New Jersey v. Delaware (134 Orig.) and order list

April 1, 2008 Supreme Court Update

Greetings, Court fans!

Before going on recess, the Court left us with one decision (an original jurisdiction case relevant to almost no one's practice, but full of historical intrigue) and two cert grants. We don't expect additional opinions until the week of the 14th, but we'll keep you updated if anything surprising happens.

The decision came in New Jersey v. Delaware (134 Orig.), where the two states squared off over a new wharf on New Jersey's side of the Delaware River. The squabble grew so heated that Delaware contemplated mobilizing its National Guard and – we are not making this up – one New Jersey legislator suggested recommissioning the U.S.S. New Jersey (now a museum) to repel Delaware's possible "armed invasion." For as long as anyone can remember, the states have been feuding over the River. In 1905, to settle a dispute over fishing rights, they entered into a Compact that gave both states "riparian jurisdiction" on their shores but that left boundary issues unsettled. The Court resolved the boundary in a 1934 decision involving an oyster bed, essentially holding that Delaware owns the entire River up to the low-water mark on New Jersey's side within a twelve-mile circle around New Castle, Delaware (an area ceded by the Duke of York to William Penn in 1682); south of the circle, the states share the River.

The latest dispute began after BP sought approval from both states to build Crown Landing, a large wharf for importing liquefied natural gas. New Jersey was all for the project, which would be situated along its shore but within Delaware's circle and jutting over 1,000 feet into Delaware. After Delaware rejected BP's application for environmental reasons, New Jersey sued for a declaration that under the 1905 Compact it had "exclusive" jurisdiction to regulate structures on its shore. The Court's special master found for Delaware, and the Court agreed. Justice Ginsburg wrote for the majority, an odd combination that also included the Chief and Justices Kennedy, Souter, and Thomas. The Court relied, in part, on New Jersey's prior concessions that Delaware had to approve projects extending past the low-water mark into Delaware territory. However, the Court did not agree that Delaware had the right to regulate all uses extending into its territory, instead ruling that the 1905 Compact gave New Jersey the exclusive right to regulate "ordinary and usual" riparian uses of the River on its shore even where those uses extended past the low-water mark, but that Delaware had concurrent jurisdiction over "extraordinary" projects that extended into Delaware. Crown Landing was "extraordinary" given that it violated Delaware laws against heavy industry on the River. Thus, Delaware could veto the project.

Justice Stevens concurred in the result, but he disagreed with the majority's distinction between "ordinary and usual" uses left to New Jersey and "extraordinary" uses over which Delaware had concurrent authority. For him, the Court's 1934 decision gave Delaware the authority to regulate all riparian structures extending into its territory, period. In dissent, Justices Scalia and Alito also disagreed with the majority's distinction, but they came down opposite Stevens. Regulating wharfing activity from one's shore was a fundamental aspect of "riparian rights" as understood at common law, so for them the 1905 Compact gave New Jersey exclusive jurisdiction over Crown Landing. They thought the Court's newly-created exception for "extraordinary" wharfing activity was unworkable, and that finding Crown Landing to be "extraordinary" based on how Delaware now viewed the project under state law was "bizarre" because new laws could have no bearing on the meaning of a century-old Compact.

The Court also issued the following cert grants:

Pleasant Grove City, Utah v. Summum (07-665), a free speech case, may determine whether public parks become littered with donated monuments. Summum, a religious group, wanted to donate a "Seven Aphorisms" monument for display in a city park (that already had the Ten Commandments on display, on a monument donated 47 years earlier; Summum believes that Moses received both the Commandments and a second document called the Seven Aphorisms). Pleasant Grove refused and Summum sued, contending that the acceptance of prior donated monuments created a public forum requiring equal access. The Court will decide whether the Tenth Circuit erred by holding that: (1) a monument donated to a municipality and thereafter displayed by the municipality is not government speech but rather the private speech of the donor; (2) that a municipal park is a public forum for the erection and display of monuments proposed by private parties; and (3) that Pleasant Grove must immediately erect and display the Seven Aphorisms monument.

Ysursa v. Pocatella Education Ass'n (07-869), in which the Court will determine whether "the First Amendment to the United States Constitution prohibit[s] a state legislature from removing the authority of a political subdivision to make payroll deductions for political activities under a statute that is concededly valid as applied to state government employers?"

Enjoy the break, and look for us in your inbox again in about two weeks.

Kim & Ken

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, or any other member of the Practice Group at 203-498-4400