Interstate Disputes: The Supreme Court's Original Jurisdiction

Photograph by Photographer, Collection of the Supreme Court of the United States

interstate

DISPUTES The Supreme Court’s Original Jurisdiction

JOSEPH F. ZIMMERMAN

Interstate Disputes

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Interstate Disputes The Supreme Court’s Original Jurisdiction

Joseph F. Zimmerman

State University of New York Press

Published by State University of New York Press, Albany © 2006 State University of New York All rights reserved Printed in the United States of America No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher. For information, address State University of New York Press, 194 Washington Avenue, Suite 305, Albany, NY 12210-2384 Production by Michael Haggett Marketing by Anne M. Valentine Library of Congress Cataloging-in-Publication Data Zimmerman, Joseph Francis, 1928– Interstate disputes : the Supreme Court’s original jurisdiction / Joseph F. Zimmerman. p. cm. Includes bibliographical references and index. ISBN 0-7914-6833-X (hardcover : alk. paper) 1. Interstate controversies—United States. 2. United States. Supreme Court. 3. Jurisdiction—United States. I. Title. KF4615.Z56 2006 342.73'0413—dc22 2005024129 ISBN-13: 978-0-7914-6833-3 10 9 8 7 6 5 4 3 2 1

For Peggy In Appreication of Her Continuing Support

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Contents

Preface

ix

Acknowledgments

xi

1

The United States Supreme Court

1

2

Discretionary Original Jurisdiction

25

3

The Special Master

43

4

The Court’s Boundary Decisions

61

5

Escheats and Taxation Controversies

85

6

Interstate Water Controversies

109

7

Miscellaneous Court Decisions

143

8

Alternative Resolution of Interstate Controversies

155

Notes

175

Bibliography

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Index

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Preface

My long-standing interest in the United States federal system and interstate relations in particular led me to conduct research on the original jurisdiction of the United States Supreme Court over interstate disputes. The research led to an important question: Do effective alternatives to the Supreme Court’s adjudication of such controversies exist? My research reveals the answer is “yes” for many types of controversies. Interstate competition, conflict, and cooperation are products of a confederate or a federal system of governance as semiautonomous states may employ their constitutional powers to promote their respective self-interests at the expense of sister states. In consequence, framers of a federal constitution incorporate provisions designed to encourage cooperative and harmonious interstate relations by requiring each state to grant full faith and credit to the statutes, records, and final judgments of sister state courts, extend privileges and immunities to sojourners, require a state to return a fugitive from justice to the requesting state, and authorize two or more states to enter into interstate compacts with the consent of Congress. These provisions are based upon the theory of cooperative relations between states. The framers of the U.S. Constitution were keenly aware of interstate disputes, generally over boundary lines, under the Articles of Confederation and Perpetual Union and recognized fully the need for a judicial panel to settle contentious disputes when the new federal system is instituted. In consequence, they incorporated section 1 of Article III in the U.S. Constitution vesting “(t)he judicial power of the United States in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Section 2 of Article III defines the judicial power of the United States and specifically stipulates the Supreme Court has original jurisdiction over “all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party” and “controversies between two or more states.” The grant is not an exclusive one and Congress in the Judiciary Act of 1789 (1 Stat. 73) made exclusive the jurisdiction of the court over interstate controversies. ix

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The court over the decades attracted the research attention of many political scientists and public law scholars who produced numerous books and multitudinous articles relating to the court. Most surprisingly, no book and relatively few articles have been published on the subject of the court’s original jurisdiction. The lack of interest in the court’s nonexclusive original jurisdiction relative to cases affecting ambassadors, other public ministers, and consuls is easily explainable. Such original jurisdiction seldom is invoked; occasionally cases involving these officers for decades reached the court on an appellate basis. The general lack of interest in the court’s jurisdiction over interstate controversies is difficult to explain in view of the fact many controversies have been of great importance to the federal union. This book focuses exclusively upon U.S. Supreme court decisions settling interstate disputes, and stresses the importance of special masters who, as adjuncts to the court, facilitate negotiated settlements of controversies or provide the factual information needed by the court to render sound decisions. The court’s exceptionally heavy and critically important appellate workload necessitates an analysis of alternatives to interstate disputes adjudication by the court. Chapter 8 examines four alternatives—grant of concurrent original jurisdiction to the U.S. District Court, increase the number of Supreme Court justices, congressional preemption of states’ regulatory authority in fields where interstate controversies have occurred, and congressional actions to encourage state legislatures to enact interstate compacts and federal-state compacts creating commissions with regulatory authority superseding member state regulations.

Acknowledgments

Collecting information on a subject as important as the original jurisdiction of the U.S. Supreme Court for a book is never the work of a single individual. I have been most fortunate to have two outstanding research associates— Winston R. Brownlow and Sesan Bedejo—who located requested information in the most complete and expeditious manner, thereby facilitating the timely completion of the book manuscript. I also am pleased to acknowledge the insightful critical comments of my colleague, Stephen L. Wasby, on a draft of chapter 3. In addition, I am pleased to express a major debt of gratitude to Addie Napolitano for excellence in preparing the manuscript. Naturally, any errors of fact or misinterpretations are my sole responsibility.

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1

The United States Supreme Court

A constitution, establishing a federal system with states possessing broad powers is dependent for its success, in part, upon harmonious interstate relations. Competition, cooperation, and conflict between sister states are inherent in such a system and the constitution must contain provisions promoting cooperation and providing for peaceful resolution of disputes.1 The U. S. Constitution established the first federal system and it generally is viewed as one of the most successful. Nevertheless, disputes have arisen between states since independence was declared in 1776, and the seriousness of certain disputes is illustrated by New York’s 1799 boundary suit against Connecticut, in which the New York Attorney General stated the bill of complaint he filed “is emphatically a bill of peace; since, considering the character of the parties to the principal controversy, without this remedy, the consequences upon the public tranquility can hard be conjectured.”2 A state boundary controversy, as recently as 1964, produced a New York Times page one headline entitled “Iowa is Called Aggressor State: Nebraska Fears Shooting War.”3 The dispute, peaceably resolved by the U.S. Supreme Court in 1972, involved the Missouri River, which periodically shifts its course and serves as the boundary line between the two states.4 Boundary disputes continue to this day and the 2003 New Hampshire General Court (state legislature) established a commission to study the boundary line between New Hampshire and Maine as a preliminary move to a possible attempt to reopen a boundary dispute in the U.S. Supreme Court.5 Unfortunately, academic interest in interstate relations in recent years has been minimal in spite of their great economic, political, and social importance. Three symposium issues of the Annals of the American Academic of Political and

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Interstate Disputes

Social Science have been devoted to intergovernmental relations and federalism in the United States. Six articles on interstate relations were included in the 1940 issue, two articles in the 1974 issue, and none in the 1990 issue. Only three books on interstate relations have been published since 1982 and no comprehensive book was published on the subject until 1996.6 Interstate suits and their resolution have attracted even less academic interest. Articles on the subject of the original jurisdiction of the U.S. Supreme Court seldom appear in law reviews and have not been published in political science journals.7 To date, no theory of interstate relations has been developed. The two prominent theories—dual and cooperative—of United States federalism focus exclusively upon national-state relations. The theory of dual federalism is inapplicable to interstate relations. The theory of cooperative federalism, however, explains, in part, relations between states as the U.S. Constitution specifically authorizes them to enter into compacts with each other with congressional consent. Compacts have resolved several interstate controversies and possess the potential for settling many other controversies, thereby avoiding the necessity for the U.S. Supreme Court to invoke its original jurisdiction. The many other types of interstate cooperation, particularly written and verbal administrative agreements, comport with a broad theory of cooperative federalism. Congress has resolved several types of interstate disputes and reduced the number of other types of disputes by enacting preemption statutes removing regulatory powers partially or completely from states. Nevertheless, one can develop a theory, which might be labeled congressional avoidance of interstate disputes, because the political branch has found it more convenient to defer to the settlement judgments of the Supreme Court. The purposes of this book are to trace the history of, and analyze, interstate disputes and their resolution by judicial and nonjudicial means, and to encourage academics to conduct research on relations between sister states. The U.S. Supreme Court is constitutionally charged with serving as a last resort forum for the settlement of intractable interstate disputes.8 Hampton L. Carson, in 1892, concluded that establishment of the court “was the crowning marvel of the wonders wrought by the statesmanship of America.”9 An understanding of the court’s constitutional role is facilitated by a brief historical review of interstate disputes prior to the effective date of the U.S. Constitution.

PRE-CONSTITUTIONAL DISPUTES RESOLUTION The outbreak of the Revolutionary War led to disputes between the newly independent states over prize ships captured by privateers operating under letters of marque and reprisal issued by the second Continental Congress and various state legislatures. Appeals were made to General George Washington

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to settle the controversies and he urged Congress to establish a court of admiralty to handle disputes relating to captures at sea.10 Congress responded by enacting a resolution recommending that each state legislature should create a court of justice to handle cases of prize captures by conducting trials by jury with the right of appeal to Congress. On August 5, 1776, Congress considered the first appeal and subsequently referred appeals to ad hoc committees. To achieve uniformity in appeal decisions, in 1777, Congress established a five-member standing committee to hear and determine appeals from state courts of admiralty. Carson viewed the resolution as “the first step towards the establishment of a national judiciary” although the resolution did not create a court and procedures, or provide for original jurisdiction.11 In 1780, Congress created a court to hear appeals from admiralty courts. Carson reported special committees, the standing committee, and the court of appeals decided one hundred-ten prize cases and reversed the decisions of state admiralty courts in forty-five cases, affirmed the decisions of state courts in thirty-nine cases, dismissed twelve cases for failure of the parties to appear, and declined jurisdiction in two cases.12 Four appeals were settled by the concerned states “while the final action in eight is not known, as the decrees are missing; one was stricken off because the appeal came too late, and in one the action is doubtful.”13

Articles of Confederation The States devoted most of their energies to the Revolutionary War immediately subsequent to the issuance of the Declaration of Independence in 1776. The wartime efforts of the thirteen newly independent nations was coordinated by the second Continental Congress, composed of delegates from each state who recognized the need for a national governance system. A unitary system was rejected because the states had revolted against such a centralized government possessing coercive powers.14 The only other system of geographically distributing powers at the time was the confederate system such as the ones in the United Netherlands and Switzerland. In 1777, Congress drafted and submitted to each state proposed Articles of Confederation and Perpetual Union for their respective consideration and possible ratification. In 1778, eight states ratified the articles, which were described as providing for a league of amity, and in 1779, four states ratified the articles. Only Maryland failed to ratify the document. The delay in ratification is attributable to disputes over ownership of western lands. Connecticut asserted title to Illinois, Indiana, and northern Ohio; Massachusetts laid claim to western New York and the lower half of Michigan and Wisconsin; and Virginia claimed the bulk of present-day Illinois, Indiana, and Ohio, as well as smaller

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Interstate Disputes

areas of northern Michigan, Minnesota, and Wisconsin. The second Continental Congress (1780), in order to resolve the disputes, recommended that titles to the disputed areas be transferred to the Congress (proposed to be created by the Articles of Confederation and Perpetual Union) to be “disposed of for the common benefit of the United States and formed into distinct states which shall become members of this Federal Union, . . .” The effective ending of the war, in 1781, confirmed by the 1783 Treaty of Paris, led to New York and Virginia ceding the lands they claimed; their lead was followed by other states, and Maryland ratified the articles. Article II stipulated: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the united States in Congress assembled.” (Note the use of a lower case “u” in united designed to make clear a government was not being created.) Article III established “a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.” A unicameral Congress was the governing body of the confederation and was composed of two to seven delegates from each state, recallable by their respective state legislatures, who served a term not exceeding three years in a six-year period. Each state had one vote in Congress regardless of the number of delegates. Congress was authorized to appoint a presiding officer, termed the President, for a maximum term of one year during any three-year period, and a committee of the states composed of one delegate from each state to meet during congressional recesses and to exercise various powers: borrowing money, building a navy, raising an army, coining money, declaring war, negotiating treaties, establishing a postal system, determining the standards of weights and measures, and regulating relations with the Indian tribes. In addition, the committee could exercise additional powers, if authorized by six states. The articles did not establish an executive branch or a judicial branch. Article IX, however, authorized Congress to exercise limited judicial powers to settle interstate boundary disputes and controversies involving private land disputes flowing from grants of two or more states. Specifically, Congress was empowered to act as “the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more states concerning boundary, jurisdiction, or any other causes whatever” subject to a prescribed procedure. A dispute, between Connecticut and Pennsylvania over the “Wyoming territory” near the Susquehanna River, led to a battle in 1775, the second Continental Congress appointing a committee to examine the dispute, and its report urging the ending of hostilities.15 With the ratification of the articles,

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Pennsylvania petitioned for the holding of a hearing by Congress and it directed the two states jointly to appoint judges to resolve the dispute. The ad hoc court, on December 30, 1782, ruled “Connecticut has no right to the lands in controversy.”16 This dispute was the only interstate one settled by a court authorized by the second Continental Congress to settle such disputes. Other interstate boundary disputes were settled by negotiations during the confederacy, but the problem of interstate boundary disputes persists to this day.

Defects of the Articles Experience quickly revealed that the articles suffered from five major defects, resulting in Congress serving primarily as a body offering advice to the states. The first was the failure of the articles to authorize Congress to levy taxes. As a consequence, it was dependent on donations from the states, including eleven which often did not send their respective quota. In consequence, Congress was unable to pay interest on loans made by France and Holland or the back pay owed to officers and soldiers of the Continental Army. Congress printed paper notes, termed “continentals,” which soon lost their imprinted value. Furthermore, Congress could not borrow funds from European banks because of the exorbitant rate of interest the loans would carry as a result of Congress’ poor credit rating. The second defect was Congress’ lack of authority to enforce its laws and foreign treaties. In consequence, the delegation of enumerated powers to Congress proved to be of no value, and the result was divergent state laws on a wide variety of topics. James Madison highlighted the potential problems flowing from Congress’ lack of authority to require each state to honor treaties entered into with France, Great Britain, and Holland, and noted “as yet foreign powers have not been rigorous in animadverting on us.”17 The lack of congressional authority to regulate interstate commerce was viewed as the third and most serious defect of the articles. Mercantilism motivated states to erect trade barriers against products from sister states and to impose fees upon vessels entering their harbors from other states. Virginia allowed foreign vessels to enter only specified ports. In consequence, interstate commerce came to a near standstill. The fourth defect was the articles’ failure to authorize Congress to acquire money by taxation to raise and support an army and a navy. This defect was serious, in view of the fact that the friendly French monarchy was in danger of collapsing, the British controlled Canada, and Spain occupied territory in the Southwest and Florida. The consequences of this defect were highlighted by the 1786–87 rebellion by farmers in western Massachusetts led by Captain Daniel Shays, a former officer in the Continental Army. The

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Interstate Disputes

farmers protested mortgage foreclosures caused by currency deflation, the postwar depression, and what were perceived to be oppressive taxes. Shays controlled western Massachusetts for approximately five months and Congress was powerless to suppress the rebellion, which was terminated when wealthy Boston citizens recruited an army, under the leadership of General Benjamin Lincoln, to restore the control of the commonwealth government. Not surprisingly, the rebellion reinforced, in the minds of property owners, the importance of a strong national government capable of assisting states in suppressing rebellions. The final major defect was the possibility the confederation would be dissolved. In 1787, Madison noted “a breach of any of the Articles of Confederation by any of the parties to it absolves the other parties from their respective obligations, and gives them a right, if they choose to exert it, of dissolving the Union altogether.”18 In March of 1785, Maryland and Virginia representatives negotiated an interstate compact on navigation and trade on the Potomac River and Chesapeake Bay, the first such compact is still in force today, albeit in a modified form.19 The Maryland General Assembly ratified the compact and recommended that Delaware and Pennsylvania should be included in the deliberations leading to the development of future regulations involving commerce. The Virginia General Assembly also ratified the compact and invited all the states to attend a conference in Annapolis in 1786, to examine establishment of a uniform system of commerce. Commissioners were appointed by nine states to attend the Annapolis convention, but only five states sent a total of twelve delegates. The host state, Maryland, boycotted the convention out of fear it might decide to replace the Articles of Confederation and Perpetual Union. Alexander Hamilton of New York drafted a resolution, approved by the delegates, urging Congress to call a convention to meet in Philadelphia, in May 1787, to revise the articles. With reluctance, Congress issued the call without specifying how delegates were to be selected. State legislatures either appointed delegates, or governors did so with legislative authorization. Delegates from certain states were directed to review only the articles and not to vote for the initiation of any other action.

THE CONSTITUTIONAL CONVENTION The State of Rhode Island and Providence Plantations was the only state to fail to send delegates to the convention held between May 25 and September 17, 1787. Rhode Island maintained the governance system could be changed only in accordance with the stipulation, in Article XIII, the assent of all states is necessary for an amendment to become effective.

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Although seventy-four delegates were selected by the participating states, nineteen either refused to accept their appointments or did not attend the convention, whose delegates elected George Washington as president. Fourteen participating delegates left Philadelphia prior to the completion of the convention’s deliberations. Of particular importance was the fact twenty-eight delegates had served either in the second Continental Congress or the Congress created by the articles. Other delegates had experience in drafting their respective state constitutions. Philosophical and sectional differences among the delegates soon became apparent. A group of delegates questioned whether a national government with significant powers would be a threat to the liberties of citizens. The nature of the states’ economies ensured there would be differences between delegates from the various states. Governor Edmund Randolph of Virginia, on May 19, 1787, introduced fifteen resolutions designed to serve as the basis for a national government “in which the idea of States should be nearly annihilated.”20 By design, approval of the resolution would have established a national government similar to the British government. It is possible the Articles of Confederation and Perpetual Union would have been amended, and not replaced, had they provided for amendments by a two-thirds or three-quarters vote of the states in place of the required unanimous approval. Five days of deliberations and negotiations led to a six-to-one vote to replace the articles with a new constitution. Absent at the time were delegates from five states. A proposal was made to authorize the proposed national legislature to veto statutes enacted by state legislatures if they intruded upon its powers generated major debates. Madison spoke in favor of the proposal: The necessity of a general government proceeds from the propensity of the States to pursue their particular interests in opposition to the general interest. This propensity will continue to disturb the system, unless effectually controuled. Noting short of a negative on their laws will controul it. They can pass laws which will accomplish their injurious objects before they can be repealed by the General Legislature or be set aside by the national tribunals. . . . Its utility is sufficiently displayed in the British system. Nothing could maintain the harmony and subordination of the various parts of the empire, but the prerogative by which the Crown stifles in the birth every act of every part tending to discord or encroachment.21 Convention delegates rejected the proposal because it held the potential to reduce state legislatures to relative impotence and congressional review of state statutes would delay implementation of approved statutes by a year or two.

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Another major dispute erupted between states with large populations and states with small populations. The latter favored the provision in the articles for equal representation of each state in Congress, whereas the large states insisted representation should be based upon population. The famous Connecticut Compromise, providing for a bicameral Congress, was a pragmatic solution allowing the two types of states to have the system of representation each favored. A third major dispute revolved around the question of whether or not Congress should be delegated authority to levy import and export duties. Pragmatism prevailed again in the convention’s decision to authorize Congress to levy only import duties. A fourth major dispute involved whether or not the proposed national government should possess the authority to intervene in any state. Delegates approved a compromise (Art. IV, §4) under which the national government would guarantee a republican form of government in each state and protection against foreign invasions and domestic violence “on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.” The subject of the fifth major dispute was slavery, with Northern delegates generally opposed to the institution. The agreed upon compromise provided slaves could be imported for an additional twenty years and Congress could impose a tax of ten dollars on each imported slave. Whether a national judicial system should be established was the sixth divisive issue. Max Farrand, compiler of the records of the Constitutional Convention, reported in 1913, “there is surprisingly little on the subject [judiciary] to be found in the records of the convention.22 There was a widespread belief state courts could handle federal as well as state cases, and hence, there was no need for a national judiciary. The agreed upon compromise was the constitutional establishment of the U.S. Supreme Court to serve as the court of the new union of states and delegation of authority to Congress to create inferior courts as needed.23 Delegates to the convention were divided with respect to whether or not the proposed Congress should appoint judges. Madison opposed such appointments and explained: “The legislative talents, which were very different from those of a judge, commonly recommended men to the favor of legislative assemblies. It was known, too, that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment.”24 On June 13, 1787, the Convention’s committee of the whole reported and recommended the President should appoint the judges of the national judiciary, and the recommendation was subsequently approved by the Convention.25

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The Ratification Campaign The Constitutional Convention decided the people, and not the states, should be the source of the proposed fundamental law by inclusion of a preamble stipulating: “We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” The convention recognized that ratification by all states would not occur, and decided the constitution would go into effect upon ratification by nine states, which was the required number of states, under the Articles of Confederation and Perpetual Union, for the initiation of any action by the Committee of the States during the recess of Congress.26 The framers purposely provided each state legislature should arrange for the election of delegates to a convention devoted to determining whether the proposed constitution should be ratified. Supporters of the confederation emphasized the convention was not authorized to draft a new constitution, was limited to revising the articles, and highlighted Article XIII, which stipulated the articles could be altered only by Congress and “afterwards confirmed by the legislatures of every state.” Not surprisingly, opponents of the proposed fundamental law were divided, with some contending the proposed Congress would be too strong and others holding the Congress would be too weak to cope with current and future problems. The lack of a bill of rights was the most major criticism of the proposed constitution. Colonial charters permitted arrest and punishment only upon the filing of a specific charge and guarantees of due process of law, trial by a jury of peers in the vicinity of where the accused resided, right to petition for a redress of grievances, and levying of taxes only by elected representatives. Fear was expressed that the proposed government might enslave citizens and states would be powerless to protect their citizens. Convention supporters of the proposed constitution argued there was no need for a bill of rights in view of the fact that Congress would be allowed only to exercise enumerated powers and these powers do not include authority to abridge the liberties of citizens. Although the proposed constitution did not contain a full bill of rights, the fundamental law did contain civil liberty provisions (Art. I, §9) prohibiting congressional enactment of a bill of attainder and a ex post facto law, and not allowing suspension of the writ of habeas corpus unless “in cases of rebellion or invasion the public safety may require it.” In particular, George Mason of Virginia highlighted the complaint of a lack of a bill of rights by claiming the supremacy of the laws clause in Article VI overrode “the declaration of rights in the separate States,” adding: “Nor are the people secured even in

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employment of the benefits of the common law; (which stands here upon no other foundation than its having been adopted by respective acts forming the constitution of the several States).”27 Citizens in the various states redebated issues debated at the convention and raised other objections including the lack of a reference to God and a requirement federal officers must be Christians. Fear also was expressed that a new Cromwell might be created by the provision the president would be the commander-in-chief of the army and navy. Others were opposed to the prohibition of state coinage of money. Within a short period of time, popular conventions in Delaware, New Jersey, and Pennsylvania ratified the proposed constitution and were followed by convention approvals in Connecticut and Georgia. Very strong opposition existed in Massachusetts, New York, and Virginia and threatened approval of the proposed document.

The Federalist Papers and Ratification Alexander Hamilton and John Jay of New York joined with James Madison of Virginia to write eighty-five letters to the editors of New York City newspapers during the winter and spring of 1787–88, promoting ratification of the proposed constitution by explaining its provisions. Each letter was signed by “Publius.” The first thirty-six letters were published as a book in March 1787, and the remaining letters were published in May in a second volume. Collectively known as The Federalist Papers, they describe the defects of the Articles of Confederation and Perpetual Union and explain, in varying detail, how each provision of the proposed constitution will cure the defects of the articles. It is important to note, in reading the papers, that the terms “confederation” and “federation” were often used interchangeably. Madison, for example, wrote in The Federalist Number 39 the proposed fundamental law would establish a system of governance “neither wholly national nor wholly federal” [confederate].28 To counter the strong criticisms advanced by Anti-Federalists who maintained the proposed national government would be a threat to civil liberties, Madison emphasized it would possess “few and well defined” powers in contrast to the “numerous and indefinite” powers reserved to the states.29 Would the supremacy of the laws clause empower Congress to convert the governance system in time into a unitary one? Hamilton’s answer was “no” and he added: If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies and the individuals of whom they are composed. It would oth-

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erwise be a mere treaty, dependent on the good faith of the parties and not a government, which is only another word for political power and supremacy.30 In The Federalist Number 80, Hamilton justified the need for the proposed U.S. Supreme Court, by explaining the scope of the judicial power, including cases involving ambassadors, other public ministers, and consuls, and cases involving interstate controversies. Relative to the later, he wrote: The power of determining causes between two States, between one State and the citizens of another, and between citizens of different States, is perhaps not less essential to the peace of the Union than that which has just been examined. History gives us a horrid picture of desolated Germany prior to the institution of the Imperial Chamber by Maximilian towards the close of the fifteenth century, and informs us, at the same time, of the vast influence of that institution in appeasing the disorders and establishing the tranquility of the empire. This was a court invested with authority to decide finally all differences among members of the Germanic body.31 Hamilton continued by referring to boundary disputes between states and added: “Whatever practices may have a tendency to disturb the harmony between the states are proper objects of federal superintendence and control.”32 However, he made no reference to the power of Congress to determine the precise original jurisdiction of the United States Supreme Court. Opponents of the proposed constitution wrote sixteen letters, signed “Brutus,” to the editor of the New York Journal, between October 1787 and April 1788, warning readers of the dangers inherent in a unitary governance system including the grant of the power of taxation to Congress, and creation of a national judiciary, which would undermine the powers of the states.33 Available evidence suggests Robert Yates of New York, a delegate to the constitutional convention, wrote the letters. Brutus warned: “The powers of the general legislature extend to every case that is of the least importance—there is nothing valuable to human nature, nothing dear to free men, but what is within its power. It has authority to make laws which will affect the lives, the liberty, and property of every man in the United States; nor can the constitution or laws of any State, in any way prevent or impede the full and complete execution of power given.”34 Reacting to the charge that the proposed fundamental law would not protect the civil rights of citizens, federalists promised the first action of Congress would be the proposal of a bill of rights in the form of constitutional amendments. The constitution’s drafters were convinced ratification by nine

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states would induce the remaining states to ratify. New Hampshire, in the summer of 1788, became the ninth state to ratify. Subsequently, Virginia and New York ratified the document within a short period of time, but North Carolina and Rhode Island withheld their respective approval until the autumn of 1789 and the spring of 1790, respectively.

CONSTITUTIONAL ALLOCATION OF POWERS The unamended constitution delegated specific powers to Congress, prohibited the exercise of certain powers by the states and/or Congress, and by implication reserved all other powers to the states. Section 8 of Article I, delegated important powers to Congress including taxation; bankruptcy; borrowing funds; coinage; declaration of war; naturalization; raising an army and a navy; regulation of foreign, Indian, and interstate commerce; creation of courts inferior to the Supreme Court; and enactment of statutes “which shall be necessary and proper for carrying into execution the foregoing powers.” Several of these powers are exclusive congressional ones because states are forbidden to exercise them. It should be noted that Congress possesses a resultant power on the basis of two or more delegated powers as illustrated by enactment of statutes regulating immigration, a nondelegated power, based upon the powers to regulate foreign commerce and determine the system of naturalization. Furthermore, congressional powers have been expanded by statutory elaboration, generally broad judicial interpretation of delegated powers, and several constitutional amendments. Congress cannot be required to exercise any of its powers and did not enact a major statute regulating interstate commerce until 1887. The necessary and proper clause, also known as the elastic clause, has generated numerous controversies, including current ones, relative to the scope of the delegated powers with courts called upon to delimit the powers. The clause serves as the basis for the judicial doctrine of implied powers traceable to the U.S. Supreme Court’s decision in McCulloch v. Maryland, opining “(l)et the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate which are plainly adapted to the end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.”35 When a statute is challenged as ultra vires, courts have to determine whether the cited delegated power is sufficiently broad to validate the exercise of a power implied from the delegated power. States voluntarily surrendered part of their sovereignty by ratifying the constitution. The Tenth Amendment to the U.S. Constitution was designed to make clear that the delegation of enumerated powers would not lead to the conversion of the federal governance into a unity one: “The powers not dele-

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gated to the United States by the Constitution, nor prohibited by it to the State, are reserved to the States respectively, or to the people.” Each State possesses concurrent powers, such as taxation, and important and inherent residual powers including an exclusive one definable only in the most general terms. The police power is the exceptionally broad authority of states to regulate persons and property in order to promote and protect public convenience, health, morals, safety, and welfare. State legislatures have delegated this power to general-purpose local governments. Exercise of the power must be in conformance with the due process of law requirement of the Fourteenth Amendment to the U.S. Constitution. The police power and the power to tax have been the sources of numerous interstate disputes with some settled through negotiations, including entrance into interstate compacts, and others resolved by the U.S. Supreme Court.

INTERSTATE RELATIONS The drafters of the constitution responded to interstate boundary disputes and state erection of barriers to interstate commerce by including six most important provisions in the fundamental law to promote harmonious interstate relations. First, Congress was granted the power to regulate interstate commerce, apparently on the assumption Congress would utilize the power to invalidate state-erected trade barriers. The failure of Congress to exercise the power during the early decades of the federal system resulted in the U.S. Supreme Court developing its dormant commerce clause doctrine, holding a state statute may offend the unexercised interstate commerce power.36 Second, the framers of the constitution recognized the value of interstate cooperation and the danger to the federation if states were allowed, unilaterally, to enter into agreements with each other and/or with a foreign nation, and hence incorporated section 10 of Article I in the fundamental document, prohibiting such actions by states without the consent of Congress.37 Interstate compacts facilitate joint action to solve public problems and have been used on many occasions to settle disputes over state boundary lines as illustrated by the interstate boundary compact enacted by both the Georgia General Assembly and South Carolina General Assembly, which received the consent of Congress in 1999 (see chapter 6).38 Third, section 2 of Article III grants the U.S. Supreme Court original jurisdiction over interstate disputes and in 1789, Congress made the court’s jurisdiction exclusive.39 As explained in Chapter 2, the court exercises this jurisdiction on a discretionary basis. It is somewhat surprising that the records of the constitutional convention contain little information on the court’s original jurisdiction.40

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Fourth, section 1 of Article IV of the constitution stipulates each state must accord “full faith and credit . . . to the public acts, records, and judicial proceedings of every other State” and authorizes Congress to “prescribe the manner in which such acts, records, and proceedings shall be proved and the effect thereof.” The full faith and credit provision dates in origin to a 1777 resolution of the second Continental Congress and Article IV of the Articles of Confederation and Perpetual Union. The purpose of the requirement is to promote interstate commerce and national unity by the establishment of a national legal system. An individual state, however, does not always extend full faith and credit to its citizens, particularly ones who recently moved to the state.41 Fifth, section 2 of Article IV contains a clause providing “the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states.” The goal of the provision is the establishment of interstate citizenship. No definitions of privileges and immunities are contained in the constitution. Courts are called upon to determine the scope of the clause and the U.S. Supreme Court has opined specified beneficial services and political privileges do not fall within the guarantee of the clause.42 Sixth, section 2 of Article IV establishes the requirement, similar to the one contained in Article IV of the Articles of Confederation and Perpetual Union, that each state must return a fugitive from justice to the requesting state.43 The requirement is similar to one contained in an extradition treaty entered into by two nation states.

THE UNITED STATES SUPREME COURT Section 8 of Article I of the U.S. Constitution authorized Congress to create “tribunals inferior to the Supreme Court.” Article III is devoted to the judicial branch of government and section 1 vests “(t)he judicial power of the United States . . . in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.” The Constitution does not stipulate the number of Supreme Court justices and it has varied from six, authorized by the Judiciary Act of 1789, to five in 1801, seven in 1802, nine in 1837, ten in 1861, seven in 1866, and nine since 1869.44 Section 2 of Article II authorizes the president to appoint judges to the Supreme Court, and other judges with the consent of the Senate. Section 1 of the Article III stipulates all judges hold life tenure and receive a salary “which shall not be diminished during their continuance in office.” The scope of the judicial power is defined in section 2 of Article III as extending “to all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;—to all cases affecting ambassadors, other public ministers and

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consuls;—to all cases of admiralty and maritime jurisdictions;—to controversies to which the United States shall be a party;—between citizens of different states;—between citizens of the same state claiming lands under grants of different States.”45 Cases are to be distinguished from controversies. The former involve civil and criminal proceedings and the latter relate only to civil matters. Farrand reported “[t]hat the jurisdiction of the supreme court should be original in cases affecting foreign ministers and cases in which a state should be a party and appellate in all other cases, was accepted without question, except that the appellate jurisdiction was made to be ‘both as to law and fact.’”46 The Eleventh Amendment, ratified in 1795, removed from the judicial power of the United States two types of cases: “between a State and citizens of another State” and “between a State, or the citizens thereof, and foreign States, citizens, or subjects.” This section also grants original jurisdiction to the Supreme Court with respect to “all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party” without specifying the modus operandi. This grant can not be enlarged or restricted by Congress, which in the Judiciary Act of 1789 made the court’s jurisdiction over interstate disputes exclusive, but has not established procedures for the invocation of the court’s jurisdiction over such controversies.47 In consequence, the court established criteria for the invocation of its original jurisdiction (see chapter 2). The U.S. Code currently stipulates: a. The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States. b. The Supreme Court shall have original but not exclusive jurisdiction of: 1. All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties. 2. All controversies between the United States and a State. 3. All actions or proceedings by a State against the citizens of another State or against aliens.48 In 1941, Robert H. Jackson, who served as Solicitor General and Attorney General of the United States, wrote: As created, the Supreme Court seemed too anemic to endure a long contest for power. It has no function except to decide “cases” and “controversies,” and its very jurisdiction to do that was left largely to the control of Congress. It has no force to execute its own commands, its judgments being handed over to the Executive for enforcement. Its Justices derive their offices from the favor of the other two branches by appointment and confirmation, and hold

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them subject to an undefined, unlimited, and unreviewable Congressional power of impeachment. They depend annually for the payment of their irreducible salaries and the housing and staff of their Court upon appropriations by Congress. Certainly so dependent an institution would excite no fears.”49 In 1986, Supreme Court Justice William H. Rehnquist traced the development of the court from a part-time one to a full-time one by presenting statistics on the number of cases on the court’s docket during the first hundred years: Fewer than 50 cases during its first decade when each justice was riding a specific circuit to sit with a circuit judge to conduct trials: 92 cases in 1840; 253 cases in 1850; 310 cases in 1860; 636 cases in 1870; 1,200 cases in 1880; and 1,816 cases in 1890.50 The 1891 Congress responded to the court’s work load by creating Circuit Courts of Appeals and stipulating appeals from the judgments of trial courts in diversity of citizenship case as of right went to the Courts of Appeals with subsequent review by the Supreme Court determined on a discretionary basis.51 Appeals from trial court decisions involving questions of constitutional or statutory law bypassed the new appeals court and continued to be taken directly to the Supreme Court. The work load of the court was reduced further by the Judiciary Act of 1925, also known as the Certiorari Act, granting the court discretionary authority in most instances to decide whether to review the decisions of lower state and federal courts.52 We examine below, the grant of concurrent original jurisdiction to the U.S. Supreme Court over cases involving ambassadors, ministers, and consuls of foreign nations by examining briefly the rationale for the grant and court decisions relating to the immunity of such foreign officers. Chapter 2 is devoted to the constitutional grant of original jurisdiction to the court with respect to interstate disputes which the Judiciary Act of 1789 made exclusive.

