William W. Lisowski v. Borough of Avalon And

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-0065-13T1
A-3947-13T2

WILLIAM W. LISOWSKI and
CLARA E. LISOWSKI,

Plaintiffs-Respondents, APPROVED FOR PUBLICATION

September 9, 2015
v.
APPELLATE DIVISION
BOROUGH OF AVALON,

Defendant-Respondent,

and

STATE OF NEW JERSEY TIDELANDS
RESOURCE COUNCIL,

Defendant-Appellant.
_____________________________

STATE OF NEW JERSEY,
DEPARTMENT OF
ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

TOWNSHIP OF DELANCO,

Defendant-Appellant.

__________________________________________________________

Argued March 16, 2015 in A-0065-13 and
February 23, 2015 in A-3947-13 –
Decided September 9, 2015
Before Judges Lihotz, Espinosa and St. John.

On appeal from Superior Court of New Jersey,
Chancery Division, Cape May County, Docket
No. C-0058-11 in A-0065-13.

On appeal from Superior Court of New Jersey,
Chancery Division, Burlington County, Docket
No. C-0044-12 in A-3947-13.

Melissa P. Abatemarco and John R. Renella,
Deputy Attorneys General, argued the cause
for appellant in A-0065-13 (John J. Hoffman,
Acting Attorney General, attorney; Melissa
H. Raksa, Assistant Attorney General, of
counsel; Ms. Abatemarco and Nicolas G.
Seminoff, Deputy Attorney General, on the
briefs).

Douglas L. Heinold argued the cause for
appellant in A-3947-13 (Raymond, Coleman,
Heinold & Norman, LLP, attorneys; Mr.
Heinold and Stephen E. Raymond, of counsel
and on the brief).

Richard M. Hluchan argued the cause for
respondents William W. and Clara E. Lisowski
in A-0065-13 (Hyland Levin, LLP, attorneys;
Mr. Hluchan, of counsel; David G. Gunther,
on the brief).

Neil Yoskin argued the cause for respondent
Borough of Avalon in A-0065-13 (Sokol, Behot
& Fiorenzo, attorneys; Mr. Yoskin, on the
brief).

Mark A. Collier and Jennifer L. Dalia,
Deputy Attorneys General, argued the cause
for respondent in A-3947-13 (John J.
Hoffman, Acting Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney
General, of counsel; Mr. Collier and Ms.
Dalia, on the brief).

2 A-0065-13T1
 Edward C. Eastman, Jr., argued the cause for
amicus curiae New Jersey Land Title
Association in A-0065-13 (Davison, Eastman &
Munoz, P.A., attorneys; Mr. Eastman and
Michael J. Fasano, on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

These appeals, which we have consolidated for decision in a

single opinion, challenge the sufficiency of the State's effort

to delineate and assert its claims to certain tideland property

within the time restriction established by the 1981 amendment to

the New Jersey Constitution, N.J. Const. art. VIII, § 5, ¶ I

(the Amendment). The Amendment applies to "lands that were

formerly tidal flowed, but which have not been tidal flowed at

any time for a period of 40 years," and precludes the State from

claiming such lands as riparian unless the State has

"specifically defined and asserted such a claim pursuant to law"

within the forty-year period. These cases require us once again

to discuss the interplay between N.J.S.A. 13:1B-13.1 to -13.6

(Title 13), and the Amendment.

Both cases challenge the sufficiency of the State's proofs

that it provided timely notice of its claim. In State of New

Jersey, Department of Environmental Protection v. Township of

Delanco (Delanco), the Township of Delanco (the Township) also

challenges the methodology used in delineating the claim.

3 A-0065-13T1
 In Lisowski v. Borough of Avalon (Lisowski), plaintiffs

William W. and Clara E. Lisowski alleged the State failed to

timely assert its tideland claim against their property. This

challenge came thirty years after the Supreme Court held the

State had satisfied the Amendment's requirements to specifically

define and assert those riparian claims shown on a particular

map, Exhibit P-13 (P-13), and the base photomaps with claim

overlays. Dickinson v. Fund for the Support of Free Pub. Sch.,

95 N.J. 65, 84 (1983). It is undisputed that the Lisowski

property was among those claims on P-13 that were so defined and

asserted. Nonetheless, the Lisowskis argued the State failed to

timely assert its claim, contending Dickinson was not

dispositive, and the State failed to present proof of timely

filing in the applicable county and borough. The State of New

Jersey Tidelands Resource Council (the TRC)1 appeals from an

order that granted summary judgment to the Lisowskis, clearing

their title.

The disputed property in Delanco is an area adjacent to the

Delaware River known as the "Dunes," and was not delineated in

P-13. It was included on Map 448-1920, which was adopted by the

1
For ease of reference, we sometimes refer to the TRC and the
State of New Jersey, Department of Environmental Protection as
"the State."

4 A-0065-13T1
TRC on September 11, 1985. The State brought a quiet title

action pursuant to N.J.S.A. 12:3-8 against the Township,

alleging it had claimed the property as tidelands and seeking to

restrain the Township from opening a recreation park there. We

granted leave to the Township to appeal from an order in which

the trial court ruled the State had properly defined and

asserted its claim as required by the Amendment.

We reverse the order in Lisowski, finding this disposition

is required by the Supreme Court's decisions in Dickinson,

supra, and City of Jersey City v. Tidelands Resource Council, 95

N.J. 100 (1983). We affirm the order in Delanco, based upon the

holdings in Dickinson and Jersey City and the principles

underlying our deference to administrative decisions as

exemplified by City of Newark v. Natural Resource Council in

Department of Environmental Protection 82 N.J. 530, cert.

denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980).

Although the tortured path to the delineation of the State's

tidal claims has been recounted elsewhere, the issues presented

here are best understood within their historical context.

I.

As the successor to the rights of the English sovereign,

the colony, and later, the State, of New Jersey became the owner

in fee simple of the tidelands, "'all lands that are flowed by

5 A-0065-13T1
the tide up to the high-water line or mark.'" City of Long

Branch v. Liu, 203 N.J. 464, 475 (2010) (quoting O'Neill v.

State Highway Dep't, 50 N.J. 307, 323 (1967)); see also Matthews

v. Bay Head Improv. Ass'n, 95 N.J. 306, 317-20, cert. denied,

469 U.S. 821, 105 S. Ct. 93, 83 L. Ed. 2d 39 (1984).2 The TRC is

vested with responsibility "for the stewardship of the State's

riparian lands." N.J.S.A. 12:3-12.1.

