(Slip Opinion) OCTOBER TERM, 2007 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

NEW JERSEY v. DELAWARE 

ON EXCEPTIONS TO THE REPORT OF THE SPECIAL MASTER 

No. 134, Orig. Argued November 27, 2007—Decided March 31, 2008 

This is the third original action between New Jersey and Delaware involving the boundary along the Delaware River (or River) separating

the two States. The first action was settled by a compact the two

States approved in 1905, and Congress ratified in 1907 (1905 Compact or Compact). See New Jersey v. Delaware, 205 U. S. 550 (New 

Jersey v. Delaware I). The 1905 Compact addressed fishing rights

but did not define the interstate boundary line. Two provisions of the 

Compact sowed the seeds for further litigation. Article VII provided:

“Each State may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and nature.” But Article VIII added:

“Nothing herein . . . 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.” The second action, resolved by this Court in 1934, conclusively determined the location of the interstate boundary: Delaware

owned “the river and the subaqueous soil” within a twelve-mile circle 

centered on New Castle, Del., “up to [the] low water mark on the

easterly or New Jersey side”; south of the twelve-mile circle, the middle of the River’s main ship channel marked the boundary. New Jersey v. Delaware II, 291 U. S. 361, 385. 

The current controversy was sparked by the Delaware Department 

of Natural Resources and Environmental Control’s (DNREC) refusal

to grant British Petroleum permission to construct a liquefied natural gas (LNG) unloading terminal projected to extend beyond New 

Jersey’s shore some 2,000 feet into Delaware territory. DNREC determined that, under Delaware’s Costal Zone Act (DCZA), the proposed terminal would be an “offshore bulk product transfer facilit[y]”

as well as a “heavy industry use,” both prohibited by the Act. New 

Jersey commenced this action, seeking a declaration that Article VII 
 

 

 

 

 

2 NEW JERSEY v. DELAWARE 

Syllabus 

of the 1905 Compact gave it exclusive regulatory authority over all 

projects appurtenant to its shores, including wharves extending past 

the low-water mark on New Jersey’s side into Delaware territory. 

Delaware’s answer asserted that, under, inter alia, Article VIII of the 

Compact and New Jersey v. Delaware II, it had regulatory authority, 

undiminished by Article VII, over structures located within its borders. On cross-motions for summary judgment, the Special Master

filed a report recommending a determination by this Court that the

“riparian jurisdiction” preserved to New Jersey by Article VII is not

exclusive and that Delaware has overlapping jurisdiction, within the 

twelve-mile circle, to regulate improvements outshore of the lowwater mark on the New Jersey side of the River. New Jersey filed 

exceptions. 

Held: Article VII of the 1905 Compact did not secure to New Jersey 

exclusive jurisdiction over all riparian improvements commencing on 

its shores; New Jersey and Delaware have overlapping authority to

regulate riparian structures and operations of extraordinary character extending outshore of New Jersey’s domain into territory over 

which Delaware is sovereign. Pp. 8–23.

(a) The Court rejects New Jersey’s argument that Article VII,

which accords each State “riparian jurisdiction of every kind and nature,” bars Delaware from any encroachment upon New Jersey’s authority over improvements extending from New Jersey’s shore. 

Pp. 8–16.

(1) The novel term “riparian jurisdiction,” as used in Article VII,

is properly read as a limiting modifier and does not mean “exclusive

jurisdiction.” “[R]iparian jurisdiction” has never been a legal term of

art, and appears to be a verbal formulation the 1905 Compact negotiators devised specifically for Article VII. Elsewhere in the 1905 

Compact—most notably, in Article VIII—the more familiar term “jurisdiction” or “exclusive jurisdiction” appears. Attributing to “riparian jurisdiction” the same meaning as “jurisdiction” unmodified, or 

equating the novel term with the formulation “exclusive jurisdiction,”

would deny operative effect to each word in the Compact. See United 

States v. Menasche, 348 U. S. 528, 538–539. Presumably drafted in

recognition of the still-unresolved boundary dispute, Article VIII requires an express statement in the Compact in order to “affect the 

territorial . . . jurisdiction of either State . . . over the Delaware 

River.” The Court resists reading the uncommon term “riparian jurisdiction,” even when aggrandized by the phrase “of every kind and

nature,” as effectuating a transfer to New Jersey of Delaware’s entire 

“territorial . . . jurisdiction . . . over [the portion of] the Delaware 

River [in question].” Pp. 10–11.

(2) A riparian landowner ordinarily enjoys the right to build a 
Cite as: 552 U. S. ____ (2008) 3 

Syllabus 

wharf to access navigable waters far enough to permit the loading

and unloading of ships. But that right, New Jersey agrees, is subject

to state regulation for the protection of the public. New Jersey sees 

itself, however, as the only State empowered to regulate, for the 

benefit of the public, New Jersey landowners’ exercise of riparian

rights. Commonly, the State that grants riparian rights also has 

regulatory authority over their exercise. But the 1905 Compact’s negotiators faced an unusual situation: As long as the boundary issue 

remained unsettled, they could not know which State was sovereign

within the twelve-mile circle beyond New Jersey’s shore. They likely

knew, however, that “[t]he rights of a riparian owner [seeking to

wharf out into] a navigable stream . . . are governed by the law of the 

state in which the stream is situated.” Weems Steamboat Co. of Baltimore v. People’s Steamboat Co., 214 U. S. 345, 355. With the sovereignty issue reserved by the 1905 Compact for another day, it is difficult to gainsay the Special Master’s conclusion that Article VII’s 

reference to “riparian jurisdiction” did not mean “exclusive jurisdiction.” Endeavoring to harmonize Article VII with the boundary determination, the Special Master concluded that Article VII’s preservation to each State of “riparian jurisdiction” gave New Jersey 

control of the riparian rights ordinarily and usually enjoyed by landowners on New Jersey’s shore. But once the boundary line at low water is passed, the Special Master further concluded, New Jersey’s 

regulatory authority is qualified. Just as New Jersey cannot grant 

land belonging to Delaware, New Jersey cannot authorize activities

that go beyond the exercise of ordinary and usual riparian rights in

the face of contrary regulation by Delaware. Pp. 12–16.

(b) An 1834 compact between New Jersey and New York establishing the two States’ common Hudson River boundary casts informative light on the 1905 New Jersey-Delaware Compact. Similar to the

boundary settled in New Jersey v. Delaware II, the 1834 accord located the New Jersey-New York boundary at “the low water-mark on 

the . . . New Jersey side [of the Hudson River,]” 4 Stat. 710. Unlike 

the 1905 Compact, however, the 1834 agreement expressly gave New 

Jersey “the exclusive right of property in and to . . . land under water” 

and “the exclusive jurisdiction of and over the wharves, docks, and 

improvements . . . on the shore of the said state . . . ,” ibid. (emphasis 

added). Comparable language is noticeably absent in Article VII of

the 1905 Compact, while other provisions of the Compact appear to

have been adopted almost verbatim from the 1834 New Jersey-New 

York accord. New Jersey, therefore, could hardly claim ignorance 

that Article VII could have been but was not drafted to grant it “exclusive jurisdiction” (not merely “riparian jurisdiction”) over wharves 

and other improvements extending from its shore into navigable wa-
 

 

4 NEW JERSEY v. DELAWARE 

Syllabus 

ters. Pp. 16–17. 

(c) Virginia v. Maryland, 540 U. S. 56, 75—in which this Court 

held that a Maryland-Virginia boundary settlement gave Virginia

“sovereign authority, free from regulation by Maryland, to build improvements appurtenant to [Virginia’s] shore and to withdraw water

from the [Potomac] River”— provides scant support for New Jersey’s

claim. As the Special Master explained, the result in Virginia v. 

Maryland turned on the unique language of the 1785 compact and 

1877 arbitration award there involved. The 1785 compact addressed 

only “the right [of the citizens of each State] to build wharves and

improvements regardless of which State ultimately was determined

to be sovereign over the River,” id., at 69. Concerning the States

themselves, the 1877 arbitration award that settled the boundary

was definitive. See id., at 75. By recognizing in that award Virginia’s right, “qua sovereign,” “to use the River beyond low-water 

mark,” id., at 72, the arbitrators manifested their intention to safeguard Virginia’s authority to construct riparian improvements

outshore of the low-water mark free from regulation by Maryland. 

By contrast, neither the 1905 Compact nor New Jersey v. Delaware II 

purported to give New Jersey all regulatory oversight (as opposed to

only “riparian jurisdiction”). Pp. 17–19.

(d) Delaware’s claim to regulatory authority is further supported by

New Jersey’s acceptance (until the present controversy) of Delaware’s 

jurisdiction over water and land within its domain to preserve the

quality and prevent deterioration of its coastal areas. When New 

Jersey sought federal approval for its coastal management program,

it made the representation—fundamentally inconsistent with its position here—that any New Jersey project extending beyond mean low 

water within the twelve-mile circle would require coastal permits 

from both States. The DNREC, with no objection from New Jersey, 

had previously rejected as a prohibited bulk transfer facility an earlier request to build a LNG terminal extending from New Jersey into 

Delaware. The DNREC issued permits for each of the three structures extending from New Jersey into Delaware built between 1969

and 2006, one of them undertaken by New Jersey itself. Even during

the pendency of this action, New Jersey applied to Delaware for renewal of the permit covering the portion of New Jersey’s project that 

extended into Delaware. Pp. 19–22. 

(e) Nowhere does Article VII “expressly set forth,” in Article VIII’s 

words, Delaware’s lack of any governing authority over territory

within the State’s own borders. The Special Master correctly determined that Delaware’s pre-1971 “hands off” policy regarding coastal

development did not signal that the State never could or never would 

assert any regulatory authority over structures using its subaqueous 
 

 

Cite as: 552 U. S. ____ (2008) 5 

Syllabus 

land. In the decades since Delaware, pursuant to the DCZA, began to 

manage its waters and submerged lands, the State has followed a

consistent course: Largely with New Jersey’s cooperation, Delaware 

has checked proposed structures and activity extending beyond New 

Jersey’s shore into Delaware’s domain in order to protect the natural

environment of its coastal areas. Pp. 22–23. 

(f) Given the authority over riparian rights preserved for New Jersey by the 1905 Compact, Delaware may not impede ordinary and

usual exercises of the right of riparian owners to wharf out from New

Jersey’s shore. The project British Petroleum sought to construct and 

operate, however, goes well beyond the ordinary or usual. Delaware’s 

classification of the proposed LNG unloading terminal as a “heavy

industry use” and a “bulk product transfer facilit[y]” under the DCZA 

has not been, and hardly could be, challenged as inaccurate. Consistent with the scope of Delaware’s retained police power to regulate 

certain riparian uses, it was within that State’s authority to prohibit

construction of the LNG facility. P. 23. 

Delaware’s authority to deny British Petroleum permission to construct

the proposed LNG terminal confirmed; New Jersey’s exceptions overruled; and the Special Master’s proposed decree entered with modifications consistent with the Court’s opinion. 

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and KENNEDY, SOUTER, and THOMAS, JJ., joined, and in which 

STEVENS, J., joined as to paragraphs 1(c), 2, 3, and 4 of the Decree. STEVENS, J. filed an opinion concurring in part and dissenting in part. 

SCALIA, J., filed a dissenting opinion, in which ALITO, J., joined.

BREYER, J., took no part in the consideration or decision of the case. 
 

 

_________________ 

_________________ 

Cite as: 552 U. S. ____ (2008) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 134, Orig. 

STATE OF NEW JERSEY, PLAINTIFF v. STATE OF 

DELAWARE
 

ON BILL OF COMPLAINT 

[March 31, 2008] 

JUSTICE GINSBURG delivered the opinion of the Court. 

The States of Delaware and New Jersey seek this 

Court’s resolution of a dispute concerning their respective

regulatory authority over a portion of the Delaware River

within a circle of twelve miles centered on the town of New 

Castle, Delaware. In an earlier contest between the two 

States, this Court upheld the title of Delaware to “the

river and the subaqueous soil” within the circle “up to

[the] low water mark on the easterly or New Jersey side.” 

