(Slip Opinion) OCTOBER TERM, 2007 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NEW JERSEY v. DELAWARE
ON EXCEPTIONS TO THE REPORT OF THE SPECIAL MASTER
No. 134, Orig. Argued November 27, 2007—Decided March 31, 2008
This is the third original action between New Jersey and Delaware in-
volving the boundary along the Delaware River (or River) separating
the two States. The first action was settled by a compact the two
States approved in 1905, and Congress ratified in 1907 (1905 Com-
pact or Compact). See New Jersey v. Delaware, 205 U. S. 550 (New
Jersey v. Delaware I). The 1905 Compact addressed fishing rights
but did not define the interstate boundary line. Two provisions of the
Compact sowed the seeds for further litigation. Article VII provided:
“Each State may, on its own side of the river, continue to exercise ri-
parian jurisdiction of every kind and nature.” But Article VIII added:
“Nothing herein . . . shall affect the territorial limits, rights, or juris-
diction of either State of, in, or over the Delaware River, or the own-
ership of the subaqueous soil thereof, except as herein expressly set
forth.” The second action, resolved by this Court in 1934, conclu-
sively determined the location of the interstate boundary: Delaware
owned “the river and the subaqueous soil” within a twelve-mile circle
centered on New Castle, Del., “up to [the] low water mark on the
easterly or New Jersey side”; south of the twelve-mile circle, the mid-
dle of the River’s main ship channel marked the boundary. New Jer-
sey v. Delaware II, 291 U. S. 361, 385.
The current controversy was sparked by the Delaware Department
of Natural Resources and Environmental Control’s (DNREC) refusal
to grant British Petroleum permission to construct a liquefied natu-
ral gas (LNG) unloading terminal projected to extend beyond New
Jersey’s shore some 2,000 feet into Delaware territory. DNREC de-
termined that, under Delaware’s Costal Zone Act (DCZA), the pro-
posed terminal would be an “offshore bulk product transfer facilit[y]”
as well as a “heavy industry use,” both prohibited by the Act. New
Jersey commenced this action, seeking a declaration that Article VII
2 NEW JERSEY v. DELAWARE
Syllabus
of the 1905 Compact gave it exclusive regulatory authority over all
projects appurtenant to its shores, including wharves extending past
the low-water mark on New Jersey’s side into Delaware territory.
Delaware’s answer asserted that, under, inter alia, Article VIII of the
Compact and New Jersey v. Delaware II, it had regulatory authority,
undiminished by Article VII, over structures located within its bor-
ders. On cross-motions for summary judgment, the Special Master
filed a report recommending a determination by this Court that the
“riparian jurisdiction” preserved to New Jersey by Article VII is not
exclusive and that Delaware has overlapping jurisdiction, within the
twelve-mile circle, to regulate improvements outshore of the low-
water mark on the New Jersey side of the River. New Jersey filed
exceptions.
Held: Article VII of the 1905 Compact did not secure to New Jersey
exclusive jurisdiction over all riparian improvements commencing on
its shores; New Jersey and Delaware have overlapping authority to
regulate riparian structures and operations of extraordinary charac-
ter extending outshore of New Jersey’s domain into territory over
which Delaware is sovereign. Pp. 8–23.
(a) The Court rejects New Jersey’s argument that Article VII,
which accords each State “riparian jurisdiction of every kind and na-
ture,” bars Delaware from any encroachment upon New Jersey’s au-
thority over improvements extending from New Jersey’s shore.
Pp. 8–16.
(1) The novel term “riparian jurisdiction,” as used in Article VII,
is properly read as a limiting modifier and does not mean “exclusive
jurisdiction.” “[R]iparian jurisdiction” has never been a legal term of
art, and appears to be a verbal formulation the 1905 Compact nego-
tiators devised specifically for Article VII. Elsewhere in the 1905
Compact—most notably, in Article VIII—the more familiar term “ju-
risdiction” or “exclusive jurisdiction” appears. Attributing to “ripar-
ian jurisdiction” the same meaning as “jurisdiction” unmodified, or
equating the novel term with the formulation “exclusive jurisdiction,”
would deny operative effect to each word in the Compact. See United
States v. Menasche, 348 U. S. 528, 538–539. Presumably drafted in
recognition of the still-unresolved boundary dispute, Article VIII re-
quires an express statement in the Compact in order to “affect the
territorial . . . jurisdiction of either State . . . over the Delaware
River.” The Court resists reading the uncommon term “riparian ju-
risdiction,” even when aggrandized by the phrase “of every kind and
nature,” as effectuating a transfer to New Jersey of Delaware’s entire
“territorial . . . jurisdiction . . . over [the portion of] the Delaware
River [in question].” Pp. 10–11.
(2) A riparian landowner ordinarily enjoys the right to build a
Cite as: 552 U. S. ____ (2008) 3
Syllabus
wharf to access navigable waters far enough to permit the loading
and unloading of ships. But that right, New Jersey agrees, is subject
to state regulation for the protection of the public. New Jersey sees
itself, however, as the only State empowered to regulate, for the
benefit of the public, New Jersey landowners’ exercise of riparian
rights. Commonly, the State that grants riparian rights also has
regulatory authority over their exercise. But the 1905 Compact’s ne-
gotiators faced an unusual situation: As long as the boundary issue
remained unsettled, they could not know which State was sovereign
within the twelve-mile circle beyond New Jersey’s shore. They likely
knew, however, that “[t]he rights of a riparian owner [seeking to
wharf out into] a navigable stream . . . are governed by the law of the
state in which the stream is situated.” Weems Steamboat Co. of Bal-
timore v. People’s Steamboat Co., 214 U. S. 345, 355. With the sover-
eignty issue reserved by the 1905 Compact for another day, it is diffi-
cult to gainsay the Special Master’s conclusion that Article VII’s
reference to “riparian jurisdiction” did not mean “exclusive jurisdic-
tion.” Endeavoring to harmonize Article VII with the boundary de-
termination, the Special Master concluded that Article VII’s preser-
vation to each State of “riparian jurisdiction” gave New Jersey
control of the riparian rights ordinarily and usually enjoyed by land-
owners on New Jersey’s shore. But once the boundary line at low wa-
ter is passed, the Special Master further concluded, New Jersey’s
regulatory authority is qualified. Just as New Jersey cannot grant
land belonging to Delaware, New Jersey cannot authorize activities
that go beyond the exercise of ordinary and usual riparian rights in
the face of contrary regulation by Delaware. Pp. 12–16.
(b) An 1834 compact between New Jersey and New York establish-
ing the two States’ common Hudson River boundary casts informa-
tive light on the 1905 New Jersey-Delaware Compact. Similar to the
boundary settled in New Jersey v. Delaware II, the 1834 accord lo-
cated the New Jersey-New York boundary at “the low water-mark on
the . . . New Jersey side [of the Hudson River,]” 4 Stat. 710. Unlike
the 1905 Compact, however, the 1834 agreement expressly gave New
Jersey “the exclusive right of property in and to . . . land under water”
and “the exclusive jurisdiction of and over the wharves, docks, and
improvements . . . on the shore of the said state . . . ,” ibid. (emphasis
added). Comparable language is noticeably absent in Article VII of
the 1905 Compact, while other provisions of the Compact appear to
have been adopted almost verbatim from the 1834 New Jersey-New
York accord. New Jersey, therefore, could hardly claim ignorance
that Article VII could have been but was not drafted to grant it “ex-
clusive jurisdiction” (not merely “riparian jurisdiction”) over wharves
and other improvements extending from its shore into navigable wa-
4 NEW JERSEY v. DELAWARE
Syllabus
ters. Pp. 16–17.
(c) Virginia v. Maryland, 540 U. S. 56, 75—in which this Court
held that a Maryland-Virginia boundary settlement gave Virginia
“sovereign authority, free from regulation by Maryland, to build im-
provements appurtenant to [Virginia’s] shore and to withdraw water
from the [Potomac] River”— provides scant support for New Jersey’s
claim. As the Special Master explained, the result in Virginia v.
Maryland turned on the unique language of the 1785 compact and
1877 arbitration award there involved. The 1785 compact addressed
only “the right [of the citizens of each State] to build wharves and
improvements regardless of which State ultimately was determined
to be sovereign over the River,” id., at 69. Concerning the States
themselves, the 1877 arbitration award that settled the boundary
was definitive. See id., at 75. By recognizing in that award Vir-
ginia’s right, “qua sovereign,” “to use the River beyond low-water
mark,” id., at 72, the arbitrators manifested their intention to safe-
guard Virginia’s authority to construct riparian improvements
outshore of the low-water mark free from regulation by Maryland.
By contrast, neither the 1905 Compact nor New Jersey v. Delaware II
purported to give New Jersey all regulatory oversight (as opposed to
only “riparian jurisdiction”). Pp. 17–19.
(d) Delaware’s claim to regulatory authority is further supported by
New Jersey’s acceptance (until the present controversy) of Delaware’s
jurisdiction over water and land within its domain to preserve the
quality and prevent deterioration of its coastal areas. When New
Jersey sought federal approval for its coastal management program,
it made the representation—fundamentally inconsistent with its po-
sition here—that any New Jersey project extending beyond mean low
water within the twelve-mile circle would require coastal permits
from both States. The DNREC, with no objection from New Jersey,
had previously rejected as a prohibited bulk transfer facility an ear-
lier request to build a LNG terminal extending from New Jersey into
Delaware. The DNREC issued permits for each of the three struc-
tures extending from New Jersey into Delaware built between 1969
and 2006, one of them undertaken by New Jersey itself. Even during
the pendency of this action, New Jersey applied to Delaware for re-
newal of the permit covering the portion of New Jersey’s project that
extended into Delaware. Pp. 19–22.
(e) Nowhere does Article VII “expressly set forth,” in Article VIII’s
words, Delaware’s lack of any governing authority over territory
within the State’s own borders. The Special Master correctly deter-
mined that Delaware’s pre-1971 “hands off” policy regarding coastal
development did not signal that the State never could or never would
assert any regulatory authority over structures using its subaqueous
Cite as: 552 U. S. ____ (2008) 5
Syllabus
land. In the decades since Delaware, pursuant to the DCZA, began to
manage its waters and submerged lands, the State has followed a
consistent course: Largely with New Jersey’s cooperation, Delaware
has checked proposed structures and activity extending beyond New
Jersey’s shore into Delaware’s domain in order to protect the natural
environment of its coastal areas. Pp. 22–23.
(f) Given the authority over riparian rights preserved for New Jer-
sey by the 1905 Compact, Delaware may not impede ordinary and
usual exercises of the right of riparian owners to wharf out from New
Jersey’s shore. The project British Petroleum sought to construct and
operate, however, goes well beyond the ordinary or usual. Delaware’s
classification of the proposed LNG unloading terminal as a “heavy
industry use” and a “bulk product transfer facilit[y]” under the DCZA
has not been, and hardly could be, challenged as inaccurate. Consis-
tent with the scope of Delaware’s retained police power to regulate
certain riparian uses, it was within that State’s authority to prohibit
construction of the LNG facility. P. 23.
Delaware’s authority to deny British Petroleum permission to construct
the proposed LNG terminal confirmed; New Jersey’s exceptions over-
ruled; and the Special Master’s proposed decree entered with modifi-
cations consistent with the Court’s opinion.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, SOUTER, and THOMAS, JJ., joined, and in which
STEVENS, J., joined as to paragraphs 1(c), 2, 3, and 4 of the Decree. STE-
VENS, J. filed an opinion concurring in part and dissenting in part.
SCALIA, J., filed a dissenting opinion, in which ALITO, J., joined.
BREYER, J., took no part in the consideration or decision of the case.
Cite as: 552 U. S. ____ (2008) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 134, Orig.
_________________
STATE OF NEW JERSEY, PLAINTIFF v. STATE OF
DELAWARE
ON BILL OF COMPLAINT
[March 31, 2008]
JUSTICE GINSBURG delivered the opinion of the Court.
