Syllabus | Opinion [ Rehnquist ] | Dissent [ Stevens ] | Dissent [ Kennedy ] |
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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.
VIRGINIA v. MARYLAND
ON EXCEPTIONS TO REPORT OF SPECIAL MASTER
Maryland and Virginia have long disputed control of the Potomac River (River). Of particular relevance here, Article Seventh of the 1785 Compact between those States provided: The citizens of each state shall have full 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. Because the 1785 Compact did not determine the boundary line between the two States, they submitted that question to an arbitration panel, which ultimately issued a binding award (hereinafter Black-Jenkins Award or Award) placing the boundary at the low-water mark on the Rivers Virginia shore. Although Maryland was thus granted ownership of the entire riverbed, Article Fourth of the Award further provided: Virginia is entitled not only to full dominion over the soil to [its shores] low-water mark , 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. Congress approved both the 1785 Compact and the Black-Jenkins Award pursuant to the Compact Clause of the Constitution. In 1933, Maryland established a permitting system for water withdrawal and waterway construction within her territory. For approximately 40 years, she issued, without objection, each of the numerous such permits requested by Virginia entities. The Maryland Department of the Environment (MDE) first denied such a permit when, in 1996, the Fairfax County, Va., Water Authority sought permission to construct a water intake structure, which would extend 725 feet from the Virginia shore above the Rivers tidal reach and was designed to improve water quality for county residents. Maryland officials opposed the project on the ground that it would harm Marylands interests by facilitating urban sprawl in Virginia, and the MDE held that Virginia had not demonstrated a sufficient need for the offshore intake. Virginia pursued MDE administrative appeals for more than two years, arguing unsuccessfully at each stage that she was entitled to build the water intake structure under the 1785 Compact and the Black-Jenkins Award. Finally, Virginia brought this original action seeking a declaratory judgment that Maryland may not require Virginia, her governmental subdivisions, or her citizens to obtain a permit in order to construct improvements appurtenant to her shore or to withdraw water from the River. The Court referred the action to a Special Master, who issued a Report that, inter alia, concluded that the 1785 Compact and the Black-Jenkins Award gave Virginia the right to use the River beyond the low-water mark as necessary to the full enjoyment of her riparian rights; found no support in either of those documents for Marylands claimed sovereign authority over Virginias exercise of her riparian rights; rejected Marylands argument that Virginia had lost her rights of waterway construction and water withdrawal by acquiescing in Marylands regulation of activities on the River; and recommended that the relief sought by Virginia be granted. Maryland filed exceptions to the Report.
Held:
1. The Black-Jenkins Award gives Virginia sovereign authority, free from regulation by Maryland, to build improvements appurtenant to her shore and to withdraw water from the River, subject to the constraints of federal common law and the Award. Article Fourth of the Award and Article Seventh of the 1785 Compact govern this controversy. The plain language of the latter grants the citizens of each state full property rights in the shores of Potowmack river and the privilege of building improvements from the shore. The notable absence of any grant or recognition of sovereign authority to regulate the exercise of this privilege of the citizens of each state contrasts with Article Sevenths second clause, which recognized a right held by the citizens of each State to fish in the River, and with Article Eighth, which subjects that right to mutually agreed-upon regulation by the States. These differing approaches to rights indicate that the 1785 Compacts drafters carefully delineated the instances in which the citizens of one State would be subjected to the regulatory authority of the other. Other portions of the 1785 Compact also reflect this design. If any inference is to be drawn from Article Sevenths silence on the subject of regulatory authority, it is that each State was left to regulate the activities of her own citizens. The Court rejects the historical premise underlying the argument that Article Sevenths regulatory silence must be read in Marylands favor because her sovereignty over the River was well-settled by the time the 1785 Compact was drafted. The Courts own cases recognize that the scope of Marylands sovereignty over the River was in dispute both before and after the 1785 Compact. See, e.g., Morris v. United States, 174 U.S. 196, 224. The mere existence of the 1785 Compact further belies Marylands argument in that the compact sought to regulate and settle the jurisdiction and navigation of the River, 17851786 Md. Laws ch. 1 (preamble), an endeavor that would hardly have been required if, as Maryland claims, her well-settled sovereignty gave her exclusive authority to regulate all activity on the River. Accordingly, the Court reads Article Seventh simply to guarantee that each States citizens would retain the right to build wharves and improvements regardless of which State ultimately was determined to be sovereign over the River. That would not be decided until the 1877 Black-Jenkins Award gave such sovereignty to Maryland. Unlike the 1785 Compacts Article Seventh, which concerned the rights of citizens, the plain language of the Awards Article Fourth gives Virginia, as a sovereign State, the right to use the River beyond the low-water mark. Nothing in Article Fourth suggests that Virginias rights are subject to Marylands regulation. Indeed, that Article limits Virginias riparian rights only by Marylands right of proper use and the proviso that Virginia not imped[e] navigation, limitations that hardly would have been necessary if Maryland retained the authority to regulate Virginias actions. Marylands argument to the contrary is rejected, since the States would hardly have submitted to binding arbitration for the purpose of ascertaining and fixing the boundary between them if that boundary was already well settled. Act of Mar. 3, 1879, ch. 196, 20 Stat. 481 (preamble). Indeed, the Black-Jenkins arbitrators opinion dispels any doubt that sovereignty was in dispute, see, e.g., App. to Report, p. D2, and confirms that Virginias Article Fourth rights are sovereign rights not subject to Marylands regulation, see id., at D18 to D19. Marylands necessary concession that Virginia owns the soil to the low-water mark must also doom her claim that Virginia does not possess riparian rights to construct improvements beyond that mark and otherwise make use of the Rivers water. The Court rejects Marylands remaining arguments that the Award merely confirmed the private property rights enjoyed by Virginia citizens under the 1785 Compacts Article Seventh and the common law, which rights are in turn subject to Marylands regulation as sovereign over the River; that the Award could not have elevated the 1785 Compacts private property rights to sovereign rights; and that the requirement under the Awards Article Fourth that Virginia exercise her riparian rights on the River without impeding the navigation or otherwise interfering with the proper use of it by Maryland (emphasis added) indicates Marylands continuing regulatory authority over Virginias exercise of her riparian rights. Also rejected is Justice Kennedys conclusion that, because the Black-Jenkins Opinion rested Virginias prescriptive riparian rights solely on Marylands assent to the riparian rights granted private citizens in the 1785 Compact, Maryland may regulate Virginias right to use the River, so long as Virginia is not excluded from the River altogether. Pp. 718.
2. Virginia did not lose her sovereign riparian rights by acquiescing in Marylands regulation of her water withdrawal and waterway construction activities. To succeed in her acquiescence defense, Maryland must show that Virginia failed to protest her assertion of sovereign authority over waterway construction and water withdrawal. New Jersey v. New York, 523 U.S. 767, 807. Maryland has not carried her burden. As the Special Master found, Virginia vigorously protested Marylands asserted authority during the negotiations that led to the passage of §181 of the Water Resources Development Act of 1976, which required those States to enter into an agreement with the Secretary of the Army apportioning the Rivers waters during low-flow periods. Section 181 and the ensuing Low Flow Allocation Agreement are conclusive evidence that, far from acquiescing in Marylands regulation, Virginia explicitly asserted her sovereign riparian rights. Pp. 1821.
Marylands exceptions overruled; relief sought by Virginia granted; and Special Masters proposed decree entered.
Rehnquist, C. J., delivered the opinion of the Court, in which OConnor, Scalia, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined. Kennedy, J., filed a dissenting opinion, in which Stevens, J., joined.