New Jersey v. Delaware, 291 U. S. 361, 385 (1934) (New 

Jersey v. Delaware II).1 Prior to that 1934 boundary determination, in 1905, the two States had entered into an 

accord (1905 Compact or Compact), which Congress ratified in 1907. The Compact accommodated both States’ 

concerns on matters over which the States had crossed 

swords: service of civil and criminal process on vessels and 

rights of fishery within the twelve-mile zone. Although

the parties were unable to reach agreement on the inter­

—————— 

1A map showing the interstate boundary line is annexed to the 

Court’s Decree. New Jersey v. Delaware II, 295 U. S. 694, 700 (1935). 

Six of New Jersey’s municipalities have one boundary all or partially at

the low-water mark of the Delaware River within the twelve-mile circle. 
 

2 NEW JERSEY v. DELAWARE 

Opinion of the Court 

state boundary at that time, the 1905 Compact contained 

two jurisdictional provisions important to the current

dispute: 

“Art. VII. Each State may, on its own side of the 

river, continue to exercise riparian jurisdiction of 

every kind and nature, and to make grants, leases, 

and conveyances of riparian lands and rights under 

the laws of the respective States.

“Art. VIII. 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.” Act of Jan. 24, 1907, 34 Stat. 

860. 

The controversy we here resolve was sparked by Delaware’s refusal to grant permission for construction of a 

liquefied natural gas (LNG) unloading terminal that 

would extend some 2,000 feet from New Jersey’s shore into

territory New Jersey v. Delaware II adjudged to belong to

Delaware. The LNG plant, storage tanks, and other structures would be maintained onshore in New Jersey. Relying on Article VII of the 1905 Compact, New Jersey urged 

that it had exclusive jurisdiction over all projects appurtenant to its shores, including wharves extending past the 

low-water mark on New Jersey’s side into Delaware territory. Delaware asserted regulatory authority, undiminished by Article VII, over structures located within its

borders; in support, Delaware invoked, inter alia, Article 

VIII of the 1905 Compact and our decision in New Jersey 

v. Delaware II. The Special Master we appointed to superintend the proceedings filed a report recommending a 

determination that Delaware has authority to regulate the

proposed construction, concurrently with New Jersey, to 

the extent that the project reached beyond New Jersey’s 

border and extended into Delaware’s domain. 
 

Cite as: 552 U. S. ____ (2008) 3 

Opinion of the Court 

We accept the Special Master’s recommendation in

principal part. Article VII of the 1905 Compact, we hold,

did not secure to New Jersey exclusive jurisdiction over all

riparian improvements commencing on its shores.2 The 

parties’ own conduct, since the time Delaware has endeavored to regulate coastal development, supports the conclusion to which other relevant factors point: New Jersey and 

Delaware have overlapping authority to regulate riparian 

structures and operations of extraordinary character 

extending outshore of New Jersey’s domain into territory

over which Delaware is sovereign. 

I 

Disputes between New Jersey and Delaware concerning 

the boundary along the Delaware River (or River) separating the two States have persisted “almost from the beginning of statehood.” New Jersey v. Delaware II, 291 U. S., 

at 376. The history of the States’ competing claims of 

sovereignty, rehearsed at length in New Jersey v. Delaware II, need not be detailed here. In brief, tracing title 

through a series of deeds originating with a 1682 grant 

from the Duke of York to William Penn, Delaware asserted dominion, within the twelve-mile circle, over the 

River and its subaqueous lands up to the low-water mark 

on the New Jersey side. Id., at 364, 374.3 New Jersey

claimed sovereign ownership up to the middle of the navigable channel. Id., at 363–364. 

The instant proceeding is the third original action New

Jersey has commenced against Delaware involving the

Delaware River boundary between the two States. The 

first action, New Jersey v. Delaware, No. 1, Orig. (filed 

—————— 

2All Members of the Court agree that New Jersey lacks exclusive

jurisdiction over riparian structures. Post, at 7 (opinion of SCALIA, J.); 

post, at 1 (opinion of STEVENS, J.). 3The “low-water mark” of a river is “the point to which the water recedes at its lowest stage.” Black’s Law Dictionary 1623 (8th ed. 2004). 
 

 

 

 

4 NEW JERSEY v. DELAWARE 

Opinion of the Court 

1877) (New Jersey v. Delaware I), was propelled by the

States’ disagreements over fishing rights. See Report of 

Special Master 3 (Report).4 That case “slumbered for 

many years.” New Jersey v. Delaware II, 291 U. S., at 377. 

Eventually, the parties negotiated a Compact, which both 

States approved in 1905, and Congress ratified in 1907.

See Act of Jan. 24, 1907, ch. 394, 34 Stat. 858. Modest in 

comparison to the parties’ initial aim, the Compact left 

location of the interstate boundary an unsettled question.5 

New Jersey then withdrew its complaint and this Court

dismissed the case without prejudice. New Jersey v. Delaware I, 205 U. S. 550 (1907).

The second original action, New Jersey v. Delaware II, 

was fueled by a dispute over ownership of an oyster bed in

the River below the twelve-mile circle. See Report 14. In 

response to New Jersey’s complaint, the Court conclusively settled the boundary between the States. Confirming the Special Master’s report, the Court held that, 

within the twelve-mile circle, Delaware owns the River 

and the subaqueous soil up to the low-water mark on the 

New Jersey side. 291 U. S., at 385.6 But New Jersey 

—————— 

4The Report of the Special Master, and all public filings in this case, 

are available at http://www.pierceatwood.com/custompagedisplay.asp?

Show=2. 5After the States approved the Compact, but prior to Congress’ ratification, the parties submitted a joint application for suspension of Court

proceedings pending action by the National Legislature. New Jersey v. 

Delaware I, O. T. 1905, No. 1, Orig., Statement of reasons submitted

orally for the joint application of Counsel on both sides for suspension

of proceedings until the further order of the Court (reproduced in 1

App. of Delaware on Cross-Motions for Summary Judgment 190 (hereinafter Del. App.)). In that submission, Delaware’s counsel represented

that “[t]he compact . . . was . . . not a settlement of the disputed boundary, but a truce or modus vivendi.” Ibid. Counsel further stated that 

the “main purpose” of the Compact was to authorize joint regulation of

“the business of fishing in the Delaware River and Bay.” Ibid. 6The dissent suggests, post, at 3, that the long dormant first original

action “appeared to be going badly” for Delaware. The strength of 
 

 

Cite as: 552 U. S. ____ (2008) 5 

Opinion of the Court 

gained the disputed oyster bed: South of the circle, the 

Court adjudged the boundary “to be the middle of the 

main ship channel in Delaware River and Bay.” Ibid. See 

also New Jersey v. Delaware II, 295 U. S. 694, 699 (1935) 

(Decree) (perpetually enjoining the States from further

disputing the boundary).

In upholding Delaware’s title to the area within the

twelve-mile circle, the Court rejected an argument pressed

by New Jersey based on the 1905 Compact: By agreeing to

the Compact, New Jersey urged, Delaware had abandoned

any claim of ownership beyond the middle of the River.

The Court found New Jersey’s argument “wholly without 

force.” 291 U. S., at 377. “The compact of 1905,” the Court

declared, “provides for the enjoyment of riparian rights,

for concurrent jurisdiction in respect of civil and criminal

process, and for concurrent rights of fishery. Beyond that 

it does not go.” Id., at 377–378. The Court next recited in 

full the text of Article VIII of the Compact: “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.” Id., at 378 (internal 

quotation marks omitted). 

II 

The current controversy arose out of the planned construction of facilities to import, store, and vaporize foreign-source LNG; the proposed project would be operated

by Crown Landing, LLC, a wholly owned subsidiary of 

British Petroleum (BP). See Report 19; 6 App. of Delaware on Cross-Motions for Summary Judgment 3793,

3804–3807 (hereinafter Del. App.) (Request for Coastal

Zone Status Decision). The “Crown Landing” project 

—————— 

Delaware’s claim to sovereign ownership of the riverbed within the

twelve-mile circle, however, is comprehensively described in New Jersey 

v. Delaware II, 291 U. S., at 364–378. 
 

 

6 NEW JERSEY v. DELAWARE 

Opinion of the Court 

would include a gasification plant, storage tanks, and 

other structures onshore in New Jersey, and a pier and 

related structures extending some 2,000 feet from New 

Jersey’s shore into Delaware. Report 19–20; 6 Del. App.

3804. Supertankers with capacities of up to 200,000 cubic 

meters (more than 40 percent larger than any ship then

carrying natural gas) would berth at the pier. Id., at 

3810.7 A multipart transfer system—including, inter alia, 

cryogenic piping, a containment trough, and utility lines—

would be installed on the 6,000-square-foot unloading 

platform and along the pier to transport the LNG (at 

sufficiently cold temperatures to keep it in a liquid state) 

from ships to three 158,000-cubic-meter storage tanks

onshore; vapor byproducts resulting from the onshore 

gasification would be returned to the tankers. Report 19– 

20; 6 Del. App. 3804; 7 id., at 4307 (Cherry Affidavit). 

Even “[d]uring the holding mode of terminal operation 

(when no ship is unloading),” LNG would circulate 

through the piping along the pier to “keep the line cold.” 6 

id., at 3804. Construction of the Crown Landing project 

would require dredging 1.24 million cubic yards of 

subaqueous soil, affecting approximately 29 acres of the 

riverbed within Delaware’s territory. Report 19–20.8 

In September 2004, BP sought permission from Delaware’s Department of Natural Resources and Environmental Control (DNREC) to construct the Crown Landing 

—————— 

7Two or three LNG supertankers, it was anticipated, would arrive at

the unloading terminal each week. 7 Del. App. 4307 (Affidavit of Philip

Cherry, Delaware Dept. of Natural Resources and Environmental 

Control, Director of Policy and Planning) (hereinafter Cherry Affidavit).

In transit, the ships would pass densely populated areas, id., at 4307– 

4308; a moving safety zone would restrict other vessels 3,000 feet ahead

and behind, and 1,500 feet on all sides of a supertanker, id., at 4308. 8The dissent points to other projects involving extensive dredging. 

Post, at 16. The examples presented, however, involved large-scale 

public works, not privately owned and operated facilities. 
 

 

Cite as: 552 U. S. ____ (2008) 7 

Opinion of the Court 

unloading terminal. See id., at 20.9 DNREC refused permission some months later on the ground that the terminal

was barred by Delaware’s Coastal Zone Act (DCZA), Del.

Code Ann., Tit. 7, §7001 et seq. (2001),10 as a prohibited

“offshore . . . bulk product transfer facilit[y]” as well as a

prohibited “heavy industry us[e],” §7003; Report 20.11 

Reactions to DNREC’s decision boiled over on both 

sides. New Jersey threatened to withdraw state pension

funds from Delaware banks, and Delaware considered 

authorizing the National Guard to protect its border from

encroachment. See Report 21. One New Jersey legislator

looked into recommissioning the museum-piece battleship 

U. S. S. New Jersey, in the event that the vessel might be 

needed to repel an armed invasion by Delaware. See ibid. 

New Jersey commenced the instant action in 2005,

seeking a declaration that Article VII of the 1905 Compact 

establishes its exclusive jurisdiction “to regulate the construction of improvements appurtenant to the New Jersey 

shore of the Delaware River within the Twelve-Mile Cir­

—————— 

9Three months after seeking Delaware’s permission, BP commenced 

the permitting process in New Jersey, by filing a Waterfront Development Application with New Jersey’s Department of Environmental 

Protection. Report 20. 10Delaware’s Coastal Zone Act (DCZA) is designed “to control the 

location, extent and type of industrial development in Delaware’s 

coastal areas. . . . and [to] safeguard th[e] use [of those areas] primarily

for recreation and tourism.” Del. Code Ann., Tit. 7, §7001 (2001). 11On BP’s appeal, Delaware’s Coastal Zone Industrial Control Board 

affirmed DNREC’s determination that the Crown Landing project was 

a bulk product transfer facility prohibited by the DCZA. BP did not 

appeal the decision, rendering it a final determination. Report 20–21.

The dissent suspects that Delaware’s permit denial may have been 

designed to lure BP away from New Jersey, siting the plant, instead, on

Delaware’s “own shore.” Post, at 19. Delaware law, however, proscribes “[h]eavy industry us[e],” Del. Code Ann., Tit. 7, §7003, in any 

area within “[t]he coastal zone” over which Delaware is sovereign, 

§7002(a). Nothing whatever in the record before us warrants the 

suggestion that Delaware acted duplicitously. 
 