The States of Delaware and New Jersey seek this
Court’s resolution of a dispute concerning their respective
regulatory authority over a portion of the Delaware River
within a circle of twelve miles centered on the town of New
Castle, Delaware. In an earlier contest between the two
States, this Court upheld the title of Delaware to “the
river and the subaqueous soil” within the circle “up to
[the] low water mark on the easterly or New Jersey side.”
New Jersey v. Delaware, 291 U. S. 361, 385 (1934) (New
Jersey v. Delaware II).1 Prior to that 1934 boundary de
termination, in 1905, the two States had entered into an
accord (1905 Compact or Compact), which Congress rati
fied in 1907. The Compact accommodated both States’
concerns on matters over which the States had crossed
swords: service of civil and criminal process on vessels and
rights of fishery within the twelve-mile zone. Although
the parties were unable to reach agreement on the inter
——————
1A map showing the interstate boundary line is annexed to the
Court’s Decree. New Jersey v. Delaware II, 295 U. S. 694, 700 (1935).
Six of New Jersey’s municipalities have one boundary all or partially at
the low-water mark of the Delaware River within the twelve-mile circle.
2 NEW JERSEY v. DELAWARE
Opinion of the Court
state boundary at that time, the 1905 Compact contained
two jurisdictional provisions important to the current
dispute:
“Art. VII. 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.
“Art. VIII. Nothing herein contained shall affect
the territorial limits, rights, or jurisdiction of either
State of, in, or over the Delaware River, or the owner
ship of the subaqueous soil thereof, except as herein
expressly set forth.” Act of Jan. 24, 1907, 34 Stat.
860.
The controversy we here resolve was sparked by Dela
ware’s refusal to grant permission for construction of a
liquefied natural gas (LNG) unloading terminal that
would extend some 2,000 feet from New Jersey’s shore into
territory New Jersey v. Delaware II adjudged to belong to
Delaware. The LNG plant, storage tanks, and other struc
tures would be maintained onshore in New Jersey. Rely
ing on Article VII of the 1905 Compact, New Jersey urged
that it had exclusive jurisdiction over all projects appurte
nant to its shores, including wharves extending past the
low-water mark on New Jersey’s side into Delaware terri
tory. Delaware asserted regulatory authority, undimin
ished by Article VII, over structures located within its
borders; in support, Delaware invoked, inter alia, Article
VIII of the 1905 Compact and our decision in New Jersey
v. Delaware II. The Special Master we appointed to super
intend the proceedings filed a report recommending a
determination that Delaware has authority to regulate the
proposed construction, concurrently with New Jersey, to
the extent that the project reached beyond New Jersey’s
border and extended into Delaware’s domain.
Cite as: 552 U. S. ____ (2008) 3
Opinion of the Court
We accept the Special Master’s recommendation in
principal part. Article VII of the 1905 Compact, we hold,
did not secure to New Jersey exclusive jurisdiction over all
riparian improvements commencing on its shores.2 The
parties’ own conduct, since the time Delaware has endeav
ored to regulate coastal development, supports the conclu
sion to which other relevant factors point: New Jersey and
Delaware have overlapping authority to regulate riparian
structures and operations of extraordinary character
extending outshore of New Jersey’s domain into territory
over which Delaware is sovereign.
I
Disputes between New Jersey and Delaware concerning
the boundary along the Delaware River (or River) separat
ing the two States have persisted “almost from the begin
ning of statehood.” New Jersey v. Delaware II, 291 U. S.,
at 376. The history of the States’ competing claims of
sovereignty, rehearsed at length in New Jersey v. Dela-
ware II, need not be detailed here. In brief, tracing title
through a series of deeds originating with a 1682 grant
from the Duke of York to William Penn, Delaware as
serted dominion, within the twelve-mile circle, over the
River and its subaqueous lands up to the low-water mark
on the New Jersey side. Id., at 364, 374.3 New Jersey
claimed sovereign ownership up to the middle of the navi
gable channel. Id., at 363–364.
The instant proceeding is the third original action New
Jersey has commenced against Delaware involving the
Delaware River boundary between the two States. The
first action, New Jersey v. Delaware, No. 1, Orig. (filed
——————
2 All Members of the Court agree that New Jersey lacks exclusive
jurisdiction over riparian structures. Post, at 7 (opinion of SCALIA, J.);
post, at 1 (opinion of STEVENS, J.).
3 The “low-water mark” of a river is “the point to which the water re
cedes at its lowest stage.” Black’s Law Dictionary 1623 (8th ed. 2004).
4 NEW JERSEY v. DELAWARE
Opinion of the Court
1877) (New Jersey v. Delaware I), was propelled by the
States’ disagreements over fishing rights. See Report of
Special Master 3 (Report).4 That case “slumbered for
many years.” New Jersey v. Delaware II, 291 U. S., at 377.
Eventually, the parties negotiated a Compact, which both
States approved in 1905, and Congress ratified in 1907.
See Act of Jan. 24, 1907, ch. 394, 34 Stat. 858. Modest in
comparison to the parties’ initial aim, the Compact left
location of the interstate boundary an unsettled question.5
New Jersey then withdrew its complaint and this Court
dismissed the case without prejudice. New Jersey v. Dela-
ware I, 205 U. S. 550 (1907).
The second original action, New Jersey v. Delaware II,
was fueled by a dispute over ownership of an oyster bed in
the River below the twelve-mile circle. See Report 14. In
response to New Jersey’s complaint, the Court conclu
sively settled the boundary between the States. Confirm
ing the Special Master’s report, the Court held that,
within the twelve-mile circle, Delaware owns the River
and the subaqueous soil up to the low-water mark on the
New Jersey side. 291 U. S., at 385.6 But New Jersey
——————
4 The Report of the Special Master, and all public filings in this case,
are available at http://www.pierceatwood.com/custompagedisplay.asp?
Show=2.
5 After the States approved the Compact, but prior to Congress’ ratifi
cation, the parties submitted a joint application for suspension of Court
proceedings pending action by the National Legislature. New Jersey v.
Delaware I, O. T. 1905, No. 1, Orig., Statement of reasons submitted
orally for the joint application of Counsel on both sides for suspension
of proceedings until the further order of the Court (reproduced in 1
App. of Delaware on Cross-Motions for Summary Judgment 190 (here
inafter Del. App.)). In that submission, Delaware’s counsel represented
that “[t]he compact . . . was . . . not a settlement of the disputed bound
ary, but a truce or modus vivendi.” Ibid. Counsel further stated that
the “main purpose” of the Compact was to authorize joint regulation of
“the business of fishing in the Delaware River and Bay.” Ibid.
6 The dissent suggests, post, at 3, that the long dormant first original
action “appeared to be going badly” for Delaware. The strength of
Cite as: 552 U. S. ____ (2008) 5
Opinion of the Court
gained the disputed oyster bed: South of the circle, the
Court adjudged the boundary “to be the middle of the
main ship channel in Delaware River and Bay.” Ibid. See
also New Jersey v. Delaware II, 295 U. S. 694, 699 (1935)
(Decree) (perpetually enjoining the States from further
disputing the boundary).
In upholding Delaware’s title to the area within the
twelve-mile circle, the Court rejected an argument pressed
by New Jersey based on the 1905 Compact: By agreeing to
the Compact, New Jersey urged, Delaware had abandoned
any claim of ownership beyond the middle of the River.
The Court found New Jersey’s argument “wholly without
force.” 291 U. S., at 377. “The compact of 1905,” the Court
declared, “provides for the enjoyment of riparian rights,
for concurrent jurisdiction in respect of civil and criminal
process, and for concurrent rights of fishery. Beyond that
it does not go.” Id., at 377–378. The Court next recited in
full the text of Article VIII of the Compact: “Nothing
herein contained 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.” Id., at 378 (internal
quotation marks omitted).
II
The current controversy arose out of the planned con
struction of facilities to import, store, and vaporize for
eign-source LNG; the proposed project would be operated
by Crown Landing, LLC, a wholly owned subsidiary of
British Petroleum (BP). See Report 19; 6 App. of Dela
ware on Cross-Motions for Summary Judgment 3793,
3804–3807 (hereinafter Del. App.) (Request for Coastal
Zone Status Decision). The “Crown Landing” project
——————
Delaware’s claim to sovereign ownership of the riverbed within the
twelve-mile circle, however, is comprehensively described in New Jersey
v. Delaware II, 291 U. S., at 364–378.
6 NEW JERSEY v. DELAWARE
Opinion of the Court
would include a gasification plant, storage tanks, and
other structures onshore in New Jersey, and a pier and
related structures extending some 2,000 feet from New
Jersey’s shore into Delaware. Report 19–20; 6 Del. App.
3804. Supertankers with capacities of up to 200,000 cubic
meters (more than 40 percent larger than any ship then
carrying natural gas) would berth at the pier. Id., at
3810.7 A multipart transfer system—including, inter alia,
cryogenic piping, a containment trough, and utility lines—
would be installed on the 6,000-square-foot unloading
platform and along the pier to transport the LNG (at
sufficiently cold temperatures to keep it in a liquid state)
from ships to three 158,000-cubic-meter storage tanks
onshore; vapor byproducts resulting from the onshore
gasification would be returned to the tankers. Report 19–
20; 6 Del. App. 3804; 7 id., at 4307 (Cherry Affidavit).
Even “[d]uring the holding mode of terminal operation
(when no ship is unloading),” LNG would circulate
through the piping along the pier to “keep the line cold.” 6
id., at 3804. Construction of the Crown Landing project
would require dredging 1.24 million cubic yards of
subaqueous soil, affecting approximately 29 acres of the
riverbed within Delaware’s territory. Report 19–20.8
In September 2004, BP sought permission from Dela
ware’s Department of Natural Resources and Environ
mental Control (DNREC) to construct the Crown Landing
——————
7 Two or three LNG supertankers, it was anticipated, would arrive at
the unloading terminal each week. 7 Del. App. 4307 (Affidavit of Philip
Cherry, Delaware Dept. of Natural Resources and Environmental
Control, Director of Policy and Planning) (hereinafter Cherry Affidavit).
In transit, the ships would pass densely populated areas, id., at 4307–
4308; a moving safety zone would restrict other vessels 3,000 feet ahead
and behind, and 1,500 feet on all sides of a supertanker, id., at 4308.
8 The dissent points to other projects involving extensive dredging.
Post, at 16. The examples presented, however, involved large-scale
public works, not privately owned and operated facilities.
Cite as: 552 U. S. ____ (2008) 7
Opinion of the Court
unloading terminal. See id., at 20.9 DNREC refused per
mission some months later on the ground that the terminal
was barred by Delaware’s Coastal Zone Act (DCZA), Del.
Code Ann., Tit. 7, §7001 et seq. (2001),10 as a prohibited
“ offshore . . . bulk product transfer facilit[y] ” as well as a
prohibited “ heavy industry us[e],” §7003; Report 20.11
Reactions to DNREC’s decision boiled over on both
sides. New Jersey threatened to withdraw state pension
funds from Delaware banks, and Delaware considered
authorizing the National Guard to protect its border from
encroachment. See Report 21. One New Jersey legislator
looked into recommissioning the museum-piece battleship
U. S. S. New Jersey, in the event that the vessel might be
needed to repel an armed invasion by Delaware. See ibid.
New Jersey commenced the instant action in 2005,
seeking a declaration that Article VII of the 1905 Compact
establishes its exclusive jurisdiction “to regulate the con
struction of improvements appurtenant to the New Jersey
shore of the Delaware River within the Twelve-Mile Cir
——————
9 Three months after seeking Delaware’s permission, BP commenced
the permitting process in New Jersey, by filing a Waterfront Develop
ment Application with New Jersey’s Department of Environmental
Protection. Report 20.
10 Delaware’s Coastal Zone Act (DCZA) is designed “to control the
location, extent and type of industrial development in Delaware’s
coastal areas. . . . and [to] safeguard th[e] use [of those areas] primarily
for recreation and tourism.” Del. Code Ann., Tit. 7, §7001 (2001).
11 On BP’s appeal, Delaware’s Coastal Zone Industrial Control Board
affirmed DNREC’s determination that the Crown Landing project was
a bulk product transfer facility prohibited by the DCZA. BP did not
appeal the decision, rendering it a final determination. Report 20–21.