Because this doctrine applies to "all lands that have ever

been flowed by the tide," an uncertainty as to ownership endured

that was difficult to resolve because, as the Court recognized,

"it is often exceedingly difficult to determine whether a

particular parcel, now dry, was once tidal flowed." Gormley v.

2
The principle "that land covered by tidal waters belonged to
the sovereign, but for the common use of all the people,"
Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J.
296, 303 (1972), has been traced to the Justinian Code, which
held that

[b]y the law of nature the air, running
water, the sea, and consequently the shores
of the sea were common to mankind. No one
was forbidden access to the sea, and
everyone could use the seashore to dry his
nets there, and haul them from the sea
. . . . The seashore was not private
property, but subject to the same law as the
sea itself, and the sand or ground beneath
it.

[Matthews, supra, 95 N.J. at 316-17
(alterations in original) (citations and
internal quotation marks omitted).]

6 A-0065-13T1
Lan, 88 N.J. 26, 29 (1981) (emphasis added). Over the course of

two centuries, the State made no effort on a state-wide basis to

identify the tidelands it claimed and, consequently, "private

persons developed lands which arguably were state-owned."

Dickinson v. Fund for the Support of Free Pub. Sch., 187 N.J.

Super. 224, 227-28 (App. Div. 1982), aff'd in part and rev'd in

part, 95 N.J. 65 (1983).

While the State failed to act, the Township and the

Lisowskis were among the many who acquired title to property,

apparently unaware it was subject to the State's tidal claim.

The Lisowskis purchased their property in the 1950s from the

Borough of Avalon following a public auction, built a home and

have lived on the property year-round since 1991. The Township

alleged it owned the Dunes based upon a "final decree on Bill to

foreclose certificates of tax sale" dated March 16, 1944. The

Township used part of the property as a composting facility and

wanted to use the balance of the land as a recreational area.

O'Neill provides a stark example of the principle that the

acquisition of property in good faith, even with the State's

tacit approval, must yield to the State's dominant interest.

After taking title to property in the Hackensack Meadowlands in

1953, O'Neill entered into a contract to sell the property to

the State Highway Department. His widow later expended sums to

7 A-0065-13T1
clear the title so the sale could proceed and, in 1960,

delivered a deed and received the contract price from the

Highway Department. O'Neill, supra, 50 N.J. at 317-18. The

litigation commenced when the State claimed, after the sale,

that the property was tidelands and owned by the State. Id. at

314, 317. The trial court concluded that, although the State

had title to the property, it was estopped from asserting that

title because of the contract between the defendant highway

department and plaintiff. Id. at 314.

The Supreme Court reversed, observing, "It is settled that

the State's title in tidelands cannot be lost by adverse

possession or prescription" based upon the State's "delay or

inaction." Id. at 320-21; see also City of Newark, supra, 82

N.J. at 546 ("In the absence of any showing that a State officer

conscious of the State's interest stood by while the private

owner acted in reliance thereon, the State's failure to claim

tidally-flowed, interior meadowlands until the passage of Title

13 does not support an estoppel.")3

The case for preserving the State's claims against

forfeiture lay not only in a feudal assertion of dominion; it

3
Neither the Lisowskis nor the Township claim that their
purchases of the property, decades ago, preclude the State from
asserting its claim.

8 A-0065-13T1
was fortified by the mandate that all funds acquired through the

sale of riparian lands are committed to public education.

O'Neill, supra, 50 N.J. at 321-22; N.J.S.A. 18A:56-5 ("All lands

belonging to this State now or formerly lying under water are

dedicated to the support of public schools. All moneys

hereafter received from the sales of such lands shall be paid to

the board of trustees, and shall constitute a part of the

permanent school fund of the State.").4 The Court observed,

"[i]t would run against the thesis of the statute appropriating

tidelands to the school fund and as well the thesis of the

constitutional provision, to say that the State's title may be

lost by mere inaction." O'Neill, supra, 50 N.J. at 321-22.

Still, the Court urged the State to take action:

As a matter of good housekeeping, the
appropriate officers of the State should do
what is feasible to catalogue the State's
far-flung holdings, but we cannot be
indifferent to the difficulties involved,
especially in ascertaining all the tidelands
to which the State has clear or colorable
title.

4
In O'Neill, the Court cited the predecessor statute, N.J.S.A.
18:10-5, noting that the statute had provided for the dedication
of such fund for the support of public schools "at least since
1894 (c. 71, p. 123)," and that both the present Constitution,
N.J. Const. art. VIII, § 4, ¶ 2, and the Constitution of 1844,
N.J. Const. of 1844 art. IV, § VII, ¶ 6, did so as well.
O'Neill, supra, 50 N.J. at 321. Title 18A was enacted as a
revision of the law pertaining to education, effective January
11, 1968, L. 1967, c. 271, replacing Title 18.

9 A-0065-13T1
 [Id. at 320.]

The legislative response was to enact Title 13, directing

the Resource Development Council, a predecessor to the TRC,5 "to

undertake title studies and surveys of meadowlands throughout

the State and to determine and certify those lands which it

finds are State owned lands." N.J.S.A. 13:1B-13.2 (emphasis

added). The Legislature gave explicit direction as to how that

process should be conducted, instructing the Council "shall take

into account" specific categories of source material, N.J.S.A.

13:1B-13.3,6 and establishing specific requirements for the

publication of the maps showing "those lands designated by the

council as State-owned lands." N.J.S.A. 13:1B-13.4. The

statute was also explicit as to filing requirements:

Copies of each such map and study shall be
filed with the Secretary of State and sent
to the clerk of each county or to the
register of deeds and mortgages, whoever
shall have the responsibility as the

5
The successors to the Resource Development Council were,
first, the Natural Resource Council, N.J.S.A. 13:1D-3, and then
the TRC, N.J.S.A. 13:1D-18.2. When we use "Council," we refer
to the applicable entity.
6
The categories set forth in N.J.S.A. 13:1B-13.3 are: (1) "the
mean high water line as established by the United States Coast
and Geodetic Survey," (2) the nature of the meadowlands'
vegetation, (3) "artificial changes in land or water elevation,"
and (4) such other "historical or scientific data which, in the
opinion of the council, are relevant in determining whether a
parcel of land is now or was formerly flowed by mean high tide."

