water Rights 279 (1904) (“Farnham’s Law of

Waters”). As Farnham explained in his 1904 treatise,

“(tlhe courts do not fully agree in their enumeration of

these [riparian] rights.” /d. In general terms, “ripanan”

rights refer to the cluster of rights an owner of land adja-

cent to waterways had of “access” to the waterway; “pref-

erence in case the land under the water is to be sold”; “ac-

cretion and the preferential right to fill out into the water

if such filling is permitted by the public”; and “free use of

the water space immediately adjoining his property for

the transaction of such business as may be necessary in

connection with wharves or structures erected by him.”

id. at 279-80. But, as Farnham cautions, “all of the courts

have not recognized some of the rights above enumer-

ated.” id. at 280, and certain of those rights — such as the

—_-———

” Our submission here is that New Jersey's motion to invoke thus

Court's original jurisdiction should be denied because New Jersey's

reading vf the 1905 Compact is untenable. We reserve the right to file

an Answer to New Jersey's petition and to address New Jersey's theo-

ries and evidence more fully in the event this Court grants New Jer-

sey's motion and directs the parties to address the merits

right to wharf out from the shore —- are “subject to several

limitations,” id. at 279.

Although at this preliminary stage in this proceeding it

is not possible to define comprehensively all of the rights

and duties — or the limitations thereon -- a New Jersey

landowner with riparian rights would have with respect

to Delaware jands within the twelve-mile circle, the Court

at this time may reject New Jersey's principal submission:

that New Jersey has “exclusive” jurisdiction to authorize a

riparian landowner on New Jersey's shore to build a bulk

transfer facility on Delaware's submerged lands.’ No

such right was recognized prior to 1905; the Compact did

not change that result; New Jersey’s arguments to the

contrary are unpersuasive; and this Court's recent deci-

sion in Virginia v. Maryland does not support New Jer-

sey's assertion.

A. Prior To The 1905 Compact, Delaware Un-

questionably Had The Authority To Regulate

Or To Exclude Altogether On Delaware Sub-

merged Lands A Structure Such As BP’s LNG

Bulk Transfer Facility

1. As owner of the tidal lands in question,

Delaware holds the lands in a public trust

for the people

in numerous cases, this Court has recognized the bed-

rock principle that “fojwnership of submerged lands —-

which carries with it the power to contro} navigation, fish-

ing, and other public uses of water —. is an essential at-

tribute of sovereignty.” United States v. Alaska, 521 U.S.

1, 5 (1997); see also, e.g., Montana v. United States, 450

U.S. 544, 551 (1981) (“[Tihe ownership of land under

** If the Court has any doubt on that score or believes that New Jer-

sey's questions presented require a more comprehensive treatment of

the meaning of “riparian jurisdiction” outside the specific confines of

the dispute over BP's Crown Landing proposal, the appropriate dispo-

sition would be to appoint a Special Master so that the Jaw of riparian

rights, as reasonably understuod by the parties and incorporated inte

the 1905 Compact, may be more fully explored

— ee

navigable waters is an incident of sovereignty.”). Those

attributes of sovereignty necessarily extend to the limits

of the sovereign’s boundary, for, as this Court has long

held, “when a place is within the boundary, it is a part of

the territory of a state; title, jurisdiction, and sovereignty,

are inseparable incidents, and remain so till the state

makes some cession.” Rhode Island v. Massachusetts, 37

U.S. (12 Pet.) 657, 733 (1838).

A state holds its lands in trust for the people, and that

principle extends as well to submerged lands, which are

treated with the same incidents of sovereignty as uplands.

For that reason, a court considering the scope of an incur-

sion on the “‘title to the bed of navigable water must...

begin with a strong presumption’ against defeat of a

State's title.” United States v. Alaska, 521 US. at 34

(quoting Montana v. United States, 450 U.S. at 552) (ellip-

sis in original).

That presumption against any impairment to the title

of a State’s submerged lands derives from the fact that a

State’s “title to soils under tide water” “is a title held in

trust for the people of the State that they may enjoy the

navigation of the waters, carry on commerce over them,

and have liberty of fishing therein freed from the obstruc-

tion or interference of private parties.” Illinois Central

RR. Co. v. Illinois, 146 U.S. 387, 452 (1892)."* To be sure,

a State may convey property for the purpose of erecting 2

wharf to aid navigation, “consistent{) with the trust to the

public upon which such lands are held by the State.” Jd.

But “(t]he State can no more abdicate its trust over prop-

8 This rule had its origins in England, where, at “‘common law, the

title and dominion in lands flowed by tide water were in the King for

the benefit of the nation.... Upon the American Revolution, these

rights, charged with a like trust, were vested in the original States

within their respective borders, subject to the rights surrendered by

the Constitution of the United States.’” Phillips Petroleum Co. v.

Missixsippi, 484 U.S. 469, 473-74 (1988) (ellipsis in original) (quoting

Shively v. Bowlby, 152 U.S. 1, 57 (1894); see also Martin v. Lessee of

Waddell, 41 U.S. (16 Pet.) 367, 410-12 (1842).

erty in which the whole people are interested, like navi-

gable waters and the soils under them, ... than it can ab.

dicate its police poWers in the administration of govern-

ment and the preservation of the peace.” Jd. at 453.

That incidence of public trust in submerged lands acts

as a check against efforts by legislators and other gov-

ernment officials to relinquish the power and authority of

a State over those lands. This Court found the public

trust to be so strong in illinois Central, for example, that

it held the Illinois legislature's transfer to a railroad of

ttle to a large part of the Chicago harbor in Lake Michi-

8an to be “beyond the authority of the legislature since it

amounted to abdication of its Obligation to regulate, im-

prove, and secure submerged lands for the benefit of every

individual.” Idaho v. Coeur d'Alene Tribe of Idaho, 52)

U.S. 261, 285 (1997) (citing J/linois Central, 146 US. at

455-60). While that holding “was necessarily a statement

of Illinois law, it invoked the principle in American law

recognizing the weighty public interests in submerged

lands.” /d. (internal quotation marks and Citation omit-

ted). Indeed, New Jersey courts have interpreted Jilinois

Central to stand for the principle that, “[a}ithough the

States have the inherent authority to convey riparian

grants to private persons, the sovereign never waives its

right to regulate the use of public trust property.” Karam

v. New Jersey Dep't of Envtl. Protection, 705 A.2d 1221,

1229 (N.J. Super. Ct. App. Div. 1998) (citation omitted),

aff'd, 723 A.2d 943 (N.J. 1999). Delaware could conceiva-

bly convey its submerged lands for use by private persons.

but it would still retain its regulatory authority over those

lands as part of its public trust responsibility.

That public trust Principle does not, however, ordinarily

extend beyond the boundaries of the State's territory,

even when the boundary is determined by a body of water.

As Farnham explains. “[iJn the absence of an agreement

or understanding between the opposite states, the juris-

diction of each is limited to its own side of the stream, and

dves not extend beyond its boundary.” } Farnham’s Law

of Waters at 31; see also id. at 39 (“Whatever acts involve

title to the soil are exclusively under the jurisdiction of

the owner of the soil.... [But a state] cannot pass a law

to govern another state, or realty situated therein.”); see

also Henderson Bridge Co. v. Henderson City, 173 U.S.