AMBASSADORS, MINISTERS, AND CONSULS The drafters of the constitution apparently decided that cases involving ambassadors, ministers, and consuls of foreign nations should be heard only in the most prestigious national court because of the delicate nature and importance of United States intercourse with foreign governments. Hamilton, in The Federalist Number 80, justified the constitutional provision defining the judicial power of the United States relative to official diplomatic representatives of sister nations: . . . the peace of the whole [the nation] ought not to be left to the disposal of a part. The Union will undoubtedly be answerable to for-

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eign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it. As the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned.53 He conceded that a distinction could be made between cases relating to treaties and laws of foreign nation and cases “which may stand merely on the footing of the municipal law” and be subject to the jurisdiction of state courts.54 In The Federalist Number 81, Hamilton reemphasized it was essential to grant the U.S. Supreme Court original jurisdiction in such cases: “Public Ministers of every class are the immediate representatives of their sovereigns. All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation.”55 He explained the activities of consuls in a strict sense do not have diplomatic character, but they nevertheless represent their respective nations and merit inclusion in the original jurisdiction of the court. Congress implemented the constitutional provision by enactment of the Judiciary Act of 1789, containing section 13, defining original jurisdiction: The Supreme Court shall have original and exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party.56 The term “domestics,” at the time, included wives of diplomats. Congress enacted the Diplomatic Relations Act of 1978 to conform U.S. law with the Vienna Convention on Diplomatic Relations of April 18, 1961, by amending the grant of exclusive jurisdiction to the Supreme Court to

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encompass only interstate disputes and continuing its nonexclusive jurisdiction over foreign diplomats, controversies between the United States and a State, and proceedings by a State against citizens of a sister state and aliens.57 The act requires diplomatic personnel with immunity to have liability insurance, and stipulates a judicial action brought against immune personnel, by motion, may be dismissed. In addition, the president is authorized to grant more or less favorable diplomatic privileges and immunities than the ones contained in the convention. In 1981, the Maryland Court of Appeals ruled the Diplomatic Relations Act was not retroactive in a criminal case involving an employee of the French Embassy, who at the time he committed an act outside the scope of his employment, was immune from criminal prosecution under the sweeping grant of immunity of the repealed statute.58

U.S. SUPREME COURT DECISIONS The Supreme Court’s original jurisdiction over ambassadors, public ministers, and domestics is seldom invoked, but when invoked must be employed consistent with the law of nations.59 In 1793, the U.S. Circuit Court for the District of Pennsylvania was called upon to determine whether a Consul from Genoa, indicted for a misdemeanor for sending anonymous and threatening extortion letters to the British Minister and a citizen of Philadelphia, was entitled to diplomatic immunity and the quashing of the indictment.60 The defendant had sought to quash the indictment on the grounds of his official character and the exclusive jurisdiction of the U.S. Supreme Court over such cases. The majority opinion acknowledged the Constitution vests original jurisdiction in the Supreme Court over such cases, but opined the Constitution “does not preclude the Legislature from exercising the power of vesting a concurrent jurisdiction, in such inferior courts, as might by law be established.”61 Mr. Justice James Iredell dissented and wrote “it appears to me, that for obvious reasons of public policy, the Constitution intended to vest an exclusive jurisdiction in the Supreme Court, upon all questions relating to Public Agents of Foreign Nations. Beside, the content of the judiciary articles of the Constitution seems fairly to justify the interpretation, that the word original, means exclusive, jurisdiction.”62 In a trial before Chief Justice John Jay and Justice Peters, the Consul was found guilty by a jury in 1794, but was subsequently granted a presidential pardon on the condition he surrender his commission and exequatur. The U.S. Supreme Court, in 1798, addressed the question of whether a Consul General of the French Republic, as a drawer of several bills of exchange totaling $70,052.46, acted in his official capacity or had pledged his

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private credit. The court opined “the credit was given to it as an official engagement; and that, therefore, there was no cause of action against the present Defendant.”63 Juan Gualberto de Ortega was indicted, in the Circuit Court of the United States for the Eastern District of Pennsylvania, for assaulting Hilario de Rivas y Salmon, the charge d’affaires of His Catholic Majesty, the King of Spain, in the United States in contravention of the law of nations and a congressional statute. A jury found Ortega guilty and he appealed on the ground the Circuit Court lacked jurisdiction because the United States Supreme Court has jurisdiction over cases affecting and ambassador or other public minister. In 1826, the Supreme Court opined the case is not one “affecting a public minister, within the plain meaning of the constitution,” but rather is a case “of a public prosecution,” in which the minister, although injured, “has no concern, either in the event of prosecution, or in the costs attending it.”64 Are Indian tribes, which entered into treaties with the United States confirmed by the Senate, constitutionally entitled, as foreign nations, to invoke the original jurisdiction of the Supreme Court? The answer is “no.” The Cherokee Nation sought to invoke the court’s jurisdiction in an original action seeking to enjoin the Georgia General Assembly by arguing that treaties the Nation entered into with the United States (in 1785, 1791, 1792, 1794, 1805, 1806, 1807, 1816, and 1819) recognized the Cherokee Nation as a sovereign and independent state. In 1831, Chief Justice Marshall, writing for the Court, in Cherokee Nation v. Georgia, described the tribes as “denominated domestic dependent nations. . . . Their relation to the United States resembles that of a ward to his guardian.”65 Marshall added: “That part of the bill which respects the land occupied by the Indians . . . may be more doubtful. . . . The bill requires us to control the legislature of Georgia, and to restrain the execution of its physical force. The propriety of such an interposition may be well questioned. It savours too much of the exercise of political power to be within the proper province of the judicial department. But the opinion on the point respecting parties makes it unnecessary to decide this question.”66 Another case, involving the consul general of the King of Saxony, reached the high court in 1833. The consul general appealed an adverse decision of the New York Supreme Court, a general trial court, to the New York Court for the Correction of Errors, which confirmed the local court’s decision, and an appeal was made to the U.S. Supreme Court. After explaining it could examine only the record to determine what the trial court decided, the Supreme Court determined the fact that the plaintiff in error was a consul general was not denied and opined the immunity of a consul of a foreign nation to suit in a state court is a privilege of the foreign nation and is not a mere personal privilege, and noted the Judiciary Act of 1789 grants the U.S. District Court exclusive jurisdiction of all suits against consuls and vice-consuls.67

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In 1853, the New York Court of Appeals, the highest state court, ruled a consul of the Republic of Ecuador for the port of New York residing in the United States is not susceptible to suit in a state court, and an exemption can not be waved, as a personal privilege as the exemption is a privilege of the foreign government and not of the person.68 The court reinforced its opinion by noting the privileges of consuls are frequently governed by treaties, and the Judiciary Act of 1789 grants U.S. courts exclusive jurisdiction over all cases affecting a consul. In 1876, an action at law was brought by the receiver of the New Orleans National Banking Association against a vice-consul and subject of the Kingdom of Italy in Philadelphia. The case involved the former Bank of New Orleans, chartered by the State of Louisiana, which secured a national government charter under provisions of the National Bank Act of 1864 and chose the name the New Orleans National Banking Association.69 The bank failed in 1873 and sought the protection of a receiver and liquidation under the act. The defendant owned fifty shares of the capital stock of the association with a par value $30 per share, was held liable for $1,500 of the association’s debts, and refused to pay. The court opined the record established was ample proof to sustain the plaintiff ’s case against the vice-consul.70 Similarly, in 1884, an action was brought in the U.S. Circuit Court for the Southern District of New York, seeking to recover damages for the alleged unlawful conversion by the consul for the Kingdom of Norway and Sweden of merchandise for his personal use. The answer denied the allegations of the complainant and, by way of counterclaim, sought a judgment against the plaintiff for stated amounts. A replication was filed to the counterclaim and a jury trial resulted in a judgment for the plaintiff. The jurisdiction of the Circuit Court to hear and determine a suit against the consul was questioned in the assignments of error to the Supreme Court and made reference to the fact the defendant did not, in the court, plead exemption on the basis of his official character. The Supreme Court referred to its 1833 decision in Davis v. Packard et al., holding the exemption of a consul from suit is a privilege of the foreign government and not of the person. Furthermore, the court ruled the Circuit Court was without jurisdiction because the defendant was not an alien or a citizen of a sister state, but was a citizen of the same state as the plaintiff.71 The judgment was reversed and the case was remanded for further proceedings consistent with the court’s opinion. The high court, in 1890, addressed the question as to whether or not Consul General Jacob Baiz of the Republic of Guatemala was invested with and exercising the principal diplomatic functions of Guatemala. Baiz was sued for libel in the U.S. District Court for the Southern District of New York and petitioned the Supreme Court to forbid the District Court from exercising

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jurisdiction over an action against him on the ground he was a public minister. The court explained Baiz is a United States citizen, “it is a state maxim that one of its own subjects or citizens is not to be received as a foreign diplomatic agency,” and opined the District Court had jurisdiction over the case.”72 In 1925, the court opined, in a case brought by a U.S. citizen, it “is without original jurisdiction” to issue a writ of mandamus requiring the U.S. consul general in Montreal, Canada, to visa a passport or certificate of origin and identity issued by the Government of Russia to a relative of the applicant seeking leave to file a petition.73 The court specifically noted the clause granting the court original jurisdiction referred “to diplomatic and consular representatives accredited to the United States by foreign powers, and not to those representing this country.”74 More recently, the court summarily denied: 1. the 1971 motion for leave to file a bill of complaint, by the Founding Church of Scientology, against the British Ambassador, 2. the 1972 motion of a citizen of Ohio for leave to file a bill of complaint against the U.S. ambassador to the Paris Peace Talks, 3. the 1973 motion of Quimet J. Petersen for leave to file a bill of complaint against the Chancellor of the Consulate Royal of Greece at New Orleans, Louisiana, 4. the 1985 motion of a Bulgarian consular officer for leave to file a bill of complaint, and 5. the 1987 motion to file a writ of habeas corpus in the Matter of the Republic of Suriname, ex rel. Etienne Boerenveen.75 Generally, the lower U.S. courts have established principles with respect to diplomatic immunity and the scope of the Article III provision relating to “ambassadors, other public ministers, and consuls,” and accept the U.S. State Department’s determination of the status of these officials.76 For example, the U.S. District Court in 1949 accepted the determination of the State Department that defendant Valentine A. Gubitchev, charged with violation of espionage laws, was not an emissary of the Union of Soviet Socialist Republics entitled to diplomatic immunity while serving as an employee of the United Nations in New York City.77 Mr. Gubitchev, previously, was a third secretary of the Soviet Ministry of Foreign Affairs and arrived in the United States with a Soviet diplomatic passport bearing a United States diplomatic visa. The court concluded this fact raised a political question and a determination was sought from the State Department. Upon receiving the determination, the court ruled Mr. Gubitchev as a member of the Soviet Delegation to the United Nations “is not technically an emissary to a sovereign since the United Nations is not a sovereignty, having neither land, nor a people, nor a government controlling them.”78

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In 2003, the Supreme Court agreed to review lower court decisions involving what is popularly known as the Alien Tort Statute (ATS), a part of the Judiciary Act of 1789.79 The key question was whether or not the statute authorizes a suit in a federal court for damages resulting from violation of the “law of nations.” Recently, several plaintiffs have relied on the statute to sue United States corporations with investments in foreign nations. The two appeals involved the same individual. Dr. Humberto AvalrezMachain was kidnapped by a Mexican police officer in Guadalajara and transported to California, where he had been indicted by a federal grand jury for the torture and murder of a Drug Enforcement Administration (DEA) agent. He was tried, acquitted, and brought lawsuits in the U.S. District Court for the Southern District of California against the United States for false arrest and against Jose Francisco Sosa, who had kidnapped the doctor.80 The doctor won an award against Mr. Sosa, but the case against the United States, brought under the Federal Tort Claims Act, was dismissed.81 Appeals were launched in both cases. The U.S. Court of Appeals for the Ninth Circuit upheld the award and reinstated the case against the United States.82 In 1992, the Supreme Court reversed the Court of Appeals decision by opining the District Court possessed jurisdiction to try Dr. AlvarezMachain.83 The Court of Appeals, in 2003, held he lacked standing to bring a claim under the Alien Tort Claims Act, dismissed the claims under the Federal Tort Claims Act, opined federal common law applied to the determination of damages, and ruled DEA officers were liable for false arrest.84 The Supreme Court, in 2004, reversed the judgment of the Court of Appeals by opining the alleged liability of the United States for the alien’s arrest by Mexican citizens at the instigation of the U.S. Drug Enforcement Administration falls under the “foreign country” exception to the waiver of the United States Government’s immunity under the Federal Tort Claims Act.85 The Court admonished District Courts to exercise caution when deciding to hear claims under the Alien Tort Statute as “Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations. Uppermost in the legislative mind appears to have been offenses against ambassadors . . . and individual actions arising out of prize captures and piracy may well have also been contemplated.”86

AN OVERVIEW Chapter 2 examines the original jurisdiction of the U.S. Supreme Court over disputes between sister states covering a wide variety of issues. Particular attention is paid to the criteria developed by the court to determine whether

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its original jurisdiction should be invoked. The court in effect fashioned a common law of interstate relations reflecting in part principles of international law. The special master is the subject of chapter 3. The court, upon receiving a motion from a state to file a bill of complaint in equity against a sister state(s), appoints a special master to collect and analyze facts pertaining to the dispute and to develop recommendations for resolving the dispute. Relatively little is known about the role of special masters in the settlement of interstate disputes other than the fact their reports on a number of occasions have spurred the involved states to renew negotiations for an out-of-court settlement subject to court approval. Most interstate disputes involved boundary lines, financial matters, and water allocation, diversion, and pollution. Chapter 4 is devoted to an examination of boundary controversies with most involving disputes over rivers. Chapter 5 reviews suits involving the escheat by two or more states of unclaimed property and taxation disputes commonly concerned with state use of tax credits. Major water disputes—involving allocation, diversion, and pollution of lake and river waters—are the subjects of chapter 6. Chapter 7 is devoted to relatively unique decisions of U.S. Supreme Court decisions involving bonds of one state held by a second state, the preCivil War debt of Virginia, sale of convict made articles, quarantines, and the electoral college voting system. Chapter 8 describes and analyzes alternative mechanisms for resolving controversies between sister states: Interstate boundary compacts, interstate regulatory compacts, and the following congressional initiatives: Grant of original jurisdiction to the U.S. District Court to hear interstate disputes; create a court with original jurisdiction to hear interstate disputes; increase the number of U.S. Supreme Court justices; promote the formation of interstate compacts by granting consent-in-advance to specific types of compacts; enact federal-interstate compacts; employ preemption powers to remove state regulatory powers causing interstate controversies; enact interstate policy statutes such as river water allocation between states; and direct U.S. departments and agencies to work closely with states to devise solutions for major interstate problems such as water shortages.

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Discretionary Original Jurisdiction

The framers of the U.S. Constitution in section 1 of Article III vested “(t)he judicial power of the United States . . . in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish.” Section 2 stipulates: The judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;—to all cases affecting Ambassadors, other Public Ministers and Consuls;—to all cases of admiralty and maritime jurisdiction;—to controversies between two or more States, [between a State and citizens of another State;—] between citizens of different States;—between citizens of the same State claiming lands under grants of different States, [and between a State, or the citizens thereof, and foreign States, citizens or subjects.]1 Cases refer to civil and criminal matters whereas controversies refer only to civil matters. The reader also should note the word “all” precedes each class of cases, but was omitted prior to the three classes of controversies including “controversies between two or more States,” thereby establishing a two-tiered jurisdictional structure and specifically suggesting the judicial power may not extend to all interstate controversies. In other words, a distinction is made between cases involving specific subjects and controversies involving parties. The section does not establish procedures for invoking the Supreme Court’s original jurisdiction.

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Interstate Disputes

Interstate controversies subject to resolution by the Supreme Court (which may be described as a court of the states), involve admiralty, common law, equity, maritime, and international law. Political disputes between states, and suits alleging maladministration of state laws causing injury to citizens of sister states are not justiciable controversies.2 Congress, in the Judiciary Act of 1789, granted the Supreme Court exclusive jurisdiction over controversies between states, but has not enacted a law governing invocation of the court’s original jurisdiction or its procedures.3 May Congress enlarge the original jurisdiction of the Supreme Court? The answer is “no,” as Chief Justice John Marshall explained, in 1803, in Marbury v. Madison: If Congress remains at liberty to give this court appellate jurisdiction where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance.4 The court, in Cohens v. Virginia (1821), opined: It is most true that this court will not take jurisdiction if it should not, but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, and we must decide it, if it is brought before us. We have no more right to decline the exercise of the jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do, is to exercise our best judgment, and conscientiously to perform our duty.5 In 1851, Chief Justice Roger B. Taney opined, in a note attached to the court’s decision, “it has long been the established doctrine . . . that the original jurisdiction of this court is confined to the cases specified in the constitution, and that Congress cannot enlarge it.”6 Is the court’s original jurisdiction mandatory? The answer is “no,” as the court would be subjected to a heavy burden if such jurisdiction were mandatory. The court seeks to discourage states from filing such suits by noting its crowded calendar, opining its original jurisdiction will be invoked sparingly, and encouraging the disputing states to reach a negotiated settlement.7

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The court manages its work load by exercising its original jurisdiction over interstate disputes on a discretionary basis, and in 1905 opined such a dispute must be one “of serious magnitude, clearly and fully proved, and the principle to be applied should be one which the court is prepared deliberately to maintain against all considerations on the other side” before the court will exercise jurisdiction.8 A 1983 decision explained the court possesses “substantial discretion to make case-by-case judgments as to the practical necessity of an original forum in the court of particular disputes within constitutional jurisdictions,” and emphasized, in 1992, its judgments relative to its case-bycase jurisdiction rest upon “prudential and equitable limitations.”9 The court issued 172 original jurisdiction decisions, not including memorandum decisions, between its first term in 1789 and April 1, 1993.10 An additional seventeen such decisions were issued between April 1, 1993, and the end of 2004.

FILING PROCEDURE The Judiciary Act of 1789 authorized the U.S. Supreme Court to promulgate rules facilitating the orderly conduct of business in all U.S. courts.11 A state which has decided to sue a sister state(s), in contrast to the procedure for instituting an action in all other trial courts, must petition the Supreme Court for its express permission to file an original jurisdiction suit by filing a motion for leave to file a complaint against another state and a supporting brief. The rules promulgated by the Supreme Court, until 1954, established only a very general procedure pertaining to the invoking of its original jurisdiction. Former Rule 5 stipulated that a motion for leave to file a complaint against another state(s) may be supported by a brief; rules applicable to the appellate docket should govern to the extent pertinent; and further pleadings can be filed only at the court’s direction. In other words, the court redefined the procedure on a case-by-case basis other than the original pleading filing and motion for leave to file a complaint. Current Rule 17(2) stipulates the Federal Rules of Civil Procedure govern the form of pleadings and motions and serve as a guide in other respects. Rule 17 and the Federal Rules of Civil Procedure are similar and differ primarily in that each complaint filed under Rule 17 is examined to determine its legal sufficiency. The counsel filling a motion for leave to file a complaint may not attach a supporting brief if the complaint involves boundary lines or water rights because such complaints clearly fall within the court’s original jurisdiction. Rule 17(3) specifies a formal motion for leave to file a bill of complaint precedes the initial pleading and “may be accompanied by a brief in support of the motion.” Rule 17(4) provides for the case to be placed on the court’s docket when the motion and the initial pleading are filed with the clerk of the

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court. The granting of leave to file a bill is very brief, as illustrated by the following in Oklahoma v. Arkansas: “Motion for leave to file a bill of complaint granted and defendant allowed sixty days in which to respond.”12 Rule 17(5) specifies the adverse party may file with the clerk a brief in opposition to the complaint with the clerk within sixty days. The brief in opposition is in essence a motion to dismiss the complaint, and if timely filed, the clerk distributes filed documents to the justices within ten days. The complaining state may file a reply brief, “but consideration of the case will not be deferred pending its receipt.” Based upon the complaint and the brief in opposition, the court, by a majority vote of participating justices, may make a determination as to whether or not it should grant the motion in contrast to the four votes required to grant a petition for issuance of a writ of certiorari invoking the court’s appellate jurisdiction. Alternatively, the court may set the case for two hours of oral arguments on the motion if a point of law is involved as the court did in Virginia v. Maryland in 1957 and in California v. Washington in 1958 prior to deciding whether to exercise its original jurisdiction.13 Should the court decide to grant the motion, process will be served on the defendant state directing it to submit a reply brief typically within sixty days. These procedural requirements enable the court to dispose of the disputed matter(s) at a preliminary stage. Should the defendant state fail to appear in the court, permission is granted to the plaintiff state to proceed ex parte as illustrated by New York v. Connecticut in 1799 (see chapter 4). If leave to file a complaint is granted, the court sets a date for oral argument and may direct the filing of additional documents or require the conduct of other proceedings. The United States and other parties may be permitted by the court to intervene in an original jurisdiction dispute as amici curiae (friends of the court) with permission of the court which has stated: “An intervenor whose state is already a party should have the burden of showing some compelling interest in his own right, apart from his interest in a class with all other cities and creatures of the state, which interest is not properly represented by the state.”14 The court specifically denied the City of Philadelphia’s motion to intervene based in part on the ground New York City was a defendant party. The court explained “New York City was not admitted into the litigation as a matter of discretion at her request. She was forcibly joined as a defendant to the original action since she was the authorized agent for the execution of the sovereign policy which threatened injury to the citizens of New Jersey.”15 Should an interstate dispute involves a navigable river where the United States has acted to control the waters, a suit may not proceed in the court unless the United States intervenes. The court in Arizona v. California (1936) stressed: “The Colorado River is a navigable stream of the United States. The privilege of the states through which it flows and their inhabitants to appro-

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priate and use water is subject to the paramount power of the United States to control it for the purpose of improving navigation.”16 The court denied Arizona’s motion to file a proposed bill of complaint against Colorado. The justices explained the fact a court decision in the interstate controversy would not bind the United States “is not an inducement for this Court to decide the rights of states which are before it by a decree which, because of the absence of the United States, could have no finality.”17 Nonparty states may file a motion for leave to file a brief as amicus curiae.18 In addition, a state may be granted permission by the court to intervene in an interstate dispute. Florida was permitted by the court to intervene, upon the recommendation of the special master, in Texas v. New Jersey, a case involving an interstate dispute over the right to escheat specified intangible property held by the Sun Oil Company on the ground Florida “claimed the right to escheat the portion of Sun’s escheatable obligations owing to persons whose last known address was in Florida (see chapter 5).”19 The current court practice, if leave to file a bill of complaint is granted, is the appointment of a special master who is directed to gather and analyze evidence submitted by each party state if factual issues are involved, and to prepare recommendations as to facts in the controversy and law for the court. Subsequent to the introduction of evidence, the attorney general of each disputing state may present oral arguments before the master, file exceptions to the master’s findings and report, and present briefs in support of each exception to the court prior to its decision. The court does not always hear oral arguments when a party state files exceptions to a master’s report and recommendations. In effect, it is apparent the special master performs a role similar to the one performed by the U.S. District Court in other types of cases subsequently appealed to the Supreme Court (see chapter 3). The report of the special master often generates further negotiations by the disputing states and may lead to a resolution of their dispute. Should the report fail to lead to a negotiated settlement, the party states each submits briefs to the court and it hears oral arguments before making a decision whether or not to exercise its original jurisdiction. In reviewing the decision of a trial court, the Supreme Court defers to the facts determined by the lower court, but does not always defer to the facts reported by the special master (see chapter 3).20 If another law suit involves the same issue and party states, the court may continue the motion for leave to file a bill of complaint, pending the conclusion of the other litigation, as it may remove federal issues from the bill of complaint. In Kentucky v. Indiana (1930), the court wrote: “[it] might await such a decision, in order that it might have the advantage of the views of the state court, if sufficient grounds appeared for delaying final action.”21 The court rejected the requested delay because of the gravity of the injury

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Kentucky would suffer if Indiana did not comply with its agreements to build a bridge over the Ohio River. However, in Arkansas v. Texas (1953) the court decided to continue the motion to file a complaint until Texas courts resolved a suit brought by the Texas attorney general to enjoin the William Buchanan Foundation, a Texas corporation, from spending funds for a pediatric center at the University of Arkansas medical center on the ground the trust funds could be spent only for the benefit of Texas citizens.22 The court announced it would follow its practice in similar cases by continuing the motion until Texas courts settled the litigation, which might resolve “the whole controversy, leaving no federal question” and hence, there may be no need for further action by the court.23

DISCRETIONARY ORIGINAL JURISDICTION The court, in hearing interstate suits, in effect acts as an international tribunal and bases its decision to exercise its original jurisdiction on an examination of the party states to determine if the complainant state(s) is a genuine or a nominal party, the controversy is justiciable, and the case is appropriate for the court to adjudicate. In particular, a state seeking leave to file a motion of complaint against another state must demonstrate that injuries have been inflicted or are imminent rather than speculative. The court, in a 1921 case involving a 1834 compact between New Jersey and New York explained: Before this court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one state at the suit of another, the threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence.24 In 1934, the court issued a much stronger statement and indicated its original jurisdiction would not be exercised “in the absence of absolute necessity.”25

The Party States The court is well aware that one or more disputing states may not be a genuine party, and hence, investigates the character of each involved state. The U.S. Supreme Court in New Hampshire v. Louisiana (1883) first examined the status of a state as parens patriae (father of its people) seeking to sue another state.26 The 1879 New Hampshire General Court (state legislature) enacted “An act to protect the rights of citizens of this state, holding claims against other states” authorizing citizens holding such claims past due and unpaid to

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assign them to the state and the state attorney general to bring a suit against the concerned state in the U.S. Supreme Court to collect the claims. The holder of six consolidated bonds of Louisiana assigned them to New Hampshire, and a bill of complaint in equity was filed in the Supreme Court. In 1880, the New York State Legislature enacted a similar statute and a bill of complaint in equity was filed in the Supreme Court against Louisiana; the bill was consolidated with the New Hampshire case. The court reviewed its 1793 decision in Chisholm v. Georgia, and the congressional proposal and 1795 ratification of the Eleventh Amendment by states.27 The court explained: “the actual owners of the bonds and coupons held by New Hampshire and New York are precluded from prosecuting these suits in their own names. The real question, therefore, is whether they can sue in the name of their respective states after getting the consent of the state, or, to put it in another way, whether a state can allow the use of its name in such a suit for the benefit of one of its citizens.”28 The court wrote that a sovereign nation can demand another sovereign nation pay a debt owed to a citizen of the former nation and proceed, by negotiations or war, to obtain satisfaction of the debt. Note was made of the fact that states, in ratifying the U.S. Constitution, surrendered their rights as independent nation states to the United States. Furthermore, the court emphasized that no principle of international law “makes it the duty of one nation to assume the collection of the claims of its citizens against another nation, if the citizens themselves have ample means of redress without the intervention of their government.”29 The court stressed that the Eleventh Amendment prohibits all suits by citizens of sister states and aliens against a state without its consent and opined a “state cannot create a controversy with another state, within the meaning of that term as used in the judicial clauses of the constitution, by assuming the prosecution of debts” owed to its citizens by a sister state.30 In consequence, the court dismissed each bill of complaint with costs adjudged against the complainants. A key determinant of whether or not the court will exercise its original jurisdiction, established in 1900, is the answer to the following question: Does the complainant state have standing to bring suit, as a state in its proprietary capacity, or in its parens patriae capacity? The nature of the doctrine of parens patriae was enunciated clearly by the court in an earlier case involving the question as to whether or not the U.S. Government constitutionally possessed the authority to initiate an action on the basis of the doctrine. The court In re Debs in 1895, upheld the Circuit Court for Northern Illinois’ contempt conviction of union officials for violation of a writ of injunction ordering them to end the boycott of railroads using cars manufactured by the Pullman Palace Car Company, thereby justifying, in part, the intervention of U.S. Army troops on the ground the boycott adversely affected citizens throughout the

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country, although only a small number of persons legally were injured.31 The court rhetorically asked: “Have the vast interests of the nation in interstate commerce, and in the transportation of the mails, no other protection than lies in the possible punishment of those who interfere with it? To ask the question is to answer it.”32 The court also opined: “The difference between a public nuisance and a private nuisance is that one affects the people at large and the other the individual. The quality of the wrongs is the same . . .”33 In 1900, the court in Louisiana v. Texas, involving a quarantine imposed by the Texas health commissioner on commerce from New Orleans, held that a suit would not be entertained if it involved “a controversy in the vindication of grievances of particular individuals,” and determined that the complainant state lacked standing because “in order that a controversy between states, justiciable in this court, can be held to exist, something more must be put forward than that the citizens of one state are injured by the maladministration of the laws of another.”34 The court specifically noted the controversy was primarily between New Orleans citizens and Texas and not Louisiana citizens and Texas, and added the Eleventh Amendment to the U.S. Constitution forbids a citizen of one state to sue another state without its expressed consent (see chapter 7). In 1901, the court acknowledged its inability to “anticipate by definition” interstate suits falling within the scope of the doctrine of parens patriae.35 Upon receiving a motion by a state to file a bill of complaint in equity against a sister state on the basis of the doctrine, the court must determine whether the alleged harm has occurred or is immediate, or is based upon speculation. The court will invoke its original jurisdiction if the court concludes the degree of the harm is substantial and the number of affected citizens is large. North Dakota brought suit against Minnesota, seeking to enjoin the use of drainage ditches constructed by the latter state and to recover damages for injury to state property and properties of its residents. The latter raised funds to help North Dakota finance the litigation. In 1924, the court interpreted the refusal of the chief North Dakota witness to answer questions regarding the citizen-raised funds as evidence the funds were used in the litigation and concluded the suit should be considered to be in the same category as New Hampshire v. Louisiana and that costs should be levied against the plaintiff party state, North Dakota.36 In Massachusetts v. Missouri (1939) the court rejected the suggestion that the Commonwealth could invoke the court’s original jurisdiction for the benefit of its citizens and stated: “In the exercise of our original jurisdiction so as truly to fulfill the constitutional purpose we not only must look to the nature of the interest of the complaining State—the essential quality of the right asserted—but we must also inquire whether recourse to that jurisdiction in an action by a State merely to recover money alleged to be due from citizens of

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other States is necessary for the State’s protection.”37 The court added that it must exercise sound discretion to prevent abuse by a state seeking to persuade the court to invoke its original jurisdiction as a means to enforce the state’s claims against citizens residing in sister states.38 For example, the court, in 1972, decided not to invoke its original jurisdiction in response to an Illinois motion to file a complaint against the City of Milwaukee, Wisconsin, because although admittedly the city is a political subdivision of Wisconsin, the city is not a state.39 The court specifically commented that original jurisdiction would be invoked sparingly based upon “the seriousness and dignity of the claim” and availability of another forum with jurisdiction over the parties “where the issues tendered may be litigated, and where appropriate relief may be had” in order to devote adequate attention to its appellate docket.40 In 1984, the court turned down the motion of Puerto Rico to sue Iowa, seeking issuance of a writ of mandamus ordering the rendition of a fugitive from justice to Puerto Rico apparently because the writ would not be served upon the state but rather upon the governor.41 The reader should be aware that interstate water disputes and certain other disputes have resulted in a division among a state’s citizens relative to position taken by their state attorney general before the Supreme Court, with citizens residing in one part of a state supporting the position of the other state. In 1930, the court held “(a) state suing, or sued, in this court, by virtue of the original jurisdiction over controversies between states, must be deemed to represent all its citizens.”42 An unusual case reached the court in 1930. The Kentucky and Indiana highway commissions signed a valid contract in 1928 for the construction of a bridge over the Ohio River between Evansville, Indiana, and Henderson, Kentucky. The Indiana commission immediately began to carry out its contractual obligations, but nine Indiana citizens filed a suit in equity in the Superior Court of Marion County to enjoin the commission and its officers on the ground the bridge was not authorized. The court issued a writ of injunction pending its decision. Kentucky, in consequence, sought leave to file a bill of complaint against Indiana in the Supreme Court. Indiana did not deny it had signed a valid contract and the delay of its contract performance was a breach of the contract providing for immediate and continued performance. The state offered in its defense the litigation involving the authority of the bridge commission. The Supreme Court concluded the interstate controversy was within its original jurisdiction, pending litigation in a state court is not a ground for the Supreme Court delaying its decision in view of the facts that it is easy for citizens to institute suits and interstate relations would be at the mercy of a group of citizens, and Kentucky is entitled to the relief sought.43 The threat of serious injury convinced the court to hear the complaint of Pennsylvania and Ohio against West Virginia, charging the legislature of the

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latter state with violating the dormant interstate commerce clause by enacting, in 1919, a statute compelling gas pipeline companies transporting gas originating in the state to give preference to instate customers.44 The court noted two states were seeking to protect their schools and other public institutions threatened with the cutoff or curtailment of gas originating in West Virginia which was seeking to protect its consuming public, and concluded: “Both interests are substantial and both [are] threatened with serious injury.”45 The court invalidated the statute. Justice Oliver Wendell Holmes dissented: “I think that the products [natural gas] of a state until they are actually started to a point outside it may be regulated by the state notwithstanding the commerce clause.”46 The Eleventh Amendment came into play when Pennsylvania challenged a New Jersey community income tax and the court, in 1971, denied the state permission to file the suit because it was “nothing more than a collectivity of private suits against New Jersey for taxes withheld from private parties.”47 The court explained a parens patriae suit may be filed by a state only if “its sovereign or quasi-sovereign interests are implicated and it is not thereby litigating as a volunteer for the personal claims of its citizens.”48 In 1978, Oklahoma petitioned the court for permission to file a complaint against Arkansas alleging the latter was a nominal party and the real parties were codefendent private companies and municipalities responsible for pollution of waters flowing into the petitioning state.49 In 1985, the court adopted the report of the special master and directed the party states to submit a proposed decree to the special master.50 An unsigned, 1959 law review article concluded “the policy underlying the Eleventh Amendment appears to be the principal limitation on a state’s attempt to assert the interests of its citizens as parens patriae” (see chapter 1).51 This conclusion continues to be valid in the twenty-first century. Such suits are relatively uncommon and are epitomized by the case below.

THE SEABROOK CASE New Hampshire does not levy a sales tax or an income tax other than on intangible income. As a consequence, the state is continuously short of revenue, and seeks to raise revenue by exporting taxes.52 In 1991, its General Court (state legislature) levied a statewide 0.64 percent ad valorem property tax on the Seabrook Nuclear Power Plant, and authorized a tax credit for a New Hampshire public utility, one of twelve utility owners of the plant (see chapter 5). The other owners are based in Connecticut, Massachusetts, and Rhode Island, which do not levy such a tax on nuclear power plants in their respective state or offer a tax credit against the owners’ business profit taxes for

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the real property taxes they pay on the Seabrook plan. These states protested New Hampshire’s action and sought to invoke the court’s original jurisdiction on the ground the New Hampshire property tax and tax credit violated the U.S. Constitution. This controversy raised an important question: Do the protesting states have the right to invoke the Supreme Court’s original jurisdiction, as the New Hampshire real property tax was not levied upon the complainant states, but upon private utility companies? These states maintained they had the right to sue New Hampshire in their proprietary capacity as consumers of electricity produced by the plant, and in their respective parens patriae capacity as representatives of their citizens, who consume electricity generated by the plant. Specifically, the complaining states maintained that the New Hampshire real property tax and associated tax credit violated: 1. the supremacy of the law clause of the U.S. Constitution, by conflicting with the Tax Reform Act of 1976 section prohibiting discriminatory taxation of electricity, 2. the interstate commerce clause, by imposing an undue burden on interstate commerce, 3. the Fourteenth Amendment, by depriving the complainant states and their citizens of equal protection of the laws, and 4. the privileges and immunity clause of Article IV of the U. S. Constitution.53 The gravamen of the complaint was the failure of New Hampshire to levy the real property tax on non-nuclear power plants in the state as well as on the Seabrook plant. Responding to the complainants’ motion, New Hampshire maintained: 1. the plaintiff states lack standing to sue, 2. the suit was premature as the tax had not yet been passed through to consumers, 3. an alternative forum could provide relief, 4. any injury caused by the tax would not be substantial, and 5. plaintiffs would not prevail on the merits of their suit.54 In 1992, the court granted the plaintiff states’ motion, thereby rejecting New Hampshire’s answer brief, and appointed Vincent L. McKusick as special master to investigate the interstate dispute.55 The court, acting upon his recommendation, granted the motion of the involved out-of-state public utilities to intervene in the dispute.56 McKusick, on December 30, 1992, issued a report with recommended conclusions of law favoring the plaintiff states.

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Specifically, he determined the case was an appropriate one for the exercise of the Supreme Court’s original jurisdiction and New Hampshire’s “changed circumstance” argument is “an argument on the merits rather than an assertion of a jurisdictional flaw.”57 In addition, McKusick concluded there was no alternative forum because this suit raises issues the Supreme Court had not considered to date.58 New Hampshire had not anticipated the special master would issue such a strong report urging the court to invoke its original jurisdiction. Newly elected Governor Steve Merrill did not want his two-year term to be bogged down in an interstate suit in the U.S. Supreme Court, which had scheduled oral arguments in the dispute for April 19, 1993, and decided to seek an outof-court settlement with the concerned public utility companies. Such a settlement was reached on April 14, 1993, and two days later the General Court enacted as a statute the agreement reached with the out-of-state owners providing for repeal of the tax and its associated tax credit, and the Supreme Court on the same day dismissed the suit.59 The out-of-court settlement negotiations indicate Connecticut, Massachusetts, and Rhode Island were acting parens patriae for their respective electric utility companies and not parens patriae for their citizen electricity consumers. New Hampshire Senior Assistant Attorney General Harold T. Judd conducted all settlement negotiations with attorneys representing the southern New England electric utility companies.60 A representative of the attorney general of one plaintiff state would attend a negotiation meeting, but was not an active participant. Judd stated: “If the other states were not acting parens patriae, why did they let up keep the $35 million we had collected?”61 He added New Hampshire made no commitment not to reenact the tax credit in the future. The facts associated with this interstate suit suggest the Supreme Court should have dismissed the suit on the ground the concerned public utilities could seek relief in the United States District Court.