10 A-0065-13T1
 recording officer of the county, and to the
governing body of each municipality whose
political boundaries include lands shown on
the map. Such maps and studies shall be
available for public inspection.

[Ibid.]

In addition, the Council was required to publish "a list of

those parcels designated in whole or in part as State-owned

lands" at least once in a newspaper circulating in each affected

county. Ibid.

The methodology initially employed by the Council was

successfully challenged in 1971 and it was not until 1980 that

the Supreme Court approved the methodology subsequently adopted

as conforming to the requirements of Title 13. City of Newark,

supra, 82 N.J. at 537, 542. The mapping of the Hackensack

Meadowlands was to be completed within six months. Id. at 537,

540 n.2. The title surveys and determinations of the State's

interest "in meadowlands throughout the State,"7 were to be

completed by December 31, 1980.8 N.J.S.A. 13:1B-13.6. Neither

deadline was met. Dickinson, supra, 187 N.J. Super. at 229.

7
"Meadowlands" is defined in N.J.S.A. 13:1B-13.1(a) as "those
lands, now or formerly consisting chiefly of salt water swamps,
meadows, or marshes."
8
The original deadline of December 31, 1974, L. 1968, c. 404 §
92, was extended twice. Dickinson, 95 N.J. 65, 74-75 (1983).

11 A-0065-13T1
 As a result, the uncertainty as to ownership continued to

pit the interests of private property owners against those of

the State. The Amendment was proposed to resolve these concerns

by providing a time limit, running from the time when the land

was last tidal flowed, in which the State was required to define

and assert its claim. Dickinson, supra, 95 N.J. at 76.

The proposed Amendment was met with a great deal of

resistance, including opposition from the administration, which

protested that the necessary mapping could not be completed in

the time allotted. Id. at 76-77. However, in the general

election of November 3, 1981, the public voted in favor of the

Amendment, which reads as follows:

No lands that were formerly tidal flowed,
but which have not been tidal flowed at any
time for a period of 40 years, shall be
deemed riparian lands, or lands subject to a
riparian claim, and the passage of that
period shall be a good and sufficient bar to
any such claim, unless during that period
the State has specifically defined and
asserted such a claim pursuant to law. This
section shall apply to lands which have not
been tidal flowed at any time during the 40
years immediately preceding adoption of this
amendment with respect to any claim not
specifically defined and asserted by the
State within 1 year of the adoption of this
amendment.

[N.J. Const., art. VIII, § 5, ¶ 1 (emphasis
added).]

12 A-0065-13T1
 Thus, for the first time, State inaction within the

specified time period would result in forfeiture of its claim to

tidal lands. The first deadline that would extinguish all

claims for lands that had not been tidally flowed for a period

of 40 years was November 2, 1982. It was estimated that 2452

square miles, or 29.9 percent of the state was subject to

investigation for potential claims by the State. Dickinson v.

Fund for Support of Free Pub. Sch., 187 N.J. Super. 320, 327

(Law Div.), rev'd, 187 N.J. Super. 224 (App. Div. 1982), aff'd

in part, rev'd in part, 95 N.J. 65 (1983).

The Office of Environmental Analysis (OEA) of the

Department of Environmental Protection (DEP) was responsible for

preparing the tidelands claims maps. Id. at 324. However,

while the Legislature had established arduous mapping procedures

for the State to follow regarding the meadowlands "to determine

and certify those lands which it finds are State owned lands"

pursuant to N.J.S.A. 13:1B-13.2,9 a vacuum existed as to what

action the State must take to "specifically define[] and

assert[] . . . a claim pursuant to law" to preserve a riparian

claim under the Amendment. Similarly, while Title 13 provided

9
The Title 13 mapping procedures were set forth in detail in
the Law Division decision. Dickinson, supra, 187 N.J. Super. at
326-28.

13 A-0065-13T1
explicit instructions on the manner of notice the State had to

provide, N.J.S.A. 13:1B-13.4, no legislative action gave

guidance to the State as to how it must provide notice to

affected property owners. Dickinson, supra, 95 N.J. at 79-80.

There were two assumptions held by the plaintiffs and the

State in Dickinson. First, it was assumed the State had to

comply with Title 13 requirements for all tidelands claims.

Second, it was believed it would be impossible to do so before

November 2, 1982.10

With the November 1982 deadline looming, the Law Division

issued its opinion on July 8, 1982. Central to the

determination of what was required of the State to define its

tidelands claims was P-13, which depicted the areas subject to

investigation on 1632 base photomaps as squares or rectangles.

Dickinson, supra, 187 N.J. Super. at 327. Squares that were

fully colored represented maps that had either been delivered to

the TRC for adoption or were completed by OEA and in the process

of final preparation for delivery to the TRC. Ibid. There were

10
Indeed, we stated the definition of "meadowlands" in N.J.S.A.
13:1B-13.1(a) was construed to include all tidelands.
Dickinson, supra, 187 N.J. Super. at 230. The Supreme Court did
not share this interpretation, stating, "Title 13 required that
the State examine only the meadowlands," and suggesting the
State had unilaterally elected to take action beyond what was
required when it "decided to investigate all tidal properties in
which it might have an interest." Dickinson, supra, 95 N.J. at
75.

14 A-0065-13T1
also squares that were uncolored, which represented "areas to be

delineated for tidelands claims." Ibid.

The Law Division concluded that the State had fully

delineated claims as to areas covered by 767 photomaps. Id. at

340. These maps included 713 maps that had been prepared by OEA

and adopted by the TRC on June 9, 1982. Id. at 327-28. The

court found approximately 100 more maps would be available for

adoption by the TRC by the November 2, 1982 deadline, leaving

700 maps, or forty-seven percent of the area subject to

investigation, not delineated before the deadline. Id. at 328.

The court defined the actions that would serve to

"specifically define[] and assert[]" the remaining claims

"pursuant to law" and "fully delineate[ them] by December 31,

1985, ordering the following:

1. On or before November 2, 1982 the [TRC]
will file a copy of P-13 with the Secretary
of State, together with a copy of each base
photomap (excluding those reflecting only
uplands) that has not previously been filed
with a scribed overlay and C.O.P.S.[11] in
accordance with N.J.S.A. 13:1B-13.4.