The dissent suspects that Delaware’s permit denial may have been
designed to lure BP away from New Jersey, siting the plant, instead, on
Delaware’s “own shore.” Post, at 19. Delaware law, however, pro
scribes “[h]eavy industry us[e],” Del. Code Ann., Tit. 7, §7003, in any
area within “[t]he coastal zone” over which Delaware is sovereign,
§7002(a). Nothing whatever in the record before us warrants the
suggestion that Delaware acted duplicitously.
8 NEW JERSEY v. DELAWARE
Opinion of the Court
cle, free of regulation by Delaware.” Motion to Reopen and
for Supplemental Decree 35; see Report 22, 29. We
granted leave to file a bill of complaint. 546 U. S. 1028
(2005). Delaware opposed New Jersey’s reading of Article
VII, and maintained that the 1905 Compact did not give
New Jersey exclusive authority to “approve projects that
encroach on Delaware submerged lands without any say
by Delaware.” Brief for Delaware in Opposition to New
Jersey’s Motion to Reopen and for Supplemental Decree
21; see Report 23, 29.
The Special Master appointed by the Court, Ralph I.
Lancaster, Jr., 546 U. S. 1147 (2006), superintended dis
covery and carefully considered nearly 6,500 pages of
materials presented by the parties in support of cross-
motions for summary judgment. Report 27. He ultimately
determined that the “riparian jurisdiction” preserved to
New Jersey by Article VII of the 1905 Compact “is not
exclusive” and that Delaware “has overlapping jurisdiction
to regulate . . . improvements outshore of the low water
mark on the New Jersey side of the River.” Id., at 32.
New Jersey filed exceptions to which we now turn.12
III
At the outset, we summarize our decision and the prin
cipal reasons for it. In accord with the Special Master, we
hold that Article VII of the 1905 Compact does not grant
New Jersey exclusive jurisdiction over all riparian im
provements extending outshore of the low-water mark.
First, the novel term “riparian jurisdiction,” which the
parties employed in the Compact, is properly read as a
——————
12 New Jersey takes no exception to the Special Master’s determina
tions that Delaware was not judicially estopped from challenging New
Jersey’s interpretation of Article VII, Report 86–92, and that Delaware
has not lost jurisdiction through prescription and acquiescence, id., at
92–99. See Exceptions by New Jersey to Report of Special Master and
Supporting Brief 16, n. 5 (hereinafter New Jersey Exceptions).
Cite as: 552 U. S. ____ (2008) 9
Opinion of the Court
limiting modifier and not as synonymous with “exclusive
jurisdiction.” Second, an 1834 compact between New
Jersey and New York casts informative light on the later
New Jersey-Delaware accord. Third, our decision in Vir-
ginia v. Maryland, 540 U. S. 56 (2003), provides scant
support for New Jersey’s claim. We there held that a
Maryland-Virginia boundary settlement gave Virginia
“sovereign authority, free from regulation by Maryland, to
build improvements appurtenant to [Virginia’s] shore and
to withdraw water from the [Potomac] River.” Id., at 75.
Delaware’s 1905 agreement to New Jersey’s exercise of
“riparian jurisdiction,” made when the boundary was still
disputed, cannot plausibly be read as an equivalent recog
nition of New Jersey’s sovereign authority. Finally, Dela
ware’s claim to regulating authority is supported by New
Jersey’s acceptance (until the present controversy) of
Delaware’s jurisdiction over water and land within its
domain to preserve the quality and prevent deterioration
of the State’s coastal areas.
A
New Jersey hinges its case on Article VII of the 1905
Compact, which it reads as conferring on “each State
complete regulatory authority over the construction and
operation of riparian improvements on its shores, even if
the improvements extend past the low-water mark.”
Exceptions by New Jersey to Report of Special Master and
Supporting Brief 16 (hereinafter New Jersey Exceptions).
New Jersey v. Delaware II, New Jersey recognizes, con
firmed Delaware’s sovereign ownership of the River and
subaqueous soil within the twelve-mile circle. But, New
Jersey emphasizes, the Court expressly made that deter
mination “subject to the Compact of 1905.” 291 U. S.,
at 385. New Jersey acknowledges that Delaware “unques
tionably can exercise its police power outshore of the low-
water mark.” New Jersey Exceptions 16. New Jersey
10 NEW JERSEY v. DELAWARE
Opinion of the Court
contends, however, that Delaware cannot do so in a man
ner that would interfere with the authority over riparian
rights that Article VII of the 1905 Compact preserves for
New Jersey. Ibid.
Because the meaning of the 1905 Compact and, in par
ticular, Article VII, is key to the resolution of this contro
versy, we focus our attention on that issue. Significantly,
Article VII provides that “[e]ach State may, on its own side
of the river, continue to exercise” not “exclusive jurisdic
tion” or “jurisdiction” unmodified, but “riparian jurisdic
tion of every kind and nature ” 34 Stat. 860. New Jersey
argues that “riparian jurisdiction” should be read broadly
to encompass full police-power jurisdiction over activities
carried out on riparian structures. New Jersey Exceptions
36–37. If New Jersey enjoys full police power over im
provements extending from its shore, New Jersey reasons,
then necessarily Delaware cannot encroach on that au
thority. See Report 54.
1
We agree with the Special Master that “ ‘riparian’ is a
limiting modifier.” Report 57. Interpreting an interstate
compact, “[j]ust as if [we] were addressing a federal stat
ute,” New Jersey v. New York, 523 U. S. 767, 811 (1998), it
would be appropriate to construe a compact term in accord
with its common-law meaning, see Morissette v. United
States, 342 U. S. 246, 263 (1952). The term “riparian
jurisdiction,” however, was not a legal term of art in 1905,
nor is it one now. See 7 Del. App. 4281 (Expert Report of
Professor Joseph L. Sax (Nov. 7, 2006)). As the Special
Master stated, “riparian jurisdiction” appears to be a
verbal formulation “devised by the [1905 Compact] draft
ers specifically for Article VII.” Report 54.13
——————
13 The term appears in no other interstate compact. New Jersey’s
codification of the 1905 Compact, N. J. Stat. Ann. §52:28–41 (West
2001), includes the term, but our attention has been called to no other
Cite as: 552 U. S. ____ (2008) 11
Opinion of the Court
Elsewhere in the Compact, one finds the more familiar
terms “jurisdiction” (in the introductory paragraphs and,
most notably, in Article VIII) or “exclusive jurisdiction” (in
Article IV).14 To attribute to “riparian jurisdiction” the
same meaning as “jurisdiction” unmodified, or to equate
the novel term with the distinct formulation “exclusive
jurisdiction,” would deny operative effect to each word in
the Compact, contrary to basic principles of construction.
See United States v. Menasche, 348 U. S. 528, 538–539
(1955).
In this regard, Article VIII bears reiteration:
“Nothing herein contained 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.” 34 Stat. 860.
Presumably drafted in recognition of the still-unresolved
boundary dispute, see supra, at 3–5, Article VIII requires
an express statement in the Compact in order to “affect
the territorial . . . jurisdiction of either State . . . over the
Delaware River.” We resist reading the uncommon term
“riparian jurisdiction,” even when aggrandized by the
phrase “of every kind and nature,” as tantamount to an
express cession by Delaware of its entire “territorial . . .
jurisdiction . . . over the Delaware River.”
2
Endeavoring to fathom the import of the novel term
“riparian jurisdiction,” the Special Master recognized that
——————
state statute that does so.
14 The last paragraph of Article IV reads: “Each State shall have and
exercise exclusive jurisdiction within said river to arrest, try, and
punish its own inhabitants for violation of the concurrent legislation
related to fishery herein provided for.” 34 Stat. 860 (emphasis added).
See also id., at 859 (Articles I and II, recognizing the “exclusive juris
diction” of each State in regard to service of criminal process).
12 NEW JERSEY v. DELAWARE
Opinion of the Court
a riparian landowner ordinarily enjoys the right to build a
wharf to access navigable waters far enough to permit the
loading and unloading of ships. Report 47–49, 58–59.
Accord 1 H. Farnham, Law of Waters and Water Rights
§62, p. 279 (1904) (“The riparian owner is also entitled to
have his contact with the water remain intact. This is
what is known as the right of access, and includes the
right to erect wharves to reach the navigable portion of the
stream.”); id., §111, p. 520 (“A wharf is a structure on the
margin of navigable water, alongside of which vessels are
brought for the sake of being conveniently loaded or
unloaded.”). But the Special Master also recognized that
the right of a riparian owner to wharf out is subject to
state regulation. Report 58; see 1 Farnham, supra, §63, p.
284 (rights of riparian owner “are always subordinate to
the public rights, and the state may regulate their exercise
in the interest of the public”); Shively v. Bowlby, 152 U. S.
1, 40 (1894) (“[A] riparian proprietor . . . 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 . . . .” (internal quotation marks omitted)).
New Jersey took no issue with the Special Master’s
recognition that States, in the public interest, may place
restrictions on a riparian proprietor’s activities. In its
response to Delaware’s request for admissions, New Jer
sey readily acknowledged that a person wishing to conduct
a particular activity on a wharf, in addition to obtaining a
riparian grant, would have to comply with all other “appli
cable New Jersey laws, and local laws.” 6 Del. App. 4156
(New Jersey’s Responses to Delaware’s First Request for
Admissions ¶22 (Sept. 8, 2006)). See also Restatement
(Second) of Torts §856, Comment e, pp. 246–247 (1977) (“A
state may exercise its police power by controlling the
initiation and conduct of riparian and nonriparian uses of
Cite as: 552 U. S. ____ (2008) 13
Opinion of the Court
water.”). But New Jersey sees itself, to the exclusion of
Delaware, as the State empowered to regulate, for the
benefit of the public, New Jersey landowners’ exercise of
riparian rights.
In the ordinary case, the State that grants riparian
rights is also the State that has regulatory authority over
the exercise of those rights. But cf. Cummings v. Chicago,
188 U. S. 410, 431 (1903) (federal regulation of wharfing
out in the Calumet River did not divest local government
of regulatory authority based on location of project within
that government’s territory). In this regard, the negotia
tors of the 1905 Compact faced an unusual situation: As
long as the boundary issue remained unsettled, they could
not know which State was sovereign within the twelve-
mile circle beyond New Jersey’s shore. They likely knew,
however, that “[i]n a case of wharfing out . . . ‘[t]he rights
of a riparian owner upon a navigable stream in this coun
try are governed by the law of the state in which the
stream is situated.’ ” 1 S. Wiel, Water Rights in the West
ern States §898, p. 934 (3d ed. 1911) (quoting Weems
Steamboat Co. of Baltimore v. People’s Steamboat Co., 214
U. S. 345, 355 (1909)). With the issue of sovereignty re
served by the 1905 Compact drafters for another day, the
Special Master’s conclusion that Article VII’s reference to
“riparian jurisdiction” did not mean “exclusive jurisdic
tion” is difficult to gainsay.
The Special Master pertinently observed that, as New
Jersey read the 1905 Compact, Delaware had given up all
governing authority over the disputed area while receiving
nothing in return. He found New Jersey’s position “im
plausible.” Report 63. “Delaware,” the Special Master
stated, “would not have willingly ceded all jurisdiction
over matters taking place on land that [Delaware ada
mantly] contended it owned exclusively and outright.” Id.,
14 NEW JERSEY v. DELAWARE
Opinion of the Court
at 64.15
New Jersey asserts that Delaware did just that, as
shown by representations made during proceedings in
New Jersey v. Delaware II. New Jersey Exceptions 44.
Delaware’s reply brief before the Special Master in that
case stated: “Article VII of the Compact is obviously
merely a recognition of the rights of the riparian owners of
New Jersey and a cession to the State of New Jersey by
the State of Delaware of jurisdiction to regulate those
rights.” 1 App. of New Jersey on Motion for Summary
Judgment 123a. Further, at oral argument before the
Special Master in that earlier fray, Delaware’s counsel
said that, in his view, the 1905 Compact “ceded to the
State of New Jersey all the right to control the erection of
[wharves extending into the Delaware River from New
Jersey’s shore] and to say who shall erect them.” Id., at
126a–1.