A Justiciable Controversy Each motion filed by a state seeking to invoke the court’s original jurisdiction leads to an examination of the question whether the nature of the dispute is justiciable and necessitates adjudication by a court. In Alabama v. Arizona (1934) the court opined: “Our decisions definitely establish that not every matter of sufficient moment to warrant resort to equity by one person against another would justify an interference by this court with the action of a State.”62 The case involved a prayer by Alabama for permission to sue nineteen states, whose statutes prohibited or regulated the sale of articles manufactured by

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convict labor on the ground the statutes violated the interstate commerce clause of the U.S. Constitution. The court denied the motion and held the suit to set aside the statutes of the states was multifarious and evidence was lacking supporting the need for a convenient, effective, and prompt administration of justice in view of the fact that enforcement of the statutes would not “cause Alabama to suffer great loss or serious injury” (see chapter 7).63 The court made a most important point: “There is no test or rule of general application by which to determine whether a complaint in equity is multifarious.”64 Although the court noted it does not give advisory opinions or pronounce declaratory judgments, it nevertheless concluded that the bill, if filed, “would have to be dismissed for the lack of equity.”65 In 1939, the court, in Massachusetts v. Missouri, denied Massachusetts’ motion for leave to file a bill of complaint against the latter state and others relative to the right of each state to impose an inheritance tax on transfers of the same property.66 The court concluded: The proposed bill of complaint does not present a justiciable controversy between the States. To constitute such a controversy, it must appear that the complaining State has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to the accepted principles of the common law or equity systems of jurisprudence in claiming a right to recover from the respondent trustees, or in taking proceedings for collection, is not injuring Massachusetts.67 The constitutionality of the Submerged Lands Act of 1953 was the subject of a dispute involving Alabama, Louisiana, Rhode Island, and Texas, with the plaintiffs maintaining they were deprived of their “equal footing” in the union.68 In a per curiam decision, the court denied the motions for leave to file complaints on the ground section 3 of Article IV of the U.S. Constitution grants Congress complete control over the public domain.69 Justice William O. Douglas issued a strong dissent over this summary denial of the petitions of Alabama and Rhode Island to file a complaint stating: “To deny these motions we must hold that—the issues tendered are frivolous—and insubstantial.”70 In 1966, the court denied Delaware’s motion for leave to file a complaint in equity against New York seeking to enjoin the “state unit” (winner receives all votes) Electoral College voting system.71 The decision was a memorandum one without an opinion and apparently was determined by the nonjusticiability of the controversy (see chapter 7). The court examines closely a suit suggesting the possibility of a substantial number of suits in equity involving mutually exclusive claims. In 1939, it

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invoked its original jurisdiction over a dispute involving the respective claim of each of four states to levy an estate tax. The estate in question would be exhausted if each state was permitted to levy such a tax, and hence, the court decided the dispute was a justiciable one (see chapter 5).72 The facts were generally similar in an interstate dispute over the domicile of decedent Howard Hughes, but in 1978, the court decided that the suit involved a nonjusticiable controversy and should be litigated in the courts of each involved state.73 In 1982, the Supreme Court reversed its position in response to a motion to file a complaint in which those in charge of executing the Hughes’ estate maintained adverse California and Texas court decisions would result in exhaustion of the estate by state and federal inheritance taxes (see chapter 5).74 Four justices dissented in the Hughes decision and explained the interstate controversy was not ripe, because concerned states had not obtained unsatisfied tax judgments.75 The court also may refuse to exercise its original jurisdiction based on nonripeness and mootness. Mootness is illustrated by a 1981 Supreme Court denial without prejudice of California’s attempt to sue Texas and four other states to enjoin them from quarantining the former’s fruits and vegetables to prevent the spread of the Mediterranean fruit fly.76 The interstate dispute was mooted by the discontinuance of the quarantines.

Appropriateness The third criterion employed by the Supreme Court in determining whether to exercise its original jurisdiction is appropriateness. The court’s crowded calendar led to the establishment of the policy of approving a state motion for leave to file a complaint in equity against a sister state only upon the court concluding the case is an appropriate one for exercise of original jurisdiction. Three tests of appropriateness have been developed. In 1971, the court used the appropriateness criterion for the first time in a suit filed by a state against a private corporation and in 1976 extended the criterion to interstate disputes.77 The court considers three factors: (1) parties to the suit; (2) seriousness of the subject matter; and (3) existence of an alternative forum. Original jurisdiction is most apt to be exercised by the court if both parties are states in their sovereign capacities. The court historically exercised its original jurisdiction in boundary and water rights controversies because quasisovereign states are parties and the controversies are serious ones. At the other extreme are disputes in which the court summarily denies the state motion to file a complaint as illustrated by the rejection, in 1981, of a California motion to file a complaint in equity against West Virginia, alleging breach of a contract involving scheduled football games between San Jose State University

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and the University of West Virginia.78 Justice John Paul Stevens issued a dissenting opinion, explaining that Congress granted the court exclusive original jurisdiction over interstate controversies, and concluding the court should have granted the motion and referred the dispute to a special master.79 Had original jurisdiction been invoked, the court would have had to adjudicate the complaint on the basis of state law. A state court clearly was the appropriate forum for this dispute. Existence of an alternative forum, the third factor, serves the purpose of limiting use of original jurisdiction on the ground the dispute can be adjudicated by another court. The court, in a per curiam decision in 1976, denied Arizona’s motion to file a complaint against New Mexico because Arizona public utilities and an Arizona local government had filed suit in a New Mexico court, raising identical questions relative to whether a New Mexico electrical energy tax violates interstate commerce clause of the U.S. Constitution, denies Arizona citizens due process and equal protection of the law, and abridges privileges and immunities.80 The court explained there would be no need for it to adjudicate the dispute should the New Mexico Supreme Court determine the tax violates the U.S. Constitution. In the event the constitutionality of the tax is upheld, Arizona may bring the case to the U.S. Supreme Court. As noted above, in 1982, the court reversed its 1978 decision in the Hughes case. The estate followed the suggestion of four concurring justices in the 1978 decision and sought to determine Hughes’s domicile by filing an interpleader action, authorized by the Federal Interpleader Act of 1948, in the U.S. District Court.81 California requested the U.S. Supreme Court to review the decision of the U.S. Court of Appeals for the Fifth Circuit, holding the act provides a jurisdictional basis for resolving the interstate dispute. The Supreme Court granted certiorari and upon review held the act does not authorize a U.S. District Court to resolve inconsistent estate tax claims by the two concerned states.82 In view of this decision and the Eleventh Amendment, in 1982, the court determined “California’s motion for leave to file should be granted.”83 Four justices dissented and opined: “The mere possibility of inconsistent state determinations of domicile, resulting in a still more remote possibility of the estate being insufficient to satisfy the competing claims, simply does not give rise to a case or controversy in the constitutional sense . . .”and “(i)nterpleader jurisdiction . . . is irrelevant to the question there is an independently justiciable controversy ‘between’ States.”84 In 1988, the court denied Louisiana’s motion to file a complaint against Mississippi involving a boundary dispute because the former had intervened in a suit between private parties in a Louisiana court relative to whether an island in the Mississippi River was in Louisiana or in Mississippi.85 Justice White, joined by Justices Stevens, and Scalia, dissented and opined “this boundary dispute . . . is exclusively our business and, as such, may not be adjudicated in the

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District Court. Had Louisiana not intervened in the private action, denying leave to file would surely be indefensible.”86 White added that a trial in a state court “is no way to treat a sovereign State that wants its dispute with another State settled in this Court. I would grant leave to file.”87 McKusick reviewed all interstate disputes in the period October 1, 1961, to April 1, 1993, and identified the existence of an alternative forum as the major reason the Supreme Court summarily denied a motion by a state to sue a sister state in approximately one-half of the cases and it “was a significant factor in every case where the court published an opinion explaining its reason for rejecting the suit as inappropriate for its original jurisdiction.”88 He also concluded the court’s gatekeeping rules have made its original jurisdiction “almost as discretionary as it certiorari jurisdiction over appellate cases, . . .”89

Decree Enforcement A number of types of original case judgments, including ones establishing state boundary lines and domiciles of decedents, are self-executing, but other types of judgments are not self-executing and may raise enforcement problems. The ability of the U.S. Supreme Court to enforce its decrees was challenged first by the 1793 Georgia General Assembly, which threatened to hang all persons complying with the court’s opinion permitting a South Carolina citizen to sue Georgia.90 The Supreme Court was wary of its ability to enforce its decrees, as evidenced by its dismissal of Kentucky’s petition for issuance of a writ of mandamus ordering the governor of Ohio to return a fugitive from justice to Kentucky by writing “the federal government . . . has no power to impose on a state officer, as such, any duty whatever and compel him to perform it.”91 By 1918, the court had changed its opinion and held a state is constitutionally subject to the judicial power of the United States and the court can “enforce the judgment by resort to appropriate remedies.”92 The 1906 suit involved a $12 million judgment obtained by Virginia in 1915 pertaining to West Virginia’s share of the pre-Civil War debt of Virginia. The court in its decision examined several remedies without ruling on their lawfulness and decided “(t)he case should be restored to the docket for further argument at the next term. . . .”93 The question of enforcement became moot in 1919, when West Virginia accepted the court’s decision and paid Virginia (see chapter 7). The court left unresolved the question whether it constitutionally could issue a writ of mandamus compelling a state legislature to perform what otherwise is a discretionary act. A law review article suggested the republican form of government guaranteed to each state by article IV of the U.S. Con-

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stitution “can scarcely be reconciled with the use of the contempt power against the legislature. A possible alternative to mandamus would be for Congress to withdraw federal appropriations from any state refusing to obey a decree of the Court.”94 It also is important to note the court, in Rhode Island v. Massachusetts, in 1838, commented: “. . . if state legislatures may annul the judgments of the courts of the United States, and the rights thereby acquired, the constitution becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws, by its own tribunal. So fatal a result must be deprecated by all; and the people of every state must feel a deep interest in resisting principles so destructive of the Union, and in averting consequences so fatal to themselves.”95 This statement undoubtedly is valid today. Nevertheless, it has not been determined whether the court can order a state legislature to exercise its discretionary powers as reflected in the court’s restraint by granting an extension of time for a state to comply with a decree. Section 4 of Article IV of the U.S. Constitution guarantees every state a republican form of government, thereby apparently ruling out the use of the contempt power to force a state legislature to take a directed action. The constitution does not define a republican form of government, but the U.S. Supreme Court in 1912 defined it as a representative government in which exercisable powers rest with legislators elected by the voters.96

ALTERNATIVES TO ORIGINAL JURISDICTION SUITS IN THE COURT Considerable evidence exists raising the question whether the U.S. Supreme Court should continue to exercise exclusive jurisdiction over controversies between contending states. In 1921, the court concluded its New York v. New Jersey decision by writing: “We cannot withhold the suggestion, inspired by the consideration of this case, that the grave problem of sewage disposal presented by the large and growing populations living on the shores of New York Bay is more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the states so vitally interested in it than by proceedings in any court however constituted.”97 In 1939, Justice Felix Frankfurter highlighted the inadequacies of interstate litigation in terms of “its episodic character, its necessarily restricted scope of inquiry, its confined regard for consideration of policy, its dependence on the contingencies of a particular record, and other circumscribing factors.”98 He added, several members of the court in the past had either deprecated states resorting to the court to settle their controversies or opposed the granting of permission to a state to file a bill of complaint in equity against a sister state.

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The court, on a number of occasions, has opined Congress is better qualified than the court to resolve certain interstate disputes. Relative to Virginia’s prayer for the issuance of a writ of mandamus to enforce a previous judgment rendered in the Commonwealth’s favor, the court, in 1918, explained Congress possesses plenary authority to enforce the obligation of West Virginia and decided to defer action on the prayer “in order that full opportunity may be afforded to Congress to exercise the power which it undoubtedly possesses.”99 Other alternatives to the Supreme Court’s resolution of interstate disputes are examined in chapter 8.

SUMMARY The Judiciary Act of 1789 made exclusive the U.S. Supreme Court’s original jurisdiction over interstate suits and the Supreme Court ruled Congress lacks the authority to extend the court’s original jurisdiction. The U.S. Constitution is unclear as to whether or not the Supreme Court must invoke its original jurisdiction when a state seeks to sue a sister state. The court decided to exercise its original jurisdiction over interstate controversies on a discretionary basis and promulgated Rule 17 governing the procedures to be followed when a state desires to sue a sister state. The court employs three criteria to determine whether it should invoke its original jurisdiction to resolve an interstate dispute: (1) Whether the complainant state is a genuine or a nominal party, (2) a justiciable controversy exists, and (3) the dispute is an appropriate one for the court to adjudicate. The Supreme Court, when it invokes its original jurisdiction, appoints a special master to collect evidence, determine the facts in the dispute, and prepare a report for the Court. The special master performs a role similar to the role of a U.S. District Court judge with the master’s recommendations subject to appeal by the party states to the Supreme Court. Chapter 3 explores the important role the special master plays in helping the court resolve an interstate controversy.

3

The Special Master

Special masters first were employed in English Chancery Courts as fact finders and the practice of employing them within the United States dates to the colonial period. An unresolved boundary dispute between the Province of Massachusetts and the Province of New Hampshire (involving what today is Maine and New Hampshire), led to the New Hampshire representative presenting the matter to King George II who in 1737 appointed twenty commissioners from the other New England colonies to determine the boundary line between the two royal provinces, and in 1740, signed a decree accepting their recommendation.1 Today, special masters are appointed by state courts and by U.S. courts for a variety of purposes, including audit of accounts, calculation of damages, overseeing a remedial decree, and taking of testimony.2 The special master, appointed by the U.S. Supreme Court upon the invocation of its original jurisdiction, in recent decades has played important investigatory and recommendatory roles in assisting the court to settle interstate disputes. The court, burdened by a heavy appellate workload, lacks the time and resources to gather and critically examine all evidence submitted by states party to an original jurisdiction suit in the court. As noted in chapter 1, the court exercises such jurisdiction on a discretionary basis in order to manage its workload. Special masters attracted relatively little attention until 2002, when AnnMarie C. Carstens published a law review article raising questions relative to the court’s practice of delegating most of its responsibilities in interstate suits to special masters, and highlighting “the lack of institutional oversight or accountability of the Special Masters.”3 Her article stimulated Tony Mauro to interview recent Supreme Court special masters, with two explaining their respective initial appointment as a special master came as a surprise.4

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ORIGIN AND APPOINTMENT OF SPECIAL MASTERS The U.S. Constitution is silent on the subject of special masters and the Supreme Court, at its discretion, may grant a motion for the appointment of a special master or appoint one on its own initiative. The court has not specified the criteria it employs in selecting special masters or the qualifications it seeks in persons to be appointed as special masters, who may be sitting or retired judges, deans of law schools, distinguished professors of law, or attorneys with a specialty in the subject matter in dispute. Carstens traced the origin of the use of special masters to assist the Supreme Court to its 1791 appointment of a commission charged with taking testimony from witnesses in Holland in a case involving the repayment by the State of Maryland of a loan secured from investors in other nations.5 Three years later, a commission was read at a meeting of the court “appointing William Bradford, Esquire, Attorney General of the United States” to take testimony in a case involving whether the State of Georgia, as a sovereign state, possessed the authority “to transfer the debt in question from the original creditor, an alien enemy, to herself, notwithstanding some of the debtors were citizens of another state.”6 The court ruled in favor of the original creditor as Article 4 of the Paris Peace Treaty of 1783 stipulates that “creditors on either side shall meet no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted.”7 In 1797, the court approved the motion of complainant Huger for the appointment of “commissions to take the examination of witnesses in several of the states.”8 Carstens reported that the court continued to appoint commissions in the nineteenth and twentieth centuries, who served “more as technicians responsible for demarcating a border consistent with a court decrees” and cited the appointment of a commission to establish the boundary between Missouri and Iowa in 1850, and the similar appointment of a commission in 1895, to establish the boundary between Indiana and Kentucky in accordance with the decisions of the court.9 For example, the Court, in Florida v. Georgia, in 1854 ordered: Commissions, in the usual form, be issued by the clerk, to examine witnesses, upon application of either party, accompanied by interrogatories, a copy whereof has been served upon the adverse party, or its solicitor or counsel, twenty days previous to such application, in order that cross-interrogatories may be filed within said twenty days by such adverse party; and that the commissioner or commissioners in each instance, if not agreed upon by the counsel of the respective parties, be named by the chief justice or one of the associate justices

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of this court; and that, forthwith, on the return of any commission executed, the clerk do open and file the same, and cause the same to be printed for the use of said parties.10 Concerned states, of course, may appoint their own commissioners to determine the boundary line between two states and this practice has been a relatively common one with any resulting proposed interstate boundary compact, enacted by the two state legislatures, subject to the grant of consent of Congress.11 In 1908, the court replaced commissions with Special Master Charles E. Littlefield, when it granted the Commonwealth of Virginia’s 1907 motion for leave to submit a bill of complaint against West Virginia for its failure to pay its share of the pre-Civil War debt of the Commonwealth to Virginia.12 It is further ordered that the Commonwealth of Virginia and the State of West Virginia shall each, when required, produce before the master, upon oath, all such records, books, papers, and public documents as may be in their possession or under their control, and which may, in his judgment, be pertinent to the said inquiries and accounts, or any of them. And the master is authorized to make, or cause to be made, such examination as he may deem desirable of the books of account, vouchers, documents, and public records of either state, relating to the inquires he is herein directed to make, and to cause copies thereof or extracts therefrom to be made for use in making up his report.13 The master was also authorized to examine all Virginia public records published prior to April 17, 1861, use such records as evidence subject to challenge, summon persons whose testimony is deemed to be material, and take depositions. Furthermore, the master was empowered, with the permission of the chief justice, to employ stenographers and other staff and determine their compensation. The court directed the master to submit his report “with all convenient speed.” The interstate dispute involved congressional approval of an 1863 interstate compact entered into by Virginia and West Virginia providing for the admission of the ten western counties of Virginia into the Union as the State of West Virginia. This dispute continued in the court until 1918, when it had to address the refusal of Virginia to pay a $12,393,429.50 judgment obtained by Virginia in the court in 1915, and decide whether to issue a writ of mandamus directing the West Virginia State Legislature to levy a tax to raise funds to pay the judgment. The court determined that Congress possesses the power to enact a statute for the enforcement of West Virginia’s obligation to Virginia and explained:

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But we are of opinion that we should not now dispose of such question and should also now leave undetermined the further question, which as the result of the inherent duty resting on us to give effect to the judicial power exercised we have been led to consider on our own motion; that is, whether there is power to direct the levy of a tax adequate to pay the judgment and provide for its enforcement irrespective of state agencies. We say this because, impelled now by the consideration of the character of the parties which has controlled us during the whole course of the litigation, the right judicially to enforce by appropriate proceeding as against a state and its governmental agencies having been determined, and the constitutional power of Congress to legislate in a twofold way having also pointed out, we are fain to believe that if we refrain now from passing upon the questions stated, we may be spared in the future the necessity of exerting compulsory power against one of the states of the Union to compel it to discharge a plain duty resting upon it under the Constitution.14 The question of enforcement of the judgment became moot when West Virginia complied with the court’s judgment (see chapter 7). In a 1983 footnote, the court explained that prior to the appointment of special masters in original jurisdiction cases, the court appointed “a commission with broad powers to resolve factual questions in a controversy between states.”15 Carstens observed “the distinction between the roles of a commissioner as compared with a special master remained murky” as “an order appointing a commissioner differed little from an order appointing a special master, making any distinction untenable” in some cases.16 Supreme Court Rule 17 is silent on the subject of a special master or the filling of a vacancy in the office, but the court has authorized the chief justice to fill a vacancy in the office of special master.17 For the first time, in 1850, the chief justice appointed a commissioner to replace one who had died in office.18 In 1928, the court appointed Thomas G. Haight as special master in Louisiana v. Mississippi, and authorized the chief justice to designate a new special master should the person appointed special master decline the appointment, and to fill a vacancy in the office by making “a new designation which shall have the same effect as if originally made by the Court herein.”19 In 1930, the court, in New Jersey v. Delaware, appointed William L. Rawls of Baltimore, Maryland, special master, but was silent relative to filling a vacancy in the office.20 Subsequently, in Mississippi v. Louisiana (1953), the court employed the 1928 language should an appointment as special master be declined or a vacancy in the office occurred.21 In 1955, the court accepted the report of the special master in Arizona v. California and appointed Simon H. Rifkind of New York City as special master to replace the deceased Special

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Master George I. Haight.22 In 1970, the court granted the motion of Connecticut for leave to intervene in Pennsylvania v. New York, appointed John F. Davis of Washington, DC as special master, and ordered that the chief Justice, in the event of a vacancy in the office during a court recess, “shall have the authority to make a new designation which shall have the same effect as if originally made by the Court herein.”23 However, in 1987, the court in Kansas v. Colorado appointed a special master, but failed to include language pertaining to the decline of an offer of appointment to serve as special master, or replacement of a deceased master.24 Carstens reported that retired and senior federal court judges, including former Chief Justice Charles Evans Hughes, were often appointed special masters, but she noted that the increased work load of the federal courts resulted in a decline in the number of active service judges appointed as special masters, and a greater reliance placed on both deans and professors at major national law schools, and lawyers with expertise in water rights.25 For example, the Supreme Court, in 1942, appointed retired United States District Court Judge Charles C. Cavanah to be special master in Colorado v. Kansas and accepted his offer to serve without compensation, but announced he would be reimbursed for his expenses including “the compensation paid to his stenographic and clerical assistants, and the cost of printing his report . . .”26 In 1958, the Court appointed retired U.S. Supreme Court Justice Stanley F. Reed special master in Virginia v. Maryland, and retired Supreme Court Justice Thomas Clark special master in New Hampshire v. Maine, a suit popularly termed the lobster war (see chapter 4).27 The court appointed Senior Judge Joseph W. Madden of the U.S. Court of Claims as special master (1965) in Nebraska v. Iowa; Senior Judge Sam E. Whitaker of the U.S. Court of Claims as special master (1966) in Illinois v. Missouri; Senior Circuit Judge Phillip Forman of the U.S. Court of Appeals for the Third Circuit special master in Ohio v. Kentucky (1966); and Senior Circuit Judge Clifford O’Sullivan of the U.S. Court of Appeals for the Sixth Circuit special master in Mississippi v. Arkansas (1971).28 Carstens also discovered a significant number of special masters had close ties with Supreme Court justices or previous special masters, but only one non-Caucasian and no woman had been appointed a special master.29 A biographical review of special masters confirms Carstens’ findings relative to the experience of masters prior to their respective appointment(s).30 The appointment of sitting U.S. court judges as special masters ceased in the early 1980s and the more recent masters have been distinguished law professors, deans, or former deans of law schools, members of a Portland, Maine law firm, as noted below, a retired chief justice of a state supreme court, and experts on particular subject matters, particularly boundary disputes, electrical energy, and water quality and rights. Special masters may be placed in the categories listed

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above, but examination of their biographies reveals no overarching characteristic(s), other than legal education and impressive experience, suggesting the court utilizes specific common criteria in making each appointment. A brief biographical sketch of six other special masters follows. Charles Warren served as a U.S. Assistant Attorney General commencing in 1914 and appeared before the U.S. Supreme Court in thirty-nine cases by submitting briefs, oral arguments, or both. His three-volume 1922 book— The Supreme Court in United States History—won the 1923 Pulitzer Prize in American history and became a classic.31 His service as a special master dates to 1913 in New Mexico v. Texas, a boundary dispute. Richard A. Cutter served as an associate justice of the Massachusetts Supreme Judicial Court for sixteen years until 1972 when he retired. Almost immediately, he was appointed special master in Vermont v. New York (1974), an interstate water pollution dispute involving Lake Champlain. Elbert P. Tuttle retired as a Chief Judge of the U.S. Court of Appeals in 1967, but was appointed a special master by the U.S. Supreme Court in Arizona v. California (1979), a water rights suit involving five states, five Indian tribes, and several federal agencies. John A. Carver, Jr. was appointed special master in Texas v. Oklahoma (1980), while serving as a professor of law at Georgetown University School of Law. Previously, he served as U.S. Assistant Secretary of the Interior and Federal Power Commission member. Wade H. McCree, Jr., a former U.S. Solicitor General, served as the special master in New Jersey v. Nevada (1986) while a member of the University of Michigan Law School. He died while serving as special master and was replaced by Ralph I. Lancaster of Portland, Maine, in 1987. Jerome C. Muys, a leading expert on water apportionment, was appointed special master in Oklahoma v. New Mexico (1987). In 2003, Mauro reported the law firm of Pierce Atwood of Portland, Maine, “has virtually cornered the market on this work” with four of six special master appointments since April 1992 involving Pierce Atwood with Vincent McKusick, former Chief Justice of the Maine Supreme Court and clerk to U.S. Supreme Court Justice Felix Frankfurter, receiving three appointments and his law partner Ralph Lancaster, Jr., who had experience in international boundary disputes, receiving one appointment.32 The court, in Louisiana v. Mississippi, commented in 1995 most favorably upon McKusick’s “careful and well-documented findings and conclusions.”33 The two other special masters were Professor Gregory Maggs of George Washington University Law School and former Dean Paul Verkuil of Yeshiva University’s Benjamin N. Cardozo School of Law. Relative to his appointment, special master Arthur Littleworth stated: “You don’t go to Congress, you don’t apply, you don’t do anything. You get called.”34

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PROCEEDINGS As noted, no rule specifically governs the appointment of a special master or his/her proceedings, a practice in contrast with appointment of masters in lower federal courts governed by Rule 53 of the Federal Rules of Civil Procedure. Supreme Court Rule 17(2) governs original actions by specifying that pleadings and motions must follow the Federal Rules of Civil Procedure and adding: “In other respects, those Rules and the Federal Rules of Evidence may be taken as guides.” The court would experience no procedural questions if the exercise of its original jurisdiction involved only adjudicating controversies between private parties as the court would be guided by established procedures in courts of common law and equity. A suit in the court involving a dispute by sovereign states over boundary lines, for example, raises procedural questions as the established procedures in actions involving private parties furnish little more than analogies. In consequence, the court in Grayson v. Virginia (1796) wrote its examination of the powers vested in the court in cases involving equity, admiralty, and maritime jurisdiction led to the adoption of “a general rule for the government of our proceedings; with a discretionary authority . . . to deviate from that rule” if its application would be impracticable or injurious.35 In effect, the court decided to conduct proceedings in the simplest form, serving the interest of justice. In 1854, the court adjudicated a boundary dispute between Florida and Georgia, and explained “the constitution prescribes no particular mode of proceedings, nor is there any act of Congress upon the subject,” and added: And at a very early period of government a doubt arose whether the court could exercise its original jurisdiction without a previous act of Congress regulating the process and mode of proceeding. But the court, upon much consideration, held that although Congress had undoubtedly the right to prescribe the process and mode of proceedings in such cases, as fully as in any other court, yet the omission to legislate on the subject could not deprive the court of the jurisdiction conferred; that it was a duty imposed upon the court; and in the absence of any legislation by Congress, the court itself was authorized to prescribe its mode and form of proceedings, so as to accomplish the ends for which the jurisdiction was given.36 The special master appointment memorandum contains limited procedural guidance with respect to the receipt of evidence, findings of fact, conclusions of law, and the drafting of a proposed decree. In 1952, the court appointed John Raeburn Green special master to take evidence and submit a

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report in Texas v. New Mexico, and specifically directed the master to hear first evidence on “the question of the indispensability of the United States as a party for decision after evidence.”37 In 1994, the court stipulated in New Jersey v. New York: It is ordered that Paul Verkuil, Esquire, of Heathrow, Florida, be appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for. The Special Master is directed to submit such reports as he may deem appropriate. The compensation of the Special Master, the allowances to him, the compensation paid to his legal, technical, stenographic and clerical assistants, the cost of printing his report and all other proper expenses, including travel expenses, shall be charged against and be borne by the parties in such proportion as the Court may hereafter direct.38 The above general guidelines afford the special master discretion in determining procedures and the scope of discovery, including the calling of witnesses and witness examination and cross-examination. In effect, the special master serves the same function as a U.S. District Court judge whose decisions may be appealed. The court on occasion appointed a commissioner, with the power of a master of chancery, to take and return testimony without making “any findings of fact or” stating “any conclusions of law.39 Similarly, the court in New Mexico v. Texas directed special master Charles Warren to report “findings on all material questions of fact and report the same to the court with his recommendations respecting the decree to be entered,” but did not authorize Warren to report conclusions of law.40 The report of a special master, depending on the nature of the issue, can be long and complex.41 The court is free to grant the plaintiff state(s) leave to file an amended bill of complaint and the defendant state(s) to file an amended answer, and to refer to the special master the motion of other states to join the suit as parties as illustrated by the court’s order in Arizona v. California (1955) directing the special master “to hear the parties and report with all convenient speed his opinion and recommendation as to whether the motion should be granted.”42 In 1960, the court referred to the special master New York’s motion for leave to file a supplemental and amended complaint against Illinois and the response thereto and directed the master to express his views relative to the relationship of the matters in the motion to the issues in the case.43 Similarly, in the same year, the court referred to the special master the petition by the United States to intervene and the answer of Illinois and the Metropolitan Sanitary District

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of Greater Chicago in the interstate dispute between Wisconsin and Illinois.44 In 1990, the court referred to the special master the motion of New Jersey, North Dakota, and Wyoming to file a complaint in intervention in Delaware v. New York, a suit involving escheated unclaimed securities (see chapter 5).45 On June 27, 1960, court-appointed commissioner Joseph C. Thomas, filed with the court his report locating the boundary line between New Mexico and Colorado in accordance with the court’s 1925 decree.46 No objection or exception to the report was made during the time period allowed, and the court adjudged, ordered, and decreed confirmation of the report and discharged the commissioner since “the said commissioner has completed his work conformably to said decree.”47 In 1974, the court accepted the report of Special Master Clifford O’Sullivan and deemed “it unnecessary to outline at length the evidence adduced, or to reproduce here the detailed analysis of that evidence made by the special master.”48 It also is not unusual for the court to direct the party states to submit a proposed decree to the special master for approval and submission, with recommendations if any, to the court.49 The court possesses the discretion to reopen original jurisdiction cases and did so with respect to Wisconsin’s suit against Illinois. In 1967, the court in this case acted upon a joint motion for entry of a decree and issued a Per Curiam decree adopting the form of decree and findings of facts in the special master’s report, thereby making it “unnecessary at this time to consider the special master’s legal conclusions.”50 Carstens explained “(t)he precedent that guides the special master, particularly in boundary dispute cases, is a fragile body of specialized federal common law, pasted together from international law treatises, property concepts, contract law, and sovereignty principles.”51 The court, upon receiving the special master’s report, reviews the report and may revise or approve it in whole or in part. The court also may allow the party states to file exceptions to the report, thereby permitting the court to perform an appellate role in additional to its original jurisdiction role.52 Upon adopting the special master’s report, the court may request the master to prepare and submit a decree implementing the report’s recommendations in the event the master was not authorized to include a proposed decree in his report.53 The court, in Ohio v. Kentucky in 1980 adopted the special master’s report and remanded it to him “so that with the cooperation of the parties he may prepare and submit to the Court an appropriate form of decree.”54 In the same year, the court, in California v. Nevada, rejected the special master’s recommendation that he “be authorized (1) to determine whether the United States should be made a party to this case and (2) to make recommendations as to the quieting of title on various borderlands” by observing “litigation in other forums seems an entirely appropriate means of resolving whatever questions remain.”55

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A number of rivers serve as boundary lines between states, but the wanderings of certain rivers generated several interstate boundary disputes (see chapter 4). The special master’s 1927 report in New Mexico v. Texas highlighted one of the problems he encountered in collecting evidence from Indian and Mexican witnesses. Most of the witnesses were illiterate; they were unable to estimate distances with any decree of accuracy. All were old men, some very old, and some were only ten years of age or less at the date when they passed along the river between the years 1850 and 1860. There was much evidence that in those years the country was wild and invested with hostile Indians. Many of the witnesses traveled part of the time at night. From White’s ranch to Alamitos, there was but one, if any house, prior to 1857. The names given by the witnesses, therefore, to points along the river with relation to which they located the river referred to bends, hills, bosques, esteros, cottonwood trees, etc. . . . Many of the witnesses had not traveled along the river since the Civil War; and only a few claimed to have had any continuous knowledge of the river.56 He concluded: “Under all the conditions outlined above, I consider it improbable that Indian and Mexican witnesses would be able to trace accurately, on the ground, the course of a river as it flowed over fifty to sixty years prior.”57 The court accepted the master’s findings relative to the location of the river in 1850. The meandering Missouri River led to Kansas filing a suit against Missouri, during the pendency of which, all disputes with the exception of one were settled. Special Master Samuel M. Wilson of Lexington, Kentucky, held extensive hearings and received documentary and oral evidence. His findings and conclusions favored Missouri and Kansas maintained they were contrary to the weight of the evidence and the law. The court in 1944 upheld the master’s findings and conclusions and opined it found “no basis in the record for any conclusion that he performed his task with other than fair, disinterested, painstaking effort and attitude.”58 The congressional acts admitting Mississippi and Arkansas to the Union specified the Mississippi River as the boundary line.59 In 1974, the court rendered its decision in Mississippi v. Arkansas, involving whether Luna Bar, in the Mississippi River, was part of Arkansas or Mississippi, depending upon whether the bar was the result of the westward migration of the river or the avulsive process to the west. The court opined: “Upon our independent review of the record, we find ourselves in complete agreement and accord with the findings of fact made by the special master. We therefore affirm those find-

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ings, overrule Arkansas’ exceptions to the master’s report, confirm that report, and in general accept the master’s recommendations for a decree.”60 The specific issue addressed was whether or not Luna Bar was formed by accretion. Accepting the bar was so formed, the court held the bar to be a part of Mississippi, in accordance with established principles of law relating to riparian accretion and avulsion. The special master wrote in his report “(t)he quite special character of the reasoning of Arkansas’ witnesses leaves me unpersuaded that it has met its burden of proof. I make clear also that I would come to this conclusion even if the burden of proof was not on Arkansas, but was on plaintiff Mississippi.”61 The court generally accepts the report and recommendations of the special master. Justice William O. Douglas, however, issued a sharp dissent in Mississippi v. Arkansas, noting it is a close one and he would agree the master’s findings are not “clearly erroneous” if the case fell within rule governing appeals from findings of the district court.62 He added: The findings of the special master are of course entitled to respect and their weight will be increased to the extent that credibility of witnesses is involved, as he saw them and heard them, while we have only a cold record. Credibility, however, seems to play no part here. The record consists of maps and of testimony of witnesses. Those testifying for Mississippi qualified as eminent experts. Those testifying for Arkansas were in part experts and in part countrymen who for years knew Luna Bar, frequented it, and studied it. The experts of Mississippi state a plausible explanation that bolsters the theory of accretion. But the countrymen with their physical evidence convince me that the Mississippi River acted in an unprecedented way, found an old channel and in one convulsive operation invaded Arkansas leaving Luna Bar as an island carved out of Arkansas.63 Justice Douglas also highlighted the fact that soil borings taken from the island were different from soils that are the product of accretion. In 1980, in California v. Nevada, the court unanimously overruled the exception of Nevada to the special master’s recommendation that the court apply the doctrine of prescription and acquiescence because the two states acquiesced relative to the boundary line for nearly a century.64 Justice William Brennan wrote the special master had “combed the voluminous record in reaching his conclusion and recommendation.”65 In 1981, the court appointed Charles J. Meyers of Denver, Colorado, special master in Louisiana v. Mississippi to take testimony and draft a report for the court involving whether or not an oil well in the Mississippi River, which serves as the boundary line between the two states, was in Louisiana or Mississippi.66

