Police Power Versus Riparian Rights in the Interstate Compact Context: New Jersey v. Delaware, 128 S. Ct. 1410 (2008)

• Publication year: 2021
• Citation: Vol. 88

88 Nebraska L. Rev. 433. Police Power Versus Riparian Rights in the Interstate Compact Context: New Jersey v. Delaware, 128 S. Ct. 1410 (2008)

Police Power Versus Riparian Rights in the Interstate Compact Context: New Jersey v. Delaware, 128 S. Ct. 1410 (2008).

D. David DeWald

Note(fn*)

Police Power Versus Riparian Rights in the Interstate Compact Context: New Jersey v. Delaware, 128 S. Ct. 1410 (2008).

TABLE OF CONTENTS

I. Introduction.......................................... 434

II. Background........................................... 436
A. Common Law Riparian Rights..................... 436
B. The Clash Over the Potomac River: Virginia v. Maryland......................................... 437
1. The Court's Determination..................... 439
2. Justice Kennedy's Dissent Suggests the Adoption of a Reasonableness Test............. 440
C. The Clash Over the Delaware River: New Jersey v. Delaware.......................................... 441
1. The 1905 Compact............................. 441
2. Resolution of Delaware's Title.................. 442
3. Renewed Tensions............................. 443
4. The Recommendations of the Special Master ... 444
5. The Court's Determination..................... 449

III. Analysis.............................................. 453
A. The Recommendations of the Special Master in New Jersey v. Delaware III are Reconcilable with Virginia v. Maryland.............................. 453
B. Though Reconcilable with Virginia v. Maryland, the Special Master's Recommendations Did Not Adequately Resolve the Controversy............... 458
C. The Court's New Test............................. 459
1. The Extraordinary Character Test Limits Virginia v. Maryland.......................... 460

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2. Problems with the "Extraordinary Character" Test........................................... 461
D. A "Reasonable" Alternative........................ 463

IV. Conclusion............................................ 465

I. INTRODUCTION

New Jersey and Delaware have clashed over the Delaware River for more than two centuries.(fn1) The most recent dispute was over a proposed natural gas unloading wharf on the New Jersey shore.(fn2) Pursuant to the Supreme Court's decision in New Jersey v. Delaware II, Delaware owns the riverbed immediately adjacent to the New Jersey shore.(fn3) Since the 1970s, Delaware has been regulating these lands to prevent certain industrial uses.(fn4) However, a 1905 interstate compact(fn5) between New Jersey and Delaware gave New Jersey the right to exercise "riparian jurisdiction" over improvements appurtenant to its shores.(fn6) Projects which extend from the New Jersey shore into the Delaware riverbed thus need approval from both New Jersey and Delaware.(fn7) This concurrent jurisdiction led to the recent controversy: New Jersey wanted to allow the disputed natural gas unloading facility so that it might gain associated jobs and tax revenues; Delaware sought to prevent construction due to the industrial nature of the wharf.

Delaware refused to issue a permit for the proposed project,(fn8) and the dispute quickly escalated. New Jersey threatened to withdraw state pension funds from Delaware banks; Delaware countered, threatening to utilize the National Guard to protect its riverbed territory.(fn9) The climax of hysteria was reached when a New Jersey legislator inquired into re-commissioning a World War II battleship, the

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U.S.S. New Jersey.(fn10) The ship, currently a museum piece on the Camden waterfront,(fn11) would apparently have been used to repel an armed invasion of the New Jersey shore.(fn12)

New Jersey eventually sought legal remedy, and the state filed a complaint against Delaware in the United States Supreme Court.(fn13) New Jersey claimed that it had the exclusive authority over improvements appurtenant to its shores, and sought to enjoin Delaware from exercising police power over such improvements.(fn14) Delaware claimed that as sovereign over the riverbed, it retained police power over New Jersey improvements which extended beyond New Jersey territory.(fn15) The Court assigned the case to a Special Master. is The Special Master determined that the 1905 compact granted New Jersey the right to extend improvements into Delaware territory, but that Delaware retained its police power to exclude such improvements.(fn17) The Court upheld the recommendations of the Special Master, but also held that Delaware only had the authority to exclude from the riverbed New Jersey improvements which exhibited "extraordinary character."(fn18) However, this novel "extraordinary character" test seems to have appeared in the Court's analysis without previous instance.