592, 622 (1899) (“Whatever jurisdiction the State of Indi-

ana may properly exercise over the Ohio River, it cannot

tax this bridge structure south of low-water mark on that

river, for the obvious reason that it is beyond the limits of

that State and permanently within the limits of Ken-

tucky.”).”°

As the understanding of a sovereign’s ownership of sub-

merged lands evolved, the courts came to recognize two

distinct aspects of this sovereignty — the right of owner-

ship and the right of conservation:

The right of the crown in navigable waters is two-

fold, the right of property, and the right of conser-

vation; and these nights are perfectly distinct, and

may be transferred and separated. The right of

conservation of a river may be given to the corpo-

ration of a city as far as the tide flows, but they are

not thus made owners of the soil or bed of such

river. And the ownership of soil, and the license of

conservation, are not sufficient to legalize an erec-

tion in tide river; for the question of nuisance or

not, may still be raised.

Joseph K. Angell, A Treatise on the Right of Property in

Tide Waters and in the Soil and Shores Thereof 202-03

(1847).

In the late nineteenth century, therefore, a court ad-

dressing the issue raised here would have concluded that

*° While not at issue in this case, a state's sovereign power over

navigable waters is subject “to the paramount nght of navigation over

the waters, so far as such navigation might be required by the necesst-

ties of commerce with foreign nations or among the several States, the

regulation of which was vested in the General government.” Weber v.

Board of Harbor Comm'rs, 85 U.S. (18 Wall.) 57, 65-66 (1873).

Delaware holds its submerged lands in trust for the peo-

ple of the State, that one of the incidents of sovereignty is

“the right of conservation,” and that Delaware could not

lightly be held to have relinquished its trust lands to an-

other sovereign or a private party. For those reasons, the

action taken by Delaware here — to deny a permit to BP

to construct 4 massive bulk product transfer facility re-

quiring the dredging of 800,000 cubic yards of svi] over 27

acres of submerged lands — was perfectly consistent with

its responsibility to hold those lands in trust for the peo-

ple of Delaware.

2. Even without a public trust relationship,

Delaware has police authority to regulate

uses of its submerged lands

in addition to the established law that submerged lands

owned by the sovereign are held in a public trust, riparian

rights have always been deemed to be “subject to such

general rules and regulations as the legislature may see

proper to impose for the protection of the rights of the

public, whatever those may be.” Yates v. City of Milwau-

kee, 77 U.S. (10 Wall.) 497, 504 (1871). That restriction is

especially true of the right to wharf out, on which New

Jersey relies.

The law appears never to have recognized an absolute

right on the part of a riparian landowner to conduct

whatever activities it wants simply because they occur on

a wharf. Justice Holmes explained in 1908 that “it is rec-

ognized” that States may “by statute” pass laws “to pro-

tect the atmosphere, the water and the forests within its

territory,” based on a “principle of public interest and the

police power.” Hudson County Water Co. v. McCarter, 209

U.S. 349, 355-56 (1908). Thus, “the State has an interest

independent of and behind the titles of its citizens, in all

the earth and air within its domain. [t has the last word

as to whether its mountains shall be stripped of their for-

ests and its inhabitants shall breathe pure air.” Georgiu

v. Tennessee Copper Co., 206 U.S. 230, 237 (1907). That

same expansive police power necessarily operates to per-

mit a State to impose reasonable restrictions on the exer-

cise of riparian rights. “=.

Had the 1905 Compact never been executed, there could

be no question that Delaware would have sovereign au-

thority all the way to the boundary between the two

States, which this Court held in 1934 extends to the low-

water mark on the New Jersey shore within the twelve-

mile circle. As a leading water rights treatise of the day

explained, “[i]f one state owns the whole river, it may en-

act and enforce laws as far as the opposite shore, since the

whole river is within its territorial jurisdiction.” 1 Farn-

ham’s Law of Waters at 38-39. ‘The territorial jurisdiction

supports the exercise of police power, and that jurisdiction

and power extend to the State’s boundary.

3. Under New Jersey law, the owner of ri-

parian lands could not build structures on

navigable waters on sub lands the

landowner did not own

Even if there were any doubt about the foregoing prin--

ciples and how they would support a decision by Delaware

not to permit its submerged lands to be used for a massive

bulk product transfer facility, BP would have had no right

to build its structures on those submerged lands under

New Jersey law. In the nineteenth century, courts varied

as to whether they recognized the right of owners of ripar-

ian lands to build on adjoining submerged lands that they

did not own. Ln some States, for example, riparian rights

“rest{ed] on title to the bank, and not upon title to the soil

under the water.” Northern Pine-Land Co. v. Bigelow, 54

N.W. 496, 198 (Wis. 1893) (interna) quotation marks

omitted); see also, ¢.g., In re West 205th Street in City of

New York, 147 N.E. 361, 362 (N.Y. 1925) (Riparian rights

_. are not dependent upon ownership of the shore, and

are the same, whether or not the riparian owner owns the

soil under water.”). In Florida, however, the statutory

rule was that a riparian landowner had to own property

down to the ordinary low-water mark in order to be a

“riparian proprietor” for certain purposes. Azxline v.

Shaw, 17 So. 411, 414 (Fla. 1895).

In New Jersey, by contrast, a landowner has been re-

quired to acquire from the government a protectible prop-

erty interest in the submerged land on which a structure

is built to be able to enjoy that aspect of riparian rights.

See, e.g., Beck's Waters and Water Rights § 7.02(a)(1) (col-

lecting cases); NJ App. 27a (Castagna Aff. § 4) (“Riparian

owners have a preemptive right to apply to the State of

New Jersey to lease or purchase the State’s tidal land

in front of their upland. N.J. Stat. Ann. § 12:3-7 (enacted

in 1869.) A sale or lease to one who is not an upland

owner must be with the consent of the upland owner or

on six month's notice to the upland owner. N.J. Stat.

Ann. § 12:3-9 (enacted 1869.) Otherwise, the grant or

lease will be void. Shamberg v. Board of Riparian Com-

missioners, 43 N.J.L. 132, 60 A. 43 (Sup. Ct. 1905.).”).

Thus, had this issue arisen prior to execution of the 1905

Compact, BP would not have had a right under New Jer-

sey law to build its facility beyond the limit of its own ter-

ritorial ownership - - and certainly not 2,000 feet beyond

that boundary into Delaware's soveretgn-owned subaque-

ous lands -- unless the landowner (Delaware) gave its

permission.

4. Nothing in pre-1905 riparian rights law

would have led the States to think that

Delaware lacked authority to regulate a

massive 2,000-foot-long structure extend-

ing onto its sovereign lands

Even under New Jersey common law, a riparian land-

owner did not enjoy an exclusive right to build on a sover-

eign’s submerged lands without heing subject to any regu-

latory authority. See, e.g., Bailey v. Driscoll, 112 A.2d 3,

13 (N.J. Super. Ct. App. Div.), aff'd in part and rev in

part on other grounds, 117 A.2d 265 (N.J. 1955). In

Bailey, the court held that, “by the common law, the own-

ership of all lands under tidewater below high water mark

within the territorial limits of the State belonged to the

Crown of England, did not pass to the proprietors of New

Jersey under the grant from the Duke of York, and be-

came vested by the Revolution in the sovereignty of the

State under the guardianship of the Legislature.” /d. As

this Court likewise observed, “‘{i]n the examination of the

effect to be given to the riparian laws of the State of New

Jersey,’ . . . ‘it is to be borne in mind that the lands below

high water mark, constituting the shores and submerged

lands of the navigable waters of the State, were, according

to its laws, property of the State as sovercign.”” Shively v.