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He held a pretrial conference, issued a schedule for discovery, and specified the issue to be determined by the court was the location of the boundary with respect to “the bottom-hole location of the oil well” drilled, by the holder of a lease from Louisiana, “directionally under the river from a surface location on riparian land owned by” the lessee on the Mississippi side of the river.67 The master heard testimony at great length from three expert witnesses, who submitted more than one hundred exhibits as evidence, and determined the bottom hole was west of the boundary line which was the live thalweg (derived from international law) or the middle of the river’s principal channel. The court noted conflicting testimony of experts was not unusual, it made its independent review of the record, overruled Mississippi’s objection to the master’s conclusions, and in its decision incorporated the recommendation of the master.68 The Supreme Court in 1985 adopted and approved in its entirety the report of the special master that the territory disputed by Oklahoma and Arkansas belonged to the latter as the party states agreed Arkansas had exercised continuous sovereignty of the territory and Oklahoma never levied or collected taxes within the territory.69 The court applied the doctrine of acquiescence pursuant to its 1980 holding in California v. Nevada.70 In the same year, the court adopted the report of the special master in Ohio v. Kentucky and issued a decree establishing the boundary line between the two states.71 In 1986, the court acknowledged the receipt of the accounting of the special master, ordered it to be filed, and added the master “is discharged with the thanks of the Court.”72 Nebraska brought an original jurisdiction action against Iowa regarding the construction and enforcement of the Iowa-Nebraska Boundary Compact granted consent by Congress in 1943 (see chapter 6). Both states objected to the special master’s report, but the court adopted it. The court invited each state to submit a proposed decree in accord with the court’s opinion and added the “special master is requested, after appropriate hearing, to prepare and submit a recommended decree” in the event the states are unable to reach an agreement.73 In 1991, the court accepted most of the special master’s recommendations in Illinois v. Kentucky, involving a boundary dispute, but sustained the exception of Kentucky to the special master’s recommendation with respect to the effect of dams on the Ohio River’s level, and remanded the case to the master for additional proceedings as a preliminary to preparing and submitting to the court an appropriate decree establishing the 1792 boundary line between the two states.74 In 2001, the court resolved the dispute between Kansas and Colorado by adopting the special master’s recommendations involving Colorado’s violation of a provision of an interstate compact—Arkansas River Interstate Compact—precluding material depletion of usable river water flows and liability to provide damages to Kansas.75 Colorado maintained that a damage award vio-

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lates the Eleventh Amendment to the U.S. Constitution, but the court overruled the state’s exception to the master’s report and furthermore opined “the Special Master acted properly in carefully analyzing the facts of the case and in only awarding as much prejudgment interest as was required by a balancing of the equities.”76 Justice Sandra Day O’Connor, joined by Justice Antonin Scalia and Justice Clarence Thomas, wrote a sharp dissent explaining the award of prejudgment interest to Kansas after more than fifty years of operation of the compact “is clearly improper under our precedents.”77 She added “an award of prejudgment interest on unliquidated and unascertainable damages for breach of an interstate compact was unheard of at the time of the Compact’s negotiations and approval.”78

FEES AND EXPENSES The court determines the allocation of responsibility between the party states for the fees and expenses of the special master.79 The three commissioners, appointed by the court in Indiana v. Kentucky, submitted, in 1897, a detailed report relative to the casting of iron posts ($120), and setting in place of three stone monuments ($245) and sixteen iron posts ($197).80 Attached to the report is a statement of compensation of the commissioners, expenses incurred subsequent to the filing of its last report, and the prayer that their “report be confirmed, and they be discharged.”81 In 1924, the court determined a group of North Dakota residents had raised funds to finance their state’s original jurisdiction suit to enjoin the use of drainage ditches constructed by Minnesota, and to recover money damages for injuries to state property and the resident’s properties. The court concluded the proceeding was a litigious one and awarded costs against North Dakota based upon the refusal of its chief engineer to answer a question, during cross-examination, relative to the use of the funds collected by residents of his state.82 The court, in 1957, stipulated the following relative to the allocation of fees and expenses: The petition for an order approving payment on account of fees and expenses of the special master is granted and the parties are ordered to make payments to cover the expenses of the special master in the following proportions: Arizona, 28%; California, 28%; United States, 28%; Nevada, 12%; New Mexico, 2%; and Utah, 2%. They are further ordered to make payments totaling $50,000 to Simon H. Rifkind, Esquire, special master, on account of the fee

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to be awarded by this court as compensation for his services as special master. Such payments are to be made in the proportions set forth above.83 The court noted a new award, allowance, or division of costs and fees could supersede its order. In 1897, the court, in Indiana v. Kentucky, approved the expenses and fees report of three commissioners—Amos Stickney, Gustavus V. Menzies, and Gaston M. Alves—totaling $1,122.00.84 A private association involved as an intervenor in an interstate dispute also can be ordered to pay a share of the fees. In 1988, the court clarified its December 7, 1987 order by holding: “Onehalf of the total fee application filed November 4, 1987, is to be paid by the United States. One-fourth of the total fee application is to be paid by the State of South Carolina. One-fourth of the total fee application is to be paid by the National Governors’ Association.”85 The appointment of sitting federal judges as special masters in interstate disputes reduced the expenses of states that were party to the litigation as the U.S. government pays these judges. Retired Chief Justice Charles Evans Hughes of the Supreme Court served as the special master in Wisconsin v. Illinois, and in 1930, received $30,000 in compensation for his services in the original and supplemental references and was reimbursed $2,775.90 for stenographic, travel, and other expenses incurred.86 The fees and expenses of private persons appointed special masters in the mid-twentieth century were relatively low. Special Master John Raeburn Green in 1957 was awarded $25,000 as compensation for his services and $7,611.27 for expenses.87 The court, in 1987, approved the “motion for compensation on behalf of the Estate of the Special Master, Samuel. J. Roberts, . . .” and the following year approved the “motion for expenses incurred by Special Master Wade H. McCree, Jr., deceased . . .”88 Chief Justice Warren Burger in 1984 and 1986 dissented from the award of fees to special masters and Justice Harry Blackmun issued a similar dissent in 1988 relative to the fees billed by Charles J. Meyer, former dean of Stanford Law School.89 The parties in Louisiana v. Mississippi et al., in 1984, agreed Meyers—who was appointed to replace the deceased special master, a senior judge of the Court of Appeals for the Tenth Circuit—should be paid at the rate of $200 per hour for his services, but Mississippi and the private parties objected to the respective billing rates for two lawyer associates and four nonlawyer associates, and the total number of hours billed for their services. Burger dissented in part from the court’s allowance of the expenses of the special master, stated he had “no question about the professional quality of the Special Master’s services,” noted he believed “the public service aspect of the appointment is a factor that is not to be wholly ignored in determining the reasonableness of fees charged in a case like this” and added:

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I assume the latter is a law student working under the supervision of a member of the Bar. In my view, there is no basis to charge $50 per hour for a student assistant; it is obviously far more than such a student would be paid. The associate lawyers, unburdened by the managerial or administrative aspects of group law practice, as partners in a large firm often are, should record 1,600 to 2,000 billable hours a year. At the rates charged here for the “four-year” lawyer, taking the mean figure, 1,800 hours at $125 per hour, would total $225,000. There is no evidence before us to justify the rate charged. On the same basis; i.e., $70 per hour, the total for the one-year associate, would be $126,000. . . . More than $5,000 is requested for 200 hours of work by four student clerks. The record shows that almost 60 hours were spend by one law clerk researching a motion to intervene; this appears to me to be excessive. It might take a law student that long to understand fully all the problems associated with intervention, but it is not reasonable for the client to be charged that price for this sort of research which, in a sense, is education of the student involved.90 Two years later, Chief Justice Burger was joined in dissent by Justice Harry Blackman and Justice William Rehnquist relative to the application for interim fees of $33,511, in Texas v. New Mexico, by the special master, who also served as master in the Louisiana v. Mississippi case, “because the Special Master has elected to give the Court even less information supporting the fee request than he did in Louisiana.”91 Burger added he was “unwilling to act without being provided with at least as much information as private clients routinely receive from their privately retained counsel. The contending litigants have a right to expect this Court to exercise its independent judgment on fees rather than requiring each or both of them to challenge the amounts.”92 In 1988, Justice Blackmun, in Texas v. New Mexico, continued the attack upon the request for reimbursement of expenses totaling $72,205.62 submitted by Special Master Charles J. Meyers, who had served in the case of Louisiana v. Mississippi. Blackmun noted Meyers had attached a computer printout to his motion with the explanation most of the work was performed by him or Diana Poole, a replacement for his law clerk Steven Crafton, who had left Meyers’ office. Blackmun wrote: It seems apparent—indeed the master so concedes when he describes the nature of the “early months” of her work on the case—a substantial amount of Ms. Poole’s time was self-education as to the issues and was duplicative background work already performed by the former clerk. . . . The consequences of Crafton’s departure hardly are to

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be charged to these litigants. It also is difficult for me to accept the fact that in Denver, Colorado, this partner’s time is now worth $290 an hour, having been increased from $265 on November 1, 1987, and that the time of Ms. Poole is now worth $200 an hour, having been elevated from $170 beginning November 1, 1987. Ms. Poole, after all, was only four years out of law school and only three years in practice. I cannot agree that so recent a law school graduate, no matter how inherently bright she may be, of such limited experience can be said to be worth that amount in a case the retired Chief Justice described as possessing a “public service aspect.” . . . It is enlightening incidentally, to compare with this application the fees recently charged by two very distinguished lawyers who served this Court as Special Masters on other similar assignments. See South Carolina v. Baker, 484 U.S. 973, 108 S.Ct. 482, 98 L.Ed.2d 481 (1987), and Kansas v. Colorado, 485 U.S. 931, 108 S.Ct. 1103, 99 L.Ed.2d 265 (1988).93 Mauro reported that Arthur Littleworth, who was appointed special master, in 1987, in Kansas v. Colorado, a case involving the Arkansas River Interstate Compact, who continues to charge an hourly fee of $250 per hour which is “significantly less” that the rate he charged private clients in 2003.94 In 1990, the court approved the payment of $108,838.95 to the special master in Illinois v. Kentucky for the period June 27, 1988–July 6, 1990, to be paid equally by the two parties.95 In 1995, the court approved the motion of the special master in the same case for compensation and expense reimbursement totaling $114,708.16.96 The law firm of Pierce Atwood was paid $1,271,278 for the work of Lancaster and McKusick, special masters in four interstate suits in the 1990s and the early years of the first decade of the twenty-first century.97 Relative to the Potomac River dispute between Maryland and Virginia, Lancaster billed at the rate of $450 an hour and employed McKusick as a consultant, at a rate of $350 per hour.98 In 1994, the court appointed Paul Verkuil as special master in the interstate dispute between New Jersey and New York over Ellis Island in New York Harbor and he was paid $713,924 in fees by the party states.99 Verkuil reported that a special master’s procedural manual would have facilitated his role.

CRITICISMS OF THE COURT USE OF SPECIAL MASTERS Chief Justice William Rehnquist, in a 1981 dissenting opinion, wrote the court in general adopts the master’s report because the court lacks the time to conduct fact-finding and expressed his concern about the use of masters:

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It is no reflection on the quality of the work by the Special Master in this case or any other master in any other original-jurisdiction case to find it unsatisfactory to delegate the proper functions of this Court. Of course this Court cannot sit to receive evidence or conduct trials—but that fact should counsel reluctance to accept cases where the situation might arise, not resolution of the problem by empowering an individual to act in our stead. I for one think justice is far better served by trials in lower courts, with appropriate review, than by trials before a Special Master whose rulings this Court simply cannot consider with the care and attention it should. It is one thing to review findings of a district or state court, empower to make findings in its own right, and quite another to accept (or reject) recommendations when this Court is in theory the primary factfinder.100 Carstens is convinced “the role of special master . . . runs afoul of many of the characteristics of our American federal judicial system: adversarial testing, presentation of witnesses by parties, multilayered review, decisionmaking by constitutionally appointed judicial actors, and adherence to judicially created procedural safeguards.”101 Her criticism is primarily based on the lack of the appointment of special masters by the president with the consent of the Senate (as in the case of appointment and confirmation of federal judges), and the lack of procedural rules or precedent governing special masters. She contended: Oversight and procedures are necessary given both the absence of multilayed review and the overarching significant of the special master’s determinations in cases affecting states, whose interest might often outweigh those of the more traditional party litigants (such as individual litigants, corporate litigants, or even class-action litigants).102 Carstens offered five recommendations to solve her concern relative to the role of special masters as adjuncts to the United States Supreme Court in interstate suits: 1. 2. 3. 4. 5.

Restoration of more trial functions to the court; creation of a special court with concurrent original jurisdiction; grant the United States District Court concurrent original jurisdiction; delineation of special master procedures; and appointment of senior and retired United States judges as special masters.103

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SUMMARY The U.S. Constitution and statutes are silent relative to the procedure to be followed when one state seeks to sue another state in the Supreme Court, and the appointment by the court of a special master in interstate suits. The court, as authorized by Congress, promulgated rules governing the invocation of its original jurisdiction and repeatedly has emphasized such invocation would be rare and would involve only serious matters. The emergence of special masters as adjuncts to the Supreme Court is a most significant development. They have performed a most important fact establishing role preceding the development and presentation of recommendations to the Supreme Court for its consideration, thereby relieving it completely of the need to perform the time-consuming task of establishing the facts in an interstate controversy unless a party state(s) files an exception(s). The special master performs a role analgous to the role of a U.S. District Court judge whose decision may be reviewed by the Supreme Court which no doubt is more comfortable in performing its appellate role. Until 2000, criticisms of the special master system chiefly involved fees of the master. Carstens, in that year, advanced substantial criticisms of the system and offered recommendations to overcome the problems. Chapter 4 is devoted to interstate boundary disputes, the first type employed by a state to invoke the original jurisdiction of the U.S. Supreme Court.

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The Court’s Boundaries Decisions

Interstate disputes first appeared on the U.S. Supreme Court’s docket in 1799, when the court heard New York’s petition for the issuance of a writ of injunction to prevent Connecticut from ejecting New York citizens from lands granted by the state. Boundary disputes have been perennial, and other disputes, particularly those involving water allocation and water pollution, have become more common court docket items during the past five decades. One interstate dispute—involving California’s motion to file a bill of complaint alleging West Virginia breached a contract for athletic contests between San Jose State University and University of West Virginia—is the only dispute of its type to appear on the court’s docket. In 1981, the court summarily dismissed the motion.1 A state in the United States of America is not an international juristic person, yet in 1902, the U.S. Supreme Court opined, in Kansas v. Colorado, that the court sits as an international tribunal in interstate suits and applies “federal law, state law, and international law, as the exigencies of the particular case may demand.”2 In 1907, the court, in a suit involving the same two states explained interstate relations are governed by international law.3 In 1934, Justice Benjamin Cardozo, in New Jersey v. Delaware, which involving a boundary dispute, wrote: “International law today divides the river boundaries between states by the middle of the main channel, when there is one, and not by the geographical center, halfway between the banks.”4 Cardozo continued by referring to the development of the doctrine of the thalweg. He cited Grotius and various peace treaties pertaining to river boundaries, and concluded “[i]nternational law, as well as domestic law, may not contain, and generally does not contain, express rules decisive of particular cases; but the function of jurisprudence is to

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resolve the conflict of opposing rights and interesting by applying, in default of any specific provision of law, the corollaries of general principles.”5 To date, the court has failed to explain its reference to the application of international law to disputes between sister states. There are, however, similarities between compacts entered into by states and international treaties. Interpretation of the provisions of an interstate compact, according to the court, necessitate the use of rules of treaty construction, which include diplomatic correspondence but not verbal statements of the negotiators.6 The court’s decisions in interstate dispute cases have resulted in the development of an interstate common law, a synthesis of the English common law and international law. A 1959 law review note explained the advantage of the court’s approach in view of the alternative: “The alternative would be a set of choice-of-law rules referring the court to the internal law of a state which stands in a certain relation to the transaction. However, interstate controversies typically involve acts having consequences beyond the borders of any one state. Automatically looking to a given state’s law would be to impose the law of one “quasi-sovereign” on another—a policy which seems repugnant to the underlying philosophy of the original jurisdiction.”7 In 1906, the court, in Missouri v. Illinois, held the interstate suit rules established by its decisions could be reversed only by the court, a constitutional amendment, or a interstate compact granted the consent of Congress.8 This chapter reviews selected decisions involving interstate boundary disputes. Chapter 5 examines suits between sister states involving escheats and taxation, chapter 6 reviews water apportionment, diversion, and pollution controversies, and chapter 7 focuses on miscellaneous suits.

BOUNDARY DISPUTES Each state legislature has enacted statutes delineating state’s boundaries, but such statutes may not be recognized by a neighboring state(s). Vague land grants by the British crown and surveyors’ errors generated numerous interstate boundary disputes. Governor Benning Wentworth, of the Royal Province of New Hampshire, acting under the Mason Grant of 1629, issued, in 1749, a charter for the Town of Bennington, named after Wentworth, and similar charters to more than one hundred other towns in present-day Vermont.9 In 1763, Lieutenant Governor Colden, of the Province of New York, issued a proclamation asserting that the territory of present day Vermont belonged to his province and granted charters for towns in the territory. Massachusetts also claimed the territory. In 1781 and 1782, respectively, Massachusetts and New Hampshire recognized the independence of Vermont, but New York did not reach an agreement with the “Republic of Vermont” until

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1791. The New York agreement facilitated the admission of the Territory of Vermont to the Union as the fourteenth state in the same year. Nevertheless, Vermont and New Hampshire had a subsequent boundary dispute. Each of the two states engaged in a boundary controversy may appoint boundary commissioners, who are charged with determining the precise boundary line in the area of dispute and negotiating an agreement with commissioners from the sister state in order to avoid an original jurisdiction trial in the U.S. Supreme Court. Each state legislature will enact an agreement on the boundary line in the form of an interstate compact subject to congressional consent and there will be no need for the court to determine the boundary line. The wandering Missouri River, for example, generated a boundary dispute between Nebraska and South Dakota. Commissioners from the two states reached an agreement on the boundary line and it was enacted by each state legislature as an interstate compact and received the consent of Congress in 1990.10 Boundary commissioners also may reach an agreement to accept the boundary marker stones implanted in the nineteenth century. A dispute erupted over the boundary line between the Town of Hopkinton, Rhode Island, and the City of North Stonington, Connecticut. Boundary commissioners, appointed by the two state legislatures, agreed in 2004 to accept the markers if they had not been disturbed. Connecticut State Senator Catherine W. Cook commented: “North Stonington didn’t make a mistake. They used the best technology they had,” and Connecticut surveyor Bob Baron understood the problems of nineteenth-century surveyors, who worked without satellite imagery and lasers, and “relied upon chains and staff compasses and taking magnetic bearings through the woods in the 1830s and 1840s . . .”11 In 1838, Justice Henry Baldwin, in Rhode Island v. Massachusetts, noted that section 2 of Article III of the U.S. Constitution does not expressly extend the judicial power to all interstate disputes, and added the section “in terms excludes none, whatever may be their nature or subject.”12

New York v. Connecticut In 1799, the U.S. Supreme Court was called upon for the first time to resolve a dispute between the two states. Most state land claims are based upon positive grants by the crown, but New York’s claim to the disputed land tract was based upon a 1683 agreement between the two provinces, stipulating the land in dispute belongs to New York. Connecticut granted out the disputed land and sought to eject New York residents, who filed suit in the U.S. Circuit Court seeking a writ of injunction to prevent ejection. New York did not join its citizens in the suit. In view of the fact Connecticut did not appear in the court to reply to the bill, the only question before the court was whether to

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issue an injunction to stay the proceedings in the Connecticut ejectments. The Supreme Court held “that as the State of New York was not a party to the suits below, nor interested in the decision of those suits, an injunction ought not to issue.”13

Rhode Island v. Massachusetts In 1838, for the first time, the Supreme Court established the boundary between two states when it ruled on a bill of complaint in equity filed by the State of Rhode Island and Providence Plantations against the Commonwealth of Massachusetts, asserting the former state’s claim to land adjacent to Narragansett Bay.14 The bill of complaint contains a long historical section relating to the 1621 charter granted by King James I to the Plymouth Colony, the alleged surrender by the colony of the charter to King Charles I, and the grant by King Charles II of a charter of incorporation for the “Colony of Rhode Island and Providence Plantations in New England in America.” Massachusetts, represented by Daniel Webster, made a motion for dismissal on the ground of lack of jurisdiction by the Supreme Court because of the character of the respondent and nature of the suit. Webster explained Article III of the U.S. Constitution uses the word “all” before classes of cases, with the exceptions of controversies between states and two other classes of controversies. He continued by arguing “controversies between states must be limited to those which begin with the states in that capacity, and does not extend to the antiquated controversies existing between the colonies”15 After an extensive review, the court noted Massachusetts had also engaged in boundary disputes with Connecticut and New Hampshire, conducted an extensive review of the facts, held the court possesses the constitutional authority to adjudicate a boundary between two states, and ruled in favor of Rhode Island.16 This sixth interstate dispute was the first one where the court entered a final decree.

Florida v. Georgia In 1850, the Supreme Court granted Florida’s motion to file a bill of complaint in equity against Georgia relative to the boundary line between the two states.17 U.S. Attorney General Caleb Cushing, in 1854, sought leave of the court to intervene in the dispute between the sister states on behalf of the United States because it had granted specified “lands, by patent, to individuals, or by statute cession, to Florida, which according to the claims of Georgia, belonged to her, not to the United States.”18 Cushing in particular argued

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no boundary change should be made without the consent of Congress, as it enacted a statute in 1845 admitting Florida into the Union with specified boundaries.19 The court concluded the attorney general “may file in the case the testimony referred to in the information, without making the United States a party, in the technical sense of the term; but he will have no right to interfere in the pleading, or evidence, or admissions of the States, or of either of them” and added the court “in deciding upon the true boundary line, will take into consideration all the evidence which may be offered by the United States, or either of the parties.”20 Justice Curtis dissented and after reviewing the submission opined: “If all this does not make the United States a party to this controversy, it would be difficult for me to show that it has any parties.”21

Indiana v. Kentucky Indiana was granted leave by the court to file a bill of complaint against Kentucky pertaining to the right of jurisdiction over “Green River island” which is connected to the Indiana shore as the result of the gradual filling of an old channel of the Ohio River. Kentucky in its answer brief contended its title to the disputed land was based upon the fact the land was an island in the river and within the jurisdiction of Kentucky when it became a state in 1792 under provisions of the Virginia act establishing the District of Kentucky. Furthermore, the answer brief maintained its boundaries were at the low-water mark on the north side of the river, her long possession of the disputed land had not been disputed, and Indiana was confined to the boundaries assigned in its act of admission to the Union in 1816. The Supreme Court noted its 1820 decision in Handly’s Lessee v. Anthony, and ruled Virginia must have intended the low-water line on the river’s north side was the boundary line, and in 1890, opined its agreement with the 1820 decision.22 The court buttressed its decision by explaining that Indiana failed for more than seventy years to challenge Kentucky’s ownership of the disputed tract of land during which period “there was affirmative action on the part of Kentucky in the assertion of her rights . . . by the law declaring the boundaries of her counties on the Ohio River, passed in January 1810 . . . and there was also action by her officers in the assertion of her authority over the land; all of which tends to support the claim of rightful jurisdiction.”23

Iowa v. Illinois This case involved the use by Congress of different expressions defining the boundaries of Illinois, Iowa, Missouri, and Wisconsin contained in enabling

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statutes admitting these states to the Union: “middle of the Mississippi River,” “the center of the main channel of that river,” and “middle of the main channel of the Mississippi River.” Plaintiff state Iowa maintained that for all purposes, including taxation, the boundary line with Illinois is “the middle of the main body of the river, taking the middle line between its banks or shores without regard to the ‘steamboat channel,’ as it is termed, or deepest part of the stream” when the river is in its ordinary stage without floods or reduced by droughts.24 Conversely, Illinois, in its cross bill, contended the middle of the steamboat channel, of the channel of commerce, is the boundary line. Iowa alleged its territory was under the dominion of France at the time of the 1763 treaty between England, France, and Spain, the land constituting Illinois was under the dominion of Great Britain, and the treaty established the middle of the river as the boundary between British and French territories. The Treaty of 1783, between Great Britain and the United States transferred the Illinois territory to the latter and the Louisiana Purchase of 1803 transferred the Iowa territory to the United States.25 The court in 1893 opined: When a navigable river constitutes the boundary between two independent states, the line defining the point at which the jurisdiction of the two separates is well established to be the middle of the main channel of the stream. The interest of each state in the navigation of the river admits of no other line. The preservation by each of its equal right in the navigation of the stream is the subject of paramount interest. It is therefore laid down in all the recognized treatises on international law, of modern times, that the middle of the channel of the stream marks the true boundary between adjoining states up to which each state will on its side exercise jurisdiction.26 The court buttressed its conclusion by citing books on international law by Creasy, Halleck, Phillimore, and Woolsey. The court also stipulated the counsel for each state should suggest the names of three competent individuals the court will appoint to a three-member commission charged with determining and designating the boundary line between the two states at nine specified bridges across the river.27

Missouri v. Nebraska Missouri was granted leave to file a bill of complaint in equity against Nebraska seeking a decree declaring its possession and sovereignty over specified territory north and east of the center of the main channel of the Mis-

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souri River as it flows past the two states. Nebraska filed an answer brief and also filed a cross bill seeking a decree confirming its possession and sovereignty of the disputed territory. The court appointed commissioners to take testimony, gather evidence, and held that the commissioners’ findings of facts were correct. The case came before the court relative to questions of law arising out of the various pleadings, report of the commissioners, and stipulation of the parties. The court reviewed the history of the admission of Missouri to the Union as a state on March 6, 1820, and the admission of Nebraska to the Union on February 9, 1867. The key question before the court was whether the rapid and permanent change in the course and channel of the river on July 5, 1867, changed the boundary line between the two states. The court cited with favor its 1836 decision which held: “The question is well settled at common law, that the person whose land is bounded by a stream of water, which changes its course gradually by alluvial formations, shall still hold by the same boundary, including the accumulated soil.”28 In consequence, the court in 1904 dismissed the original bill and entered a decree in favor of Nebraska on its cross bill.29

Missouri v. Kansas The purpose of Missouri’s bill of complaint in equity against Kansas was to establish the western boundary of the state over a short distance above Kansas City in order to maintain its title to a 400-acre island situated close to Kansas City. In its answer brief, Kansas claimed the island. Congress admitted Missouri to the Union in 1820 and established its western boundary along a meridian running due north, which resulted in land lying between the meridian and the Missouri River.30 Subsequently, an 1836 U.S. treaty with Indians relinquished their claims to the land and a 1836 congressional statute extended Missouri’s jurisdiction to the river.31 Gradual erosion led to the river migrating to the east, beyond the established boundary line. Despite the changed course of the river, Missouri maintained its jurisdiction is the originally established boundary line. The court conducted an extensive review of the congressional statutes, the treaty with Indians, amendment of the Missouri Constitution, Missouri acts determining the boundary of river counties as the middle of the river, and an 1837 presidential proclamation declaring the extinguishment of the Indian title to the land.32 This review led the court to conclude the object was to establish the Missouri river as the western boundary line of Missouri, “it is unnecessary to consider the evidence as to precisely where the line, as surveyed, ran from opposite of the mouth of the Kansas or Kaw,” and the boundary is the middle of the river “opposite the middle of the mouth of the Kaw.”33

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North Carolina v. Tennessee Each state appointed three commissioners to report to its respective state legislature relative to North Carolina’s allegation a dispute had arisen relative to the location of the boundary line between the extreme height of the mountain northeasterly of the Tennessee River and the main ridge southwest of the river. Tennessee reported that the line described by North Carolina is the true line. Tennessee was part of North Carolina until the latter ceded the territory of Tennessee to the United States in 1789. The act of cession described the boundary line as running from the French Broadriver, westerly: “Thence along the highest ridge of the said mountain to the place where it is called Great Iron mountain or Smoky mountain, thence along the extreme height of said mountain to the place where it is called Unicoi or Unaka mountain, between the Indian towns of Cowee and Old Chota, thence along the main ridge of such mountain to the southern boundary of this state.” The same description is contained in a 1790 North Carolina deed, the congressional act accepting the cession, and the Tennessee Constitution. In 1796, each state appointed commissioners who settled part of the boundary line, but left unmarked the southern boundary. The North Carolina General Assembly, in 1819, and the Tennessee General Assembly, in 1820, enacted statutes each appointing three commissioners, who issued reports, ratified by each General Assembly, and the line was declared settled. The reports of the commissioners generated no controversy until 1900 when the U.S. Circuit Court of Appeals for the Sixth Circuit appointed a special master to address the claim of a person claiming title to a tract of land under a grant from Tennessee. The court sustained the contention of Tennessee.34 In 1902, the Circuit Court of Appeals for the Sixth Circuit issued a ruling to remove a cloud on the title to wild mountain lands adjacent to the boundary between the two states.35 Early in the twentieth century, North Carolina filed a bill of complaint in equity against Tennessee. In 1914, the U.S. Supreme Court examined the work of the boundary commissioners and the two decisions of the circuit court, issued a decree specifying the boundary line, and dismissed the cross bill of Tennessee.36

Michigan v. Wisconsin Congress enacted an enabling act in 1836, and in the following year, admitted the Territory of Michigan to the Union as a state and specified its boundaries.37 In 1836, Congress created the Territory of Wisconsin and specified its boundaries.38 The only difference in the specified boundaries was the provi-

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sion, in the Michigan statute, for the “most usual ship channel” as the boundary line and the provision in the Wisconsin statute referring to the boundary as the “main channel” of Green Bay. This complicated boundary dispute, extending back eighty years, led the court to break the dispute into three sections—Montreal River, Menominee River, and Green Bay—while noting “our ultimate determination in respect of these three sections rests upon the same basic principle.”39 In 1838, Congress directed the Montreal River boundary line should be surveyed and designated, and in 1840, directed the War Department to conduct the survey.40 Captain Cram conducted the survey and reported further congressional action would be required to define the boundary. William A. Burt conducted a second survey in 1847, as authorized by the Wisconsin Enabling Act.41 This act specified its boundary adjustments were subject to the approval of Michigan, but it took no action on the subject. In 1848, Congress admitted Wisconsin into the Union with boundaries set by the act.42 Michigan subsequently incorporated the boundary provisions of the act into its constitution of 1850 and 1908. The latter constitution claimed land previously acknowledged to belong to Wisconsin. In 1926, the court ruled against Michigan and opined “rights of the character here claimed may be acquired on the one hand, and lost on the other, by open long continued, and uninterrupted possession of territory,” which is a doctrine applicable to sovereign nations as well as individuals.43 The court also applied the acquiescence doctrine to the Menominee River section and the Green Bay section.44 The court concluded its opinion by noting “the words of this court in Indiana v. Kentucky . . . are singularly apposite and conclusive.”45

Oklahoma v. Texas A controversy over the boundary line between the two states is traceable to an 1896 decision of the U.S. Supreme Court, holding the Treaty of 1819 between the United States and Spain fixed the boundary along the south bank of the Red River.46 Subsequently, Oklahoma brought a suit in equity against Texas to settle a dispute over the title to the southerly half of the river’s bed. In 1921, the Supreme Court issued a decree establishing the boundary line between the two states as the south bank of the river, as claimed by Oklahoma, and not along the medial line of the river as claimed by Texas.47 Oklahoma brought another suit in equity against Texas, claiming proprietary title to the entire bed of the Red River and to the oil and gas proceeds taken from forty-three miles of the southerly half of the river. Texas, in turn, claimed title to the southerly half and the United States disputed the claims of both states and asserted full proprietorship of the southerly half of the river

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and an interest in sections of the northerly half. The court, on the motion of the United States, supported by Oklahoma and Texas, “appointed a receiver to take possession of the part of the river bed between the medial line and a line on the south bank temporarily and provisionally designated . . . and to control or conduct all necessary oil and gas operations therein.”48 Not surprisingly, numerous parties intervened to assert their rights, particularly to tracts of land in the possession of the receiver. Oklahoma claimed total ownership of the bed of the Red River and maintained it is navigable throughout its course in the state. The court, on May 1, 1922, reached the conclusion “no part of the river within Oklahoma is navigable, and therefore that the title to the bed did not pass to the state on its admission into the union” and “the river bed never was subject to location or acquisition under the mining laws.”49 The parties were given twenty days to submit a form of decrees disposing of the various claims in conformity with the court’s opinion. On June 5, 1922, the court decreed that the Red River, within Oklahoma, is not a navigable river in any part of its course, and Oklahoma, upon entering the Union, did not acquire title or become the owner of the bed of the river within her borders, and the petitions of interveners were dismissed on their merits. Disputes continued In 1919, Oklahoma filed another bill of complaint in equity against Texas, and the United States intervened. Texas filed a counterclaim in 1920. The dispute involved a part of the common boundary extending to the west along the Red River from the southeast corner of Oklahoma. The Supreme Court reviewed: 1. the Treaty of 1819 between the United States and Spain, 2. appointment of a boundary commissioner in 1854 by the Texas Legislature who with a commissioner representing the United States marked the boundary line, 3. the Treaty with the Choctaw and Chickasaw of 1855, 4. a congressionally authorized joint commission in 1858, 5. four contract surveyors in the period 1872–75, 6. a 1887 presidential proclamation that the United States owned all territory between the 100th meridian and the North and South Forks of the Red River, 7. the 1890 act of Congress creating the Territory of Oklahoma, 8. reports of various surveyors, and 9. admission of Oklahoma to the Union in 1907. The court, in 1926, concluded “the boundary is the line of the true 100th meridian extending north from its intersection with the south bank of the South Fork of Red River to its intersection with the parallel of 36 degrees 30 minutes.”50

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New Mexico v. Texas This dispute involved the true location of the middle of the channel of the Rio Grande River in 1850. The court referred the dispute to a special master who was directed to make special findings, based upon the total record, of all material questions of fact, and to report findings of fact with recommendations. Printed briefs, totaling 2,150 pages, were submitted to the master. Both states filed exceptions to the master’s report. New Mexico relied heavily upon the testimony of Indians and Mexicans, who had accompanied the state’s engineers on several trips down the river between 1912 and 1914. The master reported: “Most of the witnesses were illiterate; they were unable to estimate distances with any degree of accuracy. . . . All . . . were old men, some very old, and some were only ten years of age or less at the date when they passed along the river between 1850 and 1860.”51 The master also examined a survey conducted by John H. Clark, a U.S. Commissioner, and member of the United States and Texas Boundary Commission in 1859. The master made a determination, as a matter of law, that New Mexico was bound by the boundary lines marked by Clark as reestablished by joint commissioners in 1911, and therefore could not challenge the established boundary line. Furthermore, the allegations contained in New Mexico’s bill, as to the location of the Rio Grande River in 1850, were not sustained. The court accepted the master’s recommendations, dismissed the New Mexico bill of complaint, and held “that under the cross-bill of Texas, the line described must be decreed to be the boundary between the two states.”52 The court also announced the boundary line should be accurately surveyed and marked by a commissioner or commissioners to be appointed by the court with the filed report subject to court approval.

Vermont v. New Hampshire Vermont, on December 8, 1915, brought an original suit against New Hampshire seeking a determination of the boundary line between the two states, and in an amended bill of complaint argued the boundary is “the thread of the channel” of the Connecticut River with the exception of the section from the northern limits of Vernon, Vermont, south to the Massachusetts boundary line, where the boundary line is the west bank of the river at its low water mark. New Hampshire answered the bill of complaint by contending the boundary is the top of the western bank of the river. Vermont supported its claim by referring to grants, by Governor Benning Wentworth of the Province of New Hampshire, on the west side of the river, which were bounded on the east by the thread of the river. Vermont was admitted to the Union with boundaries established by her revolution.

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The court referred the dispute to a special master, who supported all contentions except the last one. The master found that on February 22, 1782, the Vermont General Assembly relinquished any claim to territory east of the low water mark on the west side of the river in response to a congressional resolution of August 20–21, 1781, outlining the terms under which Congress would consider the admission of Vermont as a state to the Union. The court wrote “Vermont’s claim of a boundary to the thread of the channel is no longer before us as New Hampshire alone has filed exceptions to the report of the special master.”53 The remaining issue involved whether the boundary line is the low-water mark on the west side of the river or the top of the westerly margin of the bank. A holding in support of the latter would establish New Hampshire’s jurisdiction over a narrow strip of land with varying width on the west side of the river and, depending upon the river’s level, would be submerged or uncovered by water at times. In 1897, the state legislatures of Massachusetts, New Hampshire, and Vermont each enacted a statute for the placement of a boundary monument establishing the southeast corner of Vermont and the southwest corner of New Hampshire on the west bank of the river. The court, after examining this evidence, opined the evidence “fully supports the conclusion that the monument was intended to be located at [the] low-water mark and was in fact placed below the shore line at a point near the water’s edge when the river was ‘very low.’”54 In 2004, New Hampshire Attorney General Peter Heed and Vermont Attorney General William Sorrell met on the northwest corner of the Connecticut River bridge connecting Hanover, New Hampshire, and Norwich, Vermont, to continue a seventy-year-old tradition that the two attorneys general meet once every seven years to ensure all boundary markers and monuments are in place.55

New Jersey v. Delaware New Jersey invoked the court’s original jurisdiction seeking a determination of the boundary line in the Delaware Bay and River between the two states. The principle, that long acquiescence establishes otherwise uncertain boundaries, did not apply to this suit as the two states commenced to dispute the boundaries shortly after achieving statehood. The dispute had two parts, each distinct in terms of facts and law. The first issue related to the title to the subaqueous soil, or bed of the river, in the area of New Castle, with Delaware claiming to own the entire disputed area. The second issue involved determination of the boundary line in the river below the disputed New Castle area and in the bay.