The Special Master in the instant case found New Jer
sey’s position dubious, as do we. The representations
Delaware made in the course of New Jersey v. Delaware II,
the Special Master here observed, were “fully consistent
with [the Master’s] interpretation of Article VII [of the
1905 Compact].” Report 89. New Jersey did indeed pre
serve “the right to exercise its own jurisdiction over ripar
——————
15 The dissent insists that Delaware received “plenty in return.” Post,
at 3. But, in truth, the 1905 Compact gave neither State “plenty.”
Each State accommodated to the other to assure equal access to fishing
rights in the River. See supra, at 4, n. 5. Delaware agreed to the
Compact “not [as] a settlement of the disputed boundary, but [as] a
truce or modus vivendi.” 1 Del. App. 190. In deciding whether to
proceed with the litigation, Delaware’s Attorney General advised that
the suit “would entail very considerable expense.” 2 id., at 1075 (Jan.
31, 1903 letter of Herbert Ward). He noted, however, that the process
of preparing Delaware’s Answer had “greatly strengthened the belief
and reliance of counsel . . . upon the justice of her claim.” Id., at 1076.
The decision in New Jersey v. Delaware II confirmed Delaware’s convic
tion. See supra, at 4–5, n. 6.
Cite as: 552 U. S. ____ (2008) 15
Opinion of the Court
ian improvements appurtenant to its shore.” Ibid. But,
critically, Delaware nowhere “suggested that New Jersey
would have the exclusive authority to regulate all aspects
of riparian improvements, even if on Delaware’s land.”
Ibid.
Delaware, in its argument before the Special Master,
was equally uncompromising. As a result of the 1934
boundary determination, Delaware urged, “the entire
River is on Delaware’s ‘own side,’ and New Jersey conse
quently ha[d] no ‘side’ of the River on which to exercise
any riparian rights or riparian jurisdiction.” Id., at 36.
Article VII of the 1905 Compact, according to Delaware,
was a “temporary” measure, “entirely . . . contingent on
the ultimate resolution of the boundary.” Id., at 39. That
reading, the Special Master demonstrated, was altogether
fallacious. Id., at 36–40.
Seeking to harmonize Article VII with the boundary
determination, the Special Master reached these conclu
sions. First, the 1905 Compact gave New Jersey no au
thority to grant lands owned by Delaware. Id., at 45–46.
Second, Article VII’s preservation to each State of “ripar
ian jurisdiction” means that New Jersey may control the
riparian rights ordinarily and usually enjoyed by land
owners on New Jersey’s shore. For example, New Jersey
may define “how far a riparian owner can wharf out, the
quantities of water that a riparian owner can draw from
the River, and the like.” Id., at 57–58. Nevertheless, New
Jersey’s regulatory authority is qualified once the bound
ary line at low water is passed. Id., at 58. Just as New
Jersey cannot grant land belonging to Delaware, so New
Jersey cannot authorize activities that go beyond the
exercise of ordinary and usual riparian rights in the face
of contrary regulation by Delaware.
B
Interstate compacts, like treaties, are presumed to be
16 NEW JERSEY v. DELAWARE
Opinion of the Court
“the subject of careful consideration before they are en
tered into, and are drawn by persons competent to express
their meaning, and to choose apt words in which to em
body the purposes of the high contracting parties.” Rocca
v. Thompson, 223 U. S. 317, 332 (1912). Accordingly, the
Special Master found informative a comparison of lan
guage in the 1905 Compact with language contained in an
1834 compact between New Jersey and New York. See
Report 65. That compact established the two States’
common boundary along the Hudson River. Act of June
28, 1834, ch. 126, 4 Stat. 708. Similar to the boundary
between New Jersey and Delaware settled in 1934 in New
Jersey v. Delaware II, the 1834 accord located the New
Jersey-New York boundary at “the low water-mark on the
westerly or New Jersey side [of the Hudson River].” Art.
Third, 4 Stat. 710; cf. supra, at 1. The 1834 agreement,
however, expressly gave to New Jersey “the exclusive right
of property in and to the land under water lying west of
the middle of the bay of New York, and west of the middle
of that part of the Hudson river which lies between Man
hattan island and New Jersey” and “the exclusive jurisdic-
tion of and over the wharves, docks, and improvements,
made and to be made on the shore of the said state . . .”
Art. Third, §§1, 2, 4 Stat. 710 (emphasis added).
“Comparable language [conferring exclusive authority],”
the Special Master observed, “is noticeably absent in the
[1905] Compact.” Report 66. The Master found this dis
parity “conspicuous,” id., at 68, for “[s]everal provisions in
the two interstate compacts [contain] strikingly similar
language,” id., at 66; see id., App. J (Table Comparing
Similar Provisions in the New Jersey-New York Compact
of 1834 and the New Jersey-Delaware Compact of 1905).
Given that provisions of the 1905 Compact appear to have
been adopted almost verbatim from New Jersey’s 1834
accord with New York, see ibid., New Jersey could hardly
claim ignorance that Article VII could have been drafted to
Cite as: 552 U. S. ____ (2008) 17
Opinion of the Court
grant New Jersey “exclusive jurisdiction” (not merely
“riparian jurisdiction”) over wharves and other improve
ments extending from its shore into navigable Delaware
River waters. Id., at 67.16
C
New Jersey urged before the Special Master, and in its
exceptions to his report, that Virginia v. Maryland, 540
U. S. 56, is dispositive of this case.17 Both cases involved
an interstate compact, which left the boundary between
the contending States unresolved, and a later determina
tion settling the boundary. And both original actions were
referred to Ralph I. Lancaster, Jr., as Special Master. We
find persuasive the Special Master’s reconciliation of his
recommendations in the two actions. See Report 64–65,
n. 118.
Virginia v. Maryland involved a 1785 compact and an
1877 arbitration award. Agreeing with the Special Mas
ter, we held that the arbitration award permitted Virginia
to construct a water intake structure extending into the
Potomac River, even though the award placed Virginia’s
boundary at the low-water mark on its own side of the
Potomac. See 540 U. S., at 75. “Superficially,” the Special
Master said, “that holding would appear to support New
Jersey’s argument here, i.e., that construction of wharves
off New Jersey’s shore should not be subject to regulation
by Delaware.” Report 64, n. 118. But, the Special Master
——————
16 The 1834 accord was the subject of significant litigation in the
years leading up to and surrounding the adoption of the 1905 Compact.
Report 67. Notably, New York’s highest court concluded Article Third
of the 1834 interstate agreement meant what it said: New Jersey had
“exclusive” jurisdiction over wharves extending from and beyond its
shore; therefore New York lacked authority to declare those wharves to
be nuisances. See New York v. Central R. Co. of N. J., 42 N. Y. 283, 293
(1870); Report 67.
17 The dissent, post, at 11–13, essentially repeats New Jersey’s
argument.
18 NEW JERSEY v. DELAWARE
Opinion of the Court
explained, the result in Virginia v. Maryland turned on
“the unique language of the compact and arbitration
award involved in that case.” Ibid.
The key provision of the 1785 compact between Mary
land and Virginia, we observed, addressed only “the right
[of the citizens of each State] to build wharves and im
provements regardless of which State ultimately was
determined to be sovereign over the River.” 540 U. S.,
at 69. Concerning the rights of the States, the 1877 arbi
tration award, not the 1785 compact, was definitive. See
id., at 75. The key provision of that award recognized the
right of Virginia, “qua sovereign,” “to use the River beyond
low-water mark,” a right “nowhere made subject to Mary
land’s regulatory authority.” Id., at 72.
Confirming the “sovereign character” of Virginia’s right,
we noted, Maryland had proposed to the arbitrators that
the boundary line between the States be drawn around
“all wharves and other improvements now extending or
which may hereafter be extended, by authority of Virginia
from the Virginia shore into the [Potomac] beyond low
water mark.” Ibid., n. 7 (internal quotation marks omit
ted). Although the formulation Maryland proposed was
not used in the arbitration award, the arbitrators plainly
manifested their intention to accomplish the same end: to
safeguard “Virginia’s authority to construct riparian im
provements outshore of the low water mark without regu
lation by Maryland.” Report 65, n. 118; see Virginia v.
Maryland, 540 U. S., at 73, n. 7. By contrast, in the in
stant case, neither the 1905 Compact, nor New Jersey v.
Delaware II, the 1934 decision settling the boundary
dispute, purported to give New Jersey “all regulatory
oversight (as opposed to merely riparian oversight)” or to
endow New Jersey with authority “exclusive of jurisdiction
by Delaware.” Report 65, n. 118; see supra, at 10–15.
Cite as: 552 U. S. ____ (2008) 19
Opinion of the Court
D
We turn, finally, to the parties’ prior course of conduct,
on which the Special Master placed considerable weight.
See Report 68–84; cf. O’Connor v. United States, 479 U. S.
27, 33 (1986) (“The course of conduct of parties to an in
ternational agreement, like the course of conduct of par
ties to any contract, is evidence of its meaning.”).
Until the 1960’s, wharfing out from the New Jersey
shore into Delaware territory was not a matter of contro
versy between the two States. From 1851, when New
Jersey began issuing grants for such activity, through
1969, only 11 constructions straddled the interstate
boundary. Report 74. At the time of the 1905 Compact
and continuing into the 1950’s, Delaware, unlike New
Jersey, issued no grants or leases for its subaqueous lands.
Delaware regulated riparian improvements solely under
its common law, which limited developments only to the
extent they constituted public nuisances. Id., at 69.
In 1961, Delaware enacted its first statute regulating
submerged lands, and in 1966, it enacted broader legisla
tion governing leases of state-owned subaqueous lands.
Id., at 70. The State grandfathered piers and wharves
built prior to the effective date of the regulations imple
menting the 1966 statute. Id., at 70–71. Permits were
required, however, for modifications to the grandfathered
structures and for new structures. Id., at 71.18
Then, in 1971, Delaware enacted the DCZA to prevent
“a significant danger of pollution to the coastal zone.” Del.
Code Ann., Tit. 7, §7001. The DCZA prohibits within the
coastal zone “[h]eavy industry uses of any kind” and “off
——————
18 In 1986 Delaware adopted its current Subaqueous Lands Act, 65
Del. Laws ch. 508, Del. Code Ann., Tit. 7, ch. 72 (2001), which author
izes DNREC to regulate any potentially polluting use made of Dela
ware’s subaqueous lands and to grant or lease property interests in
those lands. See id., §7206(a).
20 NEW JERSEY v. DELAWARE
Opinion of the Court
shore gas, liquid or solid bulk product transfer facilities.”
§7003. In 1972, Delaware rejected as a prohibited bulk
transfer facility El Paso Eastern Company’s request to
build a LNG unloading facility extending from New Jersey
into Delaware. 5 Del. App. 3483 (Letter from David
Keifer, Director of Delaware State Planning Office, to
Barry Huntsinger, El Paso Eastern Company (Feb. 23,
1972)). Shortly before denying El Paso’s application,
Delaware notified New Jersey’s Department of Environ
mental Protection (NJDEP), which raised no objection to
Delaware’s refusal to permit the LNG terminal.19 Dela
ware similarly relied on the DCZA to deny permits for
construction of the Crown Landing unloading facility at
issue in this case. Report 20.
Also in 1972, Congress enacted the federal Coastal Zone
Management Act (CZMA), 86 Stat. 1280, 16 U. S. C. §1451
et seq., which required States to submit their coastal
management programs to the Secretary of Commerce for
review and approval. In return, States with approved
programs would receive federal funding for coastal man
agement. See §§1454–1455. Delaware’s coastal manage
ment program, approved by the Secretary in 1979, specifi
cally addressed LNG facilities and reported that “ ‘no site
in Delaware [is] suitable for the location of any LNG im
port-export facility.’ ” Report 72 (quoting 4 Del. App. 2591
(Dept. of Commerce, National Oceanic and Atmospheric
Admin. (NOAA), Delaware Coastal Management Program
and Final Environmental Impact Statement 57 (Mar.