Bowlby, 152 U.S. at 21-22 (quoting Hoboken v. Pennsyl-

vania R.R. Co., 124 U.S. 656, 688 (1888)). Thus, “all navi-

gable waters within the territorial] limits of the State, and

the soil under such waters, belong in actual propriety to

the public; that the riparian owner, by the common law,

has no peculiar rights in this public domain as incidents

of his estate; and that the privileges he possesses by the

local custom or by force of the wharf act, to acquire such

rights, can, before possession has been taken, be regu-

lated or revoked at the will of the legislature.” Id. at 22

(internal quotation marks omitted).

The Bailey court further recognized New Jersey's law as

holding that each State is free “to determine over what

submerged lands its sovereign prerogative of ownership

shall be exercised (56 Am.dur. § 461) and that each state

may similarly deal with such lands ‘according to its own

views of justice and policy, reserving its own control over

such lands, or granting rights therein to individuals or

corporations, whether owners of the adjoining upland or

not, as it considered for the best interests of the public

***' 56 Am.Jur. § 471, p. 884.” 112 A.2d at 13.

Two limitations on wharfage were routinely recognized

in nineteenth century cases: the common law of nuisance

and the State's police power to decide if the wharf was in

the public interest. The first limitation provided that

“every erection in a navigable river, which obstructs or

hinders the navigation, is a nuisance.” Newark Plank

Road & Ferry Cv. v. Elmer, 9 N.J. Eq. 754, 1855 WL, 122,

at *20 (N.J. 1855); see also Stevens v. Paterson & Newark

R.R. Co., 34 N.J.L. 532, 1870 WL 5140, at *8 (N.d. 1870)

“That any erection prejudicial to the common rights of

navigation or fishery may be abated, is not denied.”); Dut-

ton v. Strong, 66 U.S. (1 Black) 23, 30 (1861) (adjudicating

claim “that the bridge pier was a nuisance, because .. . it

was an obstruction to the public right of navigation”). The

second Jimitation recognized the sovereign's ability to im-

pose restrictions on the building of wharves and other

structures. See, e.g., Bailey, 112 A2d at 13. That was

New Jersey's own public policy from the mid-nineteenth

century onward, when it began through statutory law the

process of limiting what wharves and other riparian

structures a landowner could erect. See 1851 N.J. Laws

335 (Wharf Act); N.J. Stat. Ann. §§ 12:3-1 to 12:3-25

(1979) (cited sections originally enacted prior to 1905); NJ

Br. 8.

It is axiomatic that, if New Jersey could exercise its

sovereign prerogatives over the tidal shorelands from the

boundary of the Crown Landing project to the Delaware

border, Delaware too could exercise its sovereignty over

those aspects of the industrial facility that BP seeks to

place on Delaware's submerged lands. As the New Jersey

courts have recognized, “a riparian owner has no rights at

common law, except alluvion and dereliction," in such

waters or the lands under them, beyond those of the pub-

lic generally, even including unimpaired access thereto,

merely by reason of his ownership of the ripa.” Bailey,

112 A.2d at 13 (citing Bouquet v. Hackensack Water Co.,

101 A, 379 (N.J. 1917)). Rather, by local common law, a

riparian owner could “appropriate such lands between the

high and low water marks in front of his property as his

own by wharfing out and filling in,” but in doing so “|sluch

local custom was nothing more than a license, which,

*°“Alluvion” und “dereliction” refer to the gaming and losing of land

as a result of the natural processes of tides, river flow, and sea move.

ments. A mparian landowner would have certain rights to protect the

lund against such additions and subtractions.

when executed, became irrevocable.” /d. Therefore, the

State as owner of the submerged lands “could do what it

pleased with its lands under tidewater as far as the ad-

joining riparian owner was concerned unless the latter

had already exercised his privilege of wharfing or recla-

mation.” Jd. Because BP has not already erected its

structure, it has no license to assert against either State.

Under the principles recognized in its own courts in the

nineteenth century prior to enactment of the 1905 Com-

pact, therefore, New Jersey plainly would have no claim

that it has exclusive jurisdiction, to the exclusion of Dela-

ware, to regulate any structures or activities on wharves

that originate on the New Jersey shore but extend onto

Delaware lands. Accordingly, the only question here is

whether the 1905 Compact changed that baseline rule of

sovereignty such that Delaware was ousted of jurisdic-

tion to regulate hazardous activities occurring on those

wharves in Delaware waters.

B. The 1905 Compact Did Not Alter Delaware's

Authority To Regulate Structures Built On Its

Subaqueous Lands

A congressionally sanctioned interstate compact is a

federal law subject to federal construction. “Just as if a

court were addressing a federal statute, then, the first

and last order of business of a court addressing an ap-

proved interstate compact is interpreting the compact.”

New Jersey v. New York, 523 U.S. 767, 81) (1998) (inter-

nal quotation marks omitted). “|W]here the words of a

law, treaty, or contract, have a plain and obvious mean-

ing, all construction, in hostility with such meaning, is

excluded.” Green v. Biddle, 21 U.S. (8 Wheat.) 1, 89-90

(1823). The Court will explore “textual reasons” for com-

pact terms and examine the structure and the entirety of

an agreement to evaluate the reasonableness of an inter-

pretation of one portion. Cuyler v. Adams, 449 U.S. 433,

446.47 (1981).

Only if the text of the compact is ambiguous will the

Court consider extrinsic evidence, including the course of

negotiations, course of performance, or other post-

execution history. See, e.g., Oklahoma v. New Mexico, 501

U.S. 221, 236 n.5 (1991) (“[A] congressionally approved

compact is both a contract and a statute, and we repeat-

edly have looked to legislative history and other extrinsic

material when required to interpret a statute which is

ambiguous. .. . Thus, resort to extrinsic evidence of the

compact negotiations in this case is entirely appropri-

ate."); see also O'Connor v. United States, 479 U.S. 27, 33

(1986) (“The course of conduct of parties to an interna-

tional agreement, like the course of conduct of parties to

any contract, is evidence of its meaning.”).

In evaluating a question of competing claims between

sovereigns, moreover, the rule is that “a waiver of sover-

eign authority will not be implied, but instead must be

surrendered in unmistakable terms.” United States v.

Cherokee Nation, 480 U.S. 700, 707 (1987) (holding that

grant of title by federal government of subaqueous lands

to Indian tribe withheld federal government's naviga-

tional easement).*’ New Jersey has likewise required

“conclusive proof” of any purported relinquishment of

property rights in lands owned by the State. Stevens,

1870 WL 5140, at *10 (‘The claim is, that the legislature

*” See also Proprietors of Charles River Bridge v. Proprietors of War-

ren Bridge. 36 U.S. (1! Pet.) 420, 548 (1837) (“{WJhenever any power of

the state is said to be surrendered or diminished, whether jt be the

taxing power or any other affecting the public interest, the same prin-

ciple applies, and the rule of construction must be the same.”); id.