 

8 NEW JERSEY v. DELAWARE 

Opinion of the Court 

cle, free of regulation by Delaware.” Motion to Reopen and 

for Supplemental Decree 35; see Report 22, 29. We 

granted leave to file a bill of complaint. 546 U. S. 1028 

(2005). Delaware opposed New Jersey’s reading of Article

VII, and maintained that the 1905 Compact did not give 

New Jersey exclusive authority to “approve projects that

encroach on Delaware submerged lands without any say 

by Delaware.” Brief for Delaware in Opposition to New

Jersey’s Motion to Reopen and for Supplemental Decree

21; see Report 23, 29. 

The Special Master appointed by the Court, Ralph I.

Lancaster, Jr., 546 U. S. 1147 (2006), superintended discovery and carefully considered nearly 6,500 pages of

materials presented by the parties in support of crossmotions for summary judgment. Report 27. He ultimately

determined that the “riparian jurisdiction” preserved to

New Jersey by Article VII of the 1905 Compact “is not 

exclusive” and that Delaware “has overlapping jurisdiction

to regulate . . . improvements outshore of the low water

mark on the New Jersey side of the River.” Id., at 32. 

New Jersey filed exceptions to which we now turn.12 

III 

At the outset, we summarize our decision and the principal reasons for it. In accord with the Special Master, we

hold that Article VII of the 1905 Compact does not grant 

New Jersey exclusive jurisdiction over all riparian improvements extending outshore of the low-water mark. 

First, the novel term “riparian jurisdiction,” which the

parties employed in the Compact, is properly read as a 

—————— 

12New Jersey takes no exception to the Special Master’s determinations that Delaware was not judicially estopped from challenging New 

Jersey’s interpretation of Article VII, Report 86–92, and that Delaware

has not lost jurisdiction through prescription and acquiescence, id., at 

92–99. See Exceptions by New Jersey to Report of Special Master and

Supporting Brief 16, n. 5 (hereinafter New Jersey Exceptions). 
 

Cite as: 552 U. S. ____ (2008) 9 

Opinion of the Court 

limiting modifier and not as synonymous with “exclusive

jurisdiction.” Second, an 1834 compact between New

Jersey and New York casts informative light on the later 

New Jersey-Delaware accord. Third, our decision in Virginia v. Maryland, 540 U. S. 56 (2003), provides scant 

support for New Jersey’s claim. We there held that a 

Maryland-Virginia boundary settlement gave Virginia 

“sovereign authority, free from regulation by Maryland, to 

build improvements appurtenant to [Virginia’s] shore and

to withdraw water from the [Potomac] River.” Id., at 75. 

Delaware’s 1905 agreement to New Jersey’s exercise of 

“riparian jurisdiction,” made when the boundary was still 

disputed, cannot plausibly be read as an equivalent recognition of New Jersey’s sovereign authority. Finally, Delaware’s claim to regulating authority is supported by New 

Jersey’s acceptance (until the present controversy) of 

Delaware’s jurisdiction over water and land within its

domain to preserve the quality and prevent deterioration 

of the State’s coastal areas. 

A 

New Jersey hinges its case on Article VII of the 1905

Compact, which it reads as conferring on “each State

complete regulatory authority over the construction and

operation of riparian improvements on its shores, even if 

the improvements extend past the low-water mark.”

Exceptions by New Jersey to Report of Special Master and 

Supporting Brief 16 (hereinafter New Jersey Exceptions). 

New Jersey v. Delaware II, New Jersey recognizes, confirmed Delaware’s sovereign ownership of the River and

subaqueous soil within the twelve-mile circle. But, New 

Jersey emphasizes, the Court expressly made that determination “subject to the Compact of 1905.” 291 U. S., 

at 385. New Jersey acknowledges that Delaware “unquestionably can exercise its police power outshore of the lowwater mark.” New Jersey Exceptions 16. New Jersey 
 

10 NEW JERSEY v. DELAWARE 

Opinion of the Court 

contends, however, that Delaware cannot do so in a manner that would interfere with the authority over riparian

rights that Article VII of the 1905 Compact preserves for 

New Jersey. Ibid. 

Because the meaning of the 1905 Compact and, in particular, Article VII, is key to the resolution of this controversy, we focus our attention on that issue. Significantly,

Article VII provides that “[e]ach State may, on its own side 

of the river, continue to exercise” not “exclusive jurisdiction” or “jurisdiction” unmodified, but “riparian jurisdiction of every kind and nature ” 34 Stat. 860. New Jersey

argues that “riparian jurisdiction” should be read broadly

to encompass full police-power jurisdiction over activities

carried out on riparian structures. New Jersey Exceptions 

36–37. If New Jersey enjoys full police power over improvements extending from its shore, New Jersey reasons, 

then necessarily Delaware cannot encroach on that authority. See Report 54. 

1 

We agree with the Special Master that “‘riparian’ is a

limiting modifier.” Report 57. Interpreting an interstate

compact, “[j]ust as if [we] were addressing a federal statute,” New Jersey v. New York, 523 U. S. 767, 811 (1998), it 

would be appropriate to construe a compact term in accord

with its common-law meaning, see Morissette v. United 

States, 342 U. S. 246, 263 (1952). The term “riparian 

jurisdiction,” however, was not a legal term of art in 1905, 

nor is it one now. See 7 Del. App. 4281 (Expert Report of 

Professor Joseph L. Sax (Nov. 7, 2006)). As the Special

Master stated, “riparian jurisdiction” appears to be a

verbal formulation “devised by the [1905 Compact] drafters specifically for Article VII.” Report 54.13 

—————— 

13The term appears in no other interstate compact. New Jersey’s 

codification of the 1905 Compact, N. J. Stat. Ann. §52:28–41 (West

2001), includes the term, but our attention has been called to no other 
 

 

Cite as: 552 U. S. ____ (2008) 11 

Opinion of the Court 

Elsewhere in the Compact, one finds the more familiar 

terms “jurisdiction” (in the introductory paragraphs and,

most notably, in Article VIII) or “exclusive jurisdiction” (in 

Article IV).14 To attribute to “riparian jurisdiction” the 

same meaning as “jurisdiction” unmodified, or to equate 

the novel term with the distinct formulation “exclusive 

jurisdiction,” would deny operative effect to each word in 

the Compact, contrary to basic principles of construction.

See United States v. Menasche, 348 U. S. 528, 538–539 

(1955).

In this regard, Article VIII bears reiteration: 

“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.” 34 Stat. 860. 

Presumably drafted in recognition of the still-unresolved

boundary dispute, see supra, at 3–5, Article VIII requires 

an express statement in the Compact in order to “affect

the territorial . . . jurisdiction of either State . . . over the 

Delaware River.” We resist reading the uncommon term

“riparian jurisdiction,” even when aggrandized by the 

phrase “of every kind and nature,” as tantamount to an

express cession by Delaware of its entire “territorial . . . 

jurisdiction . . . over the Delaware River.” 

2 

Endeavoring to fathom the import of the novel term

“riparian jurisdiction,” the Special Master recognized that 

—————— 

state statute that does so. 14The last paragraph of Article IV reads: “Each State shall have and

exercise exclusive jurisdiction within said river to arrest, try, and 

punish its own inhabitants for violation of the concurrent legislation

related to fishery herein provided for.” 34 Stat. 860 (emphasis added). 

See also id., at 859 (Articles I and II, recognizing the “exclusive jurisdiction” of each State in regard to service of criminal process). 
 

 

12 NEW JERSEY v. DELAWARE 

Opinion of the Court 

a riparian landowner ordinarily enjoys the right to build a

wharf to access navigable waters far enough to permit the 

loading and unloading of ships. Report 47–49, 58–59.

Accord 1 H. Farnham, Law of Waters and Water Rights

§62, p. 279 (1904) (“The riparian owner is also entitled to 

have his contact with the water remain intact. This is 

what is known as the right of access, and includes the

right to erect wharves to reach the navigable portion of the 

stream.”); id., §111, p. 520 (“A wharf is a structure on the

margin of navigable water, alongside of which vessels are 

brought for the sake of being conveniently loaded or

unloaded.”). But the Special Master also recognized that

the right of a riparian owner to wharf out is subject to 

state regulation. Report 58; see 1 Farnham, supra, §63, p.

284 (rights of riparian owner “are always subordinate to 

the public rights, and the state may regulate their exercise 

in the interest of the public”); Shively v. Bowlby, 152 U. S. 

1, 40 (1894) (“[A] riparian proprietor . . . has the right of 

access to the navigable part of the stream in front of his

land, and to construct a wharf or pier projecting into the 

stream . . . , subject to such general rules and regulations 

as the legislature may prescribe for the protection of the 

public . . . .” (internal quotation marks omitted)). 

New Jersey took no issue with the Special Master’s 

recognition that States, in the public interest, may place 

restrictions on a riparian proprietor’s activities. In its 

response to Delaware’s request for admissions, New Jersey readily acknowledged that a person wishing to conduct

a particular activity on a wharf, in addition to obtaining a

riparian grant, would have to comply with all other “applicable New Jersey laws, and local laws.” 6 Del. App. 4156 

(New Jersey’s Responses to Delaware’s First Request for 

Admissions ¶22 (Sept. 8, 2006)). See also Restatement 

(Second) of Torts §856, Comment e, pp. 246–247 (1977) (“A

state may exercise its police power by controlling the 

initiation and conduct of riparian and nonriparian uses of 
Cite as: 552 U. S. ____ (2008) 13 

Opinion of the Court 

water.”). But New Jersey sees itself, to the exclusion of

Delaware, as the State empowered to regulate, for the 

benefit of the public, New Jersey landowners’ exercise of 

riparian rights. 

In the ordinary case, the State that grants riparian

rights is also the State that has regulatory authority over

the exercise of those rights. But cf. Cummings v. Chicago, 

188 U. S. 410, 431 (1903) (federal regulation of wharfing

out in the Calumet River did not divest local government

of regulatory authority based on location of project within

that government’s territory). In this regard, the negotiators of the 1905 Compact faced an unusual situation: As

long as the boundary issue remained unsettled, they could 

not know which State was sovereign within the twelvemile circle beyond New Jersey’s shore. They likely knew, 

however, that “[i]n a case of wharfing out . . . ‘[t]he rights

of a riparian owner upon a navigable stream in this country are governed by the law of the state in which the 

stream is situated.’” 1 S. Wiel, Water Rights in the Western States §898, p. 934 (3d ed. 1911) (quoting Weems 

Steamboat Co. of Baltimore v. People’s Steamboat Co., 214 

U. S. 345, 355 (1909)). With the issue of sovereignty reserved by the 1905 Compact drafters for another day, the 

Special Master’s conclusion that Article VII’s reference to 

“riparian jurisdiction” did not mean “exclusive jurisdiction” is difficult to gainsay.

The Special Master pertinently observed that, as New 

Jersey read the 1905 Compact, Delaware had given up all

governing authority over the disputed area while receiving 

nothing in return. He found New Jersey’s position “implausible.” Report 63. “Delaware,” the Special Master

stated, “would not have willingly ceded all jurisdiction 

over matters taking place on land that [Delaware adamantly] contended it owned exclusively and outright.” Id., 
 

 

 

14 NEW JERSEY v. DELAWARE 

Opinion of the Court 

at 64.15 

New Jersey asserts that Delaware did just that, as

shown by representations made during proceedings in 

New Jersey v. Delaware II. New Jersey Exceptions 44.

Delaware’s reply brief before the Special Master in that 

case stated: “Article VII of the Compact is obviously

merely a recognition of the rights of the riparian owners of

New Jersey and a cession to the State of New Jersey by

the State of Delaware of jurisdiction to regulate those 

rights.” 1 App. of New Jersey on Motion for Summary

Judgment 123a. Further, at oral argument before the

Special Master in that earlier fray, Delaware’s counsel

said that, in his view, the 1905 Compact “ceded to the

State of New Jersey all the right to control the erection of

[wharves extending into the Delaware River from New 

Jersey’s shore] and to say who shall erect them.” Id., at 

126a–1. 