1980))). The next year, 1980, New Jersey gained approval
for its coastal management program. The Special Master
found telling, as do we, a representation New Jersey made
——————
19 5Del. App. 3481 (Letter from David Keifer, Director of Delaware
State Planning Office, to Richard Sullivan, Commissioner, NJDEP
(Feb. 17, 1972)); id., at 3485 (Letter from Mr. Sullivan, NJDEP, to Mr.
Keifer (Mar. 2, 1972)).
Cite as: 552 U. S. ____ (2008) 21
Opinion of the Court
in its submission to the Secretary:
“The New Jersey and Delaware Coastal Management
agencies . . . have concluded that any New Jersey pro
ject extending beyond mean low water must obtain
coastal permits from both states. New Jersey and
Delaware, therefore, will coordinate reviews of any
proposed development that would span the interstate
boundary to ensure that no development is con
structed unless it would be consistent with both state
coastal management programs.” Report 81 (quoting 4
Del. App. 2657 (NOAA, N. J. Coastal Management
Program and Final Impact Statement 20 (Aug. 1980)
(emphasis added)).
See also Report 72–73. That representation, the Special
Master observed, “is fundamentally inconsistent with the
position advanced by New Jersey here, i.e., that only New
Jersey has the right to regulate such projects.” Id., at 73.
As the Special Master reported, just three structures
extending from New Jersey into Delaware were built
between 1969 and 2006. Delaware’s DNREC issued per
mits for each of them. Id., at 74–76. One of those projects
was undertaken by New Jersey itself. The State, in 1996,
sought to refurbish a stone pier at New Jersey’s Fort Mott
State Park. Id., at 75–76. New Jersey issued a waterfront
development permit for the project, but that permit ap
proved structures only to the low-water mark. Delaware’s
approval was sought and obtained for structures outshore
of that point. Even during the pendency of this action,
New Jersey applied to Delaware for renewal of the permit
covering the portion of the Fort Mott project extending
into Delaware. Ibid.20
——————
20 New Jersey asserts “the most striking thing about this [course of
conduct] evidence is the lack of any reference by . . . New Jersey offi
cials to the [1905] Compact itself, much less to the terms of Article VII.”
New Jersey Exceptions 48. “All citizens,” however, “are presumptively
22 NEW JERSEY v. DELAWARE
Opinion of the Court
IV
New Jersey v. Delaware II upheld Delaware’s ownership
of the River and subaqueous soil within the twelve-mile
circle. The 1905 Compact did not ordain that this Court’s
1934 settlement of the boundary would be an academic
exercise with slim practical significance. Tending against
a reading that would give New Jersey exclusive authority,
Article VIII of the Compact, as earlier emphasized, see
supra, at 11, states: “Nothing herein contained 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.” Nowhere does Article VII “expressly set forth”
Delaware’s lack of any governing authority over territory
within the State’s own borders. Cf. Report 43–46.
The Special Master correctly determined that Dela
ware’s once “hands off” policy regarding coastal develop
ment did not signal that the State never could or never
would assert any regulatory authority over structures
using its subaqueous land. Id., at 69–70. In the decades
since Delaware began to manage its waters and sub
merged lands to prevent “a significant danger of pollution
to the coastal zone,” Del. Code Ann., Tit. 7, §7001, the
State has followed a consistent course: Largely with New
Jersey’s cooperation, Delaware has checked proposed
structures and activity extending beyond New Jersey’s
shore into Delaware’s domain in order to “protect the
——————
charged with knowledge of the law.” Atkins v. Parker, 472 U. S. 115,
130 (1985). The 1905 Compact is codified at N. J. Stat. Ann. §§52:28–
34 to 52:28–45. We find unconvincing New Jersey’s contention that its
officials were ignorant of the State’s own statutes. The assertion is all
the more implausible given New Jersey’s recognition of Delaware’s
regulatory authority in New Jersey’s coastal management plan, despite
a New Jersey county planning board’s objection to that acknowledg
ment. Report 82; 4 Del. App. 3135 (NOAA, N. J. Coastal Management
Program and Final Environmental Impact Statement 499 (Aug. 1980)).
Cite as: 552 U. S. ____ (2008) 23
Opinion of the Court
natural environment of [Delaware’s] . . . coastal areas.”
Ibid.
* * *
Given the authority over riparian rights that the 1905
Compact preserves for New Jersey, Delaware may not
impede ordinary and usual exercises of the right of ripar
ian owners to wharf out from New Jersey’s shore. The
Crown Landing project, however, goes well beyond the
ordinary or usual. See supra, at 5–6. Delaware’s classifi
cation of the proposed LNG unloading terminal as a
“heavy industry use” and a “bulk product transfer fa-
cilit[y],” Del. Code Ann., Tit. 7, §§7001, 7003, has not been,
and hardly could be, challenged as inaccurate.21 Consis
tent with the scope of its retained police power to regulate
certain riparian uses, it was within Delaware’s authority
to prohibit construction of the facility within its domain.22
As recommended by the Special Master, we confirm Dela
ware’s authority to deny permission for the Crown Land
ing terminal, overrule New Jersey’s exceptions, and enter,
with modifications consistent with this opinion, the decree
proposed by the Special Master.
It is so ordered.
JUSTICE BREYER took no part in the consideration or
decision of this case.
——————
21 We agree with the dissent, post, at 18–19, that Delaware could not
rationally categorize as a “heavy industry use” a terminal for unloading
cargoes of tofu and bean sprouts. On the other hand, we cannot fathom
why, if Delaware could block a casino, or even a restaurant on a pier
extending into its territory, post, at 7, it could not reject a permit for
the LNG terminal described supra, at 5–6.
22 In deploring New Jersey’s loss, post, at 18–19, the dissent overlooks
alternative sites in New Jersey that could accommodate BP’s LNG
project. 7 Del. App. 4306 (Cherry Affidavit).
24 NEW JERSEY v. DELAWARE
Opinion of the
Court
Decree
DECREE
The Court having exercised original jurisdiction over
this controversy between two sovereign States; the issues
having been referred to the Special Master appointed by
the Court; the Court having received briefs and heard oral
argument on New Jersey’s exceptions to the Report of the
Special Master and Delaware’s responses thereto; and the
Court having issued its Opinion, supra, at 1–23.
It is Hereby Ordered, Adjudged, Declared, and Decreed
as follows:
1.(a) The State of New Jersey may, under its laws,
grant and thereafter exercise governing authority over
ordinary and usual riparian rights for the construction,
maintenance, and use of wharves and other riparian
improvements appurtenant to the eastern shore of the
Delaware River within the twelve-mile circle and extend
ing outshore of the low-water mark; and further
(b) The State of Delaware may, under its laws and
subject to New Jersey’s authority over riparian rights as
stated in the preceding paragraph, exercise governing
authority over the construction, maintenance, and use of
those same wharves and other improvements appurtenant
to the eastern shore of the Delaware River within the
twelve-mile circle and extending outshore of the low-water
mark, to the extent that they exceed ordinary and usual
riparian uses.
(c) In refusing to permit construction of the proposed
Crown Landing LNG unloading terminal, Delaware acted
within the scope of its governing authority to prohibit
unreasonable uses of the river and soil within the twelve-
mile circle.
2. Except as hereinbefore provided, the motions for
summary judgment of both the States of New Jersey and
Delaware are denied and their prayers for relief dismissed
with prejudice.
Cite as: 552 U. S. ____ (2008) 25
Opinion of the Court
Decree
3. The party States shall share equally in the compen
sation of the Special Master and his assistants, and in the
costs of this litigation incurred by the Special Master.
4. The Court retains jurisdiction to entertain such
further proceedings, enter such orders, and issue such
writs as it may from time to time deem necessary or desir
able to give proper force and effect to this Decree or to
effectuate the rights of the parties.
Cite as: 552 U. S. ____ (2008) 1
Opinion of STEVENS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 134, Orig.
_________________
STATE OF NEW JERSEY, PLAINTIFF v. STATE OF
DELAWARE
ON BILL OF COMPLAINT
[March 31, 2008]
JUSTICE STEVENS, concurring in part and dissenting in
part.
While I agree with most of the reasoning in the Court’s
opinion, I do not agree with the rule it announces, or with
all of the terms of its decree. In my view, the construction
and maintenance of wharves and other riparian improve
ments that extend into territory over which Delaware is
sovereign may only be authorized by New Jersey to the
extent that such activities are not inconsistent with Dela
ware’s exercise of its police power. I therefore join para
graphs 1(c), 2, 3, and 4 of the Court’s decree, and write
separately to explain that in my view, New Jersey’s au
thority to regulate beyond the low-water mark on its shore
is subordinate to the paramount authority of the sovereign
owner of the river, Delaware.
I
At common law, owners of land abutting bodies of water
enjoyed certain rights by virtue of their adjacency to that
water. See 1 H. Farnham, Law of Waters and Water
Rights §62, p. 279 (1904) (“The riparian owner is . . . enti
tled to have his contact with the water remain intact.
This is what is known as the right of access, and includes
the right to erect wharves to reach the navigable portion of
the stream”). Yet those rights were by no means unlim
ited; “[w]hile the rights of the riparian owner cannot be
2 NEW JERSEY v. DELAWARE
Opinion of STEVENS, J.
destroyed . . . they are always subordinate to the public
rights, and the state may regulate their exercise in the
interest of the public.” Id., §63, at 284. See also 4 Re
statement (Second) of Torts §856, Comment e (1977) (“[A]
state may exercise its police power by controlling the
initiation and conduct of riparian and nonriparian uses of
water”).1
From these authorities it is clear that the rights of
riparian landowners are ordinarily subject to regulation
by some State. The only relevant question, then, for pur
poses of this case, is which State. As the Court notes, “[i]n
the ordinary case, the State that grants riparian rights is
also the State that has regulatory authority over the
exercise of those rights,” ante, at 13. But the history of the
relationship between these two States vis-à-vis their
jointly bounded river takes this case out of the ordinary.
In light of the 1905 Compact, our previous decision in New
Jersey v. Delaware, 291 U. S. 361 (1934), and the States’
course of conduct, I agree with the Court’s sensible conclu
sion that within the twelve-mile circle, the two States’
authority over riparian improvements is to some extent
overlapping. In my judgment, however, that overlapping
authority does not extend merely to the regulation of
“riparian structures and operations of extraordinary char
acter” beyond the low-water mark on New Jersey’s shore,
ante, at 3, but to all riparian structures and operations
——————
1 See also Weber v. Board of Harbor Comm’rs, 18 Wall. 57, 64–65
(1873) (“[A] riparian proprietor, whose land is bounded by a navigable
stream, 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, for his own use, or the use of others, subject to such general
rules and regulations as the legislature may prescribe for the protection
of the public” (emphasis added)); Yates v. Milwaukee, 10 Wall. 497, 504
(1870) (“[The owner of a lot along the river] is . . . entitled to the rights
of a riparian proprietor whose land is bounded by a navigable stream
. . . subject to such general rules and regulations as the legislature may
see proper to impose” (emphasis added)).
Cite as: 552 U. S. ____ (2008) 3
Opinion of STEVENS, J.
extending out from New Jersey into Delaware’s domain. I
would hold, therefore, that New Jersey may only grant,
and thereafter exercise governing authority over, the
rights of construction, maintenance, and use of wharves
and other riparian improvements beyond the low-water
mark to the extent that the grant and exercise of those
rights is not inconsistent with the police power of the
State of Delaware.
II
In Virginia v. Maryland, 540 U. S. 56, 80 (2003), I set
forth my view that the rights enjoyed by riparian land
owners along the Virginia shore of the Potomac River were
subject to regulation by the owner of the river, Maryland.
I there explained that “th[e] landowners’ riparian rights
are—like all riparian rights at common law—subject to
the paramount regulatory authority of the sovereign that
owns the river, [Maryland],” id., at 82 (dissenting opinion).