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In 1930, the court appointed William L. Rawls, esquire, of Baltimore, as the special master.56 His report favored Delaware in the New Castle area, and New Jersey filed exceptions. The report favored New Jersey relative to the river below New Castle and in the bay. These boundary disputes, in common with boundary disputes involving the other original states, are rooted in colonial land grants, including the Duke of York’s grant of a deed on August 24, 1682, to William Penn for a twelve-mile circle of territory in the area of the town of New Castle. Penn organized a General Court for the Delaware territory and the court determined its jurisdictional limits. The proprietary interest of Penn and his successors was occasionally challenged and was highlighted by a dispute between Penn and Lord Baltimore, relative to the title, to part of the Delaware territory. After Penn died, Lord Baltimore reached an agreement with Penn’s sons, settling the boundary lines between Delaware, Maryland, and Pennsylvania. The court received the above, and other historical factors, and concluded that the principle of acquiescence over a long period of time was inapplicable to the controversy. The court also addressed New Jersey’s contention that Delaware had abandoned its claim to the disputed territory when it entered into an interstate compact with New Jersey, which received the consent of Congress in 1905.57 The court rejected this contention by explaining the compact related only to riparian rights, the concurrent rights of fishery, and concurrent jurisdiction relative to civil and criminal process.58 The court also reiterated that international law provides for division of river boundaries by the middle of the main channel if there is one and not by the geographical center of the river between the banks. Furthermore, international law applies the doctrine of the thalweg, the main navigation channel, to rivers, estuaries, and bays. The master determined there has been a welldefined navigation channel in the river and bay since 1756, and they are not equally navigable in all directions because of shoals. Justice Benjamin Cardozo, writing for the court, traced the history of the doctrine of the thalweg and its use to determine boundary lines. In 1934, the court announced: The report will be confirmed, and a decree entered accordingly, which, unless agreed to by the parties, may be settled upon notice. Within the twelve-mile circle, the river and the subaqueous soil thereof up to low water mark on the easterly or New Jersey side will be adjudged to belong to the state of Delaware, subject to the Compact of 1905. Below the twelve-mile circle, the true boundary between the complainant and the defendant will be adjudged to be the middle of the mail ship channel in Delaware river and bay.59 Each state was ordered to pay one-half the costs of the suit.

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Kansas v. Missouri In 1940, Kansas filed a bill in equity against Missouri in the Supreme Court, seeking to have the court determine the boundary lines of the states from the mouth of the Kansas River northward for 128 miles along the Missouri River channel to its intersection with the Kansas northern boundary line. Kansas maintained the thread of the turbulent and vagrant Missouri River shifted frequently and suddenly on occasions, and gradually on other occasions. This variability generated a dispute in a number of areas. The two states settled their differences with one exception during the pendency of the suit. In common with its customary practice, the court appointed a special master whose report contained findings and conclusions that in general favored Missouri. Kansas objected by maintaining the findings and conclusions were contrary to the law and the weight of the evidence gathered. Missouri responded to Kansas’ claims with a denial on the facts. The burden of proof fell upon Kansas as the complainant. The court awarded the disputed land to Missouri and explained: As the case has been made, both the master and this Court have had to rely upon the inadequate and inconclusive documentary evidence and the conflicting and often vague recollections of neighborhood witnesses. The sum does not add up to the weight of proof Kansas was required to establish in order to prevail. The master saw and heard the witnesses. His conclusions in all respects were in favor of Missouri. We find no basis in the record for any conclusion that he performed his task with other than fair, disinterred, painstaking effort and attitude. His judgment accords with the conclusion we make from our own independent examination of the record. It is not necessary for us to decide more than that Kansas has failed to show that the main channel of the river shifted at any time in question from a course such as the river now follows, or one slightly closer to the Kansas bluffs, to one following the course of the Missouri channel when the flow was divided.60

Ohio v. Kentucky In 1966, a motion for leave to file of a bill of complaint in equity was filed by Ohio against Kentucky seeking to have the court establish the boundary line between the states where the Ohio River served as the boundary line, and issue a declaration each state had concurrent and equal jurisdiction over the river. In 1966, the court appointed Senior Judge Phillip Foreman of the U.S.

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Court of Appeals for the Third Circuit as special master. In 1971, Ohio moved for leave to file an amended bill of complaint claiming the boundary between the two states is the middle of the river or, as an alternative, the 1792 low water mark on the north shore. The motion was referred to special master Robert Van Pelt, a replacement of special master Foreman who resigned. A Virginia act of 1789, known as the Virginia-Kentucky Compact, separated the District of Kentucky from the Commonwealth of Virginia and Congress admitted the district into the Union as the State of Kentucky in 1792. Although Ohio was separated from Virginia by a 1784 Virginia act, the District of Ohio was not admitted to the Union by Congress as a state until 1803. In 1973, the court noted its “object in original cases is to have the parties, as promptly as possible, reach and argue the merits of the controversy presented. To this end, where feasible, we dispose of issues that would only serve to delay adjudication on the merits and needlessly add to the expense that the litigations must bear.”61 The court decided the present case should be handled in the above manner, but nevertheless admitted new materials offered by Ohio. The court also decided not to express a view on Ohio’s historical analysis because of “the State’s long acquiescence in the location of its southern border at the northern edge of the Ohio River, and its persistent failure to assert a claim to the northern half of the river.”62 The court also explained that in Handly’s Lessee v. Anthony, in 1820, it had established the Kentucky boundary line with Indiana, through the Virginia cession, as the low-water mark on the northern side of the Ohio River.63 In 1820, Chief Justice John Marshall opined when “one State is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly-created State extends to the river only.”64 The court’s decisions subsequently adhered to this rule. Ohio countered it was not a party to the Handly, or subsequent cases in which the court reaffirmed the Handly decision. In 1973, the court dismissed this argument because of Ohio’s “long acquiescence in the location of its southern border at the northern edge of the Ohio River, and its persistent failure to assert a claim to the northern half of the river, . . .”65 Justice William O. Douglas issued a strong dissent to the court’s decision not to allow Ohio to amend its complaint and wrote “[t]he question before us is equivalent to that posed by a demurrer. The majority’s conclusion of insufficiency is, therefore, not sustainable.”66 He added, the court performed a disservice, “both to the adjudication of this dispute and to the procedural contours of original actions,” by making a premature judgment of the issues and terminating Ohio’s brief.67 In 1980, the court settled the suit brought in 1966. Special Master Robert Van Pelt recommended that the court determine the boundary line between

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the two states is the 1792 low-water mark on the northern side of the river and the present boundary can be determined by (1) agreement of the party states, (2) a joint survey agreed upon by the states, or (3) hearings by the special master with a report submitted to the court containing his proposed findings and conclusions. The court noted the Ohio River is not the typical boundary divider between states where there are well-accepted rules of accretion and avulsion applicable to a river changing its course. The court was not concerned by the fact the boundary dispute settled by the Handly decision involved Indiana and Kentucky and not the Ohio-Kentucky segment of the river or the fact the boundary is determined by the 1792 low-water mark. The court overruled the exceptions of Kentucky to the special master’s report and adopted it.68 This decision drew a strongly word dissent by Justice Powell, joined by Justice Rehnquist and Justice White, declaring the court decision “frustrates the terms of the Virginia Cession of 1784 that first established the Ohio-Kentucky border, ignores Chief Justice Marshall’s construction of that grant in Handly’s Lessee v. Anthony, 5 Wheat. 374, 5L. Ed. 113 (1820), is contrary to common law rules of riparian boundaries, and created a largely unidentifiable border.”69 The dissent concluded by declaring the court’s decision is unworkable in practice.

New Hampshire v. Maine In 1973, the court allowed New Hampshire to file a bill of complaint in equity against Maine which was allowed thirty days in which to respond.70 The case involved a lobster fishing dispute caused by the fact Maine’s fishing regulations are more restrictive than New Hampshire’s regulations. The court appointed a special master who reported the two states had reached a settlement agreement and a joint motion, along with a proposed decree, was filed for entry of judgment by consent with the master noting the proposed consent degree was impermissible. The party states accepted the master’s conclusions the boundary line was fixed by a decree of King George II in 1740 in the Piscataqua River harbor area, but differed with respect to the location of certain points contained in the decree. The consent decree contained their agreements upon the meaning of the disputed term. The master based his recommendation upon the court’s decision in Vermont v. New York holding “mere settlement by the parties acting under compulsions and motives that have no relation to performance of (the Court’s) Art. II functions” do not relieve the court of its constitutionally assigned duty to resolve an interstate dispute.71 The court noted relative to Vermont v. New York if the court agreed to police the conduct of the party states prospectively, “we would be acting more

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in an arbitral rather than a judicial manner.”72 The court held that the consent decree was permissible and did not resemble an arbitral function and rejected New Hampshire’s argument that acceptance of the consent decree lacking an independent court determination “would be a circumvention of the Compact Clause” by explaining the required consent of Congress is limited to interstate compacts encroaching upon the powers of the United States.73 Hence, the court announced it would enter the proposed consent decree. Justice Byron White, joined by Justices Harry Blackmun and John Paul Stevens, dissented by opining neither the court nor the parties had made an inquiry “whether the “middle of the river” has, or had, any commonly understood meaning in the law.74 They also questioned whether the party states, without the consent of Congress “could agree to locate the boundary between them on either shore of the river . . . if the controlling document describes their boundary as the middle of the river, nor, if the document made it plain that the main channel in the river was their boundary line, would they be free to stipulate that the boundary should be the geographic center of the stream nor should a court approve any such stipulation.” A final decree was ordered by the court in 1977 and explained the “terms Middle of the River and Middle of the Harbor” refer to the main navigation channel of the Piscataqua River and the main navigation channel of Gosport Harbor.75 The decree also stipulates: “The State of Maine, its officers, agents, representatives and citizens, are perpetually enjoined from disputing the sovereignty, jurisdiction, and dominion of New Hampshire over the area adjudged to her by this decree; and the State of New Hampshire, its officers, agents, representatives and citizens, are perpetually enjoined from disputing the sovereignty, jurisdiction, and dominion of Maine over the area adjudged to her by this decree.”76 Nevertheless, in 2000, New Hampshire brought a original action in equity against Maine maintaining the boundary line ran along the Maine shore of the Piscataqua River and the river and the Portsmouth harbor and naval shipyard were located in New Hampshire territory. The complaint was motivated in part by the dissent of three justices in the earlier decision involving the two states. Maine responded by filing a motion to dismiss the complaint. The court, in its 2001 judgment, relied upon judicial estoppel in contrast to the res adjudicata doctrines of claim and issue preclusion. The former doctrine holds a party who was successful in maintaining a certain position in a legal proceeding may not subsequently maintain a contrary position, particularly if it be adverse to the party acquiescing in the position taken by the former party. The court rejected all New Hampshire arguments that the doctrine of estoppel is not applicable to states and granted Maine’s motion to dismiss the complaint.77 In the same year the court denied New Hampshire’s petition for a rehearing.78 New Hampshire, however, was persistent and its General Court (state legislature), in 2003, established a boundary commission charged

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with determining the location of the boundary line in the Piscataqua River between New Hampshire and Maine.79 A 2003 book—Deceive to Win: The Maine-New Hampshire Border Controversy—by a Maine author contains a blistering attack on New Hampshire’s attempts to enlarge its territory at the expense of Maine.80

Nebraska v. Iowa Nebraska filed an original jurisdiction suit against Iowa, which had been admitted to the Union in 1846 with a provision stipulating the state’s western boundary is the middle of the main channel of the Missouri River. In 1867, Nebraska was admitted to the Union and its eastern boundary was specified as the middle of the channel of the Missouri River. The court, in 1892, issued a most important decision, holding the boundary line between the two states is a varying one. In situations where the middle of a stream serves as a boundary line between private landowners, the boundary follows changes in the stream, whether due to gradual accretion or bank degradation, the riparian owner’s boundary line remains the stream. In 1877, the Missouri River above Omaha suddenly cut a new channel. The court’s opinion, drawing upon the law of nations, explained it was well-settled law that whenever a stream, serving as a boundary line, suddenly abandons its old course for a new one, “the boundary remains as it was, in the center of the old channel, although no water may be flowing therein.”81 The court added: “The boundary, therefore, between Iowa and Nebraska is a varying line, so far as affected by these changes of diminution and accretion in the mere washing of the waters of the stream.”82 Nebraska brought an original action against Iowa regarding the construction and enforcement of the Iowa-Nebraska Boundary Compact of 1943, whose design sought to address the fickle nature of the Missouri River that did not respect the 1892 decree of the Supreme Court.83 Each state filed exceptions to the report of the special master. The establishment of a permanent boundary by the compact resulted in certain riparian lands previously in each state being relocated within the sister state, thereby raising questions of the effect to be given by a state to titles, mortgages, and other liens arising under the laws of the sister state. The dispute before the court is traceable to the 1963 claim of Iowa to approximately thirty separate areas of land, marsh, water, or combination thereof, on the Iowa side of the boundary established by the compact. The findings and conclusions of the special master in general favored Nebraska’s position regarding the area formed prior to July 12, 1943, and Iowa’s exceptions address these areas. The master’s findings and conclusions

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also favored Iowa’s position regarding the areas formed subsequent to July 12, 1943, and Nebraska’s exceptions are addressed to them. The court overruled all exceptions but two addressing printing errors in the master’s report. The master recommended sections 2–3 of the compact should be construed, relative to areas formed prior to July 12, 1943, “as limiting . . . Iowa to contesting with private litigants in state or federal courts the question whether the private claimants can prove title ‘good in Nebraska,’ and when private litigants prove such title, as obliging Iowa not to interpose Iowa’s doctrine of state ownership as defeating such title.” In 1973, the court agreed with this recommendation, but rejected the master’s recommendation the court “should enjoin the State of Iowa, its officers, agents, and servants from further prosecution of the cases now pending in the Iowa courts” by explaining: We see no reason for an injunction at this stage. We are confident that the State of Iowa will abide by our adoption of the Special Master’s conclusion that in any proceedings between a private litigant and the State of Iowa in which a claim of title good under the law of Nebraska is proved, the State of Iowa will not invoke its commonlaw doctrine of state ownership as defeating such title.84

California v. Nevada California brought a bill of complaint in equity against Nevada regarding the boundary line between the states. In conformance with it practice in this type of suit, the court appointed a special master authorized to take testimony and to make findings of fact and law. The special master collected and analyzed a voluminous record, including information on numerous surveys conducted in the nineteenth century, and concluded that the two most recent surveys established a boundary line, which the two states had observed for nearly a century. After applying the doctrine of prescription and acquiescence, he determined the boundary long acquiesced in by the two states was the legal one. The court approved and adopted the master’s report after overruling Nevada’s exceptions to the report with qualifications.85 Writing for the court, Justice William Brennan noted the 1849 California state constitution first defined the boundary and the provision, in the 1861 statute, creating the territory of Nevada and authorized it to include within Nevada portions of California provided California grants its consent “by an act irrevocable without the consent of the United States.”86 California never granted its assent and the boundary remained the same when Nevada was admitted to the Union in 1864. Nevada contended the special master made an error in relying upon the doctrine of acquiescence and argued that

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either Congress possesses the constitutional authority to redraw the boundary line or Congress lacks the power to change the boundaries. The court dismissed this argument, explaining the argument is flawed in assuming “there must be a particular relationship between the origin of a boundary and the legal consequences of acquiescence in that boundary.”87 California filed a motion for leave to file a second amended complaint and bifurcate issues by means of proceedings before the special master subsequent to the determination of the boundary line for the purpose of establishing clear titles to land parcels affected by the boundary determination. The special master recommended approval of the motion, but the court declined and opined: The ownership and title questions that remain typically will involve only one or the other State and the Untied States, or perhaps various citizens of those States. Disputes between California and Nevada are not in the offing. In consequence, even if some of the ownership questions to come do fall without our original jurisdiction they will not fall within our exclusive jurisdiction.88

Louisiana v. Mississippi This boundary line dispute involved a 1979 motion by Louisiana for permission to file a bill of complaint in equity against Mississippi and Avery B. Dillie, Jr., who executed an oil and gas lease. The lessee drilled a well on a surface location on Dillie’s riparian owned land in Mississippi and the well ran under the river. Louisiana, in its proprietary capacity, executed a oil and gas lease in the area of the riverbed in dispute. The court appointed Charles J. Meyers as special master, who proceeded with a pretrial conference and a discovery schedule, denied a motion to intervene by persons and firms asserting their mineral interests in a Louisiana lease, and recommended the court should determine the location of the boundary line with respect to the bottom-hole location of the oil well. The court made reference to three other boundary disputes between the two states in which it opined the “live thalweg” of the Mississippi River’s navigable channel was the boundary line. These decisions, however, do not resolve the controversy because there is no uniform definition of the thalweg. The master recommended the taking of evidence to determine the course taken downstream by vessels navigating that part of the river in the disputed area. Two expert witnesses appeared before the master for Louisiana and one expert witness appeared for Mississippi; they entered over one hundred exhibits in evidence. The court reported that their evidence reveals “the presence of a not

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unusual situation. Qualified experts differed in their conclusions.”89 The court conducted its independent review of all the facts, overruled the exceptions of Mississippi, announced its agreement with the special master’s findings and recommendations, and concluded “that at all relevant times during the period from 1972–1982 the boundary between Mississippi and Louisiana was east of the bottom hole and, therefore, that the bottom hole was to the west of that line and within the State of Louisiana.”90 In 1995, the Supreme Court rendered another decision to resolve a boundary dispute between the two states. Earlier, several Mississippi citizens filed suit in the United States District Court for the Southern District of Mississippi to quiet title to the property involved in the boundary dispute. The court ruled in favor of Mississippi, but the U.S. Court of Appeals for the Fifth Circuit, in 1991, overturned the decision.91 Relative to jurisdiction, the Supreme Court held neither the District Court nor the Court of Appeals had jurisdiction to grant any relief in the quiet title action to one state against another state. The Supreme Court remanded the case so the Louisiana complaint could be dismissed by the District Court and for the Court of Appeals to make a determination relative to necessary proceedings relating to the claims of the private parties. Louisiana, upon remand, requested the District Court to stay further proceedings to allow the state to again seek permission to file a bill of complaint in the Supreme Court. The District Court acceded to the request. Louisiana filed another motion for permission to file a bill of complaint and the court granted the motion. The special master determined the land in dispute was derived from an island that had been located within Mississippi prior to the river’s main navigational channel shift to the east of the island. Louisiana advanced the theory the island had washed away in 1883 and the disputed land was not formed from materials derived from the island. The court agreed with the special master who had rejected the Louisiana theory and announced it was also overruling Louisiana’s other exceptions as insubstantial.92

Illinois v. Kentucky The Supreme Court granted a 1986 Illinois’ motion for leave to file a bill of complaint in equity against Kentucky to resolve a dispute over the boundary line between the two states, and specifically to declare the boundary is the 1792 low-water mark on the north shore of the Ohio River. Kentucky, in its answer brief, declared the boundary to be the 1792 low-water mark on the northern side of the river “as it exists from time to time,” offered defenses based on acquiescence and laches, and invoked principles of riparian boundaries. The discovery process continued for three years, the states submitted

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evidence to the special master in 1990, and they were granted more time to develop evidence re: Kentucky’s claim of prescription and acquiescence. Special Master Matthew J. Jasen filed his report with the court in 1990 and recommended the court should (1) declare the 1792 low-water mark on the north side of the river as the boundary line, (2) rule the record does not support Kentucky’s affirmative defenses, (3) “find the low-water mark on the Illinois side of the river [to be] farther north than it was in 1792,” and (4) order the determination of the line by one of three methods: agreement of the two states, a joint survey agreed by the two states, or by the court after hearings before the master and his submission of proposed findings and conclusions to the court.93 Kentucky filed exceptions to the special master’s report. The court generally agreed with the recommendations of the special master and explained the court had resolved the major issue in Ohio v. Kentucky, in 1980, by determining the Kentucky-Ohio boundary was the low-water mark of the Ohio River on its northern side.94 Kentucky, in its exceptions, argued the case is not based on this decision, but on acquiescence. The court explained “Kentucky would need to show by a preponderance of the evidence, first, a long and continuous possession of, and assertion of sovereignty over, the territory delimited by the transient low-mark.”95 The court ruled that Kentucky’s evidence failed to support its claim of prescription and acquiescence.96

New Jersey v. New York This interstate controversy attracted national and worldwide attention because it involved Ellis Island in New York harbor.97 The island is located within 1,300 feet of Jersey City and one mile from the tip of Manhattan. In 1993, the court granted New Jersey’s motion for leave to file a bill of complaint in equity against New York seeking a declaration New Jersey had title over the sections of the island which had been formed by land fills expanding the island. The court appointed Paul Verkuil, former dean of Yeshiva University’s Benjamin N. Cardozo School of Law, as special master who conducted the equivalent of a trial to collect evidence and establish facts. The court traced the history of the island from the first Dutch settlement of the area, England’s seizure of the area in 1664, and land grants by Charles II to the Duke of York, who subsequently granted land with vague boundaries to the two proprietors of New Jersey, Lord Berkeley and Sir George Carteret. The court explained: “Having wasted no words, the noble grantor all but guaranteed the succession of legal fees and expenses arising from interstate boundary disputes, now extending into the fourth century since the conveyance of New Jersey received its seal.”98 The island in question became the property of Samuel Ellis in 1785, and New York, in 1800, ceded its jurisdiction to the

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United States with one reservation; i.e., the right to serve judicial process on the island.99 New York, after securing title to the island in 1808, ceded it to the United States for the defense of New York.100 Each state appointed commissioners in 1807 to seek an agreement on the boundary line, but they were unsuccessful. New commissioners were appointed by each state in 1827, but they also were unable to reach an agreement. In 1829, New Jersey filed a suit against New York seeking a judicial determination of the boundary line between the two states with the exception of Ellis Island because of New Jersey’s acquiescence. This suit did not result in a judgment and in 1833, the two states reached an agreement. Each state legislature enacted an interstate boundary compact into law with the consent of Congress in 1834.101 The compact established the middle of the Hudson River as the boundary line and stipulated that the three-acre Ellis Island was within the jurisdiction of New York, even though the island was located to the west of the middle of the river. Special Master Verkuil reported to the court New York possessed jurisdiction over the original island as it was in 1834, the compact does not address the issue of the filled land, and this land falls under the jurisdiction of New Jersey under the common law doctrine of avulsion.102 The court, after considering the voluminous evidence submitted by New York and New Jersey’s exceptions to the special master’s report, ruled the filled land was under the jurisdiction of New Jersey. The court opined: “We appreciate the difficulties of a boundary line that divides not just an island but some of the buildings on it, but these drawbacks are the price of New Jersey’s success in litigating under a compact whose fair construction calls for a line so definite.”103 The court urged the party states to negotiate an interstate boundary compact and submit it to Congress for its consent. The court, in 1999, entered a final decree.104

SUMMARY Many boundary disputes in the eastern half of the United States are attributable to vague treaties and land grants by the British crown, whose recipients, in some instances, made subsequent ambiguous land grants. Several interstate boundary controversies in the latter half of the twentieth century are traceable to such grants. Such disputes continue in the twenty-first century, primarily because of the changing course of certain rivers serving as interstate boundary lines. The U.S. Supreme Court sits as a court of the states in resolving interstate boundary controversies and draws upon principles of international law, including the doctrine of the thalweg in river boundary disputes, congressional

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statutes, and state statutes, including interstate compacts entered into by the party states to settle a controversy. The court applies international treaty construction rules to interstate compacts, including boundary ones, and in effect has fashioned an interstate common law to guide its decisions in similar cases arising in the future. Chapter 5 is devoted to financial disputes between states—escheats and taxation. It should be noted that boundary disputes involve the right of taxation. Chapter 6 focuses upon interstate water apportionment, diversion, and pollution controversies.

5

Escheats and Taxation Controversies

Boundary disputes, the subject of chapter 4, often involved the question of which state possesses jurisdiction of disputed lands for purposes of taxation while other disputes concerned the precise location of a river boundary. This chapter focuses upon interstate escheat (unclaimed property) controversies and interstate taxation disputes adjudicated by the U.S. Supreme Court. Escheats of real property were first utilized in England as a source of revenue for the crown, and the newly-established states, subsequent to the Declaration of Independence, adopted the English common law. States later extended escheats to personal property, including intangible property (bonds and stocks). The vast increase in intangible personal property in the twentieth century led to interstate disputes involving conflicting claims to the same property. Responding to these disputes, the National Conference of Commissioners on Uniform State Laws, organized in 1892, drafted the Uniform Disposition of Unclaimed Property Act, in 1954, and amended it in 1966. The Commissioners, in 1981, drafted the Uniform Unclaimed Property Act to harmonize the uniform law with the decision of the U.S. Supreme Court in Texas v. New Jersey, and revised the act in 1995.1 Each state legislature decides whether to enact the uniform act and eleven states have done so. To date, only three of the court’s interstate decisions settled controversies between states over escheated property. The number of interstate taxation controversies is larger and may be placed in two broad categories—taxation of estates and tax exportation.

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ESCHEATS SUITS The Supreme Court in 1944 explained: “At common law, abandoned personal property was not the subject of escheat, but was subject only to the right of appropriation by the sovereign as bona vacantia.”2 The U.S. Constitution does not delegate authority to Congress to escheat unclaimed property. Each state legislature enacted an escheat or unclaimed property statute stipulating that dividends, interest, real property, securities, and wages not claimed by the owners within a specified time period, are deemed abandoned and title to them reverts to the state.3 These statutes require business firms, individuals, and other entities to file annually, with a designated state officer, a report on abandoned property, and to notify, in writing, the owner of the abandoned property at his/her recorded address. Many states have entered into reciprocal agreements with sister states allowing firms and individuals holding abandoned property to include in the annual report, such property falling under the jurisdiction of a reciprocal agreement state.4 Tennessee, for example, has reciprocity agreements with Arkansas, Florida, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Rhode Island, Virginia, and Washington.5

Texas v. New Jersey In 1965, the Supreme Court, in Texas v. New Jersey, rendered a most important decision explicating rules governing the right of a state to take title to unclaimed property.6 The primary rule stipulates “fairness among the states requires that the right and power to escheat the debt should be accorded to the state of the creditor’s last known address as shown by the debtor’s books and records.”7 The secondary rule, awarding the right to escheat abandoned property to the debtor, accords recognition to the fact the primary rule will be unable to resolve all escheat disputes since there may be no address record of the owner, or the last known address is in a state without an escheat statute. In effect, the secondary rule awards the right to escheat to the debtor’s state of corporate domicile, subject to a claim by a state with a superior right to escheat under the primary rule.

Pennsylvania v. New York In 1972, the Supreme Court adjudicated the competing claims of New York and Pennsylvania for certain proceeds of the Western Union Company, resulting from its inability to locate the payees of money orders or to refund the money to the senders due to the fact the company did not record addresses of the senders.8

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The court’s primary rule seldom is applicable to the funds in dispute because the payees’ addresses are not known. Several states argued application of the secondary rule would result in the Western Union Company’s state of domicile receiving a considerably larger proportion of the unclaimed funds. In consequence, these states recommended adoption of a rule authorizing the state or the place of purchase of the money orders to escheat under the primary rule. The court, however, accepted the special master’s recommendations and did not deviate from the two rules established in its 1965 decision: We think that as a matter of fairness the claimant States, and not Western Union, should bear the cost of finding and recording the available addresses, and we shall remand to the Special Master for a hearing and recommendation as to the appropriate formula for distributing those costs. As for future money order transactions, nothing we say here prohibits the States from requiring Western Union to keep adequate address records. The decree recommended by the Special Master is adopted and entered and the cause is remanded to the Special Master for further proceedings and the filing of a proposed supplemental decree with respect to the distribution of costs of the inquiry as to available addresses.9 Justices Lewis F. Powell, Harry Blackmun, and William Rehnquist dissented and opined: “Rather than embarking upon a potentially fruitless search for the creditor’s last-known address as a rough indicator of domicile, reliance should be placed upon the State where the debtor-creditor relationship was established. In most cases that State is likely also to be the site of the creditor’s domicile.”10 Congress shortly thereafter enacted the Disposition of Abandoned Money Orders and Traveler’s Checks Act of 1974, specifically excluding third party bank checks and other intangibles.11 The act stipulates the state of the originator of the money orders and/or traveler’s checks is entitled to escheat them if there is no known last address of the purchaser and the state of incorporation of the issuer of a money order or traveler’s check is not entitled to escheat.

Delaware v. New York Delaware, the incorporator of a large number of corporations, filed a motion seeking leave to file a bill of complaint against New York, which escheated $360 million in unclaimed dividends, interest, and other securities allegedly belonging to Delaware. The court-appointed special master recommended the court award to the state in which the principal executive offices of the securities issuers

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are located the right to escheat funds belonging to beneficial owners who either cannot be identified or located. Both states filed exceptions to this recommendation and the court rejected this recommendation by opining its 1965 precedent mandated the state in which the intermediary holding the securities is located possesses the right to escheat funds belonging to persons who cannot be located.12 The case was remanded to the special master and the court opined that “if New York can establish by reference to debtors’ records that the creditors who were owed particular securities distributions had last known addresses in New York,” its right to escheat under the primary rule supersedes Delaware’s right under the secondary rule.13 Justice Byron White, joined by Justice Harry Blackman and Justice John Paul Stevens, issued a dissent opining the special master based his report on the court’s precedence and recommended “a much superior approach and more equitable result than does the Court.”14 Suellen M. Wolfe wrote, in 1995, “[t]he Court’s decision in Delaware v. New York is perplexing, because the decision ignores the fact that the Court has found state compliance with due process requirements in analogous areas of taxation, when states have imposed taxes on intangible property owned by entities not incorporated in the taxing state.”15 To resolve interstate controversies, she proposed: The $100 million a year generated by securities transactions that become undistributable to owners should be distributed to the states identified in the securities records by dividing the amount pro rata between the states of incorporation and commercial domicile of both the issuer and the holder. This method of distribution reflects the commercial activities giving rise to the distribution. The rule should be implemented as federal common law. States should pass legislation to facilitate and to correspond to the federally imposed escheat process.16

TAXATION CONTROVERSIES These controversies may be placed in three general categories: Taxation of estates, other forms of taxation, and loss of tax revenues attributable to the action of a sister state. To date, four estate tax controversies, two involving the same estate, have reached the Supreme Court for adjudication. Other taxation controversies involved commuter taxes, a state general property tax, a severance tax levied on off-shore natural gas, and retaliatory highway use taxes. Only one case involved the loss of tax revenue as the result of an action initiated by a sister state.

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Estate Tax Disputes Adoption of a federal system automatically allows multiple state taxation of the income of business firms operating in two or more states, individuals deriving income from two or more states, and intangible property (bonds and stocks) held by estates. The U.S. Supreme Court interpreted the due process of law clause of the Fourteenth Amendment as allowing only the state of situs to tax real property and tangible personal property held by an estate.17 Determination of the state of situs, however, may be difficult as the laws of the various states do not incorporate a uniform definition of domicile. The court also has ruled intangible property of estates, however, may be taxed by more than one state as such property is siteless.18 There was no uniform policy of state taxation of the estates of decedents in the mid-1920s when Congress decided to include a tax credit in the Revenue Act of 1926 to encourage each state legislature to enact a uniform inheritance and estate tax based on the federal inheritance and estate tax.19 Taxpayers would be required to pay the national estate tax and the state estate tax if a state legislature failed to enact an estate tax linked to the national estate tax. However, enactment of such a tax by a state legislature automatically generated an 80 percent credit against the national inheritance and estate tax for a similar inheritance and estate tax paid to a state. The 1926 act promoted more uniformity in state inheritance and estate taxation, but did not eliminate controversies over the legal domicile of a number of decedents who left large estates. In 2001, Congress reduced the maximum estate tax rate, increased the exemption from the tax from $1,000,000 in 2002 to $3,500,000 in 2009, reduced the credit for state death taxes paid from 75 percent in 2002 to 25 percent in 2004, and replaced the credit with a tax deduction effective in 2005.20 In 1937, the Supreme Court held the District Court possesses no jurisdiction to resolve a controversy over the domicile of a decedent because it is a state, and not federal, common law concept, a dispute between states over the decedent’s domicile does not involve diversity jurisdiction under the Federal Interpleader Act of 1936, and the suit praying for restraint of state action is forbidden by the Eleventh Amendment.21 In consequence, the only possible remedy for an interstate dispute involving a decedent estate is the filing of a motion by a state seeking permission to file a bill of complaint in equity against another state. The court, however, invokes its original jurisdiction on a discretionary basis (see chapter 2).

Texas v. Florida et al. This original jurisdiction suit was brought in the form of a bill of interpleader for the determination of the legal domicile of decedent Edward H. R. Green,

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who died in Lake Placid, New York, in 1936. The court, on March 15, 1937, granted the motion of Texas for leave to file a bill of complaint in equity against Florida, Massachusetts, New York, the decedent’s wife, and her sister. The bill alleged the decedent Green left a gross estate of $44,348,500 and a net estate of $42,348,500 in the form of real property and tangible personal property in Florida, New York, Massachusetts, and Texas, with a total value of $6,500,000, and intangible personal property—bonds, stocks, and other securities—with most intangibles located in New York. Texas asserted the decedent was domiciled in Texas at the time of his death, but the other three states each responded the decedent was domiciled in its state. The bill also alleged that each defendant state planned to tax the estate of the decedent within the state on the claim he was domiciled in the state at the time of his death. Each of the four states claimed a lien for taxes and the authority to collect the tax with total claims greater than the net value of the estate, with the result the decedent’s property in Texas is insufficient to pay the Texas tax. The defendant states admitted the insufficiency of the decedent’s estate to pay all of the claimed taxes and rejected the claim the decedent was domiciled in Texas. Each defendant state, by cross-bill against the other defendant states, asserted the decedent was domiciled in it, thereby legally entitling it to collect taxes upon all of the decedent’s intangible and tangible property within the state. Following its customary practice in interstate controversies, the court appointed a special master who found the decedent was domiciled in Massachusetts at the time of his death and supported this conclusion with elaborate subsidiary findings. The case returned to the court on exceptions to the special master’s conclusions of fact and subsidiary findings. The court first explained it had a duty to determine whether the controversy was one within the court’s jurisdiction and that, prior to ratification of the U.S. Constitution, courts exercised their powers to avoid the risk of loss flowing from the demands of rival claimants to the same debt. The following conclusion was reached: When, by appropriate procedure, a court possessing equity power in such circumstances is asked to prevent the loss which might otherwise result from the independent prosecution of rival but mutually exclusive claims, a justiciable issue is present for adjudication which, because it is a recognized subject of the equity procedure which we have inherited from England, is a ‘case’ or ‘controversy,’ within the meaning of the Constitutional provision, and when the case is one prosecuted between states, which are the rival claimants, and the risk of loss is shown to be real and substantial, the case is within the original jurisdiction of this Court conferred by the Judiciary article.22

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The court accepted the special master’s findings of fact and conclusion that Green was domiciled in Massachusetts at the time of his death, and added it was not necessary to offer an explanation beyond the basic facts. Green was born in England and educated in New York and Vermont public schools, and Fordham University prior to his mother sending him, in 1892, to Texas to foreclose a mortgage on a railroad which he subsequently managed until 1911. He visited Texas twice a year from 1911 to 1921, once a year between 1922 and 1927, and his last visit was in 1935. While in Texas, he resided in a hotel or bachelor apartment or rented a room. In 1911, his best Dallas residential furniture was shipped to New York. However, he described Terrell, Texas, as his domicile in both his 1908 will and 1917 marriage license, and in 1922, he declined to consider seeking election to the United States House of Representative from Massachusetts on the ground he was a resident of Texas. He similarly declined to be available for appointment as a Federal Radio Commissioner from New England on the ground he was a former Republican National Committeeman from Texas and resided in New England only during the summer months. In addition, the court also found that Green never registered to vote in New York, spent a part of each summer since 1917 near Round Hills, Massachusetts, where he constructed a $6,699,000 residential estate and where he spent more time (averaging nearly six months each year) than in any other location commencing in 1921 until his death. Special furniture was constructed for the house and his New York City furnishings were moved to Round Hills. In 1923, Green was advised by his medical doctor to spend the winter in Florida for health reasons and he continued to do so. Florida’s claim to have authority to tax Green’s estate is attributable in part, as the court pointed out, to Green on occasion speaking to friends and referring to Florida as his home even though he had been advised in 1921 and 1933 to change his legal domicile from Texas to Florida. “Residence, in fact, coupled with the purpose to make the place of residence one’s home, are the essential elements of domicile,” according to the court.23 The conclusions was drawn that Green did not have a place of residence in Texas after 1911 and evidence was lacking of an intention to make New York City or Florida his permanent home. Justice Felix Frankfurter, joined by Justice Hugo L. Black, dissented: “Texas has no standing here except on the basis that three state courts will despoil her of her rights by leaving no assets in the estate out which to satisfy her claim” and the fact four states claim the right to tax the estate “is hardly a substantial reason for assuming that their judiciaries will sanction the claims.”24 The dissent also emphasized the various factors severally determining domicile, depending upon their mixture, may accord domicile to one state rather than another state. Frankfurter was particularly critical of the application of the device of interpleader to qualitatively different circumstances:

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To settle the interests of different claimants to a single res where these interests turn on narrow and relatively few facts and where conflicting claims cannot have equal validity in experience, is one thing; it is a wholly different thing to bring into court in a single sit all states which even remotely might assert domiciliary claims against a decedent and where one state court might with as much reason as another find domicile within its state. Certainly when the claim of the moving state is so obviously without basis as this Court has now found in the case of Texas, the linchpin of jurisdiction is gone and the other states should be remitted to appropriate remedies outside this court. Such a disposition would be a real safeguard against the construction of a suit to give this Court jurisdiction over matters which as such, this Court has already held, are not within our province.25 Frankfurter concluded his dissent by opining the majority’s decision will lead to similar litigation in the future, including suits extending beyond the unique facts in this case.