The Special Master in the instant case found New Jersey’s position dubious, as do we. The representations

Delaware made in the course of New Jersey v. Delaware II, 

the Special Master here observed, were “fully consistent

with [the Master’s] interpretation of Article VII [of the 

1905 Compact].” Report 89. New Jersey did indeed preserve “the right to exercise its own jurisdiction over ripar­

—————— 

15The dissent insists that Delaware received “plenty in return.” Post, 

at 3. But, in truth, the 1905 Compact gave neither State “plenty.” 

Each State accommodated to the other to assure equal access to fishing 

rights in the River. See supra, at 4, n. 5. Delaware agreed to the 

Compact “not [as] a settlement of the disputed boundary, but [as] a 

truce or modus vivendi.” 1 Del. App. 190. In deciding whether to 

proceed with the litigation, Delaware’s Attorney General advised that

the suit “would entail very considerable expense.” 2 id., at 1075 (Jan. 

31, 1903 letter of Herbert Ward). He noted, however, that the process

of preparing Delaware’s Answer had “greatly strengthened the belief 

and reliance of counsel . . . upon the justice of her claim.” Id., at 1076. 

The decision in New Jersey v. Delaware II confirmed Delaware’s conviction. See supra, at 4–5, n. 6. 
 

Cite as: 552 U. S. ____ (2008) 15 

Opinion of the Court 

ian improvements appurtenant to its shore.” Ibid. But, 

critically, Delaware nowhere “suggested that New Jersey

would have the exclusive authority to regulate all aspects 

of riparian improvements, even if on Delaware’s land.” 

Ibid. 

Delaware, in its argument before the Special Master, 

was equally uncompromising. As a result of the 1934 

boundary determination, Delaware urged, “the entire

River is on Delaware’s ‘own side,’ and New Jersey consequently ha[d] no ‘side’ of the River on which to exercise 

any riparian rights or riparian jurisdiction.” Id., at 36. 

Article VII of the 1905 Compact, according to Delaware,

was a “temporary” measure, “entirely . . . contingent on 

the ultimate resolution of the boundary.” Id., at 39. That 

reading, the Special Master demonstrated, was altogether

fallacious. Id., at 36–40. 

Seeking to harmonize Article VII with the boundary 

determination, the Special Master reached these conclusions. First, the 1905 Compact gave New Jersey no authority to grant lands owned by Delaware. Id., at 45–46. 

Second, Article VII’s preservation to each State of “riparian jurisdiction” means that New Jersey may control the 

riparian rights ordinarily and usually enjoyed by landowners on New Jersey’s shore. For example, New Jersey

may define “how far a riparian owner can wharf out, the 

quantities of water that a riparian owner can draw from

the River, and the like.” Id., at 57–58. Nevertheless, New 

Jersey’s regulatory authority is qualified once the boundary line at low water is passed. Id., at 58. Just as New 

Jersey cannot grant land belonging to Delaware, so New 

Jersey cannot authorize activities that go beyond the 

exercise of ordinary and usual riparian rights in the face 

of contrary regulation by Delaware. 

B 

Interstate compacts, like treaties, are presumed to be 
 

 

 

16 NEW JERSEY v. DELAWARE 

Opinion of the Court 

“the subject of careful consideration before they are entered into, and are drawn by persons competent to express

their meaning, and to choose apt words in which to embody the purposes of the high contracting parties.” Rocca 

v. Thompson, 223 U. S. 317, 332 (1912). Accordingly, the 

Special Master found informative a comparison of language in the 1905 Compact with language contained in an 

1834 compact between New Jersey and New York. See 

Report 65. That compact established the two States’ 

common boundary along the Hudson River. Act of June 

28, 1834, ch. 126, 4 Stat. 708. Similar to the boundary

between New Jersey and Delaware settled in 1934 in New 

Jersey v. Delaware II, the 1834 accord located the New 

Jersey-New York boundary at “the low water-mark on the 

westerly or New Jersey side [of the Hudson River].” Art. 

Third, 4 Stat. 710; cf. supra, at 1. The 1834 agreement, 

however, expressly gave to New Jersey “the exclusive right

of property in and to the land under water lying west of

the middle of the bay of New York, and west of the middle 

of that part of the Hudson river which lies between Manhattan island and New Jersey” and “the exclusive jurisdiction of and over the wharves, docks, and improvements, 

made and to be made on the shore of the said state . . .” 

Art. Third, §§1, 2, 4 Stat. 710 (emphasis added).

“Comparable language [conferring exclusive authority],” 

the Special Master observed, “is noticeably absent in the

[1905] Compact.” Report 66. The Master found this disparity “conspicuous,” id., at 68, for “[s]everal provisions in

the two interstate compacts [contain] strikingly similar

language,” id., at 66; see id., App. J (Table Comparing

Similar Provisions in the New Jersey-New York Compact

of 1834 and the New Jersey-Delaware Compact of 1905).

Given that provisions of the 1905 Compact appear to have

been adopted almost verbatim from New Jersey’s 1834

accord with New York, see ibid., New Jersey could hardly 

claim ignorance that Article VII could have been drafted to 
 

Cite as: 552 U. S. ____ (2008) 17 

Opinion of the Court 

grant New Jersey “exclusive jurisdiction” (not merely

“riparian jurisdiction”) over wharves and other improvements extending from its shore into navigable Delaware

River waters. Id., at 67.16 

C 

New Jersey urged before the Special Master, and in its

exceptions to his report, that Virginia v. Maryland, 540 

U. S. 56, is dispositive of this case.17 Both cases involved 

an interstate compact, which left the boundary between 

the contending States unresolved, and a later determination settling the boundary. And both original actions were 

referred to Ralph I. Lancaster, Jr., as Special Master. We 

find persuasive the Special Master’s reconciliation of his

recommendations in the two actions. See Report 64–65, 

n. 118. 

Virginia v. Maryland involved a 1785 compact and an 

1877 arbitration award. Agreeing with the Special Master, we held that the arbitration award permitted Virginia

to construct a water intake structure extending into the 

Potomac River, even though the award placed Virginia’s 

boundary at the low-water mark on its own side of the

Potomac. See 540 U. S., at 75. “Superficially,” the Special

Master said, “that holding would appear to support New 

Jersey’s argument here, i.e., that construction of wharves 

off New Jersey’s shore should not be subject to regulation

by Delaware.” Report 64, n. 118. But, the Special Master 

—————— 

16The 1834 accord was the subject of significant litigation in the 

years leading up to and surrounding the adoption of the 1905 Compact.

Report 67. Notably, New York’s highest court concluded Article Third 

of the 1834 interstate agreement meant what it said: New Jersey had 

“exclusive” jurisdiction over wharves extending from and beyond its 

shore; therefore New York lacked authority to declare those wharves to 

be nuisances. See New York v. Central R. Co. of N. J., 42 N. Y. 283, 293 

(1870); Report 67. 17The dissent, post, at 11–13, essentially repeats New Jersey’s 

argument. 
 

 

18 NEW JERSEY v. DELAWARE 

Opinion of the Court 

explained, the result in Virginia v. Maryland turned on 

“the unique language of the compact and arbitration

award involved in that case.” Ibid. 

The key provision of the 1785 compact between Maryland and Virginia, we observed, addressed only “the right 

[of the citizens of each State] to build wharves and improvements regardless of which State ultimately was

determined to be sovereign over the River.” 540 U. S., 

at 69. Concerning the rights of the States, the 1877 arbitration award, not the 1785 compact, was definitive. See 

id., at 75. The key provision of that award recognized the 

right of Virginia, “qua sovereign,” “to use the River beyond

low-water mark,” a right “nowhere made subject to Maryland’s regulatory authority.” Id., at 72. 

Confirming the “sovereign character” of Virginia’s right,

we noted, Maryland had proposed to the arbitrators that

the boundary line between the States be drawn around

“all wharves and other improvements now extending or 

which may hereafter be extended, by authority of Virginia 

from the Virginia shore into the [Potomac] beyond low 

water mark.” Ibid., n. 7 (internal quotation marks omitted). Although the formulation Maryland proposed was 

not used in the arbitration award, the arbitrators plainly 

manifested their intention to accomplish the same end: to

safeguard “Virginia’s authority to construct riparian improvements outshore of the low water mark without regulation by Maryland.” Report 65, n. 118; see Virginia v. 

Maryland, 540 U. S., at 73, n. 7. By contrast, in the instant case, neither the 1905 Compact, nor New Jersey v. 

Delaware II, the 1934 decision settling the boundary 

dispute, purported to give New Jersey “all regulatory

oversight (as opposed to merely riparian oversight)” or to

endow New Jersey with authority “exclusive of jurisdiction

by Delaware.” Report 65, n. 118; see supra, at 10–15. 
 

 

 

Cite as: 552 U. S. ____ (2008) 19 

Opinion of the Court 

D 

We turn, finally, to the parties’ prior course of conduct,

on which the Special Master placed considerable weight.

See Report 68–84; cf. O’Connor v. United States, 479 U. S. 

27, 33 (1986) (“The course of conduct of parties to an international agreement, like the course of conduct of parties to any contract, is evidence of its meaning.”).

Until the 1960’s, wharfing out from the New Jersey 

shore into Delaware territory was not a matter of controversy between the two States. From 1851, when New 

Jersey began issuing grants for such activity, through

1969, only 11 constructions straddled the interstate 

boundary. Report 74. At the time of the 1905 Compact 

and continuing into the 1950’s, Delaware, unlike New 

Jersey, issued no grants or leases for its subaqueous lands.

Delaware regulated riparian improvements solely under

its common law, which limited developments only to the

extent they constituted public nuisances. Id., at 69. 

In 1961, Delaware enacted its first statute regulating

submerged lands, and in 1966, it enacted broader legislation governing leases of state-owned subaqueous lands. 

Id., at 70. The State grandfathered piers and wharves 

built prior to the effective date of the regulations implementing the 1966 statute. Id., at 70–71. Permits were 

required, however, for modifications to the grandfathered

structures and for new structures. Id., at 71.18 

Then, in 1971, Delaware enacted the DCZA to prevent 

“a significant danger of pollution to the coastal zone.” Del. 

Code Ann., Tit. 7, §7001. The DCZA prohibits within the

coastal zone “[h]eavy industry uses of any kind” and “off­

—————— 

18 In 1986 Delaware adopted its current Subaqueous Lands Act, 65 

Del. Laws ch. 508, Del. Code Ann., Tit. 7, ch. 72 (2001), which authorizes DNREC to regulate any potentially polluting use made of Delaware’s subaqueous lands and to grant or lease property interests in

those lands. See id., §7206(a). 
 

20 NEW JERSEY v. DELAWARE 

Opinion of the Court 

shore gas, liquid or solid bulk product transfer facilities.” 

§7003. In 1972, Delaware rejected as a prohibited bulk 

transfer facility El Paso Eastern Company’s request to

build a LNG unloading facility extending from New Jersey 

into Delaware. 5 Del. App. 3483 (Letter from David 

Keifer, Director of Delaware State Planning Office, to

Barry Huntsinger, El Paso Eastern Company (Feb. 23, 

1972)). Shortly before denying El Paso’s application, 

Delaware notified New Jersey’s Department of Environmental Protection (NJDEP), which raised no objection to

Delaware’s refusal to permit the LNG terminal.19 Delaware similarly relied on the DCZA to deny permits for 

construction of the Crown Landing unloading facility at

issue in this case. Report 20.

Also in 1972, Congress enacted the federal Coastal Zone 

Management Act (CZMA), 86 Stat. 1280, 16 U. S. C. §1451 

et seq., which required States to submit their coastal 

management programs to the Secretary of Commerce for 

review and approval. In return, States with approved 

programs would receive federal funding for coastal management. See §§1454–1455. Delaware’s coastal management program, approved by the Secretary in 1979, specifically addressed LNG facilities and reported that “‘no site 

in Delaware [is] suitable for the location of any LNG import-export facility.’” Report 72 (quoting 4 Del. App. 2591

(Dept. of Commerce, National Oceanic and Atmospheric 

Admin. (NOAA), Delaware Coastal Management Program 

and Final Environmental Impact Statement 57 (Mar.

1980))). The next year, 1980, New Jersey gained approval

for its coastal management program. The Special Master

found telling, as do we, a representation New Jersey made 

—————— 

19 5 Del. App. 3481 (Letter from David Keifer, Director of Delaware

State Planning Office, to Richard Sullivan, Commissioner, NJDEP 

(Feb. 17, 1972)); id., at 3485 (Letter from Mr. Sullivan, NJDEP, to Mr. 

