New Jersey, Delaware dispute their border – again

The Supreme Court case, set to be heard Tuesday, involves an energy plant whose pier would cross the line.

By , Staff writer of The Christian Science Monitor

A proposal to build a liquefied natural gas plant on the banks of the Delaware River has rekindled a centuries-old border dispute between New Jersey and Delaware.

New Jersey officials say the LNG plant would produce 1.2 billion cubic feet of natural gas per day – enough to supply every home in New Jersey, Delaware, and eastern Pennsylvania. Economists estimate that the project could generate more than $1 billion in new jobs and other economic benefits in the region.

But officials in neighboring Delaware refuse to allow the Jersey-based project to go forward. They say the new plant would threaten Delaware's coastal environment and could become a target for a terrorist attack.

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On Tuesday, New Jersey and Delaware submit their differences to the US Supreme Court in an attempt to solve an interstate feud that stems from a land grant made by the Duke of York in 1682.

It marks the third time in 130 years the high court has been asked to address the border dispute. In 1877, it was a disagreement over fishing rights. In 1934, it was joint claims to oyster beds.

At issue in the most recent dispute is how much control Delaware can exert over development projects on New Jersey's side of the river.

Normally, Delaware would have no authority to stop such a project under way in New Jersey. But the LNG plant requires construction of a pier stretching 2,000 feet into the Delaware River, where up to three tankers per week would be offloaded.

Under the 1682 land grant, Delaware owns and controls the entire river in the northern part of the state, including the submerged lands on the New Jersey side of the river where the pier and tanker loading area would be located.

So while Delaware could not stop construction of the plant on the river bank, it is claiming the power to effectively block the project by refusing to allow construction of the pier and tanker loading area.

The border battle has prompted some tongue-in-cheek banter about mustering the Delaware National Guard to protect its territory. Jersey officials responded by saying they might redeploy the battleship New Jersey, now a tourist attraction, into the contested region.

More recently officials on both sides have declined comment, saying their positions are set out in legal briefs.

The dispute traces back to a 325-year-old real estate deal between England's Duke of York and William Penn. In August 1682, the duke granted a large section of what would become Delaware to Penn. The boundary of the grant was set by drawing a circle with a 12-mile radius centered on the courthouse in New Castle, Del. A portion of that same circle can be seen on modern maps as Delaware's curved northern border with Pennsylvania.

Where the unusual border arrangement gets legally tricky is the point at which it meets New Jersey at the Delaware River. In prior disputes, New Jersey has argued that the circle extended only to the center of the river and that the two states each controlled their own half of the river.

But the US Supreme Court in 1934 rejected that view. The high court ruled that the border ran down the shoreline on the Jersey side of the river – thus placing the entire river within Delaware's sovereign territory.

This unusual border arrangement extended only within the so-called 12-mile circle, or for roughly 24 miles along the eastern bank of the river. South of this area, the border extends down the center channel of the river.

Although the 1934 Supreme Court ruling backed Delaware, it does not necessarily resolve the LNG plant issue in Delaware's favor. In 1905, Delaware and New Jersey signed an agreement that has never been abrogated. New Jersey says the agreement gives New Jersey the right to undertake development projects extending into its side of the river, even though Delaware retains control and ownership of the entire river.

Delaware disputes this reading of the so-called 1905 Compact. Delaware says the agreement means that New Jersey is free to undertake development projects extending into the river provided Delaware does not object.

A special master appointed by the Supreme Court to investigate the issue filed a report in April agreeing with Delaware's interpretation of the 1905 Compact. New Jersey appealed to the high court.

Now it is up to the high court to decide the meaning of the 1905 agreement.The compact includes two seemingly contradictory provisions. One says: "Each state may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and nature...."

The other says: "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."

New Jersey reads both passages together as granting permission for New Jersey to exercise jurisdiction "on its own side of the river." The second provision reinforces Delaware's control over the river. But it is qualified by the phrase: "except as herein expressly set forth."

In New Jersey's view, the two provisions read together recognize Delaware's continued ownership of the entire river, but they allow New Jersey to use and develop the eastern half of the river without interference from Delaware.

Delaware focuses on the second provision, and says the qualifying phrase refers to fishing rights rather than development rights. The state reads the first provision as applying only to actions by New Jersey on New Jersey soil, not in the river.

A ruling in the case, New Jersey v. Delaware, is expected by June.

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