The State: Ruling on the River

Delaware can’t control New Jersey’s shoreline, but it does control a good stretch of the river between them–that is, unless the U.S. Supreme Court thinks otherwise.

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“At the time he presided over Pennsylvania,” says Kenneth L. Kristl of Widener University School of Law, “(William) Penn sent his representatives with a message for New Jersey: ‘They can have liberty of the river. They do not have property of the river.’”

Photograph by Tom Nutter



In 1681 King Charles II granted the province of Pennsylvania to William Penn. Yet Penn was worried. Pennsylvania was landlocked. What if colonies on the other side of the Delaware River or bay became hostile? So he petitioned the king, who, in 1682, granted him land on the west side of the Delaware River—now the state of Delaware.

The lines drawn in that land grant have set the stage for arguments, bickering, and legal battles about the border and ownership of the Delaware River between Delaware and New Jersey for more than 300 years. Specifically, the land grant established Delaware’s northern border by a 12-mile circle centered on the steeple of the courthouse in Old New Castle. The now infamous Twelve-Mile Circle extends east right up to the shore of New Jersey, giving Delaware full ownership of the river within this section.

Now the State of New Jersey is challenging the State of Delaware in the U.S. Supreme Court over yet another aspect of the issue.

“In the end, the Supreme Court can save us the inconvenience of declaring war on our neighbor to win independence for our coastline,” says New Jersey Assemblyman John Burzichelli. “Delaware must be made to understand that economic development decisions on our side of the river should be made by New Jerseyans living in the here and now, not by the ghosts of King Charles II and William Penn.”

More than 300 years later, Penn’s effort to avert hostility from New Jersey may have helped create it. How would William Penn react to all this?

“I suspect he would be rooting for Delaware. He would want Delaware to be aggressively defending ownership of the river,” says Kenneth L. Kristl, director of the Environmental and Natural Resources Law Clinic at Widener University School of Law, an expert on the history and legal aspects of this issue. “At the time he presided over Pennsylvania, Penn sent his representatives with a message for New Jersey: ‘They can have liberty of the river. They do not have property of the river.’”

Though the border war has raged for over 300 years, the issue has lain dormant since a previous Supreme Court ruling in 1934 established Delaware’s ownership of the river up to the low tide mark of the coast of New Jersey within the 12-mile circle. The river below the circle is divided evenly between the two sovereigns.

The issue resurfaced when a subsidiary of energy company BP, Crown Landing, announced in December 2003 that it would submit an application to the Federal Energy Regulatory Agency to construct and operate a liquefied natural gas terminal in Logan Township, Gloucester County, New Jersey. Logan Township was a good choice for a number of reasons, according to Tom Mueller, BP’s director of external affairs. The location offered a deep-water access on the Delaware River. It was removed from major population areas. The site would cause zero permanent wetland damage. And two main natural gas lines that already serve the region cross in the immediate vicinity of the proposed project.

BP began working through the appropriate approval process in New Jersey. Overall, New Jersey officials embraced the plan. The economic impact to the state would be significant. BP estimates that, once operational, the plant would generate up to $6 million annually in direct state and local taxes. Annual economic activity for the tri-state area was projected to be around $54 million.

There was, however, one unusual component of the proposal: The terminal required a pier for liquefied natural gas tankers to unload, and that pier would need to extend well into the part of the river owned by the state of Delaware. Consequently, the dock would need to be permitted under Delaware’s Coastal Zone Act.

BP first approached Delaware for a status determination in December 2004. “Coming in, I knew that the Coastal Zone Act was in danger,” says John Hughes, secretary of the Delaware Department of Resources and Environmental Control. “They could have offered every man, woman and child in Delaware a free car, but they still would have to get past the Coastal Zone Act.”

Once the status determination was denied, BP went before the Coastal Zone Industrial Control Board. In March 2005 the board denied BP’s application based on the Coastal Zone Act’s prohibition of new bulk transfer facilities and new heavy industry. BP was not pleased with the decision. “The ruling was contrary to precedent and to common interpretation of the act,” says BP’s Mueller.

Things began to get hostile, with jabs and rhetoric flying across the Delaware River in both directions. Burzichelli, who represents the Logan Township area, called on New Jersey residents to boycott Delaware-based credit cards and suggested the possibility of dusting off the battleship USS New Jersey to send across the river. Delaware officials such as former Representative Wayne Smith countered by introducing legislation authorizing the governor to “utilize any and all resources at his or her disposal to protect the territorial integrity of the State of Delaware and to block and-or remove any encroachments upon our boundary.” Much of the rhetoric on both sides was tongue in cheek, but Smith points out that his legislation “reaffirms the General Assembly’s commitment to the border.”

Then things turned serious. In July 2005, New Jersey’s acting governor, Richard J. Codey, directed the state’s attorney general to sue Delaware in the U.S. Supreme Court. “My counterpart in Delaware has rejected our efforts to settle this amicably,” Codey said at the time. “The plain fact is that the State of Delaware does not have jurisdiction over any projects on New Jersey’s shoreline. Delaware has never controlled development on our shore, and will not start doing so now.”