Keifer (Mar. 2, 1972)). 
 

 

 

Cite as: 552 U. S. ____ (2008) 21 

Opinion of the Court 

in its submission to the Secretary: 

“The New Jersey and Delaware Coastal Management 

agencies . . . have concluded that any New Jersey project extending beyond mean low water must obtain 

coastal permits from both states. New Jersey and

Delaware, therefore, will coordinate reviews of any 

proposed development that would span the interstate

boundary to ensure that no development is constructed unless it would be consistent with both state 

coastal management programs.” Report 81 (quoting 4

Del. App. 2657 (NOAA, N. J. Coastal Management 

Program and Final Impact Statement 20 (Aug. 1980) 

(emphasis added)). 

See also Report 72–73. That representation, the Special

Master observed, “is fundamentally inconsistent with the 

position advanced by New Jersey here, i.e., that only New 

Jersey has the right to regulate such projects.” Id., at 73. 

As the Special Master reported, just three structures

extending from New Jersey into Delaware were built 

between 1969 and 2006. Delaware’s DNREC issued permits for each of them. Id., at 74–76. One of those projects

was undertaken by New Jersey itself. The State, in 1996, 

sought to refurbish a stone pier at New Jersey’s Fort Mott 

State Park. Id., at 75–76. New Jersey issued a waterfront 

development permit for the project, but that permit approved structures only to the low-water mark. Delaware’s 

approval was sought and obtained for structures outshore

of that point. Even during the pendency of this action, 

New Jersey applied to Delaware for renewal of the permit

covering the portion of the Fort Mott project extending

into Delaware. Ibid.20 

—————— 

20New Jersey asserts “the most striking thing about this [course of

conduct] evidence is the lack of any reference by . . . New Jersey officials to the [1905] Compact itself, much less to the terms of Article VII.”

New Jersey Exceptions 48. “All citizens,” however, “are presumptively 
 

22 NEW JERSEY v. DELAWARE 

Opinion of the Court 

IV 

New Jersey v. Delaware II upheld Delaware’s ownership

of the River and subaqueous soil within the twelve-mile

circle. The 1905 Compact did not ordain that this Court’s

1934 settlement of the boundary would be an academic

exercise with slim practical significance. Tending against 

a reading that would give New Jersey exclusive authority,

Article VIII of the Compact, as earlier emphasized, see 

supra, at 11, states: “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.” Nowhere does Article VII “expressly set forth”

Delaware’s lack of any governing authority over territory 

within the State’s own borders. Cf. Report 43–46.

The Special Master correctly determined that Delaware’s once “hands off” policy regarding coastal development did not signal that the State never could or never 

would assert any regulatory authority over structures 

using its subaqueous land. Id., at 69–70. In the decades 

since Delaware began to manage its waters and submerged lands to prevent “a significant danger of pollution 

to the coastal zone,” Del. Code Ann., Tit. 7, §7001, the 

State has followed a consistent course: Largely with New 

Jersey’s cooperation, Delaware has checked proposed 

structures and activity extending beyond New Jersey’s

shore into Delaware’s domain in order to “protect the 

—————— 

charged with knowledge of the law.” Atkins v. Parker, 472 U. S. 115, 

130 (1985). The 1905 Compact is codified at N. J. Stat. Ann. §§52:28–

34 to 52:28–45. We find unconvincing New Jersey’s contention that its 

officials were ignorant of the State’s own statutes. The assertion is all 

the more implausible given New Jersey’s recognition of Delaware’s

regulatory authority in New Jersey’s coastal management plan, despite 

a New Jersey county planning board’s objection to that acknowledgment. Report 82; 4 Del. App. 3135 (NOAA, N. J. Coastal Management

Program and Final Environmental Impact Statement 499 (Aug. 1980)). 
 

 

Cite as: 552 U. S. ____ (2008) 23 

Opinion of the Court 

natural environment of [Delaware’s] . . . coastal areas.” 

Ibid. 

* * * 

Given the authority over riparian rights that the 1905

Compact preserves for New Jersey, Delaware may not 

impede ordinary and usual exercises of the right of riparian owners to wharf out from New Jersey’s shore. The 

Crown Landing project, however, goes well beyond the 

ordinary or usual. See supra, at 5–6. Delaware’s classification of the proposed LNG unloading terminal as a

“heavy industry use” and a “bulk product transfer facilit[y],” Del. Code Ann., Tit. 7, §§7001, 7003, has not been, 

and hardly could be, challenged as inaccurate.21 Consistent with the scope of its retained police power to regulate

certain riparian uses, it was within Delaware’s authority

to prohibit construction of the facility within its domain.22 

As recommended by the Special Master, we confirm Delaware’s authority to deny permission for the Crown Landing terminal, overrule New Jersey’s exceptions, and enter, 

with modifications consistent with this opinion, the decree

proposed by the Special Master. 

It is so ordered. 

JUSTICE BREYER took no part in the consideration or 

decision of this case. 

—————— 

21We agree with the dissent, post, at 18–19, that Delaware could not 

rationally categorize as a “heavy industry use” a terminal for unloading 

cargoes of tofu and bean sprouts. On the other hand, we cannot fathom 

why, if Delaware could block a casino, or even a restaurant on a pier

extending into its territory, post, at 7, it could not reject a permit for 

the LNG terminal described supra, at 5–6. 22 In deploring New Jersey’s loss, post, at 18–19, the dissent overlooks 

alternative sites in New Jersey that could accommodate BP’s LNG 

project. 7 Del. App. 4306 (Cherry Affidavit). 
 

Opinion of the Court 

 

 

 

24 NEW JERSEY v. DELAWARE 

Decree 

DECREE
 

The Court having exercised original jurisdiction over 

this controversy between two sovereign States; the issues 

having been referred to the Special Master appointed by

the Court; the Court having received briefs and heard oral

argument on New Jersey’s exceptions to the Report of the

Special Master and Delaware’s responses thereto; and the

Court having issued its Opinion, supra, at 1–23. 

It is Hereby Ordered, Adjudged, Declared, and Decreed

as follows: 

1.(a) The State of New Jersey may, under its laws, 

grant and thereafter exercise governing authority over 

ordinary and usual riparian rights for the construction,

maintenance, and use of wharves and other riparian

improvements appurtenant to the eastern shore of the

Delaware River within the twelve-mile circle and extending outshore of the low-water mark; and further 

(b) The State of Delaware may, under its laws and 

subject to New Jersey’s authority over riparian rights as

stated in the preceding paragraph, exercise governing

authority over the construction, maintenance, and use of 

those same wharves and other improvements appurtenant 

to the eastern shore of the Delaware River within the 

twelve-mile circle and extending outshore of the low-water

mark, to the extent that they exceed ordinary and usual 

riparian uses.

(c) In refusing to permit construction of the proposed 

Crown Landing LNG unloading terminal, Delaware acted 

within the scope of its governing authority to prohibit 

unreasonable uses of the river and soil within the twelvemile circle. 

2. Except as hereinbefore provided, the motions for

summary judgment of both the States of New Jersey and

Delaware are denied and their prayers for relief dismissed 

with prejudice. 
Opinion of the Court 

Cite as: 552 U. S. ____ (2008) 25 

Decree 

3. The party States shall share equally in the compensation of the Special Master and his assistants, and in the

costs of this litigation incurred by the Special Master. 

4. The Court retains jurisdiction to entertain such

further proceedings, enter such orders, and issue such

writs as it may from time to time deem necessary or desirable to give proper force and effect to this Decree or to

effectuate the rights of the parties. 
_________________ 

_________________ 

 

Cite as: 552 U. S. ____ (2008) 1 

Opinion of STEVENS, J. 

SUPREME COURT OF THE UNITED STATES 

No. 134, Orig. 

STATE OF NEW JERSEY, PLAINTIFF v. STATE OF 

DELAWARE
 

ON BILL OF COMPLAINT 

[March 31, 2008] 

JUSTICE STEVENS, concurring in part and dissenting in 

part. 

While I agree with most of the reasoning in the Court’s 

opinion, I do not agree with the rule it announces, or with 

all of the terms of its decree. In my view, the construction

and maintenance of wharves and other riparian improvements that extend into territory over which Delaware is

sovereign may only be authorized by New Jersey to the 

extent that such activities are not inconsistent with Delaware’s exercise of its police power. I therefore join paragraphs 1(c), 2, 3, and 4 of the Court’s decree, and write

separately to explain that in my view, New Jersey’s authority to regulate beyond the low-water mark on its shore

is subordinate to the paramount authority of the sovereign 

owner of the river, Delaware. 

I 

At common law, owners of land abutting bodies of water 

enjoyed certain rights by virtue of their adjacency to that 

water. See 1 H. Farnham, Law of Waters and Water 

Rights §62, p. 279 (1904) (“The riparian owner is . . . entitled to have his contact with the water remain intact. 

This is what is known as the right of access, and includes

the right to erect wharves to reach the navigable portion of 

the stream”). Yet those rights were by no means unlimited; “[w]hile the rights of the riparian owner cannot be 
 

2 NEW JERSEY v. DELAWARE 

Opinion of STEVENS, J. 

destroyed . . . they are always subordinate to the public 

rights, and the state may regulate their exercise in the 

interest of the public.” Id., §63, at 284. See also 4 Restatement (Second) of Torts §856, Comment e (1977) (“[A]

state may exercise its police power by controlling the 

initiation and conduct of riparian and nonriparian uses of 

water”).1 

From these authorities it is clear that the rights of 

riparian landowners are ordinarily subject to regulation

by some State. The only relevant question, then, for purposes of this case, is which State. As the Court notes, “[i]n

the ordinary case, the State that grants riparian rights is

also the State that has regulatory authority over the 

exercise of those rights,” ante, at 13. But the history of the

relationship between these two States vis-à-vis their 

jointly bounded river takes this case out of the ordinary. 

In light of the 1905 Compact, our previous decision in New 

Jersey v. Delaware, 291 U. S. 361 (1934), and the States’ 

course of conduct, I agree with the Court’s sensible conclusion that within the twelve-mile circle, the two States’ 

authority over riparian improvements is to some extent

overlapping. In my judgment, however, that overlapping 

authority does not extend merely to the regulation of

“riparian structures and operations of extraordinary character” beyond the low-water mark on New Jersey’s shore, 

ante, at 3, but to all riparian structures and operations 

—————— 

1See also Weber v. Board of Harbor Comm’rs, 18 Wall. 57, 64–65 

(1873) (“[A] riparian proprietor, whose land is bounded by a navigable 

stream, has the right of access to the navigable part of the stream in

front of his land, and to construct a wharf or pier projecting into the

stream, for his own use, or the use of others, subject to such general 

rules and regulations as the legislature may prescribe for the protection 

of the public” (emphasis added)); Yates v. Milwaukee, 10 Wall. 497, 504 

(1870) (“[The owner of a lot along the river] is . . . entitled to the rights

of a riparian proprietor whose land is bounded by a navigable stream 

. . . subject to such general rules and regulations as the legislature may 

see proper to impose” (emphasis added)). 
Cite as: 552 U. S. ____ (2008) 3 

Opinion of STEVENS, J. 

extending out from New Jersey into Delaware’s domain. I 

would hold, therefore, that New Jersey may only grant, 

and thereafter exercise governing authority over, the

rights of construction, maintenance, and use of wharves 

and other riparian improvements beyond the low-water 

mark to the extent that the grant and exercise of those 

rights is not inconsistent with the police power of the 

State of Delaware. 

II 

In Virginia v. Maryland, 540 U. S. 56, 80 (2003), I set 

forth my view that the rights enjoyed by riparian landowners along the Virginia shore of the Potomac River were 

subject to regulation by the owner of the river, Maryland. 

I there explained that “th[e] landowners’ riparian rights

are—like all riparian rights at common law—subject to 

the paramount regulatory authority of the sovereign that

owns the river, [Maryland],” id., at 82 (dissenting opinion).