(Baldwin, J., concurring) (“|t}he rule that public grants pass nothing by

implications, has been most rigidly enforced as to all grants of toll for

ferries, bridges, wharves, quays, on navigable rivers and arms of the

sea”), reprinted in WESTLAW, beginning at page 113 of the computer

version of the Court's opinion, with the following notation: “West Edi-

torial Note: the source of the following opinion is Baldwin's Constitu-

tional Views, p. 134-169" (Justice Baldwin's concurring opinion appar-

ently was pot printed in the Peters Reports of this Court's decision in

Proprietors of Charles River Bridge or subsequently in the U.S. Re-

ports), Harris v. Elliott, 35 U.S. (10 Pet ) 25, 54 (1836) (wiving a “strict,

legal, technical interpretation” to purchase of land by United States for

# navy yard in Charlestown, with the assent of Massachusetts).

has granted to these defendants the use of a part of the

public domain. The state is never presumed to have

parted with any part of its property, in the absence of con-

clusive proof of an intention to do so.”).

Furthermore, it is common ground that the 1905 Com-

pact was negotiated in the shadow of the then-unresolved

boundary dispute. See NJ Br. 6 “|t}]he Compact did not

establish the boundary line”). An interstate compact

reached in the context of an unresolved boundary dispute

must be “read . . . in light of the ongoing dispute over sov-

ereignty.” Virginia v. Maryland, 540 U.S. at 69. The

drafters of the 1905 Compact would have understood that,

absent some different provision, a subsequent adjudica-

tion of the boundary dispute would necessarily settle the

boundary to which each State could exercise its “riparian

jurisdiction.“ Thus, the Court should construe the plain

Janguage of the Compact in that light.

1. Use of “continue” indicates that the States

intended to maintain the status quo

The dispute before the Court turns primarily on the

proper interpretation of Articles VII and VIII of the 1905

Compact. Article VII provides:

Each State may, on its own side of the river, con-

tinue to exercise riparian jurisdiction of every kind

and nature, and to make grants, leases, and con-

veyances of riparian lands and rights under the

laws of the respective States.

NJ App. 5a. Article VIJI then makes clear that nothing

more than “riparian jurisdiction” was given in Article VII:

Nothing herein contained shal) affect the territo-

rial limits, rights, or jurisdiction of either State of,

in, or over the Delaware River, or the ownership of

™ “Riparian jurisdiction” appears not tu be a term of art with an un-

derstood meaning at common law or as defined in state statutes.

the subaqueous soil thereof, except as herein ex-

pressly set forth.

Id.

By its plain terms, Article VII provides in pertinent

part that “|elach State may, on its own side of the river,

continue to exercise riparian jurisdiction of every kind and

nature.” /d. (emphasis added). “Continue” means “to re-

main in a given place or condition.” Webster's Interna-

tional Dictionary 314 (1898). By use of this verb, there-

fore, the parties clearly intended to carry on exercising

the same principles with respect to riparian rights as they

had before.

New dersey draws a different conclusion from this plain

meaning, however. New Jersey finds “critical importance”

in Article VII's use of the word “continue,” claiming that

“it shows that the States intended that their riparian

sovereignty could carry on in the same manner as had

been exercised in the past.” Br. 25 (emphasis added). In

conjunction with that legal assertion, New Jersey adds

the alleged fact that prior to 1905 it had on eight occa-

sions authorized riparian structures extending beyond the

low-water mark. See Br. 25-26 (citing NJ App. 29a-36a

(Castagna Aff. 4 8)).

That “course-of-dealing” evidence, however, does not

advance New Jersey's argument in light of that State's

acknowledgment that the Compact was drafted against

the backdrop of an ongoing boundary dispute. Whatever

course of dealing had occurred before became irrelevant

under the Compact’s express provision that, going for-

ward, the States agreed that they would exercise jurisdic-

tion only on their “own side of ther.” Nd App. 5a. As

the drafters of the Compact well knew, the boundary be-

tween the States had long been in dispute. In fact, when

this Court eventually adjudicated the boundary dispute in

1934, it rejected a similar argument by which New Jersey

claimed title to the middle of the river by virtue of the

very same riparian improvements on which it relies here,

claiming that Delaware had acquiesced in these im-

provements. The Court concluded, however, that “almost

from the beginning of statehood Delaware and New Jer-

sey have been engaged in a dispute as to the boundary

between them,” and held that “[a]equiescence is not com-

patible with a century of conflict.” New Jersey v. Dela-

ware, 291 U.S. at 376-77.

Article VII of the Compact simply provides that each

State may “continue” to exercise riparian jurisdiction “on

its own side of the river.” It does not say that either State

can do so beyond that boundary line, wherever it might

later be adjudicated to lie. Thus, even if prior to 1905

New Jersey might have regulated riparian improvements

on certain sites appurtenant to its shores that proved to

be beyond the boundary adjudicated by this Court nearly

30 years later, the Compact in no way confers jurisdiction

on New Jersey to regulate exclusively any new riparian

structures extending from New Jersey's “own side of the

river” into Delaware territory. New Jersey's apparently

contrary construction of “continue” conflicts with the plain

meaning of the word and the intent of the parties in de-

ferring resolution of the precise boundary line.

Indeed, then as now, New Jersey's riparian laws ex-

pressly limited such transfers of rights to “lands of the

state” — not lands of an adjacent State. N.J. Stat. Ann.

§§ 12:3-9 (enacted 1877), 12:3-18 (enacted 1877), 12:3-21

(enacted 1891), 12:3-22 (enacted 1891), 12:3-23 (enacted

1891), 12:3-24 (enacted 1891), 12:3-25 (enacted 1891).

Thus, New Jersey plainly could not “continue” to exercise

the rights of a landowner with respect to land it has never

owned. And no language in Article VI supports an ar-

gument that Delaware gave up its sovereign right to

grant, lease, or convey its own titled Jands.

2. Use of “on its own side” indicates that

the States intended to preserve existing

rights pending the outcome of the bound-

ary dispute

Delaware's position that the 1905 Compact did not re-

sult in a transfer of sovereign rights to New Jersey is for-

tified by the Compact’s reference to each party’s exercise

of jurisdiction on its “own side of the river.” NJ App. 5a.

By deferring resolution of the precise boundary coordi-

nates, the States adopted non-specific language in Article

VII — “own side of tne river” — as a means of ensuring

that, whenever the boundary dispute ultimately was re-

solved, the two States would know their respective rights

and powers on their own side of the boundary. In 1905,

the parties knew that “almost from the beginning of

statehood Delaware and New Jersey ha[d] been engaged

in a dispute as to the boundary between them,” New Jer-

sey v. Delaware, 291 U.S. at 376, so it would be illogica! to

read Article VII as giving up Delaware’s right to assert its

jurisdiction, including riparian jurisdiction, over land

within its borders, wherever the boundary may ultimately

be defined.