2. Concurrent with such filing, the [TRC]
will send copies of P-13 and the respective
base photomaps to the clerks of the counties
and governing bodies of the municipalities
whose political boundaries include lands
shown on such maps -- paralleling the

11
Claims Overlay Preparation Summary.

15 A-0065-13T1
 distribution of published maps under
N.J.S.A. 13:1B-13.4.

3. The action taken pursuant to paragraphs 1
and 2 above shall constitute compliance with
Art. VIII, § 5, par. 1, of the 1947
Constitution of New Jersey, as amended, to
specifically define and assert claims of the
State, pursuant to law, as to lands formerly
tide-flowed but not tidal flowed for 40
years prior to the amendment -- and within
the one-year period provided in such
amendment.

4. Notwithstanding the foregoing, all
mapping, scribing, and C.O.P.S. preparation
must be completed and [TRC] action taken in
accordance with N.J.S.A. 13:1B-13.4 as to
such claims no later than December 31, 1985.

[Id. at 340-41.]

The Appellate Division adhered to the Law Division's view

that compliance with Title 13 procedures was required, holding,

"unless superseded by another statute 'pursuant to law' in the

amendment means pursuant to" Title 13. Dickinson, supra, 187

N.J. Super. at 241. Measuring the adequacy of P-13 against

Title 13 standards, we parted company with the Law Division,

concluding "the filing of P-13 and the base maps cannot

constitute a specifically defined and asserted claim." Ibid.

We stated: "The record is clear beyond any doubt that vast areas

of P-13 will not ultimately, after accurate mapping, be the

subject of a state claim. P-13 and the photo base maps simply

show the area where the State may have a claim." Ibid. We

16 A-0065-13T1
emphasized that it was not our intention "to preclude the

Legislature from adopting a new statute replacing L. 1968, c.

404, or to forbid the introduction of new mapping techniques."

Id. at 243. However, in the absence of such legislative action,

we held the State's tideland property "claim must be specific as

to each property and must be prepared in accordance with the

procedures approved in [City of Newark], supra, 82 N.J. at 530."

Failure to do so would bar the claim. Ibid.

The Appellate Division decision was rendered on October 22,

1982, less than two weeks before the November 2, 1982 deadline.

With the matter before the Supreme Court after cross-petitions

for certification were granted, the parties entered into a

consent order, dated October 26, 1982, to govern "pending the

ultimate disposition" of the appeal, without prejudice to the

positions of any of the parties. Acknowledging certain

practical difficulties regarding the reproduction of P-13, the

order required the TRC to file a substitute document, P-13(S)

and "a copy of each base photomap (excluding those reflecting

only uplands) that has not previously been filed with a scribed

overly and Claims Overlay Preparation Summary" with the Court,

the Secretary of State and "the Clerks of the counties and

governing bodies of the municipalities whose political

17 A-0065-13T1
boundaries include lands shown on such maps" by November 2,

1982.

In a sharp departure from the conclusions drawn by this

court and the Law Division, as well as the assumptions of the

parties, the Supreme Court concluded the State was not required

to comply with Title 13 to preserve riparian claims from

extinguishment under the Amendment. The Court set forth several

reasons for its conclusions, which included the fundamental

difference between the objectives of Title 13 and the Amendment.

While Title 13 "delineated a methodology . . . to enable the

Council 'to determine and certify those lands which it finds are

State owned lands,'" Dickinson, supra, 95 N.J. at 78 (quoting

N.J.S.A. 13:1B-13.2), the Amendment merely called for a

procedure "in which the State proposes to assert a claim."

Ibid. The Court explained, "[d]etermination and certification

that lands are owned by the State call for more stringent

requisites than simply asserting a claim." Ibid.

The nature of the properties to be mapped also warranted a

distinction in the applicable standards. The Court observed

that studies of the meadowlands properties subject to Title 13

"may involve factors substantially different from those involved

in oceanfront properties." Ibid.

18 A-0065-13T1
 The third point made by the Court was that, given their

disparate purposes, it was "obvious" that claims pursuant to the

Amendment "could be defined and asserted in ways different from

that prescribed in Title 13." Ibid. The Court stated it was

"self-evident" from Title 13's requirements that "the people's

intent was not that restrictive," and that the imposition of

Title 13 procedures would result in "an unnecessary impairment

of [the Council's] administrative flexibility." Id. at 78-79.

The Court noted that Title 13's requirements, including "the

preparation of a survey and publishing of a map, which must be

filed with the Secretary of State and sent to the clerk of each

county and municipality where the land is situated," ibid.

(citing N.J.S.A. 13:1B-13.4), was "consonant with the

legislative (Title 13) imperative that the State certify

ownership, a requirement that need not be satisfied under the

Amendment." Id. at 79. As a result, the delineation and notice

requirements under the Amendment are substantially less

stringent:

Descriptions of the land, whether in the
form of a map or otherwise, notice to the
landowners, the amount and nature of
evidence necessary to make a claim under the
Amendment -- all could justifiably differ
from Title 13, particularly since the
purposes of Title 13 and the Amendment are
not identical. Restricting the Council to
Title 13 procedures would be an unnecessary

19 A-0065-13T1
 impairment of its administrative
flexibility.

[Ibid.]

Moreover, the Court explicitly recognized that the

administrative flexibility afforded the Council encompassed the

authority to utilize a methodology untethered to Title 13

procedures. "That the Council generally employed the Title 13

procedures in non-meadowlands areas, a program initiated in

1973, long before the Legislature considered the proposed

Amendment, does not vitiate the Council's authority to utilize

another methodology." Ibid. (emphasis added). Even in the

absence of legislative action, the Council's authority includes

"the right to survey, map, and determine the boundaries of"

"lands that the State claims it owns." Id. at 79-80 (citing

N.J.S.A. 12:3-7, 12:3-10, 12:3-12, 13:1B-13, 13:1B-13.7)

(emphasis added).

Having dispatched the notion that the State was required to

comply with Title 13 procedures, the Court turned to the

question whether the mapping and notification procedures

followed had satisfied the delineation and notice requirements

that were constitutionally required, stating:

[W]e believe that where the State's mapping
reached the point that it designated the
place where the tide had flowed, as shown on
its claim overlays, the Amendment's specific
delineation requirement has been met. We

20 A-0065-13T1
 respect this administrative judgment of the
Council. See [City of Newark], supra, 82
N.J. at 539-40. Unquestionably the Council
has acted in good faith by making claims for
which it has a reasonable basis.

. . . .