Massachusetts v. Missouri The Commonwealth of Massachusetts filed a motion for leave to file a complaint in equity against Missouri and several of its citizens relative to the authority of each state to impose an inheritance tax on the transfers of the same property. In its response brief, Missouri rejected the Massachusetts claims and added they had no cause to show. The complainant and individual respondents maintain the court has jurisdiction over the controversy, a position rejected by Missouri. Massachusetts maintained there are two grounds for the court to exercise jurisdiction: A controversy exists between two states and a controversy exists between a state and citizens of a sister state. Both states levied an inheritance tax. Massachusetts levied the tax upon intangibles only if owned by residents of the Commonwealth, and Missouri exempted from the tax intangibles owned by nonresidents residing in sister states extending reciprocity to Missouri residents. The complaint involved Massachusetts resident Madge B. Blake, who died in 1935 and left an estate in the Commonwealth totaling $12,646.02. She also had established three trusts, composed of securities valued at $1,850,789.77 under the control of trustees residing in Missouri. The court rejected the motion to file a bill of complaint in equity on the ground the bill does not involve a justiciable controversy between the two states. In particular, the court opined: “To constitute such a controversy, it must appear that the complaining State has suffered a wrong through the

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action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to the accepted principles of the common law or equity systems of jurisprudence.”26 The court concluded Missouri did not cause injury to Massachusetts by collecting taxes from the respondent trustees and the claims of the two states are not mutually exclusive. Massachusetts also argued a controversy had arisen with respect to the enforcement of the reciprocal statutes of the party states. The court rejected this argument by noting there is no agreement or compact between the two states sanctioned by Congress and “the enactment by Missouri of the so-called reciprocal legislation cannot be regarded as conferring upon Massachusetts any contractual right. Each State has enacted its legislation according to its conception of its own interests. Each State has the unfettered right at any time to repeal its legislation.”27 Similarly, the court was unsympathetic with Massachusetts’ contention its residents are entitled to the immunity contained in the Missouri statute “as Massachusetts may not invoke our jurisdiction for the benefit of such individuals.”28 Finally, the court concluded Massachusetts is not without an adequate remedy as it may bring a suit against the trustees either in a Missouri court or in the United States District Court in Missouri.29

California v. Texas The most prominent estate tax dispute to reach the high court involved the legal domicile of decedent Howard Hughes. The court, in 1978, summarily denied the motion of California to file a bill of complaint in equity against Texas by opining the interstate controversy over the domicile of Hughes did not constitute a justiciable interstate controversy and the dispute should be litigated in state courts.30 However, in a concurring opinion, Justice William Brennan explained he was uncertain whether the court’s 1939 decision in Texas v. Florida was decided wrongly, but nevertheless would deny California’s motion because of the possibility the Hughes estate may be able to obtain a District Court judgment under the Federal Interpleader Act of 1936 binding upon the two states.31 He conceded the possibility of favoring such a motion if a statutory interpleader action cannot or is not brought. Justice Potter Stewart, joined by Justices Lewis F. Powell and John Paul Stevens, wrote a concurring opinion, explaining he joined in the order denying California’s motion because he was convinced the 1939 Texas v. Florida decision should be overruled as it was wrongly decided. The gravamen of the complaint was that judgments favoring the levying of Texas and U.S. inheritance taxes would exceed the net value of the estate, and should California courts determine Hughes was domiciled in the state, it would have a valid tax

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judgment which would be uncollectible. California sought to invoke the court’s original jurisdiction on the ground it is the only forum capable of determining the domicile of decedent Hughes and the court’s 1939 Texas v. Florida decision, involving a bill of interpleader which led the court to find the controversy was ripe for decision. The opinion continued by noting the basic facts alleged in the complaint “are indistinguishable in all material respects from those on which jurisdiction was based in Texas v. Florida.”32 Justice Stewart concluded this decision was wrongly decided, but understood the court’s willingness to accept the interpleader analogy “in the context of the then state of the law governing multiple taxation of intangibles.”33 The concurring opinion emphasized that the facts in the current cases provided the basis for two separate law suits, with one involving the proper division of a specific sum of money, and the second a interpleader to settle the question of the domicile of the decedent for taxation purposes. Of particular importance is fairness for the estate. Both states may impose the tax, but the dispute is the result of the fact that one state may obtain a judgment for a valid but uncollectible tax. Stewart concluded his opinion by writing “it is not at all clear to me that the injury threatened here—essentially that one State will be left with an uncollectible judgment because another State has exhausted a debtor’s funds—would be sufficient to justify the exercise of this Court’s original jurisdiction even if the injury actually occurred.”34 In 1982, the court granted the motion of California to file a bill of complaint against Texas to settle the controversy over the domicile of Hughes in view of the lack of an alternative forum and a finding the controversy was ripe for a decision.35 The estate of Hughes followed the suggestion of the four concurring justices in the 1978 decision and sought a determination of the domicile of Hughes by filing an interpleader action in the U.S. District Court. California’s motion was accompanied by a petition for the issuance of a writ of certiorari in Cory v. White requesting a review of the decision of the U.S. Court of Appeals for the Fifth Circuit holding the Federal Interpleader Act provided a jurisdictional basis for resolving the interstate dispute.36 The Supreme Court opined the act does not confer jurisdiction on the U.S. District Court to resolve inconsistent inheritance tax claims because the Eleventh Amendment to the U.S. Constitution bars such a suit. In settling the controversy between the two sister states, the court explained each state may levy an inheritance tax on intangibles owned by a decedent domiciled in the state and the law of each state stipulates a person may have only one domicile. California referred to the court’s 1939 decision, in Texas v. Florida, involving the claims of four states to tax the estate of Edward H. R. Green. The court noted the concurring opinion of four justices in its 1978 decision to the effect the federal interpleader statute might make unnecessary invocation of the court’s original jurisdiction. In addition, the

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court cited several uncertainties at the time of the decision, including the then pending claim of the Hughes Medical Institute that it had found a lost will, leaving the entire estate to it, and the contention that the so-called Mormon will was valid. The Nevada Supreme Court and the Texas Probate Court rejected the first claim, and a jury rejected the second will. In consequence, the Supreme Court opined “our original jurisdiction is properly invoked under Texas v. Florida.”37 Justice Lewis F. Powell issued a strong dissent and was joined by Justices Thurgood Marshall, William Rehnquist, and John Paul Stevens. “The mere possibility of inconsistent state determinations of domicile, resulting in a still more remote possibility of the estate being insufficient to satisfy the competing claims, simply does not give rise to a case or controversy in the constitutional sense.”38 The dissent also held the court was not entitled to base its invocation “of original jurisdiction on an ‘analogy’ between the original action and ‘a bill in the nature of interpleader.’”39

OTHER TAXATION DISPUTES Such disputes include the determination of the precise boundary line for purposes of taxation, an electrical energy tax, a commuter income tax, a first use tax levied on natural gas, and a requirement coal-fired electric power generating stations must burn a mixture of coal including a minimum of ten percent of coal mined in the state. Not uncommonly, an interstate taxation controversy involves a tax credit.

Iowa v. Illinois This boundary dispute also involved the question of jurisdiction to tax two bridges owned by the Koekuk & Hamilton Bridge Company, which complained of double taxation. The enabling statutes, admitting the Territory of Illinois and the Territory of Wisconsin into the Union as states, employed the boundary terms “middle of the Mississippi River” and “the center of the main channel of that river, respectively.” The enabling statutes admitting Missouri and Iowa into the Union as states employed the term “middle of the main channel of the Mississippi River” as the boundary line. Iowa, in its bill of complaint, contended the boundary line is the middle of the main body of the river. Illinois, in its response brief, contended the boundary line is the middle of “the steamboat channel” of the river regardless of whether it was on one side or the other side of the river. Iowa maintained that, prior to the Treaty of 1763—between Great Britain, France, and Spain—

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Iowa was under the dominion of France and Illinois was under the dominion of Great Britain with the middle of the river serving as the boundary line between British and French territories. Under the Treaty of 1783 between Great Britain and the United States, the Illinois territory passed to the United States and Iowa became part of the United States by the Treaty of 1803 involving the latter’s purchase of the Louisiana territory. Iowa alleged Illinois taxed all bridges and other structures in the river from the shore of Illinois to the middle of the steamboat channel. Iowa commenced to tax bridges and other structures to the middle of the main body of the river after the Supreme Court of Iowa in Dunlieth & Dubuque Bridge Company v. County of Dubuque held Iowa authorities had the power to tax structures to the middle of the main body of the stream and no further.40 The court, in its decision, cited international law holding the middle of a navigable river is the middle of the channel and the term was so employed in the Treaty of 1763.41 The court added the right of navigation on the river is common to both states and explained the supreme court of each state considered the issue of the boundary line with the Illinois Supreme Court in a case involving Missouri opining “the space within which ships can and usually do pass” is the same as middle of the river.42 The U.S. Supreme Court held the opinions by the two state supreme courts to be able ones. Nevertheless, the court explained: The reason and necessity of the rule of international law as to the mid-channel being the true boundary of a navigable river separating independent states may not be as cogent in this country, where neighboring states are under the same general government, as in Europe, yet the same rule will be held to obtain unless changed by statute or usage of so great a length of time as to have acquired the force of law.43 In consequence, the court declared the boundary line between the two states “is the middle of the main navigable channel of the Mississippi River.”44 According recognition of the desire of the two states for a precise determination of the boundary line where each of nine bridges cross the river, the court ordered the appointment of a commission to ascertain the boundary line at each bridge and report its findings to the court for its further action.

Arizona v. New Mexico Arizona filed a motion for leave to file a bill of complaint in equity in the Supreme Court asking for declaratory relief from the allegedly unconstitu-

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tional New Mexico electrical energy tax, which constitutes a burden on interstate commerce, denies its citizens due process and equal protection of the laws in violation of the Fourteenth Amendment to the U.S. Constitution, and abridges the privileges and immunities guaranteed by section 1 of Article IV of the Constitution. Arizona and its citizens are consumers of electrical energy produced in New Mexico by three Arizona chartered public utilities, which operate generating facilities in New Mexico. Private investors own two of the utility companies and the third, Salt River Project Agricultural Improvement and Power District, is a political subdivision of Arizona. The 1975 New Mexico State Legislature enacted an electrical energy tax imposing a tax on generation of electricity at the rate of 4/10 of a mill for each kilowatt hour generation.45 Facially, the tax is nondiscriminatory. The three Arizona utilities retail electrical energy via interstate lines only to Arizona consumers and do not incur a tax liability to New Mexico for its gross receipts tax, which is levied at the point of retail sale. The New Mexico Statutes Annotated, however, contain a section stipulating: “On electricity generated inside this state and consumed in this state which was subject to the electrical energy tax, the amount of such tax paid may be credited against the gross receipts tax due this state.”46 New Mexico conceded the Arizona chartered public utilities are not eligible for the tax credit since their electrical energy sales are outside New Mexico. In effect, the statute imposes a maximum tax of four per cent on electricity generated in the state. Arizona brought its suit in its proprietary capacity as a major consumer of New Mexico generated electrical energy and as parens patriae for its citizens who consume the New Mexico generated electricity. In particular, the complaint alleges the tax discriminates against Arizona citizens by imposing on them a burden not imposed on New Mexico citizens by means of the tax credit provision. Furthermore, Arizona asserted there was no other forum in which it could assert its claims. The three Arizona chartered public utilities decided not to pay the New Mexico tax and sought a declaratory judgment in the District Court for Santa Fe County, New Mexico. The U.S. Supreme Court referred to its earlier decisions indicating its original jurisdiction would be invoked sparingly and, in light of the facts in the case, opined: “If on appeal the New Mexico Supreme Court should hold the electrical energy tax unconstitutional, Arizona will have been vindicated. If, on the other hand, the tax is held to be constitutional, the issues raised now may be brought to this court by way of direct appeal under 28 U.S.C. §1257(2).”47 Justice John Paul Stevens wrote a concurring opinion, holding Arizona consumers of the New Mexico generated electrical energy do not have standing to challenge the tax in the absence of evidence the tax has an impact on the rates they pay, and adding Arizona did not allege such an impact.48

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Pennsylvania v. New Jersey et al. The Supreme Court combined two suits in one 1976 decision: Pennsylvania (original action No. 68) sought to sue New Jersey, and Maine, Massachusetts, and Vermont (original action No. 69) on parens patriae grounds sought to sue New Hampshire by filing motions for leave to file bills of complaint invoking the court’s original jurisdiction.49 Pennsylvania alleged the New Jersey Transportation Benefits Tax Act violated the privileges and immunity clause and the equal protection of the laws clause of the U.S. Constitution.50 Both complaints relied upon the court’s 1975 decision in Austin v. New Hampshire holding the New Hampshire commuters’ income tax law unconstitutional on the ground it violated the privileges and immunities clause of the Constitution.51 The law levied a 4 percent tax on New Hampshire-derived income of nonresidents, imposed a similar tax on income earned by New Hampshire residents outside the state, and exempted the latter income from the tax if the income was either taxed or not taxed by the state where it was derived. The net effect was to tax only the income of nonresidents working in New Hampshire because the state does not tax the domestic income of its residents. The plaintiff ’s state of residence, Maine, provided a tax credit for income taxes paid to other states. The New Hampshire tax, in effect, did not affect the tax liability of Maine residents working in New Hampshire, but diverted to New Hampshire tax revenues which otherwise would flow to the Maine treasury. Pennsylvania asserted the New Jersey tax violated the privileges and immunities clause, as interpreted by the court in Austin v. New Hampshire, and the equal protection of the laws clause of the Fourteenth Amendment. The two tax situations were similar. New Jersey, in common with New Hampshire, did not tax the domestic income of its residents at the time, but did tax the income of nonresidents. The New Jersey tax exempts income earned by residents outside the state to the extent the state of income origin taxes the income. Pennsylvania, in common with Maine, permitted a tax credit to residents for income taxes paid to other states, and sought “declaratory and injunctive relief and, apparently, an accounting for the taxes that New Jersey’s allegedly unconstitutional tax has diverted from the Pennsylvania treasury.”52 Maine, Massachusetts, and Vermont premised their suit on the Court’s decision in Austin v. New Hampshire and sought an accounting for the alleged more than $13.5 million diverted from their respective state treasuries to New Hampshire. The court explained again that a plaintiff state must demonstrate a wrong was caused directly by the action of another state. The court concluded: In neither of the suits at bar has the defendant State inflicted any injury upon the plaintiff States through the imposition of the

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taxes held, in No. 69, and alleged, in No. 68 to be unconstitutional. The injuries to the plaintiffs’ fiscs were self-inflicted, resulting from decisions by their respective state legislatures. Nothing required Maine, Massachusetts, and Vermont to extend a tax credit to their residents for income taxes paid to New Hampshire, and nothing prevents Pennsylvania from withdrawing that credit for taxes paid to New Jersey. No State can be heard to complain about damage inflicted by its own hand.53 The court next addressed Pennsylvania’s parens patriae claim against New Jersey by acknowledging the court recognized the legitimacy of such suits, but emphasized: “It has, however, become settled doctrine that a State has standing to sue only when its sovereign or quasi-sovereign interests are implicated and it is not merely litigating as a volunteer the personal claims of its citizens.”54 The court concluded Pennsylvania’s sovereign or quasi-sovereign interests were not implicated as the suit was simply a collection of private suits for taxes against New Jersey for taxes it withheld from private persons.55 Justice Harry Blackman, in a concurring opinion, quoted his 1975 “lonely dissent” in Austin v. New Hampshire, that the reason Maine appellants paid “a New Hampshire tax is because the Maine Legislature (the appellants’ own duly elected representatives), has given New Hampshire the option to divert this increment of tax (on a Maine resident’s income earned in New Hampshire) from Maine to New Hampshire, and New Hampshire willingly has picked up that option” and highlighted the fact the court in the present case recognized the injuries were self-inflicted.56

Maryland v. Louisiana Eight states filed a motion for leave to file a bill of complaint under the Supreme Court’s original jurisdiction seeking a declaratory judgment that the first-use tax imposed by Louisiana on certain uses of natural gas brought into the state not previously taxed by a state or the United States was unconstitutional.57 The act authorized specified exemptions from, and credits for, the tax of seven cents per thousand cubic feet of natural gas. The Louisiana State Legislature declared the tax was designed to (1) reimburse residents of the state for damages to its waterbottoms barrier islands and coastal area, and the costs of protecting the areas, and (2) equalize competition between Louisiana produced gas, which was subject to the state severance tax of seven cents per thousand cubic feet, and the cost of gas produced in other areas not subject to a severance tax. The court wrote a lengthy justification for the invocation of its original jurisdiction. Louisiana asserted the case should be dismissed in view of the

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fact the tax is imposed directly on pipeline companies and not on consumers, and hence does not involve concerns of state sovereignty justifying exercise of the court’s original jurisdiction. The court concluded the present case was indistinguishable from its 1923 decision in Pennsylvania v. West Virginia holding unconstitutional a West Virginia statute requiring natural gas producers in the state to supply local customers prior to shipping gas in interstate commerce. This decision, advised the court, should not dismiss the motion for leave to file a bill of complaint in equity (see chapter 7).58 The court also rejected Louisiana’s assertion, citing Illinois v. City of Milwaukee. The case is an inappropriate one for the court to exercise its original jurisdiction because of pending lawsuits in the state concerning the same constitutional questions.59 The court explained that the proposed Illinois v. City of Milwaukee suit “against four municipalities did not fall within our exclusive grant of original jurisdiction because political subdivisions of the State could not be considered as a State for purposes of 28 U.S.C. §125(a).”60 Louisiana also cited Arizona v. New Mexico, in which the court, in 1976, denied Arizona’s motion for leave to file a bill of complaint challenging New Mexico’s electrical energy tax.61 The court acknowledged there was a facial similarity between the present case and the earlier case, but explained significant differences included: the fact that one of three electrical energy companies was a political subdivision of Arizona; the state had not suffered a wrong; and the New Mexico tax did not affect all residents of Arizona. The court emphasized its exercise of original jurisdiction was supported by the Louisiana tax impact on the interests of the United States in its administration of the outer continental shelf, a factor not present in the electrical energy tax dispute. The plaintiffs contended the Louisiana first-use tax violated the supremacy of the laws clause of the Constitution because the tax intrudes upon national regulation of the interstate transportation and sale of natural gas, and specifically violates the Natural Gas Act as amended by the Natural Gas Policy Act of 1978.62 The court agreed that section 1303 of the Louisiana act interferes with the authority of the Federal Energy Regulatory Commission to determine the allocation of costs involved in the sale of natural gas to consumers.63 The plaintiff states also alleged the Louisiana first-use tax violated the interstate commerce clause of the Constitution, but the latter state contended the flow of gas in interstate commerce is broken by the taxable uses within the state which are local events. The court rejected this argument by holding the tax “unquestionably discriminates against interstate commerce in favor of local interests as the necessary result of various tax credits and exclusions.”64 The court also declared the tax can not be supported as a compensatory tax, which provides equality of taxation of local and interstate commerce, in spite of the state’s claim the tax compensates for the effect of its severance tax on local

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production of gas. In particular, the court ruled the state has no sovereign entitlement for compensation resulting from the severance of natural gas from the United States owned outer continental shelf.65 The court earlier rejected Louisiana’s claim to rights in the lands, minerals, and other things underlying the Gulf of Mexico along the Louisiana coast twenty-four miles seaward of the three-mile limit.66 Justice William Rehnquist was the lone dissenter who admitted the interstate controversy falls within what he terms the literal terms of the constitutional and statutory grant of original jurisdiction, but argued the “plaintiff states have not . . . established the ‘strictest necessity’ required for invoking this Court’s original jurisdiction.”67 He stressed original jurisdiction cases encroached upon the paramount appellate role of the court and the ends of justice would be better achieved by a trial in a lower court than by what amounts to a trial conducted by a special master. Rehnquist also argued the court should follow the general rule that a State’s claim is insufficient to invoke the court’s original jurisdiction if the “claim is indistinguishable from the claim of any other private consumer,” and warned “there will be the strongest temptation for various interest groups within the State to attempt to bring an action in the name of the State in order to make an end run around the barriers of time and delay which would confront them if they were merely private litigants.”68 Chief Justice Warren Burger in his concurring opinion held: “There is much validity in Justice Rehnquist’s dissenting opinion, and it should keep us alert to any effort to expand the use of our original jurisdiction. However, I am satisfied that the Court’s resolution of this case is sound, and I therefore join the Court’s opinion.”69

Connecticut, Massachusetts, and Rhode Island v. New Hampshire The 1991 New Hampshire General Court (state legislature) imposed a 0.64 percent statewide ad valorem real property tax on the Seabrook Nuclear Power Plant jointly owned by one New Hampshire public utility and eleven public utilities in Connecticut, Massachusetts, and Rhode Island.70 Connecticut, Massachusetts, and Rhode Island filed a motion in the U.S. Supreme Court for leave to file a bill of complaint in equity against New Hampshire and contended the tax and its related tax credit violated: 1. the interstate commerce clause by placing an undue burden on interstate commerce; 2. the supremacy of the laws clause of the Constitution by contravening the Tax Reform Act of 1976, which prohibits the taxing of electricity in a discriminatory manner;

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3. the Fourteenth Amendment by depriving the states and their citizens of equal protection of the laws; and 4. the privileges and immunity clause of section 2 of Article IV of the Constitution.71 None of the three plaintiff states levies an ad valorem statewide property tax on nuclear power plant property located within their respective state or offers a tax credit against their business profits taxes for the property taxes paid on the Seabrook nuclear power station property. In view of the fact the tax was levied on private utilities companies and not upon the plaintiff states, the petition immediately raised the question as to whether or not the plaintiff states had the right to invoke the Court’s original jurisdiction. Superficially, it appeared the taxed public utilities should have sought relief from the New Hampshire tax in the U.S. District Court. The states, however, sought to sue in their capacity as parens patriae to protect their respective citizen consumers of electricity generated at the nuclear power plant and in their proprietary capacity as consumers of electricity generated at the plant. In its response brief, New Hampshire argued: 1. the plaintiff states lacked standing to sue, 2. the suit was premature as the tax to date had not been passed on to consumers, 3. an alternate forum could provide relief, 4. any injury caused by the tax would be insubstantial, and 5. the plaintiff states would not prevail on the merits of their suit.72 Nevertheless, in 1992, the court granted the plaintiff states’ motion to file a bill of complaint and appointed Vincent L. McKussick, retired Chief Justice of the Maine Supreme Judicial Court, as special master to establish the facts in the dispute and to prepare recommendations.73 The court, upon the recommendation of the special master in his first interim report, granted the motions of the Connecticut Office of Consumer Counsel and the involved out-of-state public utility companies to intervene in the suit.74 Before the statewide property tax was levied, the owners of the Seabrook nuclear power plant were subject to two state taxes—a 1 percent franchise tax levied upon receipts from the sale of electricity within New Hampshire (pursuant to a state franchise), and a business profits tax levied on a unitary business’ profits or the share of a firm’s profits allocable to the state on the basis of a three-factor formula.75 With the opening of the plant, the New Hampshire General Court decided to reexamine its business taxes. Subsequently, it enacted a statute,

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effective on July 1, 1991, that (1) repealed the franchise tax on electric utilities, (2) levied the nuclear power plant ad valorem property tax, and (3) granted a credit for the property tax against the business profits tax.76 The latter two provisions were nonseverable in the event either was declared unconstitutional. The Seabrook property tax was to be levied on each joint owner of the plant in proportion to the owner’s share of the property. The General Court, in 1991, assessed the property at $3.5 billion; subsequent valuations were to be determined by the Commissioner of Revenue Administration.77 All business firms, except tax-exempt nonprofit corporations, are subject to the state’s eight percent business profits tax.78 Firms are required to apportion profits “so as to allocate to this state a fair and equitable proportion of such business profits.”79 Utilities paying the nuclear power plant property tax were allowed a ten percent credit for the tax paid against the firm’s business profits tax liability, but unused credits could not be carried forward beyond the year in which the property tax was paid. In 1990, only the New England Electric System used its tax credit—$1,115,258—to reduce its business profits tax to $127,382.80 The company would not have had to pay a business profits tax in 1991 had the nuclear power plant tax been in effect for the entire year. Three other utilities used their respective tax credit to cover their business profits tax liabilities, five utilities paid no business profits tax because they are tax-exempt, and three utilities did not pay the business profits tax because they lost money. That New Hampshire, while levying the new tax on the Seabrook plant, did not levy a property tax on nonnuclear power electrical generating stations, was at the heart of the complaint. On September 9, 1992, the plaintiff states filed with the special master stipulations constituting the record in the case. They waived contentions that the New Hampshire nuclear power plant tax violated the equal protection and the privileges and immunities clauses of the Constitution, and two of the three original grounds for contending the tax violates the interstate commerce clause—the tax was unfairly apportioned and was unrelated to services provided by New Hampshire. The latter responded to the complaint by maintaining the nuclear power station property tax was a nondiscriminatory tax based upon each owner’s share in the property and did not violate either the interstate commerce clause or the Tax Reform Act of 1976.81 The state also stressed the plaintiffs’ case was based on the allegation that the state’s “decision not to tax the ordinary business profits of Seabrook owners benefits one owner—New Hampshire’s principal utility, Public Service Company of New Hampshire (“PSNH”)—more than outof-state owners.”82 New Hampshire added PSNH’s ownership interest in the plant “has been transferred to a subsidiary of an out-of-state holding company,” hence there was no basis for the complaint an in-state utility benefits from the tax scheme at the expenses of the out-of-state owners of the plant.83

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New Hampshire laid particular stress upon the burdens placed on the state as the result of the operations of the nuclear power plant, including the great impact an incident at the plant would have upon the state’s economy, tourist industry, and population. Furthermore, the plant was said to have had a major adverse financial impact on the state because of the bankruptcies of the New Hampshire utilities involved in the plant’s development. Moreover, for the six years prior to the transfer of its ownership, PSNH incurred operating losses and did not pay the business profits tax. The state contended its tax structure at the time of the opening of the nuclear power station was ineffective in providing the state with revenue because PSNH and the New Hampshire Co-op were paying approximately $6.5 million in franchise taxes, whereas the other owners of the plant generally paid no franchise tax since sales of electricity outside the state were exempt from the tax.84 The special master’s final report concluded the case was an appropriate one for the invoking of the Supreme Court’s original jurisdiction, cited the lack of an alternative forum for resolving the interstate dispute, and reported conclusions of law generally favoring the position of the plaintiff states.85 This adverse report prompted newly elected New Hampshire Governor Stephen E. Merrill to order the attorney general to settle the case out-of-court because the governor did not want the state to become bogged down in an extended dispute at the start of his administration.86 New Hampshire, and the concerned public utility companies, on April 14, 1993, reached such an agreement, stipulating the General Court would repeal the nuclear power plant property tax credit against the business profits tax, apply the state franchise tax to electric utilities, refund $17.6 million in collected property taxes by providing a credit against the revised nuclear power plant property tax over two years, lower the property tax rate on the plant from .640 to .491 percent of valuation for 1993 and 1994, and from .491 to .250 percent of valuation, effective January 1, 1995, and assess the plant at $3 billion. The General Court enacted the agreement into law on April 16th, and the U.S. Supreme Court on the same day dismissed the suit.87 The out-of-court settlement negotiations support the conclusion the plaintiff states acted parens patriae for their respective electric utility firms and not parens patriae for their respective citizen consumers of electrical energy generated by the nuclear power plant. New Hampshire Senior Assistant Attorney General Harold T. Judd conducted all negotiations with attorneys employed by the electric utility companies and reported a representative of the attorney general of one plaintiff state would attend the meetings, but was not an active negotiating participant.88 Judd asked an important question: “If the other states were not acting parens patriae, why did they let us keep the $35 million we had collected?”89 He added New Hampshire had given no com-

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mitment that in the future the General Court would not reenact the tax credit. Available evidence suggests the U.S. Supreme Court should have refused to invoke its original jurisdiction as an alternative forum, the U.S. District Court, was available to the public utilities.

TAX LOSS SUIT To date, only one suit has reached the United States Supreme Court involving the loss of tax revenue by one state attributable to an action of a sister state despite the dissenters prediction the court would be inundated by such suits.

Wyoming v. Oklahoma Wyoming submitted a motion for leave to file a bill of complaint in equity challenging the constitutionality of a Oklahoma statute requiring plants within its state producing electrical power for sale in the state must burn a mixture of coal contain a minimum of 10 percent coal mined in the state and describing the statute as a type of economic protectionism.90 This type of case is described as a negative commerce clause suit, since the court ruled Wyoming had standing to sue because of the adverse effect of the Oklahoma law on Wyoming’s tax revenue. The case was an appropriate one for the court to exercise its original jurisdiction. Coal is a major Wyoming natural resource exported to nineteen states. The state is not involved with the production or sale of coal, but levies a severance tax on coal.91 The tax is payable by a person or company, for the privilege of extracting coal, including eight mining companies which sell coal to four Oklahoma electric utility companies. The Oklahoma State Legislature adopted a concurrent resolution containing a request that Oklahoma electric generating companies with coal-fired plants consider using a blend of 10 percent Oklahoma mined coal along with Wyoming coal.92 The four companies, including the state owned Grand River Dam Authority, ignored the precatory resolution. In 1986, the Oklahoma State Legislature enacted a concurrent resolution mandating the burning of a mixture of coal in the plants containing 10 percent Oklahoma mined coal.93 In view of the fact there was less than full compliance with the law by the four utilities, the 1988 Oklahoma State Legislature approved Resolution 82 directing the Grand River Dam Authority to comply with the act.94 In conformance with its customary practice, the court appointed a special master to collect evidence and frame recommendations. The special master’s report revealed Wyoming lost $535,886 in severance tax revenue in 1987,

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$542,352 in 1988, and $87,130 during the first third of 1989. The court granted Wyoming’s motion for leave to file its motion of complaint despite Oklahoma’s objection that Wyoming lacked standing to sue, and denied Oklahoma’s motion to dismiss the suit for want of standing.95 The court quoted its opinion in Maryland v. Louisiana, relative to constituting a proper controversy under the court’s original jurisdiction, that “it must appear that the complaining State has suffered wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to the accepted principles of the common law or equity systems of jurisprudence.”96 According to the court, Wyoming met this test. Oklahoma contended the plaintiff state is neither engaged in a proprietary capacity in the affected commerce nor affected as a consumer, and hence has not suffered a wrong susceptible to an interstate commerce clause action. The court noted the cases relied upon by Oklahoma did not support its position, as they involve parens patriae standing claims and not allegations of direct injury to the state. Continuing, the court noted it had rejected an argument similar to the one advanced by Oklahoma in Hunt v. Washington State Apple Advertising Commission.97 This case involved a state commission which was not engaged in growing and selling Washington apples or their shipment to North Carolina, but whose revenues were based on the number of apples grown and packed as Washington apples. Oklahoma also contended the affected Wyoming mining companies could bring an interstate commerce clause challenge. The court took notice of the fact that none of these companies filed a suit of its own in a state or federal court and they also choose not to intervene in the present litigation. Citing New York v. New Jersey, Oklahoma argued that “[b]efore this court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one State at the suit of another, the threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence.”98 Oklahoma continued by asserting Wyoming’s interest is de minimis, in view of the fact Wyoming’s severance revenue loss is less than 1 percent of its total tax revenue. The court refused to exercise its original jurisdiction solely on the basis of the amount in controversy, and opined the argument is identical to the one addressed by the court in 1923, in Pennsylvania v. West Virginia, involving the latter state’s statute keeping natural gas within its boundaries.99 Oklahoma also attempted to buttress its defense of its statute by drawing upon a savings clause, in the Federal Power Act, reserving to states the authority to regulate local retail electric rates.100 The court responded that it had already examined the savings clause, in New England Power Company v. New Hampshire, and concluded Congress did not intend to alter interstate commerce clause limits on the powers of the states.101

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The court determined that the nature of Wyoming’s allegations, and the absence of pending litigation in other courts involving the identical parties or issues, make the present case appropriate for a trial by the court. The court also determined that the Oklahoma statute violated the interstate commerce clause of the U.S. Constitution.102 Justice Antonin Scalia, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, dissented, explaining: “when the coal companies with sales allegedly affected by the Oklahoma law have, for whatever reason, chosen not to litigate, the Court sees fit, for the first time, to recognize a State’s standing to bring a negative Commerce Clause action on the basis of its consequential loss of tax revenue.”103 The dissent continued to explain the so-called zone-of-interest test by citing the Court’s holding, in Clarke v. Securities Industry Association, the test “denies a right of review if the plaintiff ’s interests are . . . marginally related to or inconsistent with the purposes implicit in the [constitutional provision].”104 Scalia concluded: “Wyoming’s interest in this case falls far shorter of meeting the zone-of-interests test than did that of the plaintiff postal union in Air Courier Conference Postal Workers.”105 He deplored the abandonment of the test precluding a judicial remedy for every conceivable injury traceable to an allegation of wrongdoing. Justice Thomas, joined by the Chief Justice and Justice Scalia, wrote a separate dissent justifying a denial of the Wyoming motion for leave to file a bill of complaint and contending the majority opinion will allow every state showing any tax revenue loss attributable to the action of a sister state direct access to the court.106

SUMMARY Escheats suits are rare, with only three reaching the supreme judicial tribunal. The first case, Texas v. New Jersey, established a primary rule and a secondary rule governing the right of a state to take title to unclaimed property. These rules were applied in the third case—Delaware v. New York. Interstate taxation controversies may be classified as estate taxation, other forms of taxation, and state tax revenue loss caused by the action of a sister state. Estate tax cases are rare, and a state tax revenue loss case is even rarer, as the Supreme Court adjudicated only one such case. The complexity of interstate tax controversies involving tax credits are illustrated by the New Hampshire statewide property tax on a nuclear power plant owned primarily by public utilities in other states. It should also be noted that interstate disputes labeled boundary ones involve the question of the jurisdiction of the disputing states to levy taxes as illustrated by the high court’s 1893 decision in Iowa v. Illinois.107

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The crowded docket of the Supreme Court makes it imperative that the court invokes its original jurisdiction only when a major interstate controversy exists. We agree with Justice William H. Rehnquist, who contended, in 1981, that justice would be served better by a lower court trial than by what may be termed a special master trial. Chapter 6 examines the increasingly common and complex interstate water controversies involving water allocation between sister states, water diversion, and water pollution.