I would have held, therefore, that it was within Maryland’s power to prevent the construction of the water

intake facility that Fairfax County, Virginia, wished to

build. A fortiori, then—putting to one side the distinctions

the Court today draws between the two cases, ante, at 17– 

18—Delaware possesses the authority, under its laws, to 

restrict the construction of the proposed liquified natural

gas facility that would extend hundreds of feet into its

sovereign territory.

But inherent in the notion of concurrency are limits to 

the authority of even the sovereign that owns the river. In 

Virginia v. Maryland, supra, I noted that the case did not 

require the Court to “determine the precise extent or

character of Maryland’s regulatory jurisdiction,” because 

the issue presented was merely “whether Maryland may 

impose any limits on . . . Virginia landowners whose property happens to abut the Potomac.” Id., at 82 (dissenting 

opinion). Similarly, in this case we need not definitively 
 

4 NEW JERSEY v. DELAWARE 

Opinion of STEVENS, J. 

settle the extent to which there may exist limitations on 

Delaware’s exercise of authority over its river and improvements thereon; for even Delaware’s counsel conceded 

at argument that Delaware could not impose a total ban 

on the construction of wharves extending out from New 

Jersey’s shores. Tr. of Oral Arg. 49, 50. Similarly, Delaware should not be permitted to treat differently riparian

improvements extending outshore from New Jersey’s land 

and those commencing on Delaware’s own soil, absent 

some reasonable police-power purpose for that differential 

treatment. Apart from those clear constraints, however—

and subject to applicable federal law2—in my view it is

Delaware that possesses the primary authority over riparian improvements extending into its territory. 

III 

Despite my differing views set forth herein, I do agree

with the conclusion that Delaware may prohibit construction of the facility that spawned this complaint, and therefore join the portion of the Court’s decree so finding. 

—————— 

2See 4 Restatement (Second) of Torts §856, Comment e (1977) (“The

United States may prohibit, limit and regulate the diversion, obstruction or use of navigable waters . . . if those acts affect the navigable

capacity of navigable waters”). 
_________________ 

_________________ 

Cite as: 552 U. S. ____ (2008) 1 

SCALIA, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 134, Orig. 

STATE OF NEW JERSEY, PLAINTIFF v. STATE OF 

DELAWARE
 

ON BILL OF COMPLAINT 

[March 31, 2008] 

JUSTICE SCALIA, with whom JUSTICE ALITO joins, dissenting. 

With all due respect, I find the Court’s opinion difficult 

to accept. The New Jersey-Delaware Compact of 1905 

(Compact or 1905 Compact), Art. VII, 34 Stat. 860, addressed the “exercise [of] riparian jurisdiction,” and the 

power to “make grants . . . of riparian . . . rights.” The 

particular riparian right at issue here is the right of 

wharfing out. All are agreed that jurisdiction and power 

over that right were given to New Jersey on its side of the 

Delaware River. The Court says, however, that that

jurisdiction and power was not exclusive. I find that 

difficult to accept, because if Delaware could forbid the 

wharfing out that Article VII allowed New Jersey to permit, Article VII was a ridiculous nullity. That could not be 

what was meant. The Court seeks to avoid that obstacle 

to credibility by saying that Delaware’s jurisdiction and 

power is limited to forbidding “activities that go beyond

the exercise of ordinary and usual riparian rights.” Ante, 

at 15. It is only “riparian structures and operations of 

extraordinary character” over which Delaware retains 

“overlapping authority to regulate.” Ante, at 3 (emphasis 

added). But that also is difficult to accept, because the 

Court explains neither the meaning nor the provenance of 

its “extraordinary character” test. The exception (whatever it means) has absolutely no basis in prior law, which 
 

2 NEW JERSEY v. DELAWARE 

SCALIA, J., dissenting 

regards as beyond the “ordinary and usual” (and hence

beyond the legitimate) only that wharfing out which interferes with navigation. So unheard-of is the exception that 

its first appearance in this case is in the Court’s opinion. 

I would sustain New Jersey’s objections to the Special 

Master’s Report. 

I 

I must begin by clearing some underbrush. One of 

Delaware’s principal arguments—an argument accepted 

by the Master and implicitly accepted by the Court—is

that the 1905 Compact must not be construed to limit 

Delaware’s pre-Compact (albeit at the time unrecognized)

sovereign control over the Delaware River, because of the

“strong presumption against defeat of a State’s title” in 

interpreting agreements. See Report of Special Master 

42–43 (Report) (quoting United States v. Alaska, 521 U. S. 

1, 34 (1997) (internal quotation marks omitted)). According to Delaware, this presumption establishes that the 

1905 Compact gave New Jersey the authority to allocate 

riparian rights, but left with Delaware the power to veto 

exercises of those rights under its general police-power 

authority.

I have written of this presumption elsewhere that it 

“has little if any independent legal force beyond what 

would be dictated by normal principles of contract interpretation. It is simply a rule of presumed (or implied-infact) intent.” United States v. Winstar Corp., 518 U. S. 

839, 920 (1996) (opinion concurring in judgment). It is a 

manifestation of the commonsense intuition that a State 

will rarely contract away its sovereign power. That intuition is sound enough in almost all state dealings with 

private citizens, and in some state dealings with other 

States. It has no application here, however, because the 

whole purpose of the 1905 Compact was precisely to come 

to a compromise agreement on the exercise of the two 
 

Cite as: 552 U. S. ____ (2008) 3 

SCALIA, J., dissenting 

States’ sovereign powers. Entered into at a time when 

Delaware and New Jersey disputed the location of their

boundary, the Compact demarcated the authority between 

the two States with respect to service of civil and criminal

process on vessels, rights of fishery, and riparian rights on

either side of the Delaware River within the circle of a 12-

mile radius centered on the town of New Castle, Delaware. 

See Compact, 34 Stat. 858; New Jersey v. Delaware, 291 

U. S. 361, 377–378 (1934) (New Jersey v. Delaware II). 

There is no way the Compact can be interpreted other 

than as a yielding by both States of what they claimed to 

be their sovereign powers. The only issue is what sovereign powers were yielded, and that is best determined 

from the language of the Compact, with no thumb on the 

scales. 

Besides relying on the presumption, the Special Master 

believed (and the Court believes) that New Jersey’s claims

must be viewed askance because it is implausible that 

Delaware would have “given up all governing authority 

over the disputed area while receiving nothing in return.” 

Ante, at 13. But Delaware received plenty in return. First 

of all, it assured access of its citizens to fisheries on the 

side of the river claimed by New Jersey—something it 

evidently cared more about than the power to control

wharfing out from the Jersey shore, which it had never 

theretofore exercised. And it obtained (as the Compact

observed) “the amicable termination” of New Jersey’s

then-pending original action in the Supreme Court, which

had “been pending for twenty-seven years and upwards.” 

34 Stat. 858–859. How plausible it was that Delaware

would give up anything to get rid of that suit surely depends upon how confident Delaware was that it would

prevail. And to tell the truth, the case appeared to be 

going badly. As the Compact observed, the Supreme

Court had issued a preliminary injunction against Delaware “restraining the execution of certain statutes of the 
 

 

4 NEW JERSEY v. DELAWARE 

SCALIA, J., dissenting 

State of Delaware relating to fisheries.” Id., at 859. The 

order issuing that injunction had remarked that Delaware 

had now “interfered with and claimed to control the right

of fishing” which New Jerseyites had “heretofore been 

accustomed” to exercise without Delaware’s interference 

for over 70 years. Order in New Jersey v. Delaware, No. 1, 

Orig. (filed 1877), Lodging for Brief of State of Delaware in

Opposition to State of New Jersey’s Motion to Reopen (Tab 

1). By providing for dismissal of New Jersey’s suit, the 

Compact assured Delaware that the Supreme Court’s

rather ominous sounding preliminary order would not 

become the Court’s holding, perhaps the consequence of a 

rationale that gave New Jersey jurisdiction in the river. 

II 

Article VII of the 1905 Compact between New Jersey 

and Delaware reads as follows: 

“Each State may, on its own side of the river, continue 

to exercise riparian jurisdiction of every kind and nature, and to make grants, leases, and conveyances of 

riparian lands and rights under the laws of the respective States.” 34 Stat. 860. 

As the Court recognizes, this provision allocates to each

State jurisdiction over a bundle of rights that, at the time 

of the Compact, riparian landowners, or “owners of land

abutting on bodies of water,” possessed under the common 

law “by reason of their adjacency.” 1 H. Farnham, Law of 

Waters and Water Rights §62, p. 278 (1904) (Farnham).

Those riparian rights included the right to “fill in and to

build wharves and other structures in the shallow water 

in front of [the upland] and below low-water mark.” Id., 

§113b, at 534. A wharf, the type of structure at issue here, 

“imports a place built or constructed for the purpose of 

loading or unloading goods.” Id., §111, at 520, n. 1. It was 

considered “a necessary incident of the right [to construct 
 

Cite as: 552 U. S. ____ (2008) 5 

SCALIA, J., dissenting 

wharves and piers] that they shall project to a distance 

from the shore necessary to reach water which shall float

vessels, the largest as well as the smallest, that are engaged in commerce upon the water into which they project.” Id., at 522. Thus, wharves could be built up to “the 

point of navigability,” J. Gould, Treatise on the Law of 

Waters, including Riparian Rights §181, p. 352 (2d ed.

1891) (Gould), so long as they did not “interfere needlessly 

with the right of navigation” possessed by members of the 

general public upon navigable waters, 1 Farnham §111, 

at 521. 

The two States would have been acquainted with this

common law. New Jersey case law comported with the

hornbook rules. According to the State’s Court of Errors

and Appeals, it was “undoubted” and the “common understanding” that “the owners of land bounding on navigable 

waters had an absolute right to wharf out and otherwise 

reclaim the land down to and even below low water, provided that they did not thereby impede the paramount 

right of navigation.” Bell v. Gough, 23 N. J. L. 624, 658 

(1852) (opinion of Elmer, J.); see also J. Angell, Treatise on

the Right of Property in Tide Waters and in the Soil and 

Shores Thereof 234 (1847) (“[T]he right of a riparian proprietor to ‘wharf out’ into a public river, is a local custom 

in New Jersey”); Gould §171, at 342 (“[T]he common understanding in [New Jersey] carries the right [to wharf

out] even below low-water mark, provided there is no

obstruction to the navigation”). Case authority in Delaware seems to be lacking, but in New Jersey v. Delaware II 

the State assured the Special Master at oral argument

that “it is undoubtedly true in the State of Delaware . . . 

that the upland owner had the right to wharf out . . . 

subject only that you must not . . . obstruct navigation.” 

1 App. of New Jersey on Motion for Summary Judgment 

126a–1 (hereinafter NJ App.).

Thus, under the plain terms of the 1905 Compact, each 
 

6 NEW JERSEY v. DELAWARE 

SCALIA, J., dissenting 

State had “jurisdiction”—the “authority of a sovereign 

power to govern or legislate,” Webster’s International 

Dictionary of the English Language (1898)—over wharfing

out on “its own side of the river.” To emphasize that this

jurisdiction was plenary—that it included, for example, 

not merely the power to prohibit wharfing out but also the 

power to permit it—Article VII specified that the jurisdiction it conferred would be “of every kind and nature.” 

And finally, the jurisdictional grant was not framed as

though it was conferring on either State some hitherto 

unexercised power. Rather, the Compact provided that 

each State would “continue to” exercise the allocated “riparian jurisdiction,” clearly envisioning that each State 

would wield in the future the same authority over riparian

rights it had wielded in the past. 34 Stat. 860 (emphasis

added). This is significant because, before adoption of the 

Compact in 1905, New Jersey alone had regulated the

construction of riparian improvements on New Jersey’s

side of the Delaware River. It had repeatedly authorized 

the construction of piers and wharves that extended beyond the low-water line. App. to Report C–4 to C–5 (listing New Jersey Acts authorizing riparian landowners to 

construct wharves); 7 NJ App. 1196a–1199a. Delaware, 

by contrast, had never regulated riparian rights on the 

New Jersey side, and indeed, at the time of the Compact 

even on its own side there was “little evidence of [the 

State’s] active involvement in shoreland development . . . .” Report 69.

