TRENTON
– Attorney General Peter C. Harvey
is filing suit today against the State
of Delaware in the U.S. Supreme Court
asserting New Jersey’s exclusive
jurisdiction over waterfront projects
on the Delaware River in Gloucester and
Salem counties.
The
lawsuit was necessitated by Delaware’s
recent assertion of regulatory jurisdiction
over proposed construction projects on
the New Jersey shoreline of the Delaware
River within the so-called “Twelve-Mile
Circle,” where Delaware’s
border extends to the low water mark on
the New Jersey shore.
In
March, Delaware denied a permit for Crown
Landing LLC, a subsidiary of BP America,
to build a pier required for a proposed
liquefied natural gas facility in Logan
Township, Gloucester County. In May, Delaware
issued a lease for the renovation of piers
and a marina for “The Riverwalk
at Penns Grove,” a 12-acre redevelopment
project in Salem County. The piers and
marina are located on properties that
were previously granted by the State of
New Jersey.
“New
Jersey should control its own destiny
with regard to development along the Delaware
River in Gloucester and Salem counties,”
said Attorney General Harvey. “There
are strong prospects for economic development
in this underdeveloped area because of
its access to the river and shipping.
As our court papers make clear, New Jersey
does, in fact, have exclusive jurisdiction
over projects on its shoreline under the
State’s 1905 Compact with Delaware.”
The
court papers, which will be filed later
today, are linked to this release at www.njpublicsafety.com.
In the papers, Attorney General Harvey
challenges Delaware’s actions and
asks the Supreme Court to affirm New Jersey’s
exclusive regulatory jurisdiction over
development on its side of the Delaware
River. Attorney General Harvey asks the
Court to supplement the decree it issued
in 1935 to settle the long-standing boundary
dispute between the two States. The U.S.
Constitution and federal law require that
disputes between states be filed directly
with the Supreme Court.
Delaware’s
northern boundary, including part of its
border with New Jersey, is based on a
circle described in colonial land grants
to William Penn that has a radius of 12
miles centered at the historic courthouse
in New Castle, Delaware. Penn’s
claims were disputed in colonial days,
and Delaware
and New Jersey challenged one another’s
territorial claims within the Twelve-Mile
Circle almost since their formation as
independent states.
In
1935, the U.S. Supreme Court finally resolved
the disputed boundary, declaring that
Delaware’s border extends to the
mean low water line on the New Jersey
side in the Twelve-Mile Circle in Gloucester
and Salem counties. The border in the
remainder of the Delaware River and Bay
is the middle of the shipping channel.
Importantly,
the Supreme Court’s decision in
the boundary dispute specifically protected
New Jersey’s rights under the 1905
Compact, which was approved by Congress
in 1907. The 1905 Compact resolved various
jurisdictional disagreements between the
States, while not determining the boundary
line. The Compact provides, in part: “Each
state may, on its own side of the River,
continue to exercise 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.”
The
word ‘riparian’ means pertaining
to the bank of a river. “Riparian
rights” typically include the right
of riverbank landowners to construct wharfs
and piers to allow access to navigable
waters and shipping channels, subject
to regulation by the State. “Riparian
jurisdiction” includes the authority
of the State to regulate the manner in
which riparian owners exercise such rights.
By its express terms, the 1905 Compact
granted New Jersey the exclusive right
to exercise riparian jurisdiction on its
own side of the River.
The
papers being filed by the Attorney General
document the long history of New Jersey’s
regulation of riparian improvements on
New Jersey’s side of the River.
They also document statements made by
Delaware in the boundary case in the 1930s
in which Delaware conceded both the right
of New Jersey citizens to wharf out to
navigable water, and the right of New
Jersey exclusively to regulate the exercise
of those riparian rights. Until recent
years, Delaware had not disputed New Jersey’s
riparian jurisdiction under the 1905 Compact.
New
Jersey’s legal position is supported
by a 2003 decision by the U.S. Supreme
Court in a very similar case, Virginia
v. Maryland, 540 U.S. 56 (2003). Arbitrators
in 1877 had awarded Maryland a boundary
with Virginia along Virginia’s low
water line in the Potomac River, while
reserving for Virginia, pursuant to a
pre-existing compact, “a right to
such use of the river beyond the low water
mark as may be necessary to the full enjoyment
of her riparian ownership.” In the
2003 case, Maryland claimed the right
to regulate the construction of a water
intake pipe extending into the river beyond
the low water mark on the Virginia side.
The Supreme Court held that Maryland lacked
authority to regulate the project, based
on the prior compact, even though most
of the project was located within Maryland’s
borders. The Court issued a decree stating
that Virginia had a right to use the Potomac
River free of regulation by Maryland.
New
Jersey is seeking similar relief against
Delaware in this case. New Jersey is asking
the Court to render a decision in the
Court’s next term, which concludes
at the end of June 2006.
>>
Supreme
Court Papers (389k pdf) plugin