We are satisfied that the State has
"asserted" as well as "specifically defined"
its riparian claims. The public has been
given notice of the State's claims. The
claimed areas are shown on P-13 and the base
photomaps with the claim overlays. All have
been filed with the Secretary of State and
county and municipal clerks.

[Id. at 84 (emphasis added).]

Jersey City, decided the same day as Dickinson, also

concerned challenges to certain tidelands claims, premised on

the assumption that Title 13 applied. Among the alleged

deficiencies was "the State's failure to file the maps with the

Secretary of State, keepers of county land records, and

municipal clerks, as required by N.J.S.A. 13:1B-13.4." Jersey

City, supra, 95 N.J. at 102. The Court disposed of this

argument, stating, "We have held this day in Dickinson that the

State specifically defined and asserted its claims to those

lands for which it had prepared and published base photomaps

with claim overlays that it filed with the appropriate

governmental offices. No more than that is mandated by the

Amendment." Id. at 104 (citing Dickinson, supra, 95 N.J. at

84).

21 A-0065-13T1
 In sum, the following is derived from the Court's opinions

and informs our analysis. Although the Supreme Court broadly

described the constitutional imperatives, it did not define with

particularity a procedure that was constitutionally required.

However, the Court held compliance with Title 13 procedures was

not required and that the State had satisfied constitutional

requirements as to claimed areas shown on P-13 and base

photomaps with claim overlays. Further, the Court repeatedly

acknowledged that the exercise of administrative authority in

this context is entitled to deference.

II.

It is undisputed that the Lisowskis' property is part of

Map 084-1974, the Oldman Creek Map, which was among the 713 maps

listed in the TRC's minutes for May 27, 1982 as approved for

publication that day, and among the colored squares on P-13.

In December 2005, the Lisowskis applied for a "Statement of

No Interest" with the TRC seeking a declaration that the State

had no interest in the land. The State responded, approximately

two years later, denying their application and asserting a

tidelands claim to nearly one hundred percent of their land.

Plaintiffs filed a quiet title action, alleging the TRC had

22 A-0065-13T1
failed to timely assert a tideland claim against their property

as required by the Amendment.12

Plaintiffs conceded the map had been timely filed with the

Secretary of State, but argued the State failed to timely file

the map with either Cape May County or the Borough of Avalon

because the County's copy bore a date stamp of December 14,

1982, and the Borough did not have the map in its possession.

The State was unable to produce receipts from its files to

demonstrate the timely filing of the maps with the County and

the Borough and relied upon circumstantial evidence to support

its contention that the maps had been timely filed with the

applicable counties and municipalities.13 In addition, the State

argued that it was not required to file the maps with the County

and Borough; that filing with the Secretary of State was

sufficient.

Cross-motions for summary judgment were filed. Citing

Dickinson, the trial judge initially ruled that the State had

12
In the first count of their complaint, the Lisowskis alleged
the Borough breached the covenant of warranty in the property
deed. In July 2013, the parties entered into a consent order
that dismissed this count without prejudice.
13
The records in both Lisowski and Delanco reveal deficiencies
in the State's recordkeeping and that, in the absence of any
legislative directive, the counties and municipalities did not
accept and maintain the maps in a uniform and reliably
accessible manner.

23 A-0065-13T1
properly asserted its claim, despite the fact the State could

not produce direct evidence the Oldman Creek Map had been filed

in the Borough or that it had been filed with the County before

December 14, 1982.

Plaintiffs and the State filed cross-motions for

reconsideration. Citing Dickinson, and Jersey City, plaintiffs

argued the State was required to file the map with both the

County and the Borough and failed to do so. The State asked the

court to reconsider its finding that there had been no timely

filing with the County, presenting a newspaper article that

reported the widespread nervousness and confusion of property

owners in response to the County's receipt of the tideland claim

maps on May 28, 1982.

The trial court vacated its prior order, granted

plaintiffs' motions for reconsideration and summary judgment,

and denied the TRC's motion for reconsideration. The State

filed a second motion for reconsideration, supported by

additional circumstantial evidence, including a June 1982

article from the New York Times describing practical

difficulties posed to the clerk's office by the receipt of the

maps and minutes from the June 24, 1982 TRC meeting which noted

continued discussion "concerning the paper copies of the

tidelands maps which have been delivered to 13 counties and 194

24 A-0065-13T1
municipalities." The trial court found the evidence presented

failed to prove the specific map in question was timely filed

and denied the State's motion for reconsideration.

In its appeal, the State argues that Dickinson constitutes

binding precedent that its assertion of its tidal claim

satisfied the Amendment; that it is only required to file a

tidelands claims map with the Secretary of State; and that the

proofs support the conclusion that the Oldman Creek Map was

filed in the County and Borough. In the alternative, the State

requests a remand. The Lisowskis argue the trial judge

correctly ruled the State was required to file the map with the

County and Borough in addition to the Secretary of State and

that the State failed to provide sufficient proof of filing.

The Lisowskis also argue Dickinson does not dispose of this

issue and that a remand is inappropriate.

In reviewing a summary judgment decision, we apply the same

standard as the trial court. Murray v. Plainfield Rescue Squad,

210 N.J. 581, 584 (2012). Viewing the evidence "in the light

most favorable to the non-moving party," we determine "if there

is a genuine issue as to any material fact or whether the moving

party is entitled to judgment as a matter of law." Rowe v.

Mazel Thirty, LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We

25 A-0065-13T1
review questions of law de novo, State v. Gandhi, 201 N.J. 161,

176 (2010), and need not accept the trial court's conclusions of

law. Davis v. Devereux Found., 209 N.J. 269, 286 (2012).

In this case, the factual issue of whether the Oldman Creek

Map was timely filed with the County and Borough was resolved by

the Court's holding in Dickinson. Although the Court did not

detail evidence to support its conclusion, its holding does not

suffer from ambiguity:

The claimed areas are shown on P-13 and the
base photomaps with the claim overlays. All
have been filed with the Secretary of State
and county and municipal clerks.

[Dickinson, supra, 95 N.J. at 84.]

The meaning of the holding was emphasized by the decision

it rendered the same day in Jersey City:

We have held this day in Dickinson that the
State specifically defined and asserted its
claims to those lands for which it had
prepared and published base photomaps with
claim overlays that it filed with the
appropriate governmental offices.

[Jersey City, supra, 95 N.J. at 104.]