I would have held, therefore, that it was within Mary
land’s power to prevent the construction of the water
intake facility that Fairfax County, Virginia, wished to
build. A fortiori, then—putting to one side the distinctions
the Court today draws between the two cases, ante, at 17–
18—Delaware possesses the authority, under its laws, to
restrict the construction of the proposed liquified natural
gas facility that would extend hundreds of feet into its
sovereign territory.
But inherent in the notion of concurrency are limits to
the authority of even the sovereign that owns the river. In
Virginia v. Maryland, supra, I noted that the case did not
require the Court to “determine the precise extent or
character of Maryland’s regulatory jurisdiction,” because
the issue presented was merely “whether Maryland may
impose any limits on . . . Virginia landowners whose prop
erty happens to abut the Potomac.” Id., at 82 (dissenting
opinion). Similarly, in this case we need not definitively
4 NEW JERSEY v. DELAWARE
Opinion of STEVENS, J.
settle the extent to which there may exist limitations on
Delaware’s exercise of authority over its river and im
provements thereon; for even Delaware’s counsel conceded
at argument that Delaware could not impose a total ban
on the construction of wharves extending out from New
Jersey’s shores. Tr. of Oral Arg. 49, 50. Similarly, Dela
ware should not be permitted to treat differently riparian
improvements extending outshore from New Jersey’s land
and those commencing on Delaware’s own soil, absent
some reasonable police-power purpose for that differential
treatment. Apart from those clear constraints, however—
and subject to applicable federal law2—in my view it is
Delaware that possesses the primary authority over ripar
ian improvements extending into its territory.
III
Despite my differing views set forth herein, I do agree
with the conclusion that Delaware may prohibit construc
tion of the facility that spawned this complaint, and there
fore join the portion of the Court’s decree so finding.
——————
2 See
4 Restatement (Second) of Torts §856, Comment e (1977) (“The
United States may prohibit, limit and regulate the diversion, obstruc
tion or use of navigable waters . . . if those acts affect the navigable
capacity of navigable waters”).
Cite as: 552 U. S. ____ (2008) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 134, Orig.
_________________
STATE OF NEW JERSEY, PLAINTIFF v. STATE OF
DELAWARE
ON BILL OF COMPLAINT
[March 31, 2008]
JUSTICE SCALIA, with whom JUSTICE ALITO joins, dis-
senting.
With all due respect, I find the Court’s opinion difficult
to accept. The New Jersey-Delaware Compact of 1905
(Compact or 1905 Compact), Art. VII, 34 Stat. 860, ad-
dressed the “exercise [of] riparian jurisdiction,” and the
power to “make grants . . . of riparian . . . rights.” The
particular riparian right at issue here is the right of
wharfing out. All are agreed that jurisdiction and power
over that right were given to New Jersey on its side of the
Delaware River. The Court says, however, that that
jurisdiction and power was not exclusive. I find that
difficult to accept, because if Delaware could forbid the
wharfing out that Article VII allowed New Jersey to per-
mit, Article VII was a ridiculous nullity. That could not be
what was meant. The Court seeks to avoid that obstacle
to credibility by saying that Delaware’s jurisdiction and
power is limited to forbidding “activities that go beyond
the exercise of ordinary and usual riparian rights.” Ante,
at 15. It is only “riparian structures and operations of
extraordinary character” over which Delaware retains
“overlapping authority to regulate.” Ante, at 3 (emphasis
added). But that also is difficult to accept, because the
Court explains neither the meaning nor the provenance of
its “extraordinary character” test. The exception (what-
ever it means) has absolutely no basis in prior law, which
2 NEW JERSEY v. DELAWARE
SCALIA, J., dissenting
regards as beyond the “ordinary and usual” (and hence
beyond the legitimate) only that wharfing out which inter-
feres with navigation. So unheard-of is the exception that
its first appearance in this case is in the Court’s opinion.
I would sustain New Jersey’s objections to the Special
Master’s Report.
I
I must begin by clearing some underbrush. One of
Delaware’s principal arguments—an argument accepted
by the Master and implicitly accepted by the Court—is
that the 1905 Compact must not be construed to limit
Delaware’s pre-Compact (albeit at the time unrecognized)
sovereign control over the Delaware River, because of the
“strong presumption against defeat of a State’s title” in
interpreting agreements. See Report of Special Master
42–43 (Report) (quoting United States v. Alaska, 521 U. S.
1, 34 (1997) (internal quotation marks omitted)). Accord-
ing to Delaware, this presumption establishes that the
1905 Compact gave New Jersey the authority to allocate
riparian rights, but left with Delaware the power to veto
exercises of those rights under its general police-power
authority.
I have written of this presumption elsewhere that it
“has little if any independent legal force beyond what
would be dictated by normal principles of contract inter-
pretation. It is simply a rule of presumed (or implied-in-
fact) intent.” United States v. Winstar Corp., 518 U. S.
839, 920 (1996) (opinion concurring in judgment). It is a
manifestation of the commonsense intuition that a State
will rarely contract away its sovereign power. That intui-
tion is sound enough in almost all state dealings with
private citizens, and in some state dealings with other
States. It has no application here, however, because the
whole purpose of the 1905 Compact was precisely to come
to a compromise agreement on the exercise of the two
Cite as: 552 U. S. ____ (2008) 3
SCALIA, J., dissenting
States’ sovereign powers. Entered into at a time when
Delaware and New Jersey disputed the location of their
boundary, the Compact demarcated the authority between
the two States with respect to service of civil and criminal
process on vessels, rights of fishery, and riparian rights on
either side of the Delaware River within the circle of a 12-
mile radius centered on the town of New Castle, Delaware.
See Compact, 34 Stat. 858; New Jersey v. Delaware, 291
U. S. 361, 377–378 (1934) (New Jersey v. Delaware II).
There is no way the Compact can be interpreted other
than as a yielding by both States of what they claimed to
be their sovereign powers. The only issue is what sover-
eign powers were yielded, and that is best determined
from the language of the Compact, with no thumb on the
scales.
Besides relying on the presumption, the Special Master
believed (and the Court believes) that New Jersey’s claims
must be viewed askance because it is implausible that
Delaware would have “given up all governing authority
over the disputed area while receiving nothing in return.”
Ante, at 13. But Delaware received plenty in return. First
of all, it assured access of its citizens to fisheries on the
side of the river claimed by New Jersey—something it
evidently cared more about than the power to control
wharfing out from the Jersey shore, which it had never
theretofore exercised. And it obtained (as the Compact
observed) “the amicable termination” of New Jersey’s
then-pending original action in the Supreme Court, which
had “been pending for twenty-seven years and upwards.”
34 Stat. 858–859. How plausible it was that Delaware
would give up anything to get rid of that suit surely de-
pends upon how confident Delaware was that it would
prevail. And to tell the truth, the case appeared to be
going badly. As the Compact observed, the Supreme
Court had issued a preliminary injunction against Dela-
ware “restraining the execution of certain statutes of the
4 NEW JERSEY v. DELAWARE
SCALIA, J., dissenting
State of Delaware relating to fisheries.” Id., at 859. The
order issuing that injunction had remarked that Delaware
had now “interfered with and claimed to control the right
of fishing” which New Jerseyites had “heretofore been
accustomed” to exercise without Delaware’s interference
for over 70 years. Order in New Jersey v. Delaware, No. 1,
Orig. (filed 1877), Lodging for Brief of State of Delaware in
Opposition to State of New Jersey’s Motion to Reopen (Tab
1). By providing for dismissal of New Jersey’s suit, the
Compact assured Delaware that the Supreme Court’s
rather ominous sounding preliminary order would not
become the Court’s holding, perhaps the consequence of a
rationale that gave New Jersey jurisdiction in the river.
II
Article VII of the 1905 Compact between New Jersey
and Delaware reads as follows:
“Each State may, on its own side of the river, continue
to exercise riparian jurisdiction of every kind and na-
ture, and to make grants, leases, and conveyances of
riparian lands and rights under the laws of the re-
spective States.” 34 Stat. 860.
As the Court recognizes, this provision allocates to each
State jurisdiction over a bundle of rights that, at the time
of the Compact, riparian landowners, or “owners of land
abutting on bodies of water,” possessed under the common
law “by reason of their adjacency.” 1 H. Farnham, Law of
Waters and Water Rights §62, p. 278 (1904) (Farnham).
Those riparian rights included the right to “fill in and to
build wharves and other structures in the shallow water
in front of [the upland] and below low-water mark.” Id.,
§113b, at 534. A wharf, the type of structure at issue here,
“imports a place built or constructed for the purpose of
loading or unloading goods.” Id., §111, at 520, n. 1. It was
considered “a necessary incident of the right [to construct
Cite as: 552 U. S. ____ (2008) 5
SCALIA, J., dissenting
wharves and piers] that they shall project to a distance
from the shore necessary to reach water which shall float
vessels, the largest as well as the smallest, that are en-
gaged in commerce upon the water into which they pro-
ject.” Id., at 522. Thus, wharves could be built up to “the
point of navigability,” J. Gould, Treatise on the Law of
Waters, including Riparian Rights §181, p. 352 (2d ed.
1891) (Gould), so long as they did not “interfere needlessly
with the right of navigation” possessed by members of the
general public upon navigable waters, 1 Farnham §111,
at 521.
The two States would have been acquainted with this
common law. New Jersey case law comported with the
hornbook rules. According to the State’s Court of Errors
and Appeals, it was “undoubted” and the “common under-
standing” that “the owners of land bounding on navigable
waters had an absolute right to wharf out and otherwise
reclaim the land down to and even below low water, pro-
vided that they did not thereby impede the paramount
right of navigation.” Bell v. Gough, 23 N. J. L. 624, 658
(1852) (opinion of Elmer, J.); see also J. Angell, Treatise on
the Right of Property in Tide Waters and in the Soil and
Shores Thereof 234 (1847) (“[T]he right of a riparian pro-
prietor to ‘wharf out’ into a public river, is a local custom
in New Jersey”); Gould §171, at 342 (“[T]he common un-
derstanding in [New Jersey] carries the right [to wharf
out] even below low-water mark, provided there is no
obstruction to the navigation”). Case authority in Dela-
ware seems to be lacking, but in New Jersey v. Delaware II
the State assured the Special Master at oral argument
that “it is undoubtedly true in the State of Delaware . . .
that the upland owner had the right to wharf out . . .
subject only that you must not . . . obstruct navigation.”
1 App. of New Jersey on Motion for Summary Judgment
126a–1 (hereinafter NJ App.).
Thus, under the plain terms of the 1905 Compact, each
6 NEW JERSEY v. DELAWARE
SCALIA, J., dissenting
State had “jurisdiction”—the “authority of a sovereign
power to govern or legislate,” Webster’s International
Dictionary of the English Language (1898)—over wharfing
out on “its own side of the river.” To emphasize that this
jurisdiction was plenary—that it included, for example,
not merely the power to prohibit wharfing out but also the
power to permit it—Article VII specified that the jurisdic-
tion it conferred would be “of every kind and nature.”
And finally, the jurisdictional grant was not framed as
though it was conferring on either State some hitherto
unexercised power. Rather, the Compact provided that
each State would “continue to” exercise the allocated “ri-
parian jurisdiction,” clearly envisioning that each State
would wield in the future the same authority over riparian
rights it had wielded in the past. 34 Stat. 860 (emphasis
added). This is significant because, before adoption of the
Compact in 1905, New Jersey alone had regulated the
construction of riparian improvements on New Jersey’s
side of the Delaware River. It had repeatedly authorized
the construction of piers and wharves that extended be-
yond the low-water line. App. to Report C–4 to C–5 (list-
ing New Jersey Acts authorizing riparian landowners to
construct wharves); 7 NJ App. 1196a–1199a. Delaware,
by contrast, had never regulated riparian rights on the
New Jersey side, and indeed, at the time of the Compact
even on its own side there was “little evidence of [the
State’s] active involvement in shoreland develop-
ment . . . .” Report 69.