This Court's ruling in Virginia v. Maryland is instruc-

tive here. Virginia and Maryland had entered into a 1785

Compact at a time when the boundary between those

States was in dispute and would not be resolved until

1877, when a binding arbitration award set the boundary

at the low-water mark on the Virginia shore of the Poto-

mac River. See 540 U.S. at 60-62; id. at 62 (“Although the

1785 Compact resolved many important navigational and

jurisdictional issues, it did not determine the boundary

line between the States, an issue that was left open to

long continued disputes.”) (internal quotation marks and

ellipsis omitted). The 1785 Compact provided that “‘{t]he

citizens of each state respectively shall have full property

in the shores of the Potowmack river adjoining their

lands, with all emoluments and advantages thereunto be-

longing, and the privilege of making and carrying out

wharves and other improvements, so as not to obstruct or

injure the navigation of the river.'” Jd. at 66 (quoting Ar-

ticle Seventh of the 1785 Compact). Examining the vari-

ous provisions of that compact, the Court observed that

the provision in Article Seventh of a “privilege of making”

wharves by the “citizens of each state” “was not explicitly

——————

Oo —=—_—

subjected to any sovereign regulatory authority,” while

the fishing right in Article Eighth “was subjected to mu-

tually agreed-upon regulation.” /d. at 66-67. The Court

found “that these differing approaches to rights” “indicate

that the drafters carefully delineated the instances in

which the citizens of one State would be subject to the

regulatory authority of another.” /d. at 67.

By limiting each State's jurisdiction to its “own side of

the river,” the drafters of the Compact did not authorize

one State, such as New Jersey, to determine how the

other State’s submerged lands would be utilized. Sover-

eign jurisdiction stopped at the boundary line and went no

further.

Buttressing this point is the fact that the drafters of the

Compact resolved their fishing dispute by reference to

specific geographic lines that would not change regardless

of how the boundary dispute might someday be resolved:

Art. Ill. The inhabitants of the said States of

Delaware and New Jersey shall have and enjoy a

common right of fishery throughout, in, and over the

waters of said river between low-water marks on

each side of said river between the said States, ex-

cept so far as either State may have heretofore

granted valid and subsisting private rights of fish-

ery.

NJ App. 3a-4a (emphasis added). The specific geography

denoted by the phrase “between low-water marks” is in

stark contrast to Article VII's non-specific geographic

phrase “own side of the river.” The parties thus knew

how to take a dispute over the right to use the Delaware

River out of the shadow of the underlying boundary dis-

pute, yet they plainly did not do so in Article VII.

Articles 1 and II, which likewise specify precise gco-

graphic lines, further show that Article VII was depend-

ent on the future resolution of the then-unresolved

boundary dispute. First, similar to Article III, Articles |

and [I permit each State to serve criminal and civil proc-

ess “from low-water mark on the New Jersey shore to low-

water mark on the Delaware shore.” NJ App. 2a-3a (Arti-

cle l); see also id. at 3a (Article II). As with Article IIT,

those precise 8eographic lines would apply regardless of

the later resolution of the boundary dispute.

Second, Article I limits New Jersey's service of criminal

process to offenses committed, among other things, “upon

the eastern half of said Delaware River”: Article Il corre-

spondingly limits the criminal process that may be served

by Delaware to offenses committed “upon the western half

of said Delaware River.” Id. at 2a-3a (emphases added).

New Jersey's interpretation of Article VII would function-

ally rewrite the Compact by borrowing from other articles

the specific language that it needs to give New Jersey “ex.

clusive jurisdiction” (id. at 5a (Article IV)) “upon the east-

ern half of said Delaware River” (ia. at 2a (Article I)). But

Article VII does not contain that language. Al) it Says is

that each State has certain riparian rights “on its own

side of the river.” In view of the care with which the

drafters expressly specified both exclusive jurisdiction and

precise geographic bounda ry lines in other articles of the

concise Compact (the substance of which spans less than

four pages), it simply cannot be the case that Article VI]

grants New Jersey “exclusive riparian jurisdiction over

improvements appurtenant to the New Jersey shoreline.”

Nd Br. 22. '

Indeed, Article VIII of the Compact provides that

“{njothing herein contained shall affect the territorial lim.

its, rights, or jurisdiction of either State of, in, or over the

Delaware River, or the ownership of the subaqueous soil

thereof, except as herein expressly set forth.” NJ App. 5a

(emphasis added). Delaware's right to exercise its author.

ity over structures on those lands can in no way be said to

be “expressly” precluded by Article VIL The New Jersey

Attorney General in 1954 recognized that basic point. In

a Formal Opinion, he concluded that Article VIII leaves

New Jersey powerless “to issue licenses for dredging

within the twelve-mile Circle,” which the Attorney Gen.

eral noted “New Jersey has never undertaken to issue.”

DE App. 72a (Formal Opinion 1954, No. 3, at 8 ("1954

Formal Opinion”)). Moreover, he pointed out, “R. S.

1[2]:3-22 provides only for licenses to dredge or remove

any deposits of sand or other material ‘from lands of the

state’ under tide waters. The lands below low water mark

within the twelve-mile Circle are not lands of this State,

but lands of the State of Delaware.” Id.”

The dredging proposed by BP here, moreover, is no

small or incidental matter. It is inconceivable that Dela-

ware would have ceded the authority to regulate the use

and dredging of its subaqueous soil 2,000 feet out into

Delaware waters in an area spanning 27 acres and requir-

ing removal of the equivalent of 67,000 to 80,000 dump

trunks worth of soil.

3. Nothing in the 1905 Compact diminished

Delaware's pre-existing authority over its

subaqueous lands

The 1905 Compact does not contain any provision evinc-

ing the requisite intent to cede Delaware subaqueous

lands to New Jersey or otherwise to impair Delaware's

public trust responsibility to manage those lands for the

public good. Those omissions are fatal to New Jersey's

argument, because a strong presumption cxists that even

a grant of submerged iands does not terminate the public

trust. See, e.g., Illinois Central, 146 U.S. at 453; see also

Coeur d'Alene Tribe, 521 U.S. at 284 (noting the “strong

presumption” that state ownership of navigable waters

“uniquely implicate|s) sovereign interests”), supra p. 37.

™ The opmion also concluded that “New Jersey has by virtue of Arti

cle VI the complete and exclusive night to make grants and leases of

riparian lands below low water mark on its side of the river.” DE App.

70a (1954 Formal Opinion at 7). That conclusion is incorrect for all the

reasons stated in this brief, and is in serious if now irreconcilable ten-

sion with the Attorney General's conciusion that New Jersey could not

authorize dredging on Delaware's subaqucous binds because they are

not “lands of the state” of New Jersey. /d. at 72a-73a (1954 Formal

Opinion at 4).

-—

New Jersey itself acknowledges, moreover, that its ex-

ercise of “riparian jurisdiction” to regulate riparian rights

is Separate and apart from the State's jurisdiction to regu-

late based on environmental or conservation concerns. As

one of its affiants explains, “[rliparian owners, once they

have a grant or lease, may dredge out from the area of

their grant in order to reach the navigable channel. N.J.

Stat. Ann. § 12:3-21 (enacted 1891.) The exercise of this

right is subject to obtaining applicable State environ-

mental permits and a tidelands license.” NJ App. 28a

(Castagna Aff. 4) (emphasis added).” Indeed, one of the

riparian grants to build a wharf on which New Jersey re-

lies (at 26) states that “nothing in this act shall affect the

rights of the State to lands lying under water,” 1871 NJ.