The Lisowskis and amicus argue that this holding is not

binding here because the elements of res judicata have not been

met. We disagree.

In Dickinson, the Court declared it was addressing "the

meaning and constitutionality" of the Amendment. Id. at 70. In

26 A-0065-13T1
its consideration of the meaning of the Amendment's requirement

that the State specifically define and assert its claim, the

Court reviewed what the State had done and not done to

investigate the properties identified in the squares depicted on

P-13. The Court agreed with that part of the Appellate

Division's decision that stated "specific delineation . . . on a

property-by-property basis" was required for a claim to be made

in good faith. Id. at 83 (quoting Dickinson, supra, 187 N.J.

Super. at 242-43). The Court concluded, "where the State's

mapping reached the point that it designated the place where the

tide had flowed, as shown on its claim overlays, the Amendment's

specific delineation requirement [had] been met" and the

administrative judgment of the Council warranted the Court's

respect. Id. at 84.

As we have noted, the Lisowskis do not dispute that their

property lies within one of the colored squares on P-13 that the

Court found had been adequately delineated. Yet, they contend

the second component of the Court's holding as to those colored

squares -- that the State sufficiently asserted its claim --

does not preclude their argument that the State failed to do so

as to their property.

It is true the Court did not detail the State's efforts on

a property-by-property basis to file with the appropriate county

27 A-0065-13T1
and municipality. However, as part of its review of the

procedural history, the Court noted the parties entered into a

consent order pending disposition, which required the State to

follow the filing requirements set forth in the Law Division

order. Id. at 73. Those requirements were to be satisfied by

November 2, 1982. The case was argued before the Supreme Court

on September 12, 1983 and decided on December 21, 1983. This

was a vigorously litigated case. We have no doubt that, if the

State failed to follow the dictates of the consent order, that

issue would have been raised and more fully discussed in the

Court's decision. It is implicit in the Court's statement, "All

have been filed with the Secretary of State and county and

municipal clerks," id. at 84, and its characterization of its

conclusion as a holding, id. at 90; Jersey City, supra, 95 N.J.

at 104, that the Court was satisfied the State had complied with

the consent order as to all properties that were sufficiently

delineated on P-13.

Collateral estoppel, or issue preclusion, bars the

relitigation of an issue that has been addressed in a prior

matter, if

(1) the issue to be precluded is identical
to the issue decided in the prior
proceeding; (2) the issue was actually
litigated in the prior proceeding; (3) the
court in the prior proceeding issued a final
judgment on the merits; (4) the

28 A-0065-13T1
 determination of the issue was essential to
the prior judgment; and (5) the party
against whom the doctrine is asserted was a
party to or in privity with a party to the
earlier proceeding.

[First Union Nat'l Bank v. Penn Salem
Marina, Inc., 190 N.J. 342, 352 (2007)
(citation and quotation marks omitted).]

Finding these elements are satisfied here, we hold

Dickinson establishes that the State timely preserved its

riparian claim to the Lisowski property by filing the Oldman

Creek Map with the Secretary of State, the County and the

Borough. The trial judge was not free to reach a contrary

result. See Reinauer Realty Corp. v. Borough of Paramus, 34

N.J. 406, 415 (1961); Crespo v. Crespo, 408 N.J. Super. 25, 36-

37 (App. Div. 2009), aff'd, 201 N.J. 207 (2010); Petrusky v.

Maxfli Dunlop Sports Corp., 342 N.J. Super. 77, 81 (App. Div.),

certif. denied, 170 N.J. 388 (2001). Accordingly, we reverse

the order granting summary judgment to the Lisowskis and remand

this matter for the entry of summary judgment in favor of the

State.

III.

The State's tidelands claim of the Dunes, the property at

issue in Delanco, is included on Map 448-1920. Because this map

was not adopted by the TRC until September 11, 1985, it was not

among those explicitly approved by the Supreme Court in

29 A-0065-13T1
Dickinson. The Township argues the State failed to properly

delineate its tidelands claim and failed to prove it provided

adequate notice of its claim. The trial judge rejected the

Township's arguments and, in a written opinion, found the State

had met its burden regarding both the delineation and assertion

of its claim. We agree.

A.

We first turn to the argument that the State failed to

properly delineate its claim. The Township argues that, to

satisfy its constitutional obligation, the TRC was required to

follow a specific procedure set forth in a 1987 OEA report. The

Township further contends that, as a result of this failure, the

TRC based the claim upon an erroneous source selection,

improperly included vegetation and marsh areas in the claim, and

improperly delineated the claim.

The protocol the Township relies upon is set forth in a

1987 report by Richard Castagna, a supervisor in the OEA,

titled, "The Tidelands Mapping Process" (the Castagna Report).

The Report describes the "24 step procedure followed by the OEA

when mapping tidelands." Although she was critical of the

Castagna Report in some respects, the Township's expert witness,

Jo Ann Cubberley, agreed the Castagna Report was an accurate

representation of the tidelands mapping process. The Township

30 A-0065-13T1
contends the State was required to comply with the procedure

outlined in the Castagna Report to satisfy its constitutional

obligation. We disagree.

The alleged deficiency concerns the second step of the

twenty-four step procedure, which addresses the selection of a

source for the mapping process. A source is chosen after all

available source materials, including aerial photographs,

historic maps, and charts from the files of the Bureau of

Tidelands Management (Bureau), along with maps from outside

sources, have been obtained and a log book is created to track

the analysis of each source. According to the Castagna Report,

the analyst reviews the collected sources "in chronological

order, beginning with the most recent materials and ending with

the oldest (earliest) sources" to determine the "natural or

artificial (man-altered) status of an area." Section 2(B) of

the procedure states:

For each area subject to analysis, a
specific source is chosen for the
delineation of the State's tidelands claim.
The most recent . . . source is used if
source analysis does not demonstrate
artificial change, i.e., filling or
dredging. If source analysis does
demonstrate artificial change, an approved
source which predates that change is chosen
by chronologically examining all approved
sources beginning with the most recent
materials. When that examination yields the
latest source prior to artificial change,
that source is used for delineation.