I would think all of this quite conclusive of the fact that
New Jersey was given full and exclusive control over
riparian rights on the New Jersey side. The Court con-
cludes that this was not so, however, in part because of the
alleged implausibility of Delaware’s “giv[ing] up all gov-
erning authority . . . while receiving nothing in return,”
ante, at 13 (a mistaken contention that I have already
addressed), and in part because “riparian jurisdiction” is
Cite as: 552 U. S. ____ (2008) 7
SCALIA, J., dissenting
different from “exclusive jurisdiction,” the term used in an
1834 Compact between New Jersey and New York, which
referred to “the exclusive jurisdiction of and over the
wharves, docks, and improvements, made and to be made
on the shore . . . .” Act of June 28, 1834, ch. 126, Art.
Third, 4 Stat. 710.
I willingly concede that exclusive riparian jurisdiction is
not the same as “exclusive jurisdiction” simpliciter. It
includes only exclusive jurisdiction over riparian rights
which, as I have described, include the right to erect
wharves for the loading and unloading of goods. That
jurisdiction does not necessarily include, for example, the
power to permit or forbid the construction of a casino on
the wharf, or even the power to serve legal process on the
wharf. Jurisdiction to control such matters—which were
not established as part of riparian rights by the common-
law and hornbook sources that the parties relied on in
framing the Compact—may well fall outside the scope of
the “riparian jurisdiction” that the Compact grants. See,
e.g., Tewksbury v. Deerfield Beach, 763 So. 2d 1071 (Fla.
App. 1999) (operation of a restaurant on a dock is not
included within riparian rights). Such powers—which
may well have been conveyed by a grant of “exclusive
jurisdiction” such as that contained in the New York-New
Jersey Compact—are not at issue in this case. What is at
issue is jurisdiction over the core riparian right of building
a wharf to be used for the loading and unloading of cargo.
And that that jurisdiction was given exclusively to New
Jersey is made perfectly clear by the Compact’s recogni-
tion of each State’s riparian jurisdiction only “on its own
side of the river.” 34 Stat. 860 (emphasis added). It does
not take vast experience in textual interpretation to con-
clude that this implicitly excludes each State’s riparian
jurisdiction on the other State’s side of the river. (Inclusio
unius est exclusio alterius.) There was no need, therefore,
to specify exclusive riparian jurisdiction.
8 NEW JERSEY v. DELAWARE
SCALIA, J., dissenting
The Court’s position gains no support from the fact that
the rights of a private riparian owner “ ‘are always subor-
dinate to the public rights, and the state may regulate
their exercise in the interest of the public.’ ” Ante, at 12
(quoting 1 Farnham §63, at 284). The Compact did not
purport to convey mere private rights, but rather “riparian
jurisdiction of every kind and nature.” If that means
anything at all, it means that New Jersey is the State that
“may regulate [the] exercise [of the rights of a private
riparian owner] in the interest of the public.” Delaware’s
contention that it retains the authority to prohibit under
its police power even those activities that are specifically
allowed to New Jersey under the Compact renders not just
Article VII but most of the Compact a virtual nullity.
Article III, for example, gives the States “common right of
fishery throughout, in, and over the waters” of the Dela-
ware. 34 Stat. 859. But under its police powers a sover-
eign State could regulate fishing within its public naviga-
ble waters. See Gould §189, at 362. Thus, under
Delaware’s view, just as its ownership of the riverbed
would allow it to trump New Jersey’s authority to permit
wharfing out, so also its ownership of the riverbed would
allow it to prevent fishing. That would be an extraordi-
nary result, since the litigation the 1905 Compact was
designed to resolve arose over fishing rights, after Dela-
ware enacted a law in 1871 requiring New Jersey fisher-
men to obtain a Delaware license. See Report 3–6.
III
The Court, following the Special Master’s analysis, see
Report 68–84, asserts that today’s judgment is supported
by the parties’ course of conduct after conclusion of the
Compact. I frankly think post-Compact conduct irrelevant
to this case, since it can properly be used only to clarify an
ambiguous agreement, and there is no ambiguity here.
The Court, moreover, overstates the post-Compact conduct
Cite as: 552 U. S. ____ (2008) 9
SCALIA, J., dissenting
favoring Delaware’s position and understates the post-
Compact conduct favoring New Jersey. But even if post-
Compact conduct is consulted, no such conduct—none
whatever—supports the Court’s “extraordinary character”
test, whereas several instances of such conduct strongly
support the resolution I have suggested in this dissent.
The Court relies upon four instances of Delaware’s
exercise of jurisdiction over wharfing out from the Jersey
shore, and two instances of New Jersey’s acquiescence in
such an exercise—all postdating 1969. As to the former,
the three structures extending from New Jersey into
Delaware built between 1969 and 2006 were permitted by
Delaware, ante, at 21; and another application for a per-
mit was denied, ante, at 20. The Court never establishes,
however, that these instances of Delaware’s assertion of
jurisdiction related to wharves of “extraordinary charac-
ter,” which is the only jurisdiction that the Court’s decree
confers upon Delaware. At best, these assertions of juris-
diction support not the Court’s opinion, but rather Dela-
ware’s assertion that it may regulate all wharves on the
river—an assertion that the Court rejects. The same
mismatch is present with both instances of New Jersey’s
asserted acquiescence. One of them was New Jersey’s
application for Delaware’s permission to refurbish the
stone pier at Fort Mott State Park, described ante, at 21.
That construction could not conceivably be characterized
as of “extraordinary character,” and thus New Jersey did
not need to ask Delaware for permission under the Court’s
theory. In the other instance, described ante, at 20–21,
New Jersey’s Coastal Management Agency assured the
Secretary of Commerce that “ ‘any New Jersey project
extending beyond mean low water’ ” (emphasis added) had
to be approved by Delaware’s Coastal Management
Agency as well as New Jersey’s. This again supports
10 NEW JERSEY v. DELAWARE
SCALIA, J., dissenting
Delaware’s theory of this case, but not the Court’s.*
While post-Compact conduct provides no—absolutely
zero—support for the Court’s interpretation, it provides
substantial support for the one I have suggested. In New
Jersey v. Delaware II, a case before this Court involving
precisely the meaning of the Compact, the Attorney Gen-
eral of Delaware (obviously authorized to present the
State’s position on the point) conceded to the Special
Master that “Article VII of the Compact is obviously
merely a recognition of the rights of the riparian owners of
New Jersey and a cession to the State of New Jersey by
the State of Delaware of jurisdiction to regulate those
rights.” 1 NJ App. 123a (emphasis added). And at oral
argument before the Special Master, Delaware’s Special
Counsel—Clarence A. Southerland, a former State Attor-
ney General and future Chief Justice of the Supreme
Court of Delaware, see Delaware Bar in the Twentieth
Century 375 (H. Winslow, A. Bookout, & P. Hannigan eds.
1994)—explained that “the Compact of 1905 expressly
acknowledged the rights of the citizens of New Jersey, at
——————
* The post-Compact-conduct argument is not the only portion of the
Court’s reasoning that is a mismatch with its conclusion. So is its
reliance upon Article VIII of the Compact, ante, at 11, 22—an argument
so weak that it deserves only a footnote response. Article VIII provides
that nothing in the Compact “shall affect the territorial limits, rights,
or jurisdiction of either State . . . except as herein expressly set forth.”
34 Stat. 860 (emphasis added). But New Jersey’s riparian rights are
expressly set forth, so the only question—the one I have addressed
above—is what those rights consist of. But accepting the Court’s over-
reading of Article VIII (which presumably requires each of the riparian
rights to be named one by one), it is utterly impossible to see why
Article VIII is any more “expres[s]” in setting forth New Jersey’s
authority over wharves that lack “extraordinary character” than it is in
setting forth her authority over wharves that possess it. Once again,
the argument supports not the Court’s holding, but rather Delaware’s
more expansive theory that it may regulate any and all wharves built
from the Jersey shoreline. There is, to tell the truth, nothing whatever
to support the Court’s holding.
Cite as: 552 U. S. ____ (2008) 11
SCALIA, J., dissenting
least, by implication to wharf out” and that New Jersey
possessed “all the right to control the erection of those
wharves and to say who shall erect them.” 1 NJ App.
126a–1 (emphasis added). And in its Supreme Court brief
in that litigation, Delaware assured the Court, without
conditions, that “Delaware has never questioned the right
of citizens of New Jersey to wharf out to navigable water
nor can such a right be questioned now because it is
clearly protected by the Compact of 1905 between the
States.” Id., at 139a (emphasis added). Delaware’s Su-
preme Court brief rejected New Jersey’s argument that, if
the Court found the boundary line to be the low-water
mark on the New Jersey shore, “the interests of the ripar-
ian owners will be either destroyed or seriously preju-
diced.” That concern, Delaware said, was misguided
because the 1905 Compact “recognized the rights of ripar-
ian owners in the river to wharf out.” Id., at 140a. “The
effect of Article VII of the Compact,” the brief explained,
“was that the State of Delaware recognized the rights of
the inhabitants on the east side of the river to wharf out to
navigable water. This right had never been questioned
and was undoubtedly inserted to put beyond question the
riparian rights (as distinguished from title) of land owners
in New Jersey.” Id., at 141a. These concessions are pow-
erful indication that Delaware’s understanding of the
Compact was the same as the one I assert.
IV
Our opinion in Virginia v. Maryland, 540 U. S. 56
(2003), effectively decided this case. It rejected the very
same assertion of a riverbed-owning State’s supervening
police-power authority over constructions into the river
from a State that had been conceded riparian rights. That
case involved two governing documents rather than (as
here) only one. The first, a 1785 compact, provided:
“ ‘The citizens of each state respectively shall have full
12 NEW JERSEY v. DELAWARE
SCALIA, J., dissenting
property in the shores of 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.’ ”
Id., at 62.
The second, an arbitration award of 1877 that interpreted
the earlier compact, read as follows:
“ ‘Virginia is entitled not only to full dominion over the
soil to low-water mark on the south shore of the Po-
tomac, 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 im-
peding the navigation or otherwise interfering with
the proper use of it by Maryland, agreeably to the
compact of seventeen hundred and eighty-five.’ ” Id.,
at 62–63.
We rejected Maryland’s police-power authority to forbid
Virginia’s construction of a water intake structure that
extended into Maryland territory, and held that “Vir-
ginia’s right ‘to erect . . . structures connected with the
shore’ is inseparable from, and ‘necessary to,’ the ‘full
enjoyment of her riparian ownership’ of the soil to low-
water mark.” Id., at 72. Maryland, we observed, was
“doubtless correct that if her sovereignty over the River
was well settled as of 1785, we would apply a strong pre-
sumption against reading the Compact as stripping her
authority to regulate activities on the River.” Id., at 67.
But because the “scope of Maryland’s sovereignty over the
River was in dispute both before and after the 1785 Com-
pact,” no such presumption existed. Id., at 68.
Today’s opinion, quoting the Special Master, claims that
the result in Virginia v. Maryland turned on “ ‘the unique
language of the compact and arbitration award involved in
Cite as: 552 U. S. ____ (2008) 13
SCALIA, J., dissenting
that case.’ ” Ante, at 18 (quoting Report 64, n. 118). But
the case did not say that. And of course virtually every
written agreement or award has “unique language,” so if
we could only extend to other cases legal principles per-
taining to identical language our interpretive jurispru-
dence would be limited indeed. The documents in Virginia
v. Maryland said in other words precisely what the Com-
pact here said: that one of the States (there, Virginia,
here, New Jersey) was given riparian rights, including the
right to construct wharves and improvements. And the
holding of the case was that those rights could be exer-
cised free of police power or other interference by the State
owning the riverbed.
