# Opposition Brief — New Jersey v. Delaware

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0286%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008
- **Citation:** 552 U.S. 597

## Text

=

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mmm. Original wag
eee
IN THE OCT 27

Supreme Court of the United States:

STATE OF NEW JERSEY,
Plaintiff,

V.

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.

il

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

¢

i

;

iv

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

v

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

1.

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

vi

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

~J
]

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

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

x

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.

I
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

i
%

XV
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

xx

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

2

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

3

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.

4

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

5

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

6

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

7

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).

8

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

9

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

10

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

ll

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.

a

12

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

13

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.

14

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”).

15

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)

16

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

17

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

18

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.

19

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)

20

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).

21

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

22

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-

23

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.

24

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

25

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

27

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 pendency of administrative actions in New Jersey and before
the United States government that could cause the relocation of BP's

»-

/.

»

a
~5

28

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

29

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

‘
5
...

31

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.

32

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

33

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’).

34

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

36

“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

36

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

37

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).

38

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

39

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).

40

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-

41

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

42

“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

43

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,

44

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.

45

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

46

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).

ee

a

47

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 C

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0286%3A03. Public record. Not legal advice.