04|2007
DE Receives Favorable Recommendation in U.S. Supreme Court Dispute with NJ over Regulation of Wharves on the Delaware River
Download PDF
A special master appointed by the United States Supreme Court recommended on April 12, 2007, that the Court uphold Delaware’s right to regulate piers that enter Delaware territory on the Delaware River from the New Jersey side of the River. In a 100-page report, the master rejected New Jersey’s claim to exclusive jurisdiction over such piers. Delaware is represented in the case by Connolly Bove attorneys Collins J. Seitz, Jr., Matthew F. Boyer, Max B. Walton, and Ryan P. Newell.
The dispute arose from a 2004 proposal by energy giant British Petroleum (“BP”) to construct a liquefied natural gas terminal on the River just north of Wilmington, Delaware’s major population center. The project would have required a 2,000 foot pier extending from New Jersey into Delaware territory. BP also sought permission to dredge 1.24 million cubic yards of riverbed—affecting approximately 29 acres of Delaware soil—to accommodate supertankers carrying the volatile fluid.
In 2005, Delaware’s Division of Natural Resources and Environmental Control (“DNREC”) concluded that BP’s proposed terminal was prohibited by the Delaware Coastal Zone Act, signed into law by Governor Russell W. Peterson in 1971. BP took an appeal to Delaware’s Coastal Zone Industrial Control Board, but the Board unanimously agreed with DNREC. BP then turned to New Jersey, which agreed to file a Supreme Court case to challenge Delaware’s jurisdiction.
The roots of the dispute between the States go back to 1682, when William Penn received from the Duke of York a deed to property extending to the eastern bank of the Delaware River within a twelve-mile circle from the town of New Castle. Today, just steps from the center of that circle, stands a statue (see photo) depicting Penn’s receipt of the ceremonial “turf and twig and water and Soyle of the River of Delaware” symbolizing his new possession. With the American Revolution, Delaware took as its birthright the limits of Penn’s grant, including the famous arc-shaped boundary. But on three occasions over the last two centuries, New Jersey has filed suit in the U.S. Supreme Court disputing Delaware’s jurisdiction over the River.
New Jersey first sued in 1877, after Delaware officials arrested New Jersey residents who were fishing on the eastern half of the River without a license from Delaware. New Jersey claimed that Penn’s deed was invalid and that New Jersey owned the eastern half of the River. After the case slumbered for over twenty-five years, the States agreed to dismiss it in favor of an interstate agreement called the Compact of 1905. In the Compact, the States agreed to resolve their fishing dispute but could only agree to disagree as to the boundary. As to piers, over which there was no practical dispute at the time, the Compact simply said that “each State may, on its own side of the river, continue to” exercise jurisdiction as it had been doing.
In 1929, after a dispute broke out over an oyster bed in the Delaware Bay, New Jersey returned to the Court seeking a definitive ruling on the boundary. The Court, citing Penn’s grant, confirmed Delaware’s sovereignty to the low water mark on the New Jersey side within the twelve-mile circle. South of the circle, the Court held that the boundary followed the main shipping channel.
After New Jersey filed its third suit, in July 2005, the Court appointed Ralph I. Lancaster, Jr., a lawyer from Portland, Maine, as a special master to consider the States’ arguments. New Jersey claimed that, even though Delaware holds title to the River to the New Jersey side within the twelve-mile circle, the 1905 Compact concedes to New Jersey exclusive authority to regulate piers extending from New Jersey into the twelve-mile circle, including the right to convey Delaware land for the building of piers. Delaware argued that the 1905 Compact only permitted New Jersey to continue to exercise jurisdiction in the absence of a final resolution of the boundary, and that Delaware never conceded the right to convey its own lands or to regulate structures entering its territory for the benefit of its citizens.
Construing the Compact in light of its historical context and the States’ course of conduct over the years, the master concluded that New Jersey’s authority to make grants of lands extends no further than its boundary. While New Jersey may authorize the construction of piers that extend beyond its boundary within the twelve-mile circle, those structures become subject to Delaware’s regulatory oversight once they enter Delaware. Thus, Delaware has a right to require that any pier entering its territory, including BP’s proposed terminal, comply with the Delaware Coastal Zone Act.
The master’s report is not the final say in the matter. The States will have an opportunity to file objections to the report, and then the Supreme Court will issue a final ruling in this historic legal trilogy.
| 