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Water is a precious commodity in areas of the United States experiencing severe droughts on a regular basis, particularly the southwest.1 The water shortage problem has become more severe in recent decades in other areas, such as the Northeast and the greater Atlanta area, because of economic development and population growth combined on occasions with below normal rainfall and/or snowfall.2 Interstate water controversies may be classified as (1) water allocation, (2) water diversion, and (3) water pollution. The Water Quality Act of 1965 (now Clean Water Act), a minimum standards preemption statute, has helped to decrease water pollution which in turn has reduced the need for the U.S. Supreme Court to resolve interstate disputes pertaining to water pollution allegations.3 Certain water diversion suits may also be viewed as water allocation controversies, since the plaintiff state(s) was seeking an equitable apportionment of the disputed waters. Four interstate water allocation compacts—Pecos River, Canadian River, Arkansas River, and Republican River—have been involved in original jurisdiction decisions of the Supreme Court to resolve different interpretations by party states of provisions of their respective compact. Water controversies may involve treaties entered into by the United States reserving specified water rights to Indian tribes. Congress can settle some of these disputes by enacting a statute, as illustrated by the Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act of 1990.4 It is important to note that interstate water controversies in the western states are periodically reopened and the court has issued a series of decisions affecting the apportionment of the waters of a given river and the interpretation and/or enforcement of the provisions of an interstate water compact. 109

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WATER APPORTIONMENT Three water law systems are employed in the United States. The first system of riparian rights, which is used primarily in the eastern states, grants the owner of land the right to use water on his/her land.5 The second system, prior appropriation, confers water use priority rights to the first user of the water, who may divert the water to a beneficial use not necessarily located on the user’s land. This system is employed in the western states. Federal reserved water rights for Indian reservations and other uses constitute the third water law system and date to the U.S. Supreme Court’s 1908 decision in Winters v. United States holding a May 1, 1888, treaty establishing the Fort Belknap Indian Reservation, entered into by the United States with the Gros Ventre and Assiniboing tribes of Indians, reserved water for the tribes.6 Congress possesses broad interstate commerce powers employable to allocate the waters of interstate navigable rivers.7 This authority has been exercised to a limited extent. Congress prefers to have states settle river water allocation disputes by negotiations leading to the drafting and enactment, by concerned state legislatures, of an interstate compact with congressional consent, allocating the waters or adjudication by the Supreme Court in an original jurisdiction action (see chapter 8). The court, in Sporhase v. Nebraska, based its 1982 decision upon the negative implications of the interstate commerce clause and opined: “Neither the fact that Congress has chosen not to create a federal water law to govern water rights involved in federal projects, nor the fact that Congress has been willing to let the states settle their differences over water rights through mutual agreement, constitutes persuasive evidence that Congress consented to the unilateral imposition of unreasonable burdens on commerce.”8 The court specifically invalidated a Nebraska statute providing for the issuance of a permit for the withdrawal of water from wells in Nebraska and transport of the water to a sister state provided it authorized reciprocal rights to withdraw ground water within its jurisdiction for transport to Nebraska. The most major disputes to reach the court to date, including ones seeking court interpretation and enforcement of an interstate water allocation compact, involve the western states where water shortages have been compounded by drought.9 The court, in resolving a dispute, commonly employs the doctrine of equitable apportionment borrowed from international law and first employed in 1907. Selected court decisions are described below.

Arizona v. California The Supreme Court, in 1935, granted Arizona’s motion for leave to file a bill of complaint in equity against California and several other states by issuing a show

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cause order.10 All of the party states employ the doctrine of appropriation. The returns by the defendant states contained numerous objections to the sufficiency of the proposed bill, but the court nevertheless decided to consider two. The first objection alleged the bill failed to present a justiciable controversy within the court’s jurisdiction. The second objection argued that the United States, which was not named as a defendant, had not granted its consent “to be sued and is an indispensable party to any decree granting the relief prayed by the bill.”11 Arizona requested the court to determine a state’s equitable share of “Colorado River water, subject to diversion and use, to be fixed by this Court, and that the petitioner’s title thereto be quieted against adverse claims of the defendant states,” and to bar California from diverting and using more than its equitable share of the river water as determined by the court and specifically not to exceed the limit imposed upon California by the Boulder Canyon Project Act of 1928.12 The 1,293 mile long Colorado River is the most litigated one in the United States. It arises in Colorado, flows thorough the state for 245 miles, and then flows through Utah for 285 miles. It is the boundary between Arizona and Nevada for 145 miles, Arizona and California for 235 miles, and Arizona and Mexico for 16 miles. The Colorado flows through Mexico for 75 miles to the Gulf of California. The river flows through, or serves as a boundary for Arizona for 688 miles. At the time of the suit, the Boulder Dam and the Laguna Dam had been constructed, and two other dams were under construction, under contracts entered into by the secretary of the interior. The Colorado River had an annual flow of approximately 16,840,000 acre-feet at the Imperial Dam in Arizona, with approximately 6,100,000 acrefeet per year reserved for use by the Republic of Mexico and the United States. The remainder was available for allocation among the states. The defendant states entered into the Colorado River Compact of 1922 and received the consent of Congress when the Boulder Canyon Act of 1928 was enacted.13 Arizona challenged the constitutionality of the act, but in 1931, the Supreme Court opined the act was constitutional.14 The secretary of the interior, deriving authority from this act, entered into contracts with several California corporations for storage of water in the Boulder Dam reservoir, and delivery of 5,362,000 acre-feet of water each year for a contractual compensation. Arizona’s bill of complaint charged these contracts would consume, annually, all unappropriated water with the exception of approximately 1,000,000 acre-feet, and Arizona would be unable to reclaim additional land without sufficient water. In 1935, the court declared the river is navigable, and the United States has paramount power over the use of the water of the river. The court also declared that a judicial determination of apportionment of the Colorado River’s water can not be made in a proceeding where the United States is not a party, and hence denied the petition to file a bill of complaint in equity.15

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In 1952, Arizona sued California alleging southern California alone was using more Colorado River water than the six other states combined.16 At the heart of the suit was the Colorado River Compact of 1922, which received congressional consent in 1928. In 1963, the court issued an opinion generally supporting Arizona’s position when the flow of water in the river is normal, and authorizing the secretary of the interior to apportion the water whenever the flow is below normal.17 This suit was the fifth one involving the Colorado River. It should also be noted that there are disputes between the upper and lower basin states over the waters of the Colorado River.18 Heather R. Brinton reached the following conclusion relative to the invocation of the Supreme Court’s original jurisdiction to resolve interstate water disputes involving the Colorado River: The inherent inconsistency in federal adjudication of western water rights reveals itself in Arizona v. California. This protracted litigation chronicles the unreliability that results from a case-by-case determination of western water apportionment. In an era when water resource management has reached a critical stage, the Supreme Court’s decision underscores the impermanence of previously allocated water rights. Unfortunately, the absence of definite, quantifiable diversion rights inhibits investment and precludes drought planning and management. Thus, an increased uncertainty of water supply will discourage investors and impede development in an area currently experiencing a population surge.19

Nebraska v. Wyoming A dispute over the waters of the North Platte River—between Colorado, Nebraska, Wyoming, and the United States—to be used for irrigation purposes in a large arid area has continued since 1945 when the Supreme Court issued its first decision involving the waters of the river.20 The nonnavigable river originates in northern Colorado and flows through Wyoming into Nebraska at which point the river joins the South Platte River. In 1934, the court granted leave to Nebraska to file a bill of complaint in equity against Wyoming seeking an equitable apportionment of the waters of the nonnavigable North Platte River. Colorado was impleaded as a defendant and the United States entered the controversy as an intervener. Colorado filed an answer and a cross-bill against Nebraska and Wyoming praying for an equitable apportionment of the waters with the exceptions of the tributary waters of the South Platte River and the Laramie River which respectively had been apportioned by a 1926 Colorado-Nevada interstate compact with the consent of Congress and a decision of the U.S. Supreme Court.21

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1945 Decision The litigation continued for eleven years and the court, in 1945, in a complex and lengthy opinion, noted: “There is some suggestion that if we undertake an apportionment of the waters of this interstate river, we embark upon an enterprise involving administrative functions beyond our province.”22 Nevertheless, the court accepted the recommendations of Special Master Michael J. Doherty and placed restrictions on the diversion and storage of water by the upstream states, prioritized the waters of federal storage reservoirs and certain canals, and apportioned the waters of the North Platte River between Nebraska and Wyoming.23 Justice Owen J. Roberts issued a sharply worded dissent, contending: Without proof of actual damage in the past, or of any threat of substantial damage in the near future, the court now undertakes to assume jurisdiction over three quasi-sovereign states and to supervise, for all time, their respective uses of an interstate stream on the basis of past use, including, over a ten year term, the greatest drought in this history of the region, admitting, in effect, that its allocation of privileges to the respective states will have to be revised and modified when that drought ceases and more water becomes available for beneficial use. . . . The precedent now made will arise to plague this court not only in the present suit but in others. The future will demonstrate . . . how wrong it is for this court to attempt to become a continuing umpire or a standing Master to whom the parties must go at intervals for leave to do what, in their sovereign right, they should be able to do without let or hindrance, provided only that they work no substantial damage to their neighbors.24 The parties were directed to prepare a decree to implement the court’s decision and the court issued a decree with a reopening provision: Any of the parties may apply at the foot of this decree for its amendment or for further relief. The Court retains jurisdiction of this suit for the purpose of any order, direction, or modification of the decree, or any supplementary decree, that may at any time be deemed proper in relation to the subject matter in controversy. Matters with reference to which further relief may here be sought shall include but shall not be limited to, the following: . . . (c) The question of the effect of the construction or threatened construction of storage capacity not now existing on tributaries entering the North Platte River between Pathfinder Reservoir and Guernsey Reservoir, . . . (f ) Any change in conditions making modification of the decree or the granting of further relief necessary or appropriate.25

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The court’s decision is a reflection of its concern there may be a need for a modification of the decree in the future as substantial changes may occur in the supply of water or there may be circumvention of the decree. In 1953, the degree was modified as the result of the construction of a new reservoir.26 1993 Decision Nebraska, in 1986, petitioned for relief under the court’s 1945 decree provision for reopening the dispute. The court granted Nebraska’s motion to file a petition in equity alleging Wyoming violated, or threatened to violate, the decree by developments on Deer Creek and the Laramie River (tributaries of the North Platte River), and objecting to Wyoming’s actions relative to the Inland Lakes in Nebraska. In its answer brief, Wyoming maintained Nebraska was circumventing the decree by diverting water, above the TriState Dam, to uses below the dam that were not recognized in the court’s decree. The special master recommended the court grant summary judgment to Nebraska and the United States with respect to the Inland Lakes issue, grant Nebraska partial summary judgment relative to the Tri-State Dam issue, and deny summary judgment for the remaining issues. Colorado, Nebraska, Wyoming and amicus Basin Electric Power Cooperative filed exceptions to the master’s recommendations, but did not challenge the master’s summary judgment standards. The key disagreement was whether or not the court proceedings involved an application for enforcement of previously recognized rights, or if Nebraska was seeking a modification of the 1945 decree. Wyoming acknowledged the court may modify the decree, but argued Nebraska obtained leave to file its petition after giving assurance that the case would be limited to enforcement of existing rights, and Nebraska, in effect, was seeking recognition of new rights. The court did not read the pleadings as narrowly as Wyoming, agreed Nebraska’s petition included ambiguous language, and declined to restrict the litigation scope. The court, however, agreed with Wyoming that a higher standard of proof would apply if Nebraska sought a decree modification. The court also explained that Wyoming would not need to show an injury if the action is an enforcement one. The court determined the Inland Lakes issue was an enforcement one. And claims, relative to the tributary rivers, involved questions not considered in the original proceedings and which in effect, were requests for decree modification.27 The immediate question to be decided was the evidentiary standard to be applied to the claims. The court decided Nebraska would be entitled to relief if it made a showing of substantial injury. Relative to the Inland Lakes controversy, the court concluded that earlier litigation had settled the issue and added, even if the controversy had not been settled, “Wyoming’s arguments are foreclosed by its post decree acquiescence.”28

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The court concluded that it had not determined the uses of the excess Laramie River waters in its 1945 decree, and that Wyoming was currently not interfering with the water flow. The special master recommended against summary judgment, with respect to the Deer Creek project involving municipal use of water, and the court agreed. In sum, the court overruled all exceptions filed to the master’s report and granted the summary judgment motions of Nebraska and the United States relative to priority to the Inland Lakes.29 1995 Decision Two years later, the court issued another decision involving its 1945 decree.30 Nebraska filed an amended petition containing four allegations. The first count alleged that Wyoming was depleting the natural flows of the North Platte River and Nebraska sought an injunction against the construction of storage capacity on the tributaries of the river and the depletion of ground water hydrologically connected to the river and its tributaries. The second count maintained the United States was operating the Glendo Reservoir in violation of the 1945 decree. The third count contended Wyoming was depleting the Laramie River’s flow to the North Platte River. The fourth count sought an equitable apportionment of the nonirrigation season flows of the North Platte River. The special master recommended Nebraska should be allowed to substitute the first three counts of its amended petition for its current petition, but count four should be denied. Nebraska and the United States did not file exceptions to the special master’s recommendations, but Wyoming filed three exceptions and sought to amend its pleading by adding four counterclaims and five cross-claims. The court determined: “Wyoming seeks to replace a simple apportionment scheme with one in which Nebraska’s share would be capped at the volume of probable beneficial use, presumably to Wyoming’s advantage. Wyoming thus seeks nothing less than relitigation of the ‘main controversy’ of the 1945 litigation, the equitable apportionment of irrigationseason flows in the North Platte’s pivotal reach.”31 The court noted it would be reluctant to relitigate an issue settled fifty years earlier, and found no reason in the form of a change in conditions warranting reexamination of the apportionment set forth in the 1945 decree. The court allowed Wyoming’s fourth amended cross-claim against the United States, alleging “federal management of reservoirs has contravened state and federal law as well as contracts governing water supply to individual users,” to proceed forward. However, the court emphasized it was not sanctioning in any way “the very modification of the decree that we have just rule out in this proceeding.”32 Justice Clarence Thomas issued a separate opinion concurring in part and dissenting in part. “The Court’s decision to entertain Wyoming’s Fourth Cross-Claim against the United States departs from our established

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principles for exercising our original jurisdiction, ignores the relief requested by Wyoming, and needlessly opens the possibility to a reapportionment of the North Platte.”33 2001 Decision The court received the final report of special master Owen Olpin, approved the final settlement stipulation executed by all parties, and issued in 2001 a decree providing: 1. The State of Colorado, its officers, attorneys, agents, and employees, be and they are hereby severally enjoined: a. From diverting or permitting the diversion of water from the North Platte River and its tributaries for the irrigation of more than a total of 145,000 acres of land in Jackson County, Colorado, during any one irrigation season; b. From storing or permitting the storage of more than a total amount of 17,000 acre-feet of water for irrigation purposes from the North Platte River and its tributaries in Jackson County . . . between October 1 of any year and September 30 of the following year; c. From exporting out of the basin of the North Platte River and its tributaries in Jackson County, Colorado, to any other stream basin or basins more than 60,000 acre-feet of water in any period of ten consecutive years reckoned in continuing progressive series beginning with October 1, 1945.34 Wyoming was similarly enjoined from diverting or permitting diversion of water for irrigation purposes from the North Platte River and its tributaries, and from storing water in several named reservoirs.

Texas v. New Mexico This original jurisdiction suit, the fourth between the two states, involves the construction and enforcement of the Pecos River Compact enacted by the two state legislatures in 1948, and granted congressional consent in 1949.35 The two state legislatures enacted a Pecos River Compact in 1925, but the governor of New Mexico vetoed it. Negotiations were reactivated in 1945, and led to the compact providing for the appointment, by each state, of one voting commissioner and the appointment, by the president, with the consent of the Senate, of a nonvoting member, who is chairman of the commission and is required to attend each commission meeting. The commission, established by the compact, may act only with the consent of the two party states.

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The river has an irregular flow and, as a consequence, the compact does not specify the quantity of water New Mexico must deliver annually to Texas. Article III(a) of the compact stipulates: “New Mexico shall not deplete by man’s activities the flow of the Pecos River at the New Mexico-Texas state line below an amount which will give to Texas a quantity of water equivalent to that available to Texas under the 1947 condition.” The two states interpreted “the 1947 condition” and other disputed matters differently. Texas engaged in unproductive negotiations with New Mexico over a period of years, and in 1974, filed a motion for leave to file a bill of complaint in equity against New Mexico, invoking the court’s original jurisdiction and seeking a decree requiring New Mexico to deliver water in compliance with the compact. The court, in 1975, granted its leave for the filing of the complaint, and appointed, as special master, Senior Judge Jean Sala Breitenstein of the U.S. Court of Appeals for the 10th Circuit, a widely recognized expert on western states water law.36 The court noted that the Pecos River Compact underwent a metamorphosis as the result of congressional consent and became federal law. In consequence, no court possesses the authority to order relief inconsistent with the terms of the compact, unless it is unconstitutional.37 The compact clearly delimits the role of the U.S. commissioner, serving as commission chairperson, and being present at each commission meeting. This compact lacks features found in three other compacts—Upper Colorado River Compact, Arkansas River Basin Compact, and Yellowstone River Compact—allowing the U.S. member of a commission to vote.38 The special master, during the following two years, received evidence regarding corrections to the 1947 study and the inflow-outflow manual. In 1979, the special master filed a report with the court defining “the 1947 condition” in Article III(a) of the compact, and proposing a river routing study and an inflow-outflow manual to determine the quantity of water Texas should receive, for a particular period of time, for a given precipitation level under prevailing consumption conditions in New Mexico as of 1947. The court adopted the entire report in 1980.39 In his second report in 1982, the special master reported the contested issue could be resolved if the court exercised the administrative powers delegated by the compact to the commission, but added the exercise of such powers would be beyond the function of the court. He concluded that the court’s equity powers can provide an adequate remedy, and recommended that, in the event the states do not reach an agreement on a tie-breaking procedure, the court should order the United States representative, or another third party, be empowered to break a commission tie subject to appropriate review by the court. Both states filed exceptions to the recommendations. The probability of impasses under the Pecos River Compact was noted and the court suggested the two states consider enacting a compact amendment to

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prevent paralyzing impasses such as the current one.40 The court highlighted its refusal in the past “to make indefinite appointments of quasi-administrative officials to control the diversion of interstate waters on a day-to-day basis, even with the consent of the states involved” and added “continuing supervision by this court of water decrees would test the limits of proper judicial functions and we have thought it not wise to undertake such a project.”41 If the court took no action, New Mexico (the upstream state) could withhold water from Texas. The key question was what role can the court play under the compact? The court answered that it can employ its equitable power to apportion water.42 The court accepted the alternative recommendation of the special master, that the suit be continued for further negotiations.43 In 1984, the court approved a report of the special master stipulating the inflow-outflow methodology be employed in determining Texas’s entitlement.44 Special Master Charles Meyers, who succeeded Judge Breitenstein after his death, held hearings relating to whether New Mexico had met its compact obligations, and issued a report revealing New Mexico was responsible for delivering 340,100 acre-feet more water than the amount Texas received between 1950 and 1983. The special master recommended that the defendant state be ordered to deliver 34,010 acre-feet of water annually, for ten years, to make up for the shortage. Each state filed exceptions to the report. The court rejected the exceptions of the two states to the master’s determination of the shortfall of water. New Mexico also filed an exception to the proposed remedy maintaining the court may order only prospective relief. The court rejected this exception by noting: “If that were the case, New Mexico’s defaults could never be remedied.”45 The court added: “There is often a retroactive impact when courts resolve contract disputes about the scope of a promisor’s undertaking; parties must perform today or pay damages for what a court decides they promised to do yesterday and did not. In our view, New Mexico cannot escape liability for what has been adjudicated to be past failures to perform its duties under the compact.”46 New Mexico also argued that it should be granted the option of paying money damages in the event the court determines Texas is entitled to a remedy. The special master noted that there was no provision for such damages in the interstate compact; held the compact contemplated water delivery; and also held that the court lacked authority to order relief inconsistent with the terms of the compact. The court opined “the lack of specific provisions for a remedy in case of breach does not . . . mandate repayment in water and preclude damages” and “(t)hat there may be difficulties in enforcing judgments against states counsels caution but does not undermine our authority to enter judgments against defendant States in cases over which the Court has undoubted jurisdiction . . .”47 The court determined that the method of remedying the water shortages should be returned to the special master, who will conduct further pro-

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ceedings. In the meantime, the court enjoined New Mexico to comply with the compact and to determine its obligation in accordance with the court’s approved formula.48 The special master explained the apportionment formula is not a mechanical one but involves judgment. Hence, he recommended the appointment of a river master to make the necessary calculations. Although historically, the court has been reluctant to appoint an agent to enforce its decrees, it accepted the recommendation, and on remand, requested the special master to recommend an amendment to the court’s decree defining the river master’s duties “and the consequences of his determinations”49 In 1988, the court overruled New Mexico’s exceptions to the report of the special master containing a proposed amended decree.50 The court appointed a river master who was directed to perform the following duties: 1. Calculate in account year 1988, beginning with water year 1987, and continuing every year thereafter, pursuant to the methodology set forth in the Manual: a. The Article III(a) obligation; b. Any shortfall or overage, which calculation shall disregard deliveries of water pursuant to an Approved Plan. c. The net shortfall, if any, after subtracting any overages accumulated in previous years, beginning with water year 1987. 2. Deliver to the parties a Preliminary Report, setting forth the tentative results of the calculations required by Section III.B.1 of this Decree by May 15 of the accounting year; 3. Consider any written objections to the Preliminary Report submitted by the parties prior to June 15, of the accounting years; 4. Deliver to the parties a Final Report, setting forth the final results of the calculations required by Section III.B.1 of this Decree by July 1, of the accounting year; 5. Review any plan proposed by New Mexico pursuant to Article II.A.2 of this Decree for its efficacy in satisfying any shortfall and consider any written objections to the plan, which are submitted, by Texas, by September 1, of the accounting year; 6. Modify the proposed plan as is deemed necessary to ensure satisfaction of the shortfall, and deliver to the parties such Approved Plan by October 1, of the accounting year; 7. Deliver to the parties and file with this Court, a Compliance Report, by June 1, of the year following any accounting year in which there is an Approved Plan, which report shall include a finding of New Mexico’s compliance or noncompliance with the terms of the Approved Plan and the reasons for such finding.51

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The decree authorized the river master to modify the manual on the basis of a written agreement of the party states. In addition, the “Court retains jurisdiction of this suit for the purpose of any order, direction, or modification of the Decree, or any supplementary decree that may at any time be deemed proper in relation to the subject matter in controversy.”52

Oklahoma and Texas v. New Mexico This interstate dispute involved different interpretations of several provisions of the Canadian River Compact entered into by the three states with congressional consent, in 1952.53 The river is an interstate one which originates in the boundary between southeastern Colorado and northeastern New Mexico, flows south to the Conchas Dam in New Mexico, at which point its flow moves to the east for sixty-five miles to the Ute Dam and Reservoir in New Mexico, prior to traversing the Texas panhandle, and flowing into the Arkansas River in Oklahoma. The U.S. Army Corps of Engineers, acting under congressional authorization, constructed the Conchas Dam in the late 1930s, and completed the Tucumcari reclamation project in 1950. The Texas congressional delegation introduced a bill in Congress, in 1949, authorizing a massive federal Canadian River reclamation project (popularly known as the Sanford Project), and New Mexico, Oklahoma, and Texas to negotiate an interstate compact creating a commission with authority to apportion the Canadian River waters. The three states, and the federal government, each appoints one commission member. The Sanford Dam created the Lake Meredith Reservoir. In the 1950s, New Mexico selected a site on the Canadian River for the construction of the Ute Dam and Reservoir, which were completed in 1963. In 1982, the state commenced to enlarge the reservoir, and the enlargement was completed in 1984. Oklahoma and Texas objected, in 1982, that enlargement of the reservoir would violate the 200,000 acre-feet limit contained in article IV(b) of the compact. The commission was unable to resolve the dispute as a unanimous vote was required. In consequence, Oklahoma and Texas brought an original action in the Supreme Court, seeking resolution of the interstate controversy. A section of the river above the Conchas Dam flooded during the pendency of the case in the spring of 1987 and approximately 250,000 acre-feet of water spilled over the dam. New Mexico impounded approximately 60 percent of the spill in the Ute Reservoir filling it to capacity and the remaining 40 percent flowed down the river. On June 23, 1988, the reservoir contained 232,000 acre-feet of water and New Mexico alleged 180,900 acre-feet was water spilled from the dam. New Mexico refused to count the spill water in

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the reservoir toward the 200,000 acre-feet limitation set by the compact. In consequence, Oklahoma and Texas filed a supplemental complaint alleging “that if the 200,000 acre-feet limitation applies to actual stored water, then water spilling over Conchas Dam or seeping back from the Tucumeari project constitutes ‘waters which originate . . . below Conchas Dam’ within the meaning of Article IV(b).”54 New Mexico rejected the complaint and maintained that waters first entering the river above the dam are not subject to the compact article. The court appointed a special master, who accumulated voluminous evidence in the form of submissions from each state, held two hearings of oral arguments, circulated a draft report to each party state for review and comment, and filed, with the court, a report containing four recommendations pertaining to the dispute as well as a fifth, recommending “the Court use this case to articulate various jurisdictional prerequisites and procedural guidelines for application in future interstate compact litigation.”55 The master recommended that 1. article IV(b) be interpreted as imposing a limitation on stored water rather than the physical capacity of the reservoir, 2. waters originating above the dam are subject to the limitation, 3. the issue of whether “water in the ‘desilting pool’ in Ute Reservoir should be exempt” from the limitation should be referred to the compact commission for good-faith negotiations leading to a solution, and 4. New Mexico will be in violation of the compact since 1987 should the above recommendations be adopted by the court. Oklahoma filed an exception to the recommendation that the “limitation on conservation storage be interpreted to apply only to the quantity of water New Mexico actually stores at the Ute Reservoir for conservation purposes.”56 The special master agreed there was some support for this interpretation in the compact, but other provisions “appear to focus on stored water not reservoir capacity.”57 The court agreed with the master. Texas filed an exception and argued the compact does not restrict New Mexico’s right to impound waters spilling over or released from the dam. The court ruled that any waters in the river below the Conchas Dam “must be deemed to have originated below Conchas and be subject to the 200,000 acrefeet limitation.”58 In addition, the court explained “the compact’s ambiguous use of the term ‘originating’ can only be harmonized with the apparent intent of the compact drafters if it is interpreted so that waters which spill over or are released from Conchas Dam, or which return from the Tucumcari project, are considered waters originating below Conchas Dam.”59

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Chief Justice William H. Rehnquist—joined by Justice Sandra D. O’Connor, Justice Antonin Scalia, and Justice Anthony M. Kennedy—dissented. He noted that a compact is a contract between the party states, and the majority opinion “overruling New Mexico’s objections to the Report of the Special Master varies the terms of a contract to which the States of Oklahoma, New Mexico, and Texas freely agreed. I do not believe it is within the Court’s power to do this, . . .”60 The dissent maintained the majority opinion holds “the Compact cannot mean what it says, and instead fashions a different allocation than that which is literally described.”61 The chief justice concluded the dissent as follows: Finally, putting aside the Court’s dismissive treatment of the Compact terms and the parties’ expectations, today’s decision makes little practical sense. The Court’s decision will not protect the rights of the downstream States, except to the extent that it will force New Mexico to behave inefficiently in using its water. . . . The Court’s construction . . . does not prevent New Mexico from capturing flood waters and diverting them to projects below Conchas Dam; it merely forces the State to take its rightful waters by means of costly, inefficient, and wasteful engineering.62

Kansas v. Colorado This interstate controversy involved the Arkansas River Compact of 1949 entered into by the two states, after three years of negotiations, and with the consent of Congress.63 Earlier, the two states had litigated, in the Supreme Court, twice over each state’s rights to Arkansas River waters. In 1907, the court for the first time employed an international law doctrine, equitable apportionment, and rejected Kansas’ petition for an injunction forbidding Colorado to divert water from the river on the ground the depletions did not justify injunctive relief.64 In 1943, the court granted Colorado’s request for an injunction against lower court litigation brought against Colorado water users, but determined Kansas was not entitled to an equitable apportionment of the water.65 To resolve their differences, the court advised the states to enter into negotiations leading to an interstate water allocation compact. The negotiations were successful and the compact created the Arkansas River Compact Administration, with authority to administer the compact. Membership includes three voting representatives from each state and a nonvoting presiding officer designated by the president of the United States. Every decision requires a unanimous vote since each state has one vote. Kansas, in 1983, investigated possible compact violations resulting from the

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increased well-pumping in Colorado, post 1949, and the operation of two federal reservoirs. In 1985, Kansas brought an original action against Colorado to solve compact disputes and the court granted leave to Kansas to file a bill of complaint in 1986.66 Kansas advanced three major claims alleging Colorado’s violations of the compact. First, increased groundwater well-pumping in Colorado (post 1949) was responsible for a decreased surface flow of the river. Second, Colorado’s winter water storage program violated the compact. Third, Colorado’s decision not to honor Trinidad Reservoir operating principles also violated the compact. The special master found that well-pumping in Colorado since 1949 had depleted the flow at the border between the two states and hence violated the compact. Furthermore, Kansas had not proved that operation of the water storage program violated the compact. He recommended dismissal of the claim pertaining to the operation of Trinidad Reservoir. Each state filed exceptions to the report. The court noted the special master provided Kansas with reasonable opportunity to meet the burden of proving its water storage program claim, but the state failed to prove the program was responsible for material depletions of usable water flows in violation of the compact.67 The special master determined “Kansas was not guilty of inexcusable delay in making its well-pumping claim, and that Colorado had not been prejudiced by Kansas’ failure to press its claim earlier.”68 The court in overruling Colorado’s exception to the special master’s conclusion noted the fact state officers in 1985 would not permit the compact administration to investigate well development on the ground Kansas’ evidence did not suggest Colorado well development impacted usable river flow at the state borders.69 The court specifically concluded Article IV-D of the compact refuted Colorado’s position, as it allows construction of dams and reservoirs provided the waters of the river are not materially depleted. The court also accepted the special master’s recommendation, that the burden of proof for enforcement of a compact, is the standard of the preponderance of the evidence, thereby rejecting Colorado’s contention that the standard of clear and convincing evidence should be employed.70 The special master reported wellpumping in Colorado had caused material depletions of river flows at the state line, regardless of which burden of proof is applied, and the court agreed. The issue of the compact reappeared in the court in 1998, as the result of the special master filing a second report recommending that Kansas be awarded damages. Colorado filed two exceptions to the report: (1) The Eleventh Amendment to the U.S. Constitution barred an award of damages for losses suffered by Kansas citizens and (2) the special master improperly recommended prejudgment interests on the unliquidated claim should be imposed. The court overruled the exceptions without prejudice to their possible renewal subsequent to a more specific special master recommendation of a remedy.71

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The special master’s third report recommended (1) damages should be measured by Kansas’ losses and not by Colorado’s profits deriving from compact violations after 1950, (2) damages should be paid to Kansas in money and not in water, and (3) damages should include prejudgment interest from 1969 to the date of the court’s judgment. Colorado filed four exceptions. The first exception contended a damage award violated the Eleventh Amendment. The court had, in 2001, held that the amendment would bar an action by citizens of Kansas against Colorado. But the facts proved Kansas is the real party and not a nominal party representing private citizens. In consequence, the court overruled the first exception.72 The second exception concerned the recommendation of the master that damages should include prejudgment interest. Early common law cases made a distinction between liquidated and unliquidated claims and did not allow interest on the latter type of claim. The court referred to the common law distinction having lost “its hold on the legal imagination” and found “no fault in the special master’s analysis of either of our prior cases or the equities of this matter.”73 The third exception maintained the interest award was excessive and the interest rate should be lower because a state, and not individuals, is maintaining the action. The court referred to the special master’s conclusion that “the full economic consequences of Colorado’s breach could best be remedied by an interest award that mirrors the cost of any additional borrowing the farmers may have been forced to undertake in order to compensate for lost revenue,” and overruled Colorado’s exception to the recommended interest rates. The court sustained Colorado’s exception challenging the award of interest prior to 1985.74 The fourth exception challenged the special master’s calculation of crop losses resulting from Colorado’s violations of the compact. The court explained the two states agreed on most of the facts pertaining to the master’s calculation and differed only with respect to the precise effect of diverted water on crops in the area in question. The Kansas experts made their calculations on the basis of a direct relationship between the availability of water and increased crop yields. The Colorado expert attempted to propose a model, but abandoned it when flaws were pointed out to him. The court overruled the fourth exception.75 Justice Sandra Day O’Connor, joined by Justice Antonin Scalia and Justice Clarence Thomas, both concurred and dissented in part. Justice O’Connor wrote “an award of prejudgment interest on unliquidated and unascertainable damages for breach of an interstate compact was unheard of at the time of the Compact’s negotiation and approval” and added “it seems inescapable that any participant in the drafting and negotiation of the Compact would, if asked at the time, have reacted with marked surprise to the notion that the Compact rendered its signatories liable for an award of prejudgment interest such as that sanctioned by the Court today.”76

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The dispute appeared again in the Supreme Court, in 2004, as the result of Kansas’s request that the special master recommend the court appoint a river master, authorized to decide various technical issues relating to decree enforcement. The special master opposed appointment of a river master because an appointment would make it “easier to continue this litigation;” the court agreed and rejected Kansas’s request.77 Kansas also filed an exception to the special master’s prejudgment interest calculation by seeking a major adjustment of the award benefiting the state. This exception was overruled by the Court, which explained that its earlier determination of the award was an equitable one.78

WATER DIVERSION Water diversion suits by a state against a sister state are, not surprisingly, relatively common. They involve diversion of ground water and/or surface water, and seek apportionment of the waters by the Supreme Court. Most suits involve diversion of river waters.

Kansas v. Colorado In 1901, Kansas filed a motion for leave to file a bill of complaint in equity against Colorado, alleging it authorized diversions of water from the Arkansas River and its tributaries, to the detriment of Kansas, and sought issuance of a writ of injunction against Colorado, to prevent construction of canals and ditches diverting water from the river and its tributaries. In its demurrer, Colorado, in 1901, argued, among other things: 1. that the Supreme Court lacked jurisdiction as the bill of complaint did not constitute a interstate controversy under the U.S. Constitution, 2. the issue involves Kansas and Colorado corporations and individuals, 3. Kansas is acting parens patriae for certain of its citizens, 4. the property rights of Kansas are not affected, 5. the actions complained of were not undertaken by the State of Colorado, 6. the bill of complaint is multifarious, and 7. the acts complained of involve the exercise of the appropriation of water, in the national domain, in conformance with various congressional statutes. The court, after reviewing the bill of complaint and the answering demurrer, and hearing oral arguments, reported it had no difficulty in determining

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whether the facts presented justified its interposition. The court explained it applies “Federal law, state law, and international law, as the exigencies of the particular case may demand; and we are unwilling in this case to proceed on the mere technical admissions made by the demurrer.”79 The court overruled the demurrer without prejudice and announced it would not proceed further with the case until all the evidence was presented to the court. As noted above, in 1907, the court ruled against Kansas on the ground that the water diversions did not warrant injunctive relief.