New Jersey, in essence, wants the Supreme Court to change a state line.

Clearly, preparing a defense in the Supreme Court is no small undertaking. The New Jersey Attorney General’s Office is leading on the state’s behalf. In addition to the Delaware Attorney General’s Office, Delaware has retained Washington attorney David C. Frederick, an appellate lawyer with a specialty in Supreme Court Cases, and Collins J. Seitz Jr. of Connolly Bove Lodge & Hutz as special counsel.

Seitz, for one, cannot escape reminders of the Delaware River. Not only does it consume him at the office, he lives on its shore in Old New Castle—“within the blast zone of an LNG tanker”—and passes the New Castle Courthouse on his way to work each morning. In the U.S. Supreme Court, the stakes are high.

The Supreme Court accepted the case in March 2006, then appointed a special master, Ralph I. Lancaster Jr. of the law firm Pierce Atwood in Portland, Maine. Lancaster is expected to issue his opinion sometime this summer, according to Seitz. It is then anticipated that the Supreme Court will review the case during its 2007-08 term.

New Jersey is not asking the Supreme Court to reexamine its 1934 decision. Put simply, that decision, which originated over a dispute over the ownership of an oyster bed, established Delaware’s ownership of the river within the 12-mile circle up to the low tide mark of the New Jersey shore. “The Supreme Court spoke in the 1930s and said, ‘The boundary is the boundary. Don’t ever come to us again,’” Burzichelli says.

Instead, New Jersey has asked for an interpretation of a compact signed by both Delaware and New Jersey in 1905 to help settle long-running disputes over fishing rights on the river.

At one time fishing was a great source of commerce on the Delaware River. In 1871 Delaware sought to establish its authority by requiring all non-Delawareans to obtain $20 fishing licenses, according to Carol E. Hoffecker, one of the expert historical witnesses for Delaware in the current Supreme Court case. The Fishing Wars of 1871 came to a head when a Wilmington constable and an armed posse arrested 22 New Jersey fishermen at gunpoint for fishing in the Delaware River without a license. The act touched off years of legal debate and posturing. In order to avoid Supreme Court action at that time, Delaware and New Jersey negotiated and signed the 1905 compact.

One of the main issues all attorneys cite in this Supreme Court case is riparian rights, or the rights of those who own land on the banks of rivers and other bodies of water. New Jersey contends in its petition to the court that the 1905 Compact “grants New Jersey riparian jurisdiction to regulate construction of improvements appurtenant to the New Jersey shore of the Delaware River with the Twelve-Mile Circle free of regulation by Delaware.”

Seitz, of course, believes Delaware is going in with a strong case. “The 1905 compact did not grant them unlimited rights to build piers in the Delaware River,” he says. “Even if they are allowed, they are still subject to regulation by Delaware under the Coastal Zone Act.”

Though Delaware approached the liquefied natural gas terminal strictly from an environmental and Coastal Zone Act standpoint, an undercurrent of fear about safety exists.

“Many of my constituents stand in the way of a catastrophic explosion,” Smith says. Because of the proximity of the proposed terminal and tankers on the Delaware River, “People are concerned about an industrial accident or a terrorist act.”

“The catastrophic scenario is pretty severe, and it’s not just paranoia,” Kristl says. In an article recently published by the American Bar Association, he cites examples of accidents involving liquefied natural gas terminals in Ohio and Algeria that killed 100 or more people. “LNG is inherently volatile and, if given the chance to vaporize back to gaseous form, can be explosive,” Kristl wrote.

As both states await the court’s determination, plans are still underway. Delaware’s Homeland Security adviser, Ed Smith, attends Area Maritime Security Committee meetings hosted by the captain of the Port of Philadelphia. Established after 9-11, the committee “meets to address all the security issues for the upper river and bay.” It is comprised of Delaware, Pennsylvania and New Jersey representatives, private industry, regional response agencies and anyone with a stake in the area’s security. Smith also participates in an LNG Transit Security Committee that meets as needed in anticipation of the Crown Landing project. Tension over the issue has not spilled over into the committee. “If this goes forward, there’s no room for anything but cooperation,” says Smith.

Smith points out the absolute necessity of a regional and cooperative strategy in today’s world. “From a security standpoint, what’s important to us is important to New Jersey,” he says. “We have to be partners. We have a lot of common interests.”

Regardless of who owns the Delaware River and where the boundary falls, Delaware and New Jersey have a track record of working together on projects of mutual interest.

The Delaware River and Bay Authority is a good example. Created in 1962, the DRBA oversees the Delaware Memorial Bridge and the Cape May-Lewes Ferry. With other projects in both Delaware and New Jersey, “There is a lot done that requires the cooperation of both states. You have to get votes from both sides of the river,” DRBA spokesman Jim Salmon says.

So for now, cooperative projects between Delaware and New Jersey continue, BP moves forward through the regulatory process, the LNG Transit Security Committee meets just in case the Supreme Court rules in New Jersey’s favor and the attorneys on both sides of the river work feverishly to prepare their cases.

Will a Supreme Court ruling put to rest the question of who owns the Delaware River and end this battle between Delaware and New Jersey? Let’s hope so.

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