Thursday, November 29, 2007

New Jersey v. Delaware

I'm not sure how I missed it up until now, but a fascinating property case was argued this week in the Supreme Court.  The case involves a dispute related to the border between New Jersey and Delaware.  New Jersey wants to allow a large natural gas storage plant on its side of the Delaware river.  To make the plant workable, it needs to put in a 2,000 foot pier, which presents a problem. From the NY Times story on the argument:

Under a 1934 Supreme Court decision that settled a long-disputed boundary, Delaware owns the entire riverbed, from its own shoreline up to the low-water mark on the New Jersey side. But that fact, which neither side in the current case disputes, is not the end of the case, but only the beginning, as the argument on Tuesday made clear.

A major complicating factor is that in 1905, before the boundary was settled, the two states entered into a compact that is still in effect. It provides that “each state may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and nature” under its own laws.

The word riparian refers to shoreline, and under traditional land-use law, ownership of shoreline property conveys the right to build a pier or wharf extending far enough into the water to make the property accessible.

To New Jersey, permitting the BP project is simply an exercise of “traditional riparian authority” recognized under the compact, its lawyer, H. Bartow Farr III, told the justices.

But “the question that’s really at the rub of this case,” Delaware’s lawyer, David C. Frederick, said when his turn came, “is what you do on the wharf.”

The “crucial distinction here,” he said, was that Delaware was entitled to exercise its police power to block an activity that it considers dangerous or a “nuisance.”

The justices’ many questions during the animated session indicated that they found neither argument completely persuasive.

“Obviously, the right to ‘wharf out’ does not include the right to use the wharf for whatever you like,” Justice Antonin Scalia said to Mr. Farr.

And Justice Samuel A. Alito Jr. objected to Mr. Frederick that if Delaware was entitled to a veto power over the uses of New Jersey-based piers and wharves, then the effort in the 1905 compact to preserve New Jersey’s riparian rights was “worthless” and “meaningless.” Could Delaware declare that docking a sailboat was a “nuisance”? he asked.

As an added bonus, Justice Breyer has recused himself from this original jurisdiction case, raising the possibility of a 4-4 tie.  What happens with a tie vote in an original jurisdiction case?  Who knows.

Ben Barros

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