I would think all of this quite conclusive of the fact that

New Jersey was given full and exclusive control over

riparian rights on the New Jersey side. The Court concludes that this was not so, however, in part because of the 

alleged implausibility of Delaware’s “giv[ing] up all governing authority . . . while receiving nothing in return,” 

ante, at 13 (a mistaken contention that I have already 

addressed), and in part because “riparian jurisdiction” is 
 

Cite as: 552 U. S. ____ (2008) 7 

SCALIA, J., dissenting 

different from “exclusive jurisdiction,” the term used in an

1834 Compact between New Jersey and New York, which

referred to “the exclusive jurisdiction of and over the 

wharves, docks, and improvements, made and to be made

on the shore . . . .” Act of June 28, 1834, ch. 126, Art. 

Third, 4 Stat. 710. 

I willingly concede that exclusive riparian jurisdiction is 

not the same as “exclusive jurisdiction” simpliciter. It 

includes only exclusive jurisdiction over riparian rights

which, as I have described, include the right to erect

wharves for the loading and unloading of goods. That 

jurisdiction does not necessarily include, for example, the 

power to permit or forbid the construction of a casino on 

the wharf, or even the power to serve legal process on the 

wharf. Jurisdiction to control such matters—which were 

not established as part of riparian rights by the commonlaw and hornbook sources that the parties relied on in

framing the Compact—may well fall outside the scope of 

the “riparian jurisdiction” that the Compact grants. See, 

e.g., Tewksbury v. Deerfield Beach, 763 So. 2d 1071 (Fla. 

App. 1999) (operation of a restaurant on a dock is not 

included within riparian rights). Such powers—which

may well have been conveyed by a grant of “exclusive

jurisdiction” such as that contained in the New York-New

Jersey Compact—are not at issue in this case. What is at 

issue is jurisdiction over the core riparian right of building

a wharf to be used for the loading and unloading of cargo.

And that that jurisdiction was given exclusively to New 

Jersey is made perfectly clear by the Compact’s recognition of each State’s riparian jurisdiction only “on its own 

side of the river.” 34 Stat. 860 (emphasis added). It does 

not take vast experience in textual interpretation to conclude that this implicitly excludes each State’s riparian

jurisdiction on the other State’s side of the river. (Inclusio 

unius est exclusio alterius.) There was no need, therefore, 

to specify exclusive riparian jurisdiction. 
 

8 NEW JERSEY v. DELAWARE 

SCALIA, J., dissenting 

The Court’s position gains no support from the fact that

the rights of a private riparian owner “‘are always subordinate to the public rights, and the state may regulate

their exercise in the interest of the public.’” Ante, at 12 

(quoting 1 Farnham §63, at 284). The Compact did not 

purport to convey mere private rights, but rather “riparian 

jurisdiction of every kind and nature.” If that means 

anything at all, it means that New Jersey is the State that 

“may regulate [the] exercise [of the rights of a private 

riparian owner] in the interest of the public.” Delaware’s 

contention that it retains the authority to prohibit under 

its police power even those activities that are specifically 

allowed to New Jersey under the Compact renders not just

Article VII but most of the Compact a virtual nullity. 

Article III, for example, gives the States “common right of 

fishery throughout, in, and over the waters” of the Delaware. 34 Stat. 859. But under its police powers a sovereign State could regulate fishing within its public navigable waters. See Gould §189, at 362. Thus, under 

Delaware’s view, just as its ownership of the riverbed 

would allow it to trump New Jersey’s authority to permit

wharfing out, so also its ownership of the riverbed would 

allow it to prevent fishing. That would be an extraordinary result, since the litigation the 1905 Compact was 

designed to resolve arose over fishing rights, after Delaware enacted a law in 1871 requiring New Jersey fishermen to obtain a Delaware license. See Report 3–6. 

III 

The Court, following the Special Master’s analysis, see 

Report 68–84, asserts that today’s judgment is supported 

by the parties’ course of conduct after conclusion of the 

Compact. I frankly think post-Compact conduct irrelevant

to this case, since it can properly be used only to clarify an

ambiguous agreement, and there is no ambiguity here. 

The Court, moreover, overstates the post-Compact conduct 
 

Cite as: 552 U. S. ____ (2008) 9 

SCALIA, J., dissenting 

favoring Delaware’s position and understates the postCompact conduct favoring New Jersey. But even if postCompact conduct is consulted, no such conduct—none

whatever—supports the Court’s “extraordinary character”

test, whereas several instances of such conduct strongly

support the resolution I have suggested in this dissent. 

The Court relies upon four instances of Delaware’s

exercise of jurisdiction over wharfing out from the Jersey 

shore, and two instances of New Jersey’s acquiescence in 

such an exercise—all postdating 1969. As to the former, 

the three structures extending from New Jersey into 

Delaware built between 1969 and 2006 were permitted by

Delaware, ante, at 21; and another application for a permit was denied, ante, at 20. The Court never establishes, 

however, that these instances of Delaware’s assertion of 

jurisdiction related to wharves of “extraordinary character,” which is the only jurisdiction that the Court’s decree

confers upon Delaware. At best, these assertions of jurisdiction support not the Court’s opinion, but rather Delaware’s assertion that it may regulate all wharves on the

river—an assertion that the Court rejects. The same 

mismatch is present with both instances of New Jersey’s 

asserted acquiescence. One of them was New Jersey’s

application for Delaware’s permission to refurbish the 

stone pier at Fort Mott State Park, described ante, at 21. 

That construction could not conceivably be characterized 

as of “extraordinary character,” and thus New Jersey did 

not need to ask Delaware for permission under the Court’s

theory. In the other instance, described ante, at 20–21, 

New Jersey’s Coastal Management Agency assured the 

Secretary of Commerce that “‘any New Jersey project

extending beyond mean low water’” (emphasis added) had 

to be approved by Delaware’s Coastal Management

Agency as well as New Jersey’s. This again supports 
 

 

10 NEW JERSEY v. DELAWARE 

SCALIA, J., dissenting 

Delaware’s theory of this case, but not the Court’s.* 

While post-Compact conduct provides no—absolutely 

zero—support for the Court’s interpretation, it provides

substantial support for the one I have suggested. In New 

Jersey v. Delaware II, a case before this Court involving

precisely the meaning of the Compact, the Attorney General of Delaware (obviously authorized to present the 

State’s position on the point) conceded to the Special 

Master that “Article VII of the Compact is obviously

merely a recognition of the rights of the riparian owners of

New Jersey and a cession to the State of New Jersey by 

the State of Delaware of jurisdiction to regulate those 

rights.” 1 NJ App. 123a (emphasis added). And at oral 

argument before the Special Master, Delaware’s Special 

Counsel—Clarence A. Southerland, a former State Attorney General and future Chief Justice of the Supreme

Court of Delaware, see Delaware Bar in the Twentieth 

Century 375 (H. Winslow, A. Bookout, & P. Hannigan eds.

1994)—explained that “the Compact of 1905 expressly

acknowledged the rights of the citizens of New Jersey, at 

—————— 

*The post-Compact-conduct argument is not the only portion of the

Court’s reasoning that is a mismatch with its conclusion. So is its 

reliance upon Article VIII of the Compact, ante, at 11, 22—an argument

so weak that it deserves only a footnote response. Article VIII provides

that nothing in the Compact “shall affect the territorial limits, rights,

or jurisdiction of either State . . . except as herein expressly set forth.” 

34 Stat. 860 (emphasis added). But New Jersey’s riparian rights are 

expressly set forth, so the only question—the one I have addressed 

above—is what those rights consist of. But accepting the Court’s overreading of Article VIII (which presumably requires each of the riparian 

rights to be named one by one), it is utterly impossible to see why 

Article VIII is any more “expres[s]” in setting forth New Jersey’s 

authority over wharves that lack “extraordinary character” than it is in

setting forth her authority over wharves that possess it. Once again,

the argument supports not the Court’s holding, but rather Delaware’s

more expansive theory that it may regulate any and all wharves built 

from the Jersey shoreline. There is, to tell the truth, nothing whatever

to support the Court’s holding. 
 

Cite as: 552 U. S. ____ (2008) 11 

SCALIA, J., dissenting 

least, by implication to wharf out” and that New Jersey 

possessed “all the right to control the erection of those 

wharves and to say who shall erect them.” 1 NJ App. 

126a–1 (emphasis added). And in its Supreme Court brief

in that litigation, Delaware assured the Court, without

conditions, that “Delaware has never questioned the right 

of citizens of New Jersey to wharf out to navigable water

nor can such a right be questioned now because it is

clearly protected by the Compact of 1905 between the 

States.” Id., at 139a (emphasis added). Delaware’s Supreme Court brief rejected New Jersey’s argument that, if 

the Court found the boundary line to be the low-water

mark on the New Jersey shore, “the interests of the riparian owners will be either destroyed or seriously prejudiced.” That concern, Delaware said, was misguided 

because the 1905 Compact “recognized the rights of riparian owners in the river to wharf out.” Id., at 140a. “The 

effect of Article VII of the Compact,” the brief explained, 

“was that the State of Delaware recognized the rights of 

the inhabitants on the east side of the river to wharf out to 

navigable water. This right had never been questioned 

and was undoubtedly inserted to put beyond question the 

riparian rights (as distinguished from title) of land owners 

in New Jersey.” Id., at 141a. These concessions are powerful indication that Delaware’s understanding of the

Compact was the same as the one I assert. 

IV 

Our opinion in Virginia v. Maryland, 540 U. S. 56 

(2003), effectively decided this case. It rejected the very

same assertion of a riverbed-owning State’s supervening 

police-power authority over constructions into the river

from a State that had been conceded riparian rights. That 

case involved two governing documents rather than (as

here) only one. The first, a 1785 compact, provided: 

“‘The citizens of each state respectively shall have full 
 

 

12 NEW JERSEY v. DELAWARE 

SCALIA, J., dissenting 

property in the shores of Potowmack river adjoining

their lands, with all emoluments and advantages

thereunto belonging, and the privilege of making and 

carrying out wharves and other improvements, so as

not to obstruct or injure the navigation of the river.’” 

Id., at 62. 

The second, an arbitration award of 1877 that interpreted 

the earlier compact, read as follows: 

“‘Virginia is entitled not only to full dominion over the 

soil to low-water mark on the south shore of the Potomac, but has a right to such use of the river beyond 

the line of low-water mark as may be necessary to the

full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with

the proper use of it by Maryland, agreeably to the

compact of seventeen hundred and eighty-five.’ ” Id., 

at 62–63. 

We rejected Maryland’s police-power authority to forbid

Virginia’s construction of a water intake structure that

extended into Maryland territory, and held that “Virginia’s right ‘to erect . . . structures connected with the 

shore’ is inseparable from, and ‘necessary to,’ the ‘full 

enjoyment of her riparian ownership’ of the soil to lowwater mark.” Id., at 72. Maryland, we observed, was 

“doubtless correct that if her sovereignty over the River 

was well settled as of 1785, we would apply a strong presumption against reading the Compact as stripping her 

authority to regulate activities on the River.” Id., at 67. 

But because the “scope of Maryland’s sovereignty over the

River was in dispute both before and after the 1785 Compact,” no such presumption existed. Id., at 68. 

Today’s opinion, quoting the Special Master, claims that 

the result in Virginia v. Maryland turned on “‘the unique 

language of the compact and arbitration award involved in 
Cite as: 552 U. S. ____ (2008) 13 

SCALIA, J., dissenting 

that case.’” Ante, at 18 (quoting Report 64, n. 118). But 

the case did not say that. And of course virtually every

written agreement or award has “unique language,” so if 

we could only extend to other cases legal principles pertaining to identical language our interpretive jurisprudence would be limited indeed. The documents in Virginia 

v. Maryland said in other words precisely what the Compact here said: that one of the States (there, Virginia,

here, New Jersey) was given riparian rights, including the

right to construct wharves and improvements. And the 

holding of the case was that those rights could be exercised free of police power or other interference by the State 

owning the riverbed.