Laws ch. 307, § 1, thus making clear that a riparian grant

does not obviate the exercise of other forms of jurisdiction.

Accordingly, New Jersey's grant of the right to use

lands pursuant to its riparian jurisdiction would not pre-

vent that State from exercising other forms of jurisdiction

under other bodies of law to regulate conservation and the

environment. Thus, even if New Jersey were correct that

Article VII gave it “exclusive riparian jurisdiction” to de-

cide the placement of wharves extending from the New

Jersey shore into Delaware waters, NJ Br. 1, that term

cannot be read so expansively as to preclude Delaware

from exercising jurisdiction under its coastal zone laws,

just as New Jersey's issuance of a riparian grant does not

preclude it from enforcing its other gencrally applicable

laws within that State.

In this case, Delaware strives to protect its fragile

coastal zone. The purpose of the Delaware Coastal Zone

Act is “to control the location, extent and type of indus-

trial development in Delaware's coastal areas,” because

“ The ced New Jersey statute was in place at the time the 1905

Compact was executed, and was codified under the heading of “Kipar.

ian Kaghts.” See DE App. 167a (4 Nd. Comp St, Riparian Rights § 36

(1911)

those “coastal areas of Delaware are the most critical ar-

eas for the future of the State in terms of the quality of

life in the State.” Del. Code Ann. tit. 7, § 7001. In doing

so. “the State can better protect the natural environment

of its bay and coastal areas and safeguard their use pri-

marily for recreation and tourism.” Id. The Delaware leg-

islature “further determined that offshore bulk product

transfer facilities represent a significant danger of pollu-

tion to the coastal zone and generate pressure for the con-

struction of industria] plants in the coastal zone, which

construction is declared to be against public policy.” Id.

Thus, the Delaware Coastal Zone Act provides that “off-

shore gas, liquid or solid bulk product transfer facilities

which are not in operation on June 28, 1971, are prohib-

ited in the coastal zone, and no permit may be issued

therefor.” Id. § 7003. The purpose of the Act is to regu-

late the environment, not regulate riparian rights, and

even its provisions restricting bulk product transfer facili-

ties do not apply solely to riparian owners. See Norfolk

Southern Corp. v. Oberly, 822 F.2d 388, 406-07 (3d Cir.

1987) (holding that the DCZA as applied to vessel-to-

vessel transfers does not offend the dormant Commerce

Clause); Coastal Barge Corp. v. Coastal Zone Indus. Con-

trol Bd., 492 A.2d 1242, 1246-47 (Del. 1985) (holding that

vessel-to-vessel transfers fell within the definition of “bulk

product transfer facilities” to advance the purposes of the

DCZA).

Nothing in the phrase “riparian jurisdiction” can be

read to preclude Delaware from exercising jurisdiction

over its coastal zone environment. Indeed, the text of the

Compact itself makes clear that the term “riparian juris-

diction” does not encompass the regulation of all activities

that occur on or are attached to a wharf. In Articles | and

II, the Compact sets out the rules for service of process

and provides that neither State may serve process on a

vessel that is “fastened to a wharf adjoining” the other

State. NJ App. 3a. Plainly, if “riparian jurisdiction” en-

compassed the regulation of all activities that happen to

take place on or in connection with a wharf, this language

would be surplusage. See, e.g., TRW Inc. v. Andrews, 534

U.S. 19, 31 (2002) (“It is a cardinal principle of statutory

construction that a statute ought, upon the whole, to be so

construed that, if it can be prevented. no clause, sentence,

or word shall be superfluous, void, or insignificant.”) (in-

ternal quotation marks omitted). Such a reading is espe-

cially to be avoided here, where the applicable interpre-

tive rules counsel that language claimed to accomplish the

relinquishment of any clement of sovereignty or a State's

public trust duties must be construed narrowly.

C. New Jersey's Arguments For “Exclusive” Ri-

parian Jurisdiction Are Unpersuasive

l. The States intentionally did not confer

“exclusive” authority with respect to ri-

parian rights

Notwithstanding New Jersey's frequent assertion that

the 1905 Compact conferred “exclusive State riparian ju-

risdiction” —- including in the Question Presented (Br. i)

-- the word “exclusive” does not appear at all in Article

VII's treatment of riparian rights. That omission is note-

worthy, because elsewhere in the Compact the drafters

did use the word “exclusive,” and they did so when they

wanted to confer such authority on the States.

Article ILI, for example, gives the inhabitants of Dela-

ware and New Jersey “a common right of fishery.” NJ

App. 3a. Article IV then provides for the future drafting

of concurrent state fishing laws, and holds that “JeJach

State shall have and exercise exclusive jurisdiction within

said river to arrest, try, and punish its own inhabitants

for violation of the concurrent legislation relating to fish-

ery herein provided for.” Id. at 5a (emphasis added). If.

as New Jersey claims, the drafiers intended in Article Vil

to give New Jersey “exclusive riparian jurisdiction over

improvements appurtenant to the New Jersey shoreline”

(Br. 22), then it is hard to understand why the drafters

did not simply use the Phrase “exclusive jurisdiction,” as

they did in Article I'V. Construing the Compact as a fed-

eral statute, the governing principle is that, “[wjhere

Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.”

Russello v. United States, 464 U.S. 16, 23 (1983) (internal

quotation marks omitted); see also Norfolk & N.B. Hosiery

Co. v. Arnold, 45 A. 608, 609 (N.J. 1900) (“The express

reservation of an election in the latter clause excludes the

inference of such reservation in the former. If an option

was to obtain in both instances, the parties knew how to

express it, and would have used language appropriate to

secure it.”).

The omission of “exclusive” in Article VII of the 1905

Compact is all the more striking because New Jersey had

prior drafting experience with an interstate compact that

gave it such rights with respect to certain riparian appur-

tenances. In the 1834 Compact between New Jersey and

New York, the parties provided with respect to the Hud-

son River that “|t]he state of New York shall have and en-

joy exclusive jurisdiction of and over all the waters ... of

{the} Hudson River . . . to the low water-mark on the west-

erly or New Jersey side thereof,” “subject to” a proviso

that “(t]he state of New Jersey shall have the exclusive

jurisdiction of and over the wharves, docks, and improve-

ments, made and to be made on the shore of the said

state: and of and over all vessels aground on said shore, or

fastened to any such wharf or dock; except that the said

vessels shall be subject to the quarantine or health laws,

and laws in relation to passengers, of the state of New

York.” Act of June 28, 1834, ch. 126, 4 Stat. 708, 709-10

(Article Third) (emphasis added). In that compact — with

which the drafters of the 1905 Compact surely were fami!-

iar" — New Jersey took care to establish its “exclusive

" Articles | and Hl of the 1905 Compact at issue here, which concern

service of process, are largely identical to Articles Sixth and Seventh of

the 1834 Compact between New Jersey and New York

jurisdiction” over wharves, while the 1905 Compact with

Delaware speaks only of “riparian jurisdiction” without

any mention of one State’s exclusive authority at the ex-

pense of the other. Thus, nowhere in the Compact does

Delaware convey to New Jersey “exclusive” riparian juris-

diction over structures on Delaware soil.