The Court contends that in Virginia v. Maryland the
arbitration award, rather than the compact, “was defini-
tive,” because it recognized the right of Virginia “ ‘qua
sovereign,’ ” and nowhere made the right “ ‘subject to
Maryland’s regulatory authority.’ ” Ante, at 18 (quoting
540 U. S., at 72). But Article VII of the Compact here at
issue likewise spoke of the rights of New Jersey “qua
sovereign” (what else does the “exercise [of] riparian juris-
diction” mean?) and similarly did not make those rights
subject to Delaware’s regulatory authority. We stressed in
Virginia v. Maryland that the salient factor in the inter-
pretation of the compact (and hence in the arbitration
award’s interpretation of the compact) was that it was
entered into (like the Compact here) by way of settlement
of a continuing boundary dispute. “If any inference at all
is to be drawn from [the compact’s] silence on the subject
of regulatory authority,” we said, “it is that each State was
left to regulate the activities of her own citizens.” Id., at
67. Virginia v. Maryland effectively decided this case.
V
Finally, I must remark at greater length upon the
Court’s peculiar limitation upon New Jersey’s wharfing-
14 NEW JERSEY v. DELAWARE
SCALIA, J., dissenting
out rights—that it excludes wharves of “extraordinary
character.” But for that limitation, the Court’s conclusion
is precisely the same as my own: “Given the authority over
riparian rights that the 1905 Compact preserves for New
Jersey, Delaware may not impede ordinary and usual
exercises of the right of riparian owners to wharf out from
New Jersey’s shore.” Ante, at 23. The Court inexplicably
concludes, however, that the liquefied natural gas (LNG)
unloading wharf at stake in this litigation “goes well
beyond the ordinary or usual.” Ibid. Why? Because it
possesses “extraordinary character.”
To our knowledge (and apparently to the Court’s, judg-
ing by its failure to cite any authority) the phrase has
never been mentioned before in any case involving limita-
tions on wharfing out. What in the world does it mean?
Would a pink wharf, or a zig-zagged wharf qualify? To-
day’s opinion itself gives the phrase no content other than
to say that “Delaware’s classification of the proposed LNG
unloading terminal as a ‘heavy industry use’ and a ‘bulk
product transfer facilit[y],’ . . . has not been, and hardly
could be, challenged as inaccurate.” Ibid. This rationale
is bizarre. There is no reason why any designation by the
Delaware Department of Natural Resources and Envi-
ronmental Control would be relevant to, let alone control-
ling on, the meaning of the 1905 Compact; and no reason
why New Jersey’s authority under the 1905 Compact
should turn on the state-law question whether Delaware
“rationally categorize[s]” a wharf under its own statutes,
ante, at 23, n. 21. Wharves were commonly used for
“heavy industry use” when the 1905 Compact was
adopted, and their primary commercial use was to transfer
bulk cargoes. One roughly contemporaneous book on the
design and building of wharves in America included in-
formation on appropriate pavement material to enable use
of trucks on wharves, the proper method of laying down
railroad tracks, and the construction of hatch cranes for
Cite as: 552 U. S. ____ (2008) 15
SCALIA, J., dissenting
unloading cargo. See C. Greene, Wharves and Piers: Their
Design, Construction, and Equipment 191–194, 206–215
(1917). The Court gives no reason why the terminal’s
character as a “heavy industry use” and a “bulk product
transfer facilit[y]” matters in the slightest. Indeed, the
Court does not take its state-law reason for “extraordinary
character” seriously, conceding that Delaware could not
regulate an identical wharf for the “bulk product transfer”
of “tofu and bean sprouts,” ante, at 23, n. 21.
Apart from the Delaware Department’s “heavy industry
use” and “bulk product transfer” designations, the Court
cites, as support for its conclusion that this wharf is of
“extraordinary character” its own factual background
section describing the wharf. See ante, at 23 (citing ante,
at 5–6). It is not clear which, if any, of the facts discussed
there the Court claims to be relevant, and I am forced to
speculate on what they might be.
Could it be the size of the wharf, which is 2,000 feet
long, see ante, at 6, and extends some 1,455 feet into
Delaware territory, see Brief for BP America Inc. as
Amicus Curiae 1–2? But the Court cites not a single
source for this length limitation upon wharfing out. We
did not intimate, in holding in Virginia v. Maryland that
Virginia could authorize construction of a water intake
pipe extending 725 feet from its shoreline into Maryland,
see 540 U. S., at 63, that the result turned on the length of
the pipe. As I have discussed, the common law did estab-
lish a size limitation for wharves: the wharf could not be
extended so far as to interfere needlessly with the public’s
“right of navigation” in navigable waters. 1 Farnham
§111, at 521. Wharves constructed to access the water
could “project to a distance from the shore necessary to
reach water which shall float vessels, the largest as well as
the smallest.” Id., §111, at 522 (emphasis added). Dela-
ware has not claimed that the wharf in this case will
interfere with navigation of the river, which is approxi-
16 NEW JERSEY v. DELAWARE
SCALIA, J., dissenting
mately one mile wide at this location, see Brief for BP
America Inc. as Amicus Curiae 2. And the record reveals
that New Jersey, at least, anticipated that wharves on its
side of the river could extend as far as the wharf in this
case by establishing pierhead lines in 1877 and 1916 that
extended “below low water mark at distances varying from
378 to 3,550 feet.” 1 NJ App. 135a; see also 3 id., at 376a
(affidavit of Richard G. Castagna). (Pierhead lines mark
the permissible “outshore limit of structures of any kind.”
Greene, supra, at 27.)
Could the fact rendering this a wharf of “extraordinary
character” be that its construction would require the
dredging of 1.24 million cubic yards of soil within Dela-
ware’s territory? Ante, at 6. This is suggested, perhaps,
by the portion of the Decree which says that “Delaware
acted within the scope of its governing authority to pro-
hibit unreasonable uses of the . . . soil within the twelve-
mile circle.” Ante, at 24; see also ante, at 6, n. 8. But no
again. Although the record contains no evidence of the
dredge volumes required to construct the wharves on the
river at the time of the Compact’s adoption, it does show
that an 1896 navigational improvement required the
dredging of 35 million cubic yards from the Delaware
River, and a 1907 dredging at Cape May Harbor, New
Jersey, removed 19.7 million cubic yards. 7 NJ App.
1234a (affidavit of J. Richard Weggel). At the very least,
the dredging of 1.24 million cubic yards “would have been
familiar to or ascertainable by individuals interested in
riparian uses or structures at the time the Compact was
signed or ratified.” Id., at 1227a. I do not know what to
make of the Court’s response that the instances of dredg-
ing that I have cited involved “public works.” Ante, at 6,
n. 8. Is that a limitation upon the Court’s holding—only
private wharves of “extraordinary character” can be regu-
lated by Delaware? But in fact dredging seems to have
nothing to do with the issue, since (once again) the Court
Cite as: 552 U. S. ____ (2008) 17
SCALIA, J., dissenting
acknowledges that the same wharf for tofu and bean
sprouts would be OK.
Could the determinative fact be that the wharf would
service “[s]upertankers with capacities of up to 200,000
cubic meters (more than 40 percent larger than any ship
then carrying natural gas),” ante, at 6; that these ships
“would pass densely populated areas” and require estab-
lishment of “a moving safety zone [that] would restrict
other vessels 3,000 feet ahead and behind, and 1,500 feet
on all sides,” ante, at 6, n. 7? This is suggested, perhaps,
by the portion of the Decree which says that “Delaware
acted within the scope of its governing authority to pro-
hibit unreasonable uses of the river . . . within the twelve-
mile circle.” Ante, at 24. But surely not. Whatever power
Delaware has to restrict traffic on the waters of the
United States (a question not presented by this case,
though one that seems not to inhibit the Decree’s blithe
positing of state “authority to prohibit unreasonable
uses of the river,” ibid.), it has no bearing on whether
New Jersey can build the wharf without Delaware’s
interference.
Could the determinative fact be that the wharf will be
used to transport liquefied natural gas, which is danger-
ous? No again. The Court cites no support, and I am
aware of none, for the proposition that the common law
forbade a wharf owner to load or unload hazardous goods.
At the time of the Compact’s adoption, congressional
sources reported that the Delaware River was used to
transport, among other items, coal tar and pitch, sulfur,
gunpowder, and explosives. Annual Report of the Chief of
Engineers, United States Army, H. R. Doc. No. 22, 59th
Cong., 2d Sess., 1031–1033 (App. H) (1906) (tabulating
commerce on the Delaware River by item in 1904 and
1905). Books published some time after the adoption of
the Compact discuss the proper handling of seaborne
“dangerous goods,” including liquids such as benzene,
18 NEW JERSEY v. DELAWARE
SCALIA, J., dissenting
petroleum, and turpentine. See J. Aeby, Dangerous Goods
(2d ed. 1922); R. MacElwee & T. Taylor, Wharf Manage-
ment: Stevedoring and Storage 41, 221 (1921). There is
not a shred of evidence that the parties to the Compact
understood that New Jersey and Delaware would not be
authorized to grant riparian rights for the loading and
unloading of goods that are—under some amorphous and
unexplained criteria—dangerous.
I say that none of these factors has any bearing upon
whether, at law, the wharfing out at issue here is any-
thing more than the usual and ordinary exercise of a
riparian right. I am not so rash as to suggest, however,
that these factors had nothing to do with the Court’s
decision. After all, our environmentally sensitive Court
concedes that if New Jersey had approved a wharf of
equivalent dimensions, to accommodate tankers of equiva-
lent size, carrying tofu and bean sprouts, Delaware could
not have interfered. See ante, at 23, n. 21.
* * *
According to one study, construction activities on the
LNG facility in this case would have created more than
1,300 new jobs, added $277 million to New Jersey’s gross
state product, and produced $13 million in state and local
tax revenues. J. Seneca et al., Economic Impacts of BP’s
Proposed Crown Landing LNG Terminal 65, online at
http://www.policy.rutgers.edu/news/reports/BPCrownLand
ing.pdf (as visited Mar. 28, 2008, and available in Clerk of
Court’s case file). Operation of the facility was projected
to generate 231 permanent jobs, and more than $88 mil-
lion in state and local tax revenues over a 30-year period.
Ibid. Its delivery capacity would represent 15 percent of
the current consumption of natural gas in the region. Id.,
at 66. In holding that Delaware may veto the project, the
Court owes New Jersey—not to mention an energy-
starved Nation—something more than its casual and
Cite as: 552 U. S. ____ (2008) 19
SCALIA, J., dissenting
unsupported statements that the wharf possesses “ex-
traordinary character” and “goes well beyond the ordinary
or usual.”
Today’s decision does not even have the excuse of
achieving a desirable result. If one were to design, ex ante,
the socially optimal allocation of the power to permit and
forbid wharfing out, surely that power would be lodged
with the sovereign that stands most to gain from the
benefits of a wharf, and most to lose from its environ-
mental and other costs. Unquestionably, that is the sov-
ereign with jurisdiction over the land from which the
wharf is extended. Delaware and New Jersey doubtless
realized this when they agreed in 1905 that each of them
would have jurisdiction over riparian rights on its own
side of the river. The genius of today’s decision is that it
creates irrationality where sweet reason once prevailed—
straining mightily, against all odds, to assure that the
power to permit or forbid “heavy industry use” wharves in
New Jersey shall rest with Delaware, which has no inter-
est whatever in facilitating the delivery of goods to New
Jersey, which has relatively little to lose from the danger-
ous nature of those goods or the frequency and manner of
their delivery, and which may well have an interest in
forcing the inefficient location of employment- and tax-
producing wharves on its own shore. It makes no sense.
Under its Decree, “[t]he Court retains jurisdiction to
entertain such further proceedings, enter such orders, and
issue such writs as it may from time to time deem neces-
sary or desirable to give proper force and effect to this
Decree or to effectuate the rights of the parties.” Ante, at
25. This could mean, I suppose, that we can anticipate a
whole category of original actions in this Court that will
clarify, wharf by wharf, what is a wharf of “extraordinary
character.” (Who would have thought that such utterly
indefinable and unpredictable complexity lay hidden
within the words of the Compact?) More likely, however,
20 NEW JERSEY v. DELAWARE
SCALIA, J., dissenting
prospective builders of “heavy industry use” wharves from
the New Jersey shore—of whatever size—will apply to
Delaware and simply go elsewhere if rejected.
The wharf at issue in this litigation would have been
viewed as an ordinary and usual riparian use at the time
the two States entered into the 1905 Compact. Delaware
accordingly may not prohibit its construction. I respect-
fully dissent from the Court’s judgment to the contrary.