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.

from the November 27, 2007 edition

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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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