2. The meaning of “riparian jurisdiction” can-

not extend beyond the State’s boundary

New Jersey claims that the Article VII phrase “‘ripar-

ian jurisdiction’ connotes State sovereignty over riparian

improvements.” Br. 24. The State seems to be arguing

that, if a riparian owner builds a structure that begins on

the New Jersey side of the boundary and extends past it

into the Delaware side, New Jersey has “riparian jurisdic-

tion” to decide the placement of wharves extending from

the New Jersey shore into Delaware waters. There are

numerous flaws in that position. First, it reads the words

“on its own side of the river” out of Article VII. If a State

could exercise “riparian jurisdiction” as to structures no

matter where they lay, so long as they extend from its

shore, there would be no point in adding the exclusionary

language “on its own side of the river” to Article VIT. See-

ond, New Jersey acknowledges that it “is not disputing

the location of the boundary between the States, which

this Court decided in 1934.” NJ Br. 1. That concession is

a tacit acknowledgment that the phrase “riparian juris-

diction” is not used in Article VII as a reference to a geo-

graphical! place, but rather that “jurisdiction” denotes a

reference to legal authority, i.e., as a means of expressing

New Jersey's authority to continue to act with respect toa

specific, limited body of law known as riparian rights in

whatever place the Compact permits.”

™ Nor is there merit to New Jersey's claim that Article VII would be

meaningless if 2 did not give New Jersey riparian jurmdiction rights

beyond the low-water mark. See NJ App. 29a (Castagna Aff 4 6).

That was fundamentally the position of the New Jersey Attorney

General in a formal opinion on which the State here, curiously, does

not rely. See DE App. 70a (1954 Forma! Opinion at 7) Because the

—_— =” ——_ —_~_

New Jersey next argues that, because “a primary objec-

tive of riparian improvements is the ability to wharf out

from the shore, beyond the low-water mark, as necessary

to gain access to navigable waters,” it follows that Dela-

ware gave New Jersey the right to bar Delaware from ex-

ercising any sovereign rights within the twelve-mile circle

if such exercise would in any way impact or “interfere

with” any structure over which New Jersey seeks to excr-

cise riparian jurisdiction. NJ Br. 24-25. As New Jersey

necessarily concedes, however, the land under the river

up to the low-water mark on the New Jersey shore be-

longs to Delaware. Both States have long recognized their

sovereign right, acting in the public trust, to regulate such

riparian improvements, including wharves, piers, and

bulkheads. See, e.g., Yates, 77 U.S. (10 Wall.) at 404 (ri-

parian proprietor has a “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, whatever those may be”); Nd

Br. 24-25 (citing Delaware and New Jersey cases). ‘The

question here therefore concerns which State (either or

both) has the right to regulate such riparian improve-

ments appurtenant to the New Jersey shore but extending

into Delaware territory, and whether their jurisdiction to

do so is exclusive or concurrent. Thus, the simple fact

that riparian landowners (i.e., those owning land abutting

the shore) have long enjoyed a right to wharf out to navi-

boundary had long been in dispute, the parties knew tt might later be

adjudicated to be at the low-water mark on the New Jersey shore

(Delaware's position) or in the middle of the navigable channel (New

Jersey's position). It thus made sense for the parties to make clear

that they could “continue” what they had been doing with respect to

riparian jurisdiction on each State's “own side of the river,” wherever

that boundary might subsequently be held to lie. Indeed, if the parties

really had meant for New Jersey to have riparian jurisdiction beyond

the low-water mark, then they surely would have said that, just as

they delineated other rights in the Compact based un the low-water

mark or another specific geographic designation, such as the western

and eastern halves of the river. See Nd App. 2a-3a (Articles [, 1D

does not resolve the question of which state SOvereign has {

that right in waters and subaqueous soi} that indisputa.

New Jersey likewise erroneously relies (at 25) on the

Article Vu Phrase that each State's riparian jurisdiction

is “of every kind and nature.” App. 5a. That is only so

on New Jersey's “own side of the river,” and the phrase “of

every kind and nature” does not speak to where New Jer.

Sey’s “own side of the river” might lic. To Say that a State

has full jurisdiction Within its territory simply does not

address whether it has any jurisdiction outside its terri.

tory. Moreover, “of every kind and nature” does not pur-

port to extinguish Pre-existing limitations on riparian

rights, such as the inherent limit of a Sovereign to regu.

late wharves or New Jersey's limitation prohibiting a ri.

partan landowner from building structures on lands

unless the landowner owned the Subaqueous lands on

which the structure was to be built.

3. New Jersey’s invocation of other miscella-

New Jersey next claims that Articles I and 1) reinforce

its reading of the Compact because they “limit the States

from asserting jurisdiction over wharves or docks at-

tached to the other State by Prohibiting the Service of

Process by one State aboard a vesse} attached to a pier or

wharf on the banks of the other.” Br 26. New Jersey

reads those Articles, to “underscore j the intent of the

drafters ty ensure that wharves and piers were subject

solely to the Jurisdiction of the State to whose riverbank

they were attached.” Br 26-27. Articles l and Ul, how.

Indeed, the fact that the drafters were specific about

certain rights on Ships “fastened tu a wharf adjoining”

New Jersey (NJ App. 3a) shows that they knew how to be

specific about wharves in the ( ‘ompact — but in Article

VII they did not ground the respective States’ riparian

jurisdiction on a “wharf adjoining” New Jersey; instead,

they limited jurisdiction to the States’ “own side of the

river.” Cf. Virginia v. Maryland, 540 U.S. at 66 (compact

expressly gave Virginia citizens “the privilege of making

and carrying out wharves and other improvements, so as

not to obstruct or injure the navigation of the river”).

4. New Jersey’s argument that the States’

“contemporaneous construction” of the

Compact supports its exclusive jurisdic-

tion has no merit

New Jersey's argument (at 30-33) that extrinsic evi-

dence of the States’ “contemporaneous construction” of the

Compact since 1905 is also misplaced. Contrary to New

Jersey's submission, since this Court resolved the bound-

ary line within the twelve-mile circle, Delaware has con-

sistently regulated structures that extend from the New

Jersey side of the river into Delaware territory, under its

statutes governing the use of subaqueous lands as well as

the DCZA.

In 1961, Delaware adopted its first statute governing

the leasing of subaqueous lands. See 53 Del. Laws ch. 34;

Del. Code Ann. tit. 7, § 4520 (repealed 1966). In 1966,

Delaware adopted a more comprehensive Underwater

Lands Act containing provisions governing the lease of

subaqueous lands by the State. See 55 Del. Laws ch. 442,

§ 1, Del. Code Ann. tit 7, §§ 6151-6159 (repealed 1986). In

1986, Delaware adopted its current Subaqueous Lands

Act, 65 Del. Laws ch. 508, Del. Code Ann. tit. 7, ch. 72.