31 A-0065-13T1
 [(emphasis added).]

The Castagna Report also explained that the latest source

prior to filling or dredging was not used on occasion "because

not all surveys, maps and charts that are examined meet certain

delineation standards." When a source material fails to meet

enumerated criteria or is rejected "because of shadow,

vegetation, canopy overhang, etc., which may obstruct the

[analyst's] view of details," the analyst may use "either

earlier or later sources clearly depicting those portions" for

consultation and delineation. In addition to following these

steps, the procedure states that for maps prepared after the

Amendment, "the latest source which shows the least alteration

within the latest 40-year period is selected for delineation."

Any rejected source was "considered to be of collateral value in

that it may provide additional support and/or clarification for

delineations derived from approved sources."

Steps 17, 18 and 19 of the twenty-four step procedure call

for reviews by the analyst's immediate supervisor, the

supervising environmental specialist, and the chief of the

group, before the base photomap is sent to the contractor for

scribing, "to ensure that all delineation rules have been

followed." During the supervisor's review, "[a]ll sources for

the map being reviewed" are forwarded to the supervisor. Step

32 A-0065-13T1
17(B) states, "The supervisor enters review approvals in the log

book along with any changes to be made to the [a]nalyst's

delineation and with all reasons for such change."

The Township and State agree to the following. The Dunes

property was artificially filled and the 1956 aerial photography

showed the first evidence of artificial change. The most recent

source prior to the 1956 photographs was aerial photographs

taken in February and April 1951. If those photographs were

properly rejected, photographs from 1946 constituted the next

available source.

The Township contends that, pursuant to the procedure

outlined in the Castagna Report, the April 1951 photographs

should have been the source relied upon in delineating the

tidelands claim. The State maintains that the OEA analyst for

the Dunes Map, Michael Claffey, correctly selected aerial

photographs from March 12, 1946, as the source for delineation.

The analyst's log book acknowledged there was aerial

photography available from 1951, but rejected it as a source

because "[t]he 1951 PAN[14] is not a clear product and is covered

by ice." In rejecting these photographs, the log book did not

differentiate between photographs taken in April 1951, which did

not have ice, and photographs taken in February 1951. Pursuant

14
"PAN" refers to the panchromatic photographs.

33 A-0065-13T1
to the procedure outlined in the Castagna Report, Claffey's log

book and selections were reviewed and approved by three

supervisors: Castagna, another "principal environmental

specialist," and the supervisor of the group.

Both the State and the Township presented expert testimony

to support their arguments.

At trial, Castagna acknowledged that neither his report nor

the logbook differentiated between the two 1951 sources.

However, he testified both would have been properly rejected.

He explained that two of the three April frames depicted the

Dunes in the extreme corners of the photographs, making the

images blurry. Therefore, the April 1951 photographs could not

be used for a stereographic analysis because two clear pictures

were needed. In contrast, the 1946 aerial photographs yielded

two quality frames and clearly depicted the property.

Cubberley, the Township's expert, was the former Chief of

the Bureau and the Deputy Manager of OEA. She disagreed with

the tidelands delineation on the Dunes map and opined that OEA

had failed to follow its own protocol in the selection of the

1946 photography as the source for its delineation. She

conceded the 1946 photography was appropriate for one portion of

the watercourse delineation, but opined the 1951 photographs

should have been used for the other two watercourses and the

34 A-0065-13T1
shoreline. She stated that, as a result of the improper source

selection and erroneous assumptions made by the analyst, large

areas were improperly included in the delineation.

Cubberley also alleged that tide mudflats were claimed in a

manner not in accord with the rules at the time. At trial,

Cubberley admitted there were no written directives prohibiting

the claiming of mudflats while delineating the tidelands claims.

In fact, the State produced evidence showing Cubberley had

approved delineations that included mudflats. Castagna opined

that mudflats could be identified using panchromatic photographs

and that the analyst properly identified same consistent with

the PAN-1 key.15

In her written opinion, the trial judge carefully reviewed

the testimony provided by each of the experts and her own

examination of the photographs under a stereographic microscope.

She found that Cubberley's selection of the 1951 photographs as

source material was "based on an inferior process." Based upon

her own review of the 1951 photographs and the expert testimony,

the trial judge found, "it is more likely than not that the 1946

15
"PAN-1 key" refers to an OEA document, titled "Tidelands
Delineation Key, Identification of Tidal Watercourses from
Panchromatic Photography," which analysts were instructed to use
to assist them in identifying natural tidal watercourses and
artificially altered natural watercourses.

35 A-0065-13T1
frames were the proper selected source to use to delineate this

area."

The trial judge also made findings regarding the

conflicting testimony on the delineation process and the

inclusion of mudflats in the claim. She found the State had

shown by a preponderance of the evidence that it had properly

delineated its claim.

The Township also argues that reversal is required because

the trial judge erred in reaching these conclusions,

specifically challenging her factual findings. We reject this

argument because the trial judge's findings are supported by

"adequate, substantial and credible evicence," Town of Kearny v.

Brandt, 214 N.J. 76, 92 (2013) (citation and internal quotation

marks omitted), and were evidently influenced by her ability to

assess the credibility of the witnesses, State v. Johnson, 42

N.J. 146, 161 (1964). They are entitled to our deference.

The issue whether the procedure followed here satisfied the

State's constitutional obligation is a legal question which we

review de novo. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13

(2009). We have a limited role in reviewing the actions of

administrative agencies. Aqua Beach Condo. Ass'n v. Dep't of

Cmty. Affairs, 186 N.J. 5, 15-16 (2006). "'[T]he fundamental

consideration is that a court may not substitute its judgment

36 A-0065-13T1
for the expertise of an agency so long as that action is

statutorily authorized and not otherwise defective because

arbitrary or unreasonable.'" Ibid. (quoting Williams v. Dep't

of Human Servs., 116 N.J. 102, 107 (1989)).

City of Newark involved a challenge to maps that, unlike

this case, were adopted by the Natural Resource Council (NRC)

under Title 13. City of Newark, supra, 82 N.J. at 534-35. The

appellants sought to invalidate thirty-six Hackensack

Meadowlands base maps with claims overlays and a Newark-

Elizabeth base map with its claims overlay on the ground that

the NRC failed to comply with the requirements established by

the Legislature in N.J.S.A. 13:1B-13.3. Id. at 537-38. Two of

the arguments parallel challenges in this case. The appellants

contended the NRC did not comply with the Legislature's

requirement that it "take into account" four categories of

source material specified in N.J.S.A. 13:1B-13.3, ibid., and

also found fault with the NRC's methodology in analyzing the

data. Id. at 538-39.