In Part II, this Note outlines the common law riparian rights that form the background of the controversy in New Jersey v. Delaware III and compares the facts and holding of the present case with the similar case of Virginia v. Maryland.(fn19) Part III reconciles the recommendations made by the Special Master in each case and shows that these suggestions, though well-reasoned, nevertheless did not resolve the issue at the heart of New Jersey v. Delaware III. Finally, this Note examines the shortcomings of the Court's extraordinary character test and proposes a reasonableness test in its stead.

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II. BACKGROUND

A. Common Law Riparian Rights

Under common law, riparian land owners enjoy a unique bundle of property rights associated with the ownership of waterfront real property.(fn20) These rights typically include the right to withdraw reasonable amounts of water for the beneficial use of the riparian parcel; the right to use the entire body of water for activities such as sailing, swimming, and fishing; and the right to wharf out to reach navigable water.(fn21) The "right to wharf out" is the right of a riparian land owner to use subaqueous lands to establish a wharf to facilitate the docking, loading and unloading of vessels.(fn22) The riparian landowner has the common law right to wharf out to access navigable water even though the subaqueous lands used for the stabilization of the wharf are owned by the state.(fn23) However, the right to wharf out utilizing state land is by no means absolute; it is limited both by common law and statutory regulation. For example, a wharf cannot interfere with the public's right of navigation on the water body, and is also subject to applicable environmental regulations.(fn24) A state may generally subject wharves to exercises of police power.(fn25) As the Supreme Court once stated, a riparian landowner "has the right of access to the navigable part of the stream in front of his land, and to construct... a wharf or pier projecting into the stream . . . subject to such general rules and regulations as the legislature may prescribe for the protection of the public."(fn26)

In the usual situation, the state that regulates a particular land-owner's riparian rights is also the state which exercises police power over the owner's wharf.(fn27) It is thus not ordinarily necessary to differ-

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entiate between a state's exercise of riparian authority and its exercise of police power jurisdiction; as both types of jurisdiction are normally exercised by the same sovereign, courts need not determine which controls.(fn28) However, this was precisely the issue in New Jersey III.(fn29) Delaware claimed that it could exercise its police power to prevent the construction of a wharf which would extend into its sovereign territory.(fn30) New Jersey claimed that a prior compact between the two states which granted it "riparian jurisdiction of every kind and nature" gave New Jersey exclusive jurisdiction over riparian improvements appurtenant to its shores, free from Delaware regulation.(fn31) Because an analogous conflict to New Jersey III was recently resolved by the Supreme Court in Virginia v. Maryland,(fn32) examination of that case is warranted.

B. The Clash Over the Potomac River: Virginia v. Maryland

Virginia and Maryland have disputed the boundary of the Potomac River since the 1600s; conflicting royal charters led both states to assert sovereignty over the river.(fn33) Jurisdictional disputes inevitably arose, and the states eventually entered into a compact in 1785 to settle these jurisdictional questions.(fn34) Article Seventh of the 1785 compact provided:

The citizens of each state respectively shall have full property in the shores of the Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river.(fn35)

The 1785 compact addressed fishing rights and criminal jurisdictional issues, but did not resolve the boundary dispute.(fn36) The states eventually agreed to binding arbitration to determine their interstate boundary along the Potomac.(fn37) It was determined that Maryland owned the subaqueous soil of the Potomac to the low-water mark on the Virginia shore.(fn38) However, the arbiters also recognized in Article Fourth of their award:

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Virginia is entitled not only to full dominion over the soil to the low-water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise

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