Under these statutes, Delaware has exercised jurisdiction

over subaqueous lands within the twelve-mile circle from

1961 to the present without objection from New Jersey,

issuing at least 11 leases of Delaware subaqueous lands

for projects that. extend either from the New Jersey shore

or from the Delaware shore to the New Jersey shore. See

DE App. 66a-68a (Maloney Aff. $4 3-14).*

For example, in 1962, Delaware executed a 20-year

lease with the SunOlin Chemical Company for the con-

struction and operation of underwater pipelines across the

Delaware River. See id. at 66a (Maloney Aff. 4 4). On Oc-

tuber 9, 1963, Delaware issued a 10-year subaqueous land

lease to the Colonial Pipeline Company. See id. (Maloney

Aff. 4 5). In 1971, Deiaware granted a lease to E.!. du

Pont de Nemours & Co. (“DuPont”) to dredge Delaware

subaqueous soil, build a dock, and construct a fuel oil

storage tank at the DuPont Chambers Works facility near

In 1982, Delaware granted DuPont permission to repair

and replace a 36-pile cluster near its Deepwater, New

Jersey facility. See id. (Maloney Aff. { 7). In 1987, Dela-

ware issued leases to the Columbia Gas Transmission

Corp. and the Colonia! Pipeline Company for the con-

struction of pipelines across the river. See id. (Maloney

Aff. 99 8-9). In 1991, DNREC executed a 10-year sub-

aqueous lands lease that allowed Keystone Cogeneration

Systems to construct an unloading pier for a facility in

Logan Township, New Jersey, and to dredge subaqueous

soil within the twelve-mile circle: Delaware executed a 20-

year renewal of that lease in 2001. See id. (Maloney Aff.

* 10).

In 1996, Delaware granted a lease to allow NJDEP to

rehabilitate a pier and to construct a ferry dock on Dela-

ware subaqueous soil near Fort Mott State Park in New

dersey. See id. at 67a-68a (Maloney Aff. 4 11). In 1997,

Delaware issued a lease allowing Delmarva Power and

Light Company to install fiber optic cable within the

twelve-mile circle, extending from Pigeon Point in Dela-

ware to Deepwater Point in New Jersey. See id. at 68a

(Maloney Aff. $12). In May 2005, Delaware entered into

“ “Maloney Aff” refers to the Affidavit of Kevin P. Maloney, which

can be found at DE App. 65a-6&a

a lease allowing Fenwick Commons to fill Delaware

subaqueous lands at the Penns Grove Riverfront and Pier,

in Penns Grove, New Jersey. See id. (Maloney Aff. § 14).

It is therefore beyond dispute that Delaware has continu-

ously - and, until very recently, without objection from

New Jersey — regulated the use of its subaqueous lands

in connection with projects that either extend from the

New Jersey side of the river or extend from Delaware to

the New Jersey shore.**

In addition to enforcing its subaqueous lands statutes,

Delaware has consistently exercised jurisdiction over such

projects under the DCZA following enactment of that

statute in 1971. In 1972, Delaware issued a status de-

termination under the DCZA to El Paso Eastern Company

advising that its plan to build an LLNG terminal extending

from the New Jersey side of the river into the twelve-mile

circle was prohibited. See id. at 8a-12a (Cherry Aff. Ex.

A). By letter dated February 23, 1972, Delaware notified

the Commissioner of NJDEP of the pending application

and solicited comments. See id. at 74a (Letter from John

Sherman, Planner II], Delaware Planning Office, to Rich-

ard Sullivan, Commissioner, NJDEP (Feb. 23, 1972)). By

letter dated March 2, 1972, the New Jersey Commissioner

responded that it would be useful to communicate on mat-

ters of joint interest, but expressed no objection to Dela-

ware’s jurisdiction over the application. See id. at 13a-l4a

(Cherry Aff. Ex. B). New Jersey's assertion that Delaware

“did not actually block a project until 2005,” NJ Br. 33, is

thus incorrect.”

“4 New Jersey's observation that in two instances private parties

have questioned whether Delaware had authority to regulate within

the twelve-mile circle, see Br. 15, 32-33, m no way undermines the con-

clusion that Delaware's course of performance has been t exercise its

rights under the Compact. Cf. New Jersey v. Delaware, 291 US. at

375-77 (rejecting New Jersey's argument that wharf-building by its

citizens acquired prescriptive rights in Delaware soils).

Now Jersey's failure to acknowledge that Delaware issued a

status determination that the El Paso project was prohibited under the

In the late 1970s and 1980s, both Delaware and New

Jersey officials further confirmed the applicability of the

DCZA to projects entering Delaware from the New Jersey

shore. On October 5, 1978, the Delaware Attorney Gen-

eral’s Office issued Opinion No. 78-018, stating that the

DCZA’s exemption for docking facilities serving a single

manufacturing facility would apply to docking facilities

located in Delaware and serving a facility in New Jersey.

See DE App. 77a. In August 1980, NJDEP submitted a

final Environmental Impact Statement to the U.S. De-

partment of Commerce that clearly acknowledged Dela-

ware's authority to regulate projects extending into Dela-

ware territory under its coastal managen.ent program.

See NJDEP & NOAA, New Jersey Coastal Management

Program and Final Environmental Impact Statement

(Aug. 1980) (“Final EIS”) (excerpted at JE App. 79a-83a).

NJDEP stated that, because the relevant “Delaware

New Jersey State boundary” was “the mean low water

line on the eastern (New Jersey) shore of the Delaware

River,” “|t]he New Jersey and Delaware Coastal Zone

Management agencies ... have concluded that any New

Jersey project extending beyond mean low water must ob-

tain coastal permits from both states.” DE App. 82a

(Final EIS at 20). NJDEP further explained that “New

Jersey and Delaware, therefore, will coordinate reviews of

any proposed development that would span the interstate

boundary to ensure that no development is constructed

unless it would be consistent with both state coastal man-

agement programs.” Id. at 82a-83a. Finally, with respect

DCZA is particularly inexplicable because the CZICB specifically relied

on that pror determination in refusing to authorize the Crown Land.

ing project. See DE App. 60a (Cherry Aff, Ex. H (CZICB Decision and

Order at 10)) (noting DNREC's argument that “the more relevant

precedent, cited by several public speakers, is the 1972 denial of a

permit to the El Paso Eastern Company for the construction of a pler

in Delaware waters serving an LNG terminal in New Jersey”: noting

that the El Paso project demial cited an analysis of the DCZ.A from the

Delaware Attorney General: and finding that “a similar analysis ap.

ples to the proposed Crown Landing construction”)

to the Crown Landing project itself, NJDEP’s Office of

Dredging and Sediment Technology advised BP on Febru-

ary 4, 2005, that “activities taking place from the mean

low water line ... outshore are located in the State of

Delaware and therefore are subject to Delaware Coastal

Zone Management Regulations.” Jd. at 85a (Letter from

David Q. Risilia, ODST, to David Blaha, Environmental

Resources Management (Feb. 4, 2005)).

Just as Delaware continued to regulate projects extend-

ing into its territory after this Court’s 1934 decision, New

Jersey continued to grant leases, licenses, or conveyances

to private and governmental entities for riparian struc-

tures. New Jersey’s activities, however, are in no way in-

consistent with Delaware's jurisdiction over its territory

within the twelve-mile circle. With the exception of the E]

Paso and Keystone facilities discussed above, as weil as

structures requiring licenses to dredge Delaware's

subaqueous soil, those riparian projects did not necessi-

tate Delaware's exercise of its authority under the DCZA

or the subaqueous lands statutes. For example, Delaware

did not object to New Jersey's issuance of permits for the

Carney’s Point project, the Keystone project, the Fort

Mott project

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