The Court contends that in Virginia v. Maryland the 

arbitration award, rather than the compact, “was definitive,” because it recognized the right of Virginia “‘qua

sovereign,’” and nowhere made the right “‘subject to

Maryland’s regulatory authority.’” Ante, at 18 (quoting 

540 U. S., at 72). But Article VII of the Compact here at

issue likewise spoke of the rights of New Jersey “qua 

sovereign” (what else does the “exercise [of] riparian jurisdiction” mean?) and similarly did not make those rights

subject to Delaware’s regulatory authority. We stressed in 

Virginia v. Maryland that the salient factor in the interpretation of the compact (and hence in the arbitration 

award’s interpretation of the compact) was that it was

entered into (like the Compact here) by way of settlement

of a continuing boundary dispute. “If any inference at all 

is to be drawn from [the compact’s] silence on the subject 

of regulatory authority,” we said, “it is that each State was

left to regulate the activities of her own citizens.” Id., at 

67. Virginia v. Maryland effectively decided this case. 

V 

Finally, I must remark at greater length upon the

Court’s peculiar limitation upon New Jersey’s wharfing-
 

14 NEW JERSEY v. DELAWARE 

SCALIA, J., dissenting 

out rights—that it excludes wharves of “extraordinary

character.” But for that limitation, the Court’s conclusion 

is precisely the same as my own: “Given the authority over 

riparian rights that the 1905 Compact preserves for New 

Jersey, Delaware may not impede ordinary and usual

exercises of the right of riparian owners to wharf out from

New Jersey’s shore.” Ante, at 23. The Court inexplicably

concludes, however, that the liquefied natural gas (LNG) 

unloading wharf at stake in this litigation “goes well 

beyond the ordinary or usual.” Ibid. Why? Because it 

possesses “extraordinary character.” 

To our knowledge (and apparently to the Court’s, judging by its failure to cite any authority) the phrase has

never been mentioned before in any case involving limitations on wharfing out. What in the world does it mean? 

Would a pink wharf, or a zig-zagged wharf qualify? Today’s opinion itself gives the phrase no content other than

to say that “Delaware’s classification of the proposed LNG 

unloading terminal as a ‘heavy industry use’ and a ‘bulk 

product transfer facilit[y],’ . . . has not been, and hardly 

could be, challenged as inaccurate.” Ibid. This rationale 

is bizarre. There is no reason why any designation by the

Delaware Department of Natural Resources and Environmental Control would be relevant to, let alone controlling on, the meaning of the 1905 Compact; and no reason

why New Jersey’s authority under the 1905 Compact 

should turn on the state-law question whether Delaware 

“rationally categorize[s]” a wharf under its own statutes, 

ante, at 23, n. 21. Wharves were commonly used for 

“heavy industry use” when the 1905 Compact was

adopted, and their primary commercial use was to transfer

bulk cargoes. One roughly contemporaneous book on the 

design and building of wharves in America included information on appropriate pavement material to enable use 

of trucks on wharves, the proper method of laying down 

railroad tracks, and the construction of hatch cranes for 
Cite as: 552 U. S. ____ (2008) 15 

SCALIA, J., dissenting 

unloading cargo. See C. Greene, Wharves and Piers: Their 

Design, Construction, and Equipment 191–194, 206–215

(1917). The Court gives no reason why the terminal’s

character as a “heavy industry use” and a “bulk product 

transfer facilit[y]” matters in the slightest. Indeed, the 

Court does not take its state-law reason for “extraordinary

character” seriously, conceding that Delaware could not 

regulate an identical wharf for the “bulk product transfer” 

of “tofu and bean sprouts,” ante, at 23, n. 21. 

Apart from the Delaware Department’s “heavy industry

use” and “bulk product transfer” designations, the Court 

cites, as support for its conclusion that this wharf is of 

“extraordinary character” its own factual background

section describing the wharf. See ante, at 23 (citing ante, 

at 5–6). It is not clear which, if any, of the facts discussed 

there the Court claims to be relevant, and I am forced to 

speculate on what they might be.

Could it be the size of the wharf, which is 2,000 feet 

long, see ante, at 6, and extends some 1,455 feet into 

Delaware territory, see Brief for BP America Inc. as 

Amicus Curiae 1–2? But the Court cites not a single 

source for this length limitation upon wharfing out. We 

did not intimate, in holding in Virginia v. Maryland that 

Virginia could authorize construction of a water intake

pipe extending 725 feet from its shoreline into Maryland, 

see 540 U. S., at 63, that the result turned on the length of

the pipe. As I have discussed, the common law did establish a size limitation for wharves: the wharf could not be 

extended so far as to interfere needlessly with the public’s

“right of navigation” in navigable waters. 1 Farnham 

§111, at 521. Wharves constructed to access the water 

could “project to a distance from the shore necessary to 

reach water which shall float vessels, the largest as well as 

the smallest.” Id., §111, at 522 (emphasis added). Delaware has not claimed that the wharf in this case will 

interfere with navigation of the river, which is approxi-
 

 

 

16 NEW JERSEY v. DELAWARE 

SCALIA, J., dissenting 

mately one mile wide at this location, see Brief for BP 

America Inc. as Amicus Curiae 2. And the record reveals 

that New Jersey, at least, anticipated that wharves on its

side of the river could extend as far as the wharf in this 

case by establishing pierhead lines in 1877 and 1916 that 

extended “below low water mark at distances varying from

378 to 3,550 feet.” 1 NJ App. 135a; see also 3 id., at 376a 

(affidavit of Richard G. Castagna). (Pierhead lines mark

the permissible “outshore limit of structures of any kind.”

Greene, supra, at 27.)

Could the fact rendering this a wharf of “extraordinary

character” be that its construction would require the 

dredging of 1.24 million cubic yards of soil within Delaware’s territory? Ante, at 6. This is suggested, perhaps,

by the portion of the Decree which says that “Delaware

acted within the scope of its governing authority to prohibit unreasonable uses of the . . . soil within the twelvemile circle.” Ante, at 24; see also ante, at 6, n. 8. But no 

again. Although the record contains no evidence of the 

dredge volumes required to construct the wharves on the 

river at the time of the Compact’s adoption, it does show 

that an 1896 navigational improvement required the

dredging of 35 million cubic yards from the Delaware

River, and a 1907 dredging at Cape May Harbor, New 

Jersey, removed 19.7 million cubic yards. 7 NJ App.

1234a (affidavit of J. Richard Weggel). At the very least,

the dredging of 1.24 million cubic yards “would have been 

familiar to or ascertainable by individuals interested in

riparian uses or structures at the time the Compact was

signed or ratified.” Id., at 1227a. I do not know what to 

make of the Court’s response that the instances of dredging that I have cited involved “public works.” Ante, at 6, 

n. 8. Is that a limitation upon the Court’s holding—only 

private wharves of “extraordinary character” can be regulated by Delaware? But in fact dredging seems to have

nothing to do with the issue, since (once again) the Court 
 

Cite as: 552 U. S. ____ (2008) 17 

SCALIA, J., dissenting 

acknowledges that the same wharf for tofu and bean

sprouts would be OK. 

Could the determinative fact be that the wharf would 

service “[s]upertankers with capacities of up to 200,000

cubic meters (more than 40 percent larger than any ship

then carrying natural gas),” ante, at 6; that these ships 

“would pass densely populated areas” and require establishment of “a moving safety zone [that] would restrict 

other vessels 3,000 feet ahead and behind, and 1,500 feet 

on all sides,” ante, at 6, n. 7? This is suggested, perhaps, 

by the portion of the Decree which says that “Delaware

acted within the scope of its governing authority to prohibit unreasonable uses of the river . . . within the twelvemile circle.” Ante, at 24. But surely not. Whatever power

Delaware has to restrict traffic on the waters of the 

United States (a question not presented by this case, 

though one that seems not to inhibit the Decree’s blithe

positing of state “authority to prohibit unreasonable 

uses of the river,” ibid.), it has no bearing on whether 

New Jersey can build the wharf without Delaware’s 

interference. 

Could the determinative fact be that the wharf will be 

used to transport liquefied natural gas, which is dangerous? No again. The Court cites no support, and I am

aware of none, for the proposition that the common law 

forbade a wharf owner to load or unload hazardous goods.

At the time of the Compact’s adoption, congressional

sources reported that the Delaware River was used to 

transport, among other items, coal tar and pitch, sulfur, 

gunpowder, and explosives. Annual Report of the Chief of

Engineers, United States Army, H. R. Doc. No. 22, 59th 

Cong., 2d Sess., 1031–1033 (App. H) (1906) (tabulating 

commerce on the Delaware River by item in 1904 and 

1905). Books published some time after the adoption of

the Compact discuss the proper handling of seaborne

“dangerous goods,” including liquids such as benzene, 
 

 

 

18 NEW JERSEY v. DELAWARE 

SCALIA, J., dissenting 

petroleum, and turpentine. See J. Aeby, Dangerous Goods

(2d ed. 1922); R. MacElwee & T. Taylor, Wharf Management: Stevedoring and Storage 41, 221 (1921). There is 

not a shred of evidence that the parties to the Compact

understood that New Jersey and Delaware would not be

authorized to grant riparian rights for the loading and

unloading of goods that are—under some amorphous and 

unexplained criteria—dangerous.

I say that none of these factors has any bearing upon

whether, at law, the wharfing out at issue here is anything more than the usual and ordinary exercise of a

riparian right. I am not so rash as to suggest, however, 

that these factors had nothing to do with the Court’s

decision. After all, our environmentally sensitive Court

concedes that if New Jersey had approved a wharf of 

equivalent dimensions, to accommodate tankers of equivalent size, carrying tofu and bean sprouts, Delaware could 

not have interfered. See ante, at 23, n. 21. 

* * * 

According to one study, construction activities on the 

LNG facility in this case would have created more than 

1,300 new jobs, added $277 million to New Jersey’s gross

state product, and produced $13 million in state and local 

tax revenues. J. Seneca et al., Economic Impacts of BP’s 

Proposed Crown Landing LNG Terminal 65, online at

http://www.policy.rutgers.edu/news/reports/BPCrownLand

ing.pdf (as visited Mar. 28, 2008, and available in Clerk of 

Court’s case file). Operation of the facility was projected

to generate 231 permanent jobs, and more than $88 million in state and local tax revenues over a 30-year period. 

Ibid. Its delivery capacity would represent 15 percent of 

the current consumption of natural gas in the region. Id., 

at 66. In holding that Delaware may veto the project, the

Court owes New Jersey—not to mention an energystarved Nation—something more than its casual and 
Cite as: 552 U. S. ____ (2008) 19 

SCALIA, J., dissenting 

unsupported statements that the wharf possesses “extraordinary character” and “goes well beyond the ordinary 

or usual.” 

Today’s decision does not even have the excuse of 

achieving a desirable result. If one were to design, ex ante, 

the socially optimal allocation of the power to permit and 

forbid wharfing out, surely that power would be lodged 

with the sovereign that stands most to gain from the 

benefits of a wharf, and most to lose from its environmental and other costs. Unquestionably, that is the sovereign with jurisdiction over the land from which the 

wharf is extended. Delaware and New Jersey doubtless

realized this when they agreed in 1905 that each of them

would have jurisdiction over riparian rights on its own 

side of the river. The genius of today’s decision is that it

creates irrationality where sweet reason once prevailed—

straining mightily, against all odds, to assure that the 

power to permit or forbid “heavy industry use” wharves in

New Jersey shall rest with Delaware, which has no interest whatever in facilitating the delivery of goods to New 

Jersey, which has relatively little to lose from the dangerous nature of those goods or the frequency and manner of

their delivery, and which may well have an interest in 

forcing the inefficient location of employment- and taxproducing wharves on its own shore. It makes no sense. 

Under its Decree, “[t]he Court retains jurisdiction to 

entertain such further proceedings, enter such orders, and

issue such writs as it may from time to time deem necessary or desirable to give proper force and effect to this

Decree or to effectuate the rights of the parties.” Ante, at 

25. This could mean, I suppose, that we can anticipate a

whole category of original actions in this Court that will 

clarify, wharf by wharf, what is a wharf of “extraordinary 

character.” (Who would have thought that such utterly

indefinable and unpredictable complexity lay hidden 

within the words of the Compact?) More likely, however, 
 

20 NEW JERSEY v. DELAWARE 

SCALIA, J., dissenting 

prospective builders of “heavy industry use” wharves from 

the New Jersey shore—of whatever size—will apply to

Delaware and simply go elsewhere if rejected. 

The wharf at issue in this litigation would have been 

viewed as an ordinary and usual riparian use at the time

the two States entered into the 1905 Compact. Delaware 

accordingly may not prohibit its construction. I respectfully dissent from the Court’s judgment to the contrary.