At the outset, the Court noted "the strong presumption of

reasonableness that an appellate court must accord an

administrative agency's exercise of statutorily delegated

responsibility." Id. at 539. The Court reviewed principles

that remain applicable today. See Lavezzi v. State, 219 N.J.

37 A-0065-13T1
163, 171-72 (2014); State (Div. of State Police) v. N.J. State

Trooper Captains Ass'n, 441 N.J. Super. 55, 61-62 (App. Div.

2015). "[C]ourts are not free to substitute their judgment as

to the wisdom of a particular administrative action for that of

the agency so long as that action is statutorily authorized and

not otherwise defective because arbitrary or unreasonable."

City of Newark, supra, 82 N.J. at 539 (quoting N.J. Guild of

Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978)).

If there is any fair argument in support of
the course taken [by the agency] or any
reasonable ground for difference of opinion
among intelligent and conscientious
officials, the decision is conclusively
legislative, and will not be disturbed
unless patently corrupt, arbitrary or
illegal.

[82 N.J. at 539-40 (alteration in original)
(quoting Flanagan v. Civil Serv. Dep't, 29
N.J. 1, 12 (1959)).]

The Court further observed that the presumption of

reasonableness "is even stronger here as the agency has been

delegated discretion to determine the specialized and technical

procedures for its tasks." Id. at 540.

Notwithstanding the specific requirements of Title 13, the

Court stated N.J.S.A. 13:1B-13.3 vested "[b]road discretion

. . . in the NRC," and that the NRC had "exercised its delegated

discretion in choosing not to incorporate some historical

materials." Id. at 540-41. NRC's consideration of materials

38 A-0065-13T1
identified in the statute was sufficient to "take [them] into

account," even though the NRC ultimately determined not to rely

upon them. Ibid. The Court concluded, "[T]he evidence adduced

indicates only a difference of opinion between the appellants'

and the NRC's experts." Id. at 541. Finding genuinely

debatable issues regarding the NRC's exercise of its discretion,

the Court affirmed the Appellate Division's determination that

"the NRC's maps represent a reasonable implementation of the

duty mandated in N.J.S.A. 13:1B-13.2 and 13:1B-13.3." Id. at

541-42.

Two salient points in the Court's analysis in Dickinson

were its recognition that the Council's administrative authority

to define and assert its claim should not be unduly restricted

and its conclusion that the imposition of Title 13 requirements

would do so. Dickinson, supra, 95 N.J. at 78-79. As in City of

Newark, supra, 82 N.J. at 540, the TRC was tasked with

implementing "specialized and technical procedures." Unlike

that case, however, there were no legislative mandates to govern

the procedure it followed. It is an ineluctable conclusion that

the TRC's discretion in implementing its own procedures can be

no less broad than the NRC's discretion in implementing

legislative requirements. The evidence here similarly reveals

"only a difference of opinion" between experts. See id. at 541.

39 A-0065-13T1
The TRC's determination is therefore entitled to our deference

and will not be disturbed.

B.

We next turn to the Township's argument that the State

failed to prove it had timely provided notice of its claim. The

State filed the map with the Secretary of State on December 12,

1985, as shown by a stamped receipt retained by the Bureau.

Although a copy of the map was also on file at the County, there

was no stamp indicating when the map was filed. There was also

no signed receipt for delivery to the Township. The State

argues that filing with the Secretary of State satisfies its

burden to provide notice. We need not examine the parameters of

the notice necessary to satisfy the Amendment16 because we

conclude the trial judge's determination that the State provided

notice to the County and the Township was supported by

16
We note the State has launched several online tools to assist
members of the public in determining whether certain property is
in an area that is the subject of a tidelands claim. See State
of New Jersey, Department of Environmental Protection, Division
of Land Use Regulation, Before you Buy, Before you Build,
http://www.nj.gov/dep/landuse/bybob.html (last updated July 6,
2015); State of New Jersey, Department of Environmental
Protection, Bureau of GIS, NJ-GeoWeb,
http://www.nj.gov/dep/gis/geowebsplash.htm (last updated July
20, 2015); State of New Jersey, Department of Environmental
Protection, Division of Land Use Regulations, Tidelands,
http://www.nj.gov/dep/landuse/tl_main.html (last updated July
30, 2015).

40 A-0065-13T1
sufficient credible evidence in the record. See Kearny, supra,

214 N.J. at 92.

The trial judge cited the following evidence to support her

conclusion the State properly asserted its claim. The base map

and overlay was filed with the Secretary of State on December

12, 1985. There was a copy of the base map and overlay "on file

with the County" that did not have a date stamp reflecting when

it was received. Although there was no record of the Township's

receipt, the Township passed resolution 1986-32 on June 23,

1986, authorizing the Delanco Sewage Authority to apply for a

riparian grant to use portions of the Dunes. The application

for this grant contained a map with the same tidelands claim

line that appears on Map 448-1920. The trial judge reasoned

that the Township's reliance upon the map demonstrated it "had

the map showing the claims within a year of its filing with the

Secretary of State." The judge also found credible the rather

extraordinary testimony of Nicholas Morgan, who, before his

retirement, worked at the Bureau. Morgan testified he

specifically remembered delivering maps to the Township of

Delanco on Monday, November 18, 1985. The specificity of this

recollection could justifiably be met with skepticism. However,

Morgan was also able to testify as to the exact start and end

dates, including the day of the week, for each job he held from

41 A-0065-13T1
1967 through his retirement in 2011. The judge stated, "His

memory of dates and days of the week is exceptional among

people, but in saying this, the court also had the ability to

observe his demeanor and concludes he was credible."

As the Township acknowledges, the State was required to

prove it provided notice by a preponderance of the evidence.

See Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006).

This standard requires proof "that a desired inference is more

probable than not. If the evidence is in equipoise, the burden

has not been met." Ibid. (quoting Biunno, Current N.J. Rules of

Evidence, comment 5a on N.J.R.E. 101(b)(1) (2005)). The judge's

determination here that the State met this burden was supported

by sufficient, credible evidence in the record and is entitled

to our deference. We therefore affirm the trial judge's

decision that the State properly delineated and asserted its

claim in compliance with the requirements of the Amendment.

We reverse the order granting summary judgment in Lisowski

and remand for entry of summary judgment in favor of the State.

We affirm the Delanco court's order memorializing its findings

that the State properly defined and asserted its claim on Map

448-1920.

42 A-0065-13T1