Wyoming v. Colorado The court, in 1922, adjudicated a dispute between Wyoming and Colorado involving a proposed diversion of waters from the Laramie River (an unnavigable river), by Colorado and two Colorado-chartered corporations. Wyoming’s bill of complaint in equity was brought in 1911, evidence was gathered in 1913 and 1914, the parties placed the evidence in a condensed form in 1916 prior to its printing. On three occasions, the case was argued before the court which “directed one reargument because of the novelty and importance of some of the questions involved, and the . . . intervening succession in the office of Chief Justice.”80 Wyoming argued that the water of an interstate river cannot be taken from its watershed to another watershed without Wyoming’s consent, and the state, through prior appropriation of the water had become entitled to a major portion of the given’s water to irrigate land. In her answer brief, Colorado maintained (1) it possesses the right to dispose of the river’s water flowing within the state, (2) it is entitled to an equitable diversion of the river’s waters and the proposed diversion would not exceed her entitled share, and (3) adequate water will remain in the river after the proposed diversions to satisfy Wyoming’s appropriations. In its review of the facts, the court explained riparian rights never were applied in the two states which rely upon appropriation, and a 1866 act of Congress stipulates “[w]henever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same.”81 The court also briefly reviewed acts enacted by Congress in 1870, 1877, and 1902 and italicized the following in the 1902 act: “. . . nothing herein shall in any way affect any right of any state or of the federal government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof. . . .” 82 The review pointed out that the italicized words were the only ones in a congressional act

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referring to the water of interstate streams and were a product of Kansas v. Colorado reflecting Congress’ decision that the litigation should be unaffected by the act. The court reaffirmed its decision, in Kansas v. Colorado, by rejecting Colorado’s contention that it may divert and use water flowing in an interstate stream, within the state, and it also rejected Wyoming’s objection to the proposed diversion, because it involves another watershed. The court was faced with the question as to whether or not the doctrine of appropriation, recognized by each state, should be utilized or whether there is a more equitable basis. The court rejected the objections of Colorado to the doctrine of appropriation whose cardinal rule “is that priority of appropriation gives superiority of right.”83 A decree was entered enjoining the defendants from diverting in excess of 15,500 acre-feet of water annually from the Laramie River.84

Wisconsin et al. v. Illinois Wisconsin, Minnesota, Michigan, Ohio, Pennsylvania, and New York prayed for the issuance of an injunction by the Supreme Court permanently enjoining Illinois and the Sanitary District of Chicago from diverting 8,500 cubic feet of water per second from Lake Michigan. The court appointed Charles Evans Hughes, retired chief justice of the court, as special master to gather evidence and report to the court his findings of fact, conclusions of law, and recommendations for a decree. The master made an extensive review of evidence presented to him by the party states, reviewed a series of acts of Congress pertaining to the Illinois River and Lake Michigan dating to 1822, and acts of the Illinois State Legislature, including the 1889 act, creating the Sanitary District of Chicago. In particular, the master examined various acts of Congress authorizing the secretary of war to issue permits for diversion of water. The U.S. District Court for the Northern District of Illinois enjoined the Sanitary District from diverting more than 250,000 cubic feet of water per minute (4,167 cubic feet a second) from Lake Michigan, and the decision was upheld by the Supreme Court in 1925.85 The Sanitary District, immediately after the court’s decision, requested permission of the secretary of war to divert 10,000 cubic feet a second, based upon specified exigencies, and a permit was issued. The permit required the district to initiate immediate steps to provide for treatment of sewage, and stipulated the permit would be revoked if there was noncompliance, and the permit would terminate on December 31, 1929, unless renewed. The master found the diversion of water through the Chicago Drainage Canal (1) caused the water levels of the lakes to drop by six inches, and (2)

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damaged commercial and navigation interests, structures, summer resorts, fishing and hunting groups, and others. The master concluded “the diversion is primarily for the purposes of sanitation” and added: “There is nothing in any of the acts of Congress upon which the defendants rely specifying any particular quantity of water which could be diverted and it could hardly be considered a reasonable contention that the acts of Congress justified any diversion of water from Lake Michigan that the State of Illinois and the Sanitary District might see fit to make.”86 The court concluded the Sanitary District “defied the authority of the national government residing in the Secretary of War” by increasing the diversion of water from Lake Michigan from 4,167 to 8,500 cubic feet per second.87 The decision was based upon principles of equity and designed to avoid health problems by granting the Sanitary District a reasonable period of time to develop a new means of disposing or treating sewage, during which period water diversion could gradually be reduced and finally terminated. The matter was referred to the special master to determine the specific measures required to meet the above objectives. On April 21, 1930, the court issued a decree stipulating that water diversion must be reduced, on July 1, 1930, to an annual average of 6,500 cubic feet per second, on December 31, 1935, to 5,000 cubic feet per second, on December 31, 1938, to 1,500 cubic feet per second.88

Connecticut v. Massachusetts Connecticut, acting on its own behalf and as parens patriae, brought suit against Massachusetts to enjoin the diversion of waters of the Connecticut River to provide more water for the greater Boston area by contending the common law recognizes that riparian owners are entitled to the undiminished flow of a stream, navigability will be impaired, and less water will be available to disperse sewage and other materials placed in the river by Massachusetts. In its answer brief, Massachusetts averred the amount of water to be diverted is negligible, and an emergency situation involving a serious water shortage in the greater Boston area necessitated the diversion. Connecticut also submitted two plans indicating the northeastern part of Massachusetts possesses abundant water that could be diverted to the Boston area. The court, in addressing the exceptions filed by Connecticut to the report of the special master, explained: “The governing rule is that this Court will not exert its extraordinary power to control the conduct of one State at the suit of another unless the threatened invasion of rights is of serious magnitude and established by clear and convincing evidence.”89 On February 24, 1931, the court dismissed the bill of complaint and directed the counsel for Massachu-

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setts to both prepare a decree in conformance with the court’ decision and to provide a copy to the counsel for Connecticut with the draft decree and Connecticut’s suggestions submitted to the court.

New Jersey v. New York New Jersey filed a motion in the Supreme Court for permission to file a bill of complaint in equity against New York seeking a decree enjoining the State of New York and the City of New York from diverting waters from the 282-mile long Delaware River and/or its tributaries. The river originates in the Catskill Mountains in New York, serves as the boundary between New York and Pennsylvania, Pennsylvania and New Jersey, and Pennsylvania and Delaware. Significant growth in the economic development and population of New York City in the late nineteenth century and early decades of the twentieth century, resulted in the New York State Legislature granting the city authority to construct and operate a number of reservoirs at the headwaters of the Delaware River, thereby diverting water from the river to the city. Justice Oliver W. Holmes in 1931 introduced the court’s decision and opined: A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And on the other hand, equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. Both States have real and substantial interests in the River that must be reconciled as best they may. The different traditions and practices in different parts of the country may lead to varying results but the effort always is to secure an equitable apportionment without quibbling over formulas.90 The court, in conformance with its standard procedure in interstate disputes, referred the case to a special master, who took and analyzed a large quantity of evidence from the contesting party states and recommended that the court should adopt the principle of equitable apportionment of the water. The court’s opinion noted “removal of water to a different watershed obviously must be allowed at times unless States are to be deprived of the most beneficial use on formal grounds.”91

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New Jersey alleged that the proposed diversion of Delaware River head water will: 1. reduce navigability of the river, 2. deprive the state and its riparian owners of water to which they are entitled by the common law followed by the two states, 3. reduce water power, 4. increase salinity of the lower reaches of the river and Delaware Bay, causing particular injury to oyster and shad fisheries, 5. reduce the supply of municipal water, 6. injure cultivation, 7. have a deleterious effect on the river for recreational purposes, 8. violate the Federal Water Power Act, 9. adversely affect interstate commerce, 10. give preference to the ports of New York, and 11. unconstitutionally take the property of New Jersey, and its citizens, without due process of law. The master determined the named tributaries of the Delaware River are not navigable waters at and above the locations where New York City proposed to erect dams and, based upon the testimony of General George B. Pillsbury of the U.S. Army Corps of Engineers, opined the navigability of the river would not be impaired by the proposed dams. The master concluded, relative to water power, “any future plan of New Jersey for constructing dams would need the consent of Congress and of the States of New York and Pennsylvania. . . .”92 The court noted the master had found the daily diversion of 600 millions of gallons of water from the river’s tributaries would not have a material affect on the sanitary condition of the river, power generation, agriculture, industrial uses of the water, and shad fisheries. The master found the increased salinity of the river would affect negatively the oyster fisheries, but a reduction of the daily diversion to 440 million gallons, construction of a sewage treatment plant in New York state, and release of water from impounding New York City reservoirs to increase river flow at Port Jervis, New York, or Trenton, New Jersey, would reduce the damage. The court approved the master’s recommendations and announced a decree would be entered: 1. granting the injunction prayed for by the plaintiff state restraining the State of New York and the City of New York from diverting more than 440 million gallons of waters daily from the river 2. requiring the construction of a sewage treatment plant at Port Jervis, New York, prior to any diversion of waters,

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3. stipulating the diversion is not “a prior appropriation and shall not give the State of New York, and City of New York any superiority of right over the State of New Jersey and Commonwealth of Pennsylvania in the enjoyment and use of the Delaware River and its tributaries,” 4. denying, without prejudice, the prayer of Pennsylvania “for the present allocation to it of the equivalent of 750 million gallons of waters daily from the Delaware River or its Pennsylvania tributaries,” and 5. noting the decree “is without prejudice to the United States and particularly is subject to the paramount authority of Congress in respect to navigation and navigable waters of the United States and subject to the powers of the Secretary of War and Chief of Engineers of the U.S. Army in respect to navigation and navigable waters of the United States.”93 Disputes over the water of the Delaware River continued and in 1954, the court confirmed the report of the special master, and authorized New York City to divert additional water upon the completion of a new reservoir on the east branch of the river and an additional diversion upon completion of the Cannonsville Reservoir.94 In 1955, the governors of the four Delaware River states formed an advisory committee to examine river basin problems, a grant was obtained from the Ford Foundation, and the Maxwell Graduate School of Syracuse University was engaged to conduct a study. The 1959 study report resulted in the establishment of the first federal-interstate compact with representatives of the party states and the federal government serving on the compact’s commission.95 The use of interstate compacts and federal-interstate compacts to solve interstate water disputes is examined in chapter 8.

Virginia v. Maryland The Potomac (originally Potowmack) River has been a source of controversy between Maryland and Virginia dating back to the period of the Articles of Confederation and Perpetual Union. The river arises in the Appalachian mountains of Maryland and West Virginia and flows, for approximately 400 miles, to the Chesapeake Bay. The river serves as the boundary between the District of Columbia and Maryland on the north, and West Virginia and Virginia on the south. The earliest dispute was resolved by a 1785 interstate compact guaranteeing citizens of the two states “shall have full property in the shores of the Potowmack River adjoining their lands, with all emoluments and advantages thereunto belong, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the

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river.”96 This compact resolved fishing and navigational rights, but did not determine the boundary line between the two states. Boundary disputes continued until 1874, when the two states submitted the dispute to an arbitration panel, whose members were Jeremiah S. Black, James B. Beck, and Charles J. Jenkins. The panel issued its award, referred to as the Black-Jenkins Award, on January 16, 1877, and determined the boundary was the low-water mark on the Virginia shore of the river. Congress granted its consent to the award and stipulated: Virginia is entitled not only to full dominion over the soil to lowwater 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 eight-five.97 In 1894, the Supreme Court ruled that congressional consent of the BlackJenkins Award included consent granted to the 1785 compact.98 In 1957, a second dispute resulted in the Supreme Court granting the motion of Virginia to file a bill of complaint in equity against Virginia.99 In conformance with its customary practice, the court appointed a special master to take testimony, gather facts, and prepare recommendations for the court. The special master proved very persuasive in convincing the party states to settle the dispute by entering into a new compact superseding the 1785 interstate compact with the exception of the rights specifically delineated and preserved by article 7 of the earlier compact.100 A new dispute over Virginia’s proposed diversion of river water arose in the late 1990s, and in 2000, the Supreme Court granted Virginia leave to file a bill of complaint in equity against Maryland and appointed Ralph I. Lancaster, Jr. as special master.101 The Maryland General Assembly, in 1933, enacted a statute requiring a permit for water withdrawal and water construction projects within the state.102 Fairfax County, Virginia, applied for and was granted a permit by Maryland to withdraw a maximum of 15 million gallons of water per day from the river. Maryland also granted twenty-eight additional water withdrawal permits to Virginia governmental entities between 1957 and 1996. In 1995, the Fairfax County Water Authority applied for a Maryland permit to construct a water intake facility, extending 725 feet from the Virginia shore above the river’s tidal reach, in order to improve water quality in the county. The permit application was rejected by the Maryland Department of the Environment on the ground Virginia had not demonstrated need. Vir-

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ginia filed administrative appeals over a two-year period without success prior to seeking the leave of the Supreme Court to invoke its original jurisdiction. The court, on March 30, 2000, granted leave for the filing of a bill of complaint in equity against Maryland. Shortly thereafter, the department determined Virginia had demonstrated an adequate need for the intake, but the Maryland General Assembly attached a condition to the permit, mandating the Fairfax County Water Authority to attach a permanent flow restrictor, on the intake, to limit the amount of water withdrawn.103 Special master Lancaster recommended the court grant the relief sought by the water authority based upon his conclusion the 1785 Compact and the Black-Jenkins Award granted Virginia the authority “to construct improvements from their riparian property into the River . . . and the right to use the River beyond the low-water mark as necessary to the full enjoyment of her riparian rights.”104 The master also found no support for Maryland’s contention that it possessed authority to regulate Virginia’s exercise of river rights in the compact or the award, and rejected Maryland’s defense of acquiescence by Virginia. The latter then filed exceptions to the master’s recommendations. The court examined volumes of historical evidence, rejected Maryland’s exceptions, and specifically disagreed with the dissent of Justice John Paul Stevens. Neither Maryland nor Justice Stevens provides any reason to believe the arbitrators were addressing private property rights when they awarded ‘Virginia’ a right to use the River beyond the low-water mark. Their interpretation, moreover, renders Article Fourth duplicative of the 1785 Compact and the common law (which secured riparian owners’ property rights) and the rest of the BlackJenkins Award (which granted Maryland sovereignty to the lowwater mark. Only by reading Article Fourth [of the compact] in accord with its plain language can this Court give effect to each portion of the Award.105 Justice Anthony M. Kennedy also dissented and was joined by Justice Stevens. Justice Kennedy was highly critical of the court’s reasoning: The majority, in the face of these doctrines and precedents, nonetheless relies on the proposition that Maryland’s historical title is to be doubted because Virginia long disputed it and the parties undertook to resolve the dispute. It is a curious proposition to suggest that by submitting to adjudication, arbitration, or compact negotiations a party concedes its rights are less than clear. The opposite inference is just as permissible. The implication of the

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majority’s principle, moreover, is that self-help and obdurate refusal to submit a claim to resolution have some higher standing in the law than submission of disputes to a competent authority.106 The dissent concludes Virginia is not entitled to the broad relief granted by the court.

Kansas v. Nebraska This interstate dispute involved the Republican River Compact, which received the consent of Congress in 1941, but was vetoed by President Franklin D. Roosevelt, who signed a revised compact in 1943.107 This compact, the only one vetoed by a president, is unusual in that the Colorado, Kansas, and Nebraska state legislatures, in enacting the compact, made it conditional upon Congress agreeing to the conditions in Article XI: a. Any beneficial consumptive uses by the United States . . . within a state, or the waters allocated by this execution of the compact upon Congress agreeing in granting consent to the following: compact shall be made within the allocations hereinabove made for use in that State and shall be taken into account in determining the extent of use within that State. b. The United States . . . in the exercise of rights or powers arising from whatever jurisdiction the United States has in, over, and to the waters of the Basin shall recognize, to the extent consistent with the best utilization of the waters for multiple purposes, that beneficial consumptive use of the waters within the Basin is of paramount importance to the development of the Basin; and no exercise of such powers or right thereby that would interfere with the full beneficial consumptive use of the waters within the Basin shall be made except upon a determination, giving due consideration to the objectives of this compact and after consultation with all interested federal agencies and the state official charged with the administration of this compact, that such exercise is in the interest of the best utilization of such waters for multiple purposes. c. The United States . . . will recognize any established use, for domestic and irrigation purposes of the waters allocated by this compact which may be impaired by the exercise of federal jurisdiction in, over, and to such waters; provided, that such use is being exercised beneficially, is valid under the laws of the appropriate State and in conformity with this compact at the time of

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the impairment thereof, and was validly initiated under state law prior to the initiation or authorization of the federal program or project which causes such impairment. In 1998, Kansas filed a motion for leave to file a bill of complaint in equity against Nebraska for allegedly depriving Kansas irrigators of a significant quantity of water they otherwise would have put to beneficial use, and that Nebraska was violating compact Article IV’s requirement to provide a specified amount of water at Guide Rock. In response to Nebraska’s brief in opposition and its request for oral arguments, Kansas responded: “It is not common for the court to grant oral argument on a motion for leave to file a bill of complaint,” there is no alternative to the compact, the court possesses jurisdiction, and negotiations have failed to provide a solution to the dispute.108 The court appointed a special master who collected and evaluated the evidence. A final settlement stipulation was executed by the two states and filed with the special master on December 16, 2002. The stipulation, approved by the court in 2003, provides “all claims, counterclaims, and cross-claims for which leave to file was or could have been sought . . . prior to December 15, 2002, are hereby dismissed with prejudice effective upon filing by the special master of a final report certifying adoption of the RRGCA ground-water model by the state parties.”109 The stipulation generally allows Nebraska to retain its existing use of Republican River water, but the state may not allow new irrigation wells that deplete the waters of the river.110 The amount of water each state will receive in the future will be determined by a five-year average with the exception of periods of droughts and floods. Kansas had estimated Nebraska would be required to pay up to $100 million in damages, but the stipulation does not provide for the payment of damages.

WATER POLLUTION A state occasionally files a motion in the Supreme Court for permission to file a complaint in equity against a sister state alleging it is polluting the water of a river or a lake. The number of such suits has declined since Congress enacted the Water Quality Act of 1965 (now Clean Water Act), establishing minimum water quality standards throughout the Untied States.111 A downstream state, for example, can request the U.S. Environmental Protection Agency (EPA) to initiate action against an upstream polluting state in lieu of seeking leave to file a bill of complaint in equity in the U.S. Supreme Court against the latter state.112 This type of suit also may involve water diversion as illustrated by the Supreme Court 1929 decision in Wisconsin et al. v. Illinois.113

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Missouri v. Illinois and the Sanitary District of Chicago Missouri was granted leave by the Supreme Court to file a bill of complaint in equity against Illinois and the Sanitary District of Chicago seeking to restrain from discharging Chicago sewage through a canal to the Desplaines River in Illinois, which empties into the Illinois River, and which, in turn, empties into the Mississippi River approximately forty-three miles north of the City of Saint Louis, Missouri. The specific complaint was that 1,500 tons of “poisonous filth” would be discharged into the Mississippi River each day and pollute the river water upon which the plaintiff ’s local governments and citizens depended for agricultural, drinking, and manufacturing purposes. In 1901, the court ruled the demurrers of Illinois and the Sanitary District of Chicago could not be sustained and granted leave to the defendants to file answers to the bill of complaint.114 Subsequently, Missouri filed a supplemental bill of complaint alleging the drainage canal had been opened on January 17, 1900, and was causing the harm alleged in the original bill of complaint. In 1906, Justice Oliver Wendell Holmes delivered the opinion of the court and noted the complaint “would be of international importance . . . which if it arose between independent sovereignties might lead to war,” but noted the controversy could be settled by peaceful means in the court.115 The opinion stressed the court should not intervene unless the controversy is “of serious magnitude, clearly and fully proved,” and added “had this suit been brought fifty years ago it almost necessarily would have failed.”116 The plaintiff and the defendants introduced scientific evidence pertaining to typhoid fever, but there was evidence of an epidemic. Missouri maintained the typhoid bacilli from the drainage canal was carried downstream and caused a higher incidence of typhoid fever in Missouri. Illinois countered that Missouri cities and towns were discharging sewage into the Mississippi River, there had been no such increase in typhoid fever along the banks of the Illinois River, and the diversion of water from Lake Michigan reduced the danger. Holmes concluded: “The evidence is very strong that it is necessary for St. Louis to take preventive measures, by filtration or otherwise, against the dangers of the plaintiff ’s own creation or from other sources than Illinois. What will protect against one will protect against another. The presence of causes of infection from the Plaintiff ’s action makes the case weaker in principle as well as harder to prove than one in which all came from a single source.”117 The court determined the allegations contained in the bill of complaint were not supported by evidence and dismissed the bill without prejudice.

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New York v. New Jersey The court granted leave to New York to file a bill of complaint in equity against New Jersey praying the state and the Passaic Valley Sewerage Commission be enjoined permanently from discharging sewage into the upper bay of New York harbor, thereby creating a public nuisance resulting in injury to the commercial welfare, health, and property of citizens of the State of New York and the City of New York. Cities and towns on the Passaic River in New Jersey had drained their sewage into the river prior to it emptying into Newark Bay. The watershed is separated by high land preventing drainage into the Hudson River or New York Bay. The New Jersey State Legislature, in 1902, and 1907, enacted statutes, respectively, creating the Passaic Valley Sewerage District and prohibiting discharge of sewage into the Passaic River subsequent to a specified date. The 1907 act provided for the appointment of a commission to determine whether the proposed discharge of sewage would pollute the waters of New York Bay. The commission reported that the bay would not be polluted so as to cause a nuisance to citizens or properties in New York, and the New Jersey attorney general was informed that the New York governor would not have valid grounds objecting to the use of the proposed sewer. Upon learning of the planned sewage discharge, the New York State Legislature created an investigation commission empowered to cooperate with New Jersey officers to arrive at a solution to the sewage problem. New York, in filing its bill of complaint in equity against New Jersey, supported its right to maintain the suit by reference to congressional grant of consent for the interstate compact of 1834 between the two states providing New York had jurisdiction over the waters of the Bay of New York. The United States, with leave of the court, intervened on the ground “the use of the sewer would result in the obstruction of navigation by the filling up and shoaling of the channels of the bay . . .”118 Subsequently, officers of the United States, New Jersey, New York, and the Sewerage District attended conferences and developed improved methods of sewage treatment and dispersion in deeper waters. The new methods, and required compliance with specific sewage treatment standards, were incorporated into a stipulation between the United States and the Sewerage Commission. Compliance with treatment standards would remove the ground for the prayed for injunction. By June 1913, the filing of the stipulation led to the taking of a large volume of testimony but the case was not set for argument until the October 1918 term of the court which decided the long elapsed period of time following the close of taking testimony and advances in the science of sanitary engineering

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necessitated the taking of additional testimony to advise the court. The case was argued on November 8, 11, and 12, 1918, and restored to the docket for further argument on March 10, 1919. The case was reargued on January 25, 1921, and the court issued its opinion on May 2, 1921. The court explained that the burden placed upon New York to sustain its allegations is considerably greater than the burden imposed on a complainant in a suit between private parties. The court determined that the brackish salt and fresh bay water can not be used as drinking water or for any other purpose, and evidence of the discharged sewerage’s damaging chemical action on ship hulls and dangers of air borne diseases is meager when viewed in context of the discharge into the bay of untreated sewage from New York City and large cities in New Jersey. The court opined: Considering all of this evidence, and much more which we cannot detail, we must conclude that the complainants have failed to show by the convincing evidence which the law requires that the sewage which the defendants intend to discharge into Upper New York Bay, even if treated only in the manner specifically described in the stipulation with the United States government, would so corrupt the water of the bay as to create a public nuisance by causing offensive odors or unsightly deposits on the surface or that it would seriously add to the pollution of it. . . . Having regard to the treatment of the sewage prescribed in what we regard as a valid contract on the part of the defendants with the government of the United States, to the specific agreement therein for protection of the waters of Upper New York Bay from pollution, and to the means which the government will have to secure further purification, if desired, by refusing to permit the discharge of sewage into the bay to continue, we conclude that the prayer for injunction against the operation of the sewer must be denied.119 The opinion concluded by noting the bill of complaints was dismissed without prejudice to a renewed application for an injunction should the operation of sewage system produce conditions leading to New York’s conclusion there is a need for interposition by the court.

Illinois v. City of Milwaukee et al. Illinois filed a motion in the Supreme Court requesting permission to file an original bill of complaint against four Wisconsin cities, the Sewerage Commission of the City of Milwaukee, and the Metropolitan Sewerage Commis-

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sion of the County of Milwaukee alleging they polluted Lake Michigan, a body of interstate water, by discharging inadequately treated sewage and other waste products. The Illinois motion was premised on the contention that the defendants were instrumentalities of the State of Wisconsin and the suit was a suit against Wisconsin. The suit appeared to be similar to the Missouri v. Illinois, and New York v. New Jersey, water pollution decisions, and the New Jersey v. New York water diversion decision. Justice William O. Douglas, writing for the court, concluded Wisconsin could be a defendant, but explained there is no such mandatory requirement as “the term ‘States’ as used in 28 U.S.C. §1251(a)(1) should not be read to include their political subdivisions.120 The opinion denied the Illinois motion to file a bill of complaint and explained Illinois may file a suit against the Wisconsin municipalities under title 28 of the United States Code, which grants the United States District Court jurisdiction over civil actions involving a diversity of citizenship controversy exceeding $10,000 (now $75,000) arising under the U.S. Constitution, laws, and treaties. The Supreme Court specifically held “application of federal common law to abate a public nuisance in interstate or navigable waters is not inconsistent with the Water Pollution Control Act,” but observed new congressional statutes and administrative “regulations may in time pre-empt the field of federal common law of nuisance.”121

Vermont v. New York In 1970, Vermont announced it would file a bill of complaint in equity against New York alleging it and the International Paper Company were responsible for a huge sludge bed in Lake Champlain, the boundary between the two states.122 The court, after oral argument, granted Vermont’s motion on April 24, 1972, alleging the discharge of wastes from paper mills was principally responsible for the sludge bed in both the lake and Ticonderoga Creek, which constituted a public nuisance, polluted the water, and interfered with navigation. The court appointed a special master and referred the motion of the United States seeking leave to intervene in the suit to the master. Testimony was presented by Vermont and New York over the course of seventy-five days, but neither the United States nor International Paper Company presented evidence. In 1974, the special master recommended the parties settle the dispute by negotiations and reported the United States had been successful in promoting negotiations, which led to a proposed consent decree containing a stipulation the decree may be entered without further argument or hearing. Article I of the proposed decree provides for the court to appoint a South Lake Master to “resolve matters of controversy between the parties after they have exhausted all administrative and other remedies (except judicial

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review).”123 The master would decide any controversy and file his recommendation with the court. If no party files exceptions with the court within thirty days, the master’s recommendation would become a decision of the court. Schedules attached to the proposed decree deal with various technical matters, including water discharges from mills. The per curiam decision of the court rejected the special master’s proposed consent decree, explained the court rarely appoints a water master, and cited a few instances where masters were appointed for short-term purposes. The court added: The proposals submitted by the South Lake master to this Court might be proposals having no relation to law. Like the present Decree they might be mere settlements by the parties acting under compulsions and motive that have no relation to performance of our Art. III functions. Article III speaks of the “judicial power” of this Court, which embraces application of principles of law or equity to facts, distilled by hearings or by stipulations. Nothing in the Proposed Decree nor in the mandate to be given the South Lake Master speaks in terms of “judicial power.”124 The court concluded its opinion by noting the concerned parties can reach the goals of the proposed consent decree by other means including an interstate compact in view of the fact the two states are members of the New England Interstate Water Pollution Control Compact or a two state agreement.125

Arkansas v. Oklahoma This interstate controversy dates back to 1985, when the City of Fayetteville, Arkansas, applied to the U.S. Environmental Protection Agency (EPA), for a new point source permit for construction of a new sewage treatment plant under the National Pollution Discharge Elimination System (NPDES) authorized by the Clean Water Act as amended.126 A permit was issued authorizing the plant to discharge up to 6.1 million gallons of effluent per day into an unnamed stream in northwestern Arkansas that flows for approximately seventeen miles prior to entering the Illinois River twenty-two miles upstream from the Arkansas-Oklahoma boundary line. Oklahoma challenged the permit before an EPA administrative law judge by contending the discharge violated Oklahoma water quality standards, which stipulated there shall be no degradation of water quality in the upper Illinois River. The judge concluded the discharge would not have a major impact on the quality of Oklahoma’s waters and upheld the issuance of the permit. Oklahoma petitioned for a

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review and EPA’s chief judicial officer held the Clean Water Act, and EPA regulations, offered more protection for Oklahoma than the administrative law judge’s “undue impact” standard. On remand, the judge concluded the city met the standard of the chief judicial officer. Arkansas maintained that the Clean Water Act does not require a point source in Arkansas to comply with water quality standards in Oklahoma. The latter state objected to EPA’s determination the Fayetteville discharge would not result in a detectable violation of the Oklahoma water quality standards. On appeal, the U.S. Court of Appeals for the Tenth Circuit rejected these arguments and opined the Clean Water Act did not authorize the issuance of the permit.127 The Supreme Court in 1991 granted a prayer for the issuance of a writ of certiorari because of “the importance and the novelty of the Court of Appeals’ decision . . .”128 The court reviewed a series of its decisions resolving interstate disputes between states separated by a river and noted the earlier cases concerned stateissued permits differed from the current case in that the permit was issued by the U.S. EPA. The court also highlighted the objective of the Clean Water Act, which is the establishment of a partnership between the United States and the states of the union, and explained EPA assistance provided to states drafting water quality standards and permit system. EPA is authorized to issue a discharge permit if a state does not have an EPA-approved program. The party states argued three questions relating to interpretation of the Clean Water Act. First, is EPA, in issuing a permit, required to apply the water quality standards of a downstream state? Second, does EPA possess statutory authority to mandate compliance with the standards? Third, does the act, as interpreted by the Court of Appeals, prohibit a discharge in the event a body of water fails to meet water quality standards? The court decided “it is neither necessary nor prudent for us to resolve the first of these three questions,” but answered yes to the second question.129 The Supreme Court held that EPA was reasonable in promulgating a regulation requiring a permit to comply with the water quality standards of all affected states, and explained state water quality standards approved by EPA become federal law relative to water pollution control. In consequence, the Supreme Court rejected the Court of Appeals’ interpretation of the Clean Water Act as prohibiting the discharge of effluent into water in violation of water quality standards on the ground no provision of the act provides for such an interpretation.130

SUMMARY AND CONCLUSION The Supreme Court water allocation, diversion, and pollution decisions reveal the complexities of the interstate disputes the court is called on to resolve, and

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the court’s dependence upon the expertise of special masters in reaching its decisions. Congress and the court have urged states engaged in water disputes to solve them directly by means of negotiations leading to each concerned legislature enacting an interstate regulatory compact with the consent of Congress. Unfortunately, ambiguous words in certain compacts, explained above, have resulted in a party state invoking the original jurisdiction of the Supreme Court for issuance of an opinion terminating the controversy. Continuing disputes over the waters of certain major rivers are conclusive proof the court is not the appropriate body to resolve such controversies. It is apparent Congress, the political branch, is better qualified to establish a procedure for allocating river water and it might well give serious consideration to authorizing the Secretary of the Interior to appoint river masters to allocate the water in the absence of an interstate river compact. Congressional establishment of minimum water quality standards has reduced but not eliminated the filing of a motion seeking leave of the Supreme Court to file a bill of complaint in equity against a state alleging it has polluted a river or lake. The court has clarified the Clean Water Act by its 1992 decision in Arkansas v. Oklahoma. Chapter 7 examines cases involving bonds of a state held by a second state, the pre-Civil War debt of Virginia, sale of convict made articles, and quarantines.

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Miscellaneous Court Decisions

The U.S. Supreme Court has rendered six decisions classifiable as miscellaneous as all of the decisions are unique. They involve a quarantine imposed by Texas, bonds issued by one state and held by a second state, the pre-Civil War debt of the Commonwealth of Virginia, restriction of natural gas to West Virginia citizens and companies, sales of convict-made articles, the Electoral College voting system, and anadromous fish in the Columbia-Snake River system. The second and third disputes are highly unusual and similar cases will not arise in the future.

THE DECISIONS The court entered new ground in rendering each of the following decisions. The subject of the 1900 decision was a quarantine imposed by Texas as the result of an outbreak of yellow fever in New Orleans and is the only one of the above decisions followed by the filing of another motion seeking the court’s leave to file a bill of complaint in equity on the same subject.

Louisiana v. Texas et al. The governor of Louisiana sought leave to file a bill of complaint in equity against Texas, her governor, and her health officer alleging the City of New Orleans and its residents engaged in interstate commerce when residents in Texas were injured by a March 1, 1899, Texas quarantine established on the

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Gulf of Mexico coast and the Rio Grande River against all persons and articles coming from places infected by yellow fever. A case of yellow fever was officially declared to exist in New Orleans on August 31, 1899, and the Texas health officer placed an embargo on interstate commerce between the city and Texas, but six days later allowed the U.S. Post Office Department to deliver the mail, and persons and their baggage to enter the state after ten days in a quarantine detention camp and fumigation of their baggage. Louisiana also referred to a similar quarantine imposed by Texas in 1897, and noted the two embargoes resulted in a decrease from 31 percent to 15 percent of the Texas cotton crop being exported through the Port of New Orleans with traffic diverted to the Port of Galveston, Texas. The court reviewed briefly the ninth article of the Articles of Confederation and Perpetual Union stipulating the Congress would be “the last resort on appeal in all disputes” between states, and section 2 of Article III of the U.S. Constitution defining the judicial power of the United States. The gravamen of Louisiana’s complaint was that Texas was intentionally interdicting interstate commerce with Louisiana by imposing embargo rules and regulations more stringent than necessitated by the exigency, but it did not aver the Texas quarantine law was invalid. In 1900, the court concluded the bill of complaint “does not set up facts which show that the state of Texas has so authorized or confirmed the alleged action of her health officer as to make it her own, or from which it necessarily follows that the two states are in controversy within the meaning of the Constitution.”1 The Texas demurrer was sustained and the bill of complaint was dismissed. Justice John M. Harlan wrote a concurring opinion: But I am of opinion that the state of Louisiana, in its sovereign or corporate capacity, cannot bring any action in this court on account of the matters set forth in its bill. The case involves no property interest of that state. Nor is Louisiana charged with any duty, nor has it any power, to regulate interstate commerce. Congress alone has authority in that respect. When the Constitution gave this court jurisdiction of controversies between states, it did not thereby authorize a state to bring another state to the bar of this court for the purpose of testing the constitutionality of local statutes or regulations that do not affect the property or the powers of the complaining state in its sovereign or corporate capacity, but which at most affect only the rights of individuals citizens or corporations engaged in interstate commerce.2 Harlan explained Louisiana citizens may seek, in an appropriate court, judicial protection of their property and/or rights affected adversely by statutes or administrative action in a sister state.

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A similar quarantine, involving the damaging Mediterranean fruit fly, led California to file a motion in the U.S. Supreme Court seeking permission to file a bill of complaint in equity against a Texas quarantine on California’s agriculture products. This suit was mooted in 1981 by the discontinuance of the quarantine.3

South Dakota v. North Carolina This suit involved bonds issued by North Carolina, but held by South Dakota. The 1849 North Carolina General Assembly enacted a statute chartering the North Carolina Railroad Company and authorizing it to issue 30,000 shares at $100 per share.4 The statute also authorized the state to borrow funds to pay for the state’s subscription of 20,000 shares. Subsequently, the General Assembly authorized additional subscriptions for shares, incorporated the Western North Carolina Railroad Company, and authorized it to issue shares. An 1886 act directed the state’s public treasurer “to issue bonds of the state to the amount of $50,000 or more, to mortgage an equal amount of stock which the state now holds in the North Carolina Railroad, as collateral security for the payment of said bonds. . . .”5 The bonds matured in 1897, but remained unpaid. Simon and Samuel M. Schafer held many of these outstanding bonds and, in 1901, transmitted a letter donating ten of these second-mortgage bonds to the State of South Dakota as they had been advised they could not maintain a suit against North Carolina but a suit could be brought in the U.S. Supreme Court by a foreign state against North Carolina. South Dakota was granted leave to file in the U.S. Supreme Court a bill of complaint in equity against North Carolina which responded the court lacked jurisdiction and denied the title of South Dakota to the bonds. The court, in its 1904 decision, explained there was no question relative to the validity of the bonds and mortgages, the statutes by which they were authorized, or South Dakota’s title to the bonds, and added: The question of jurisdiction is determined by the status of the present parties, and not by that of prior holders of the thing in controversy. Obviously, too, the subject matter is one of judicial cognizance. If anything can be considered as justiciable it is a claim for money due on a written promise to pay; and if it be justiciable, does it matter how the plaintiff acquires title, providing it be honestly acquired?6 The court referred to the dissenting opinion questioning whether or not the court could compel a state legislature to levy taxes to satisfy a judgment. Nevertheless, the court issued a decree requiring North Carolina to pay $27,400,

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with costs, to South Dakota by January 1, 1905, or upon default, the marshal of the court will be directed “to sell at public auction all the interest of the State of North Carolina in and to one hundred shares of the capital stock of the North Carolina Railroad Company.”7 Four justices dissented, maintained the court’s decision disregarded an absolution prohibition contained in the constitution (the Eleventh Amendment), and explained: The question which the case involves is not what, in a generic sense, may be considered a controversy between states, but whether the particular claim here asserted by the state of South Dakota is, in any view, such a controversy. It is also to be observed that the question is not whether a controversy between states may not arise from a debt originating as the result of a direct transaction between states, but is whether one state can acquire a claim asserted against another state by a citizen of that or another state or an alien, and as a result sue upon it, and thereby create a controversy between states in a constitutional sense.8 The dissent concluded by highlighting the letter sent by the Schafer brothers to South Dakota revealing the purpose of the gift was to evade the Eleventh Amendment.

Virginia v. West Virginia Chapter 2 briefly examined this case relative to the enforcement of a Supreme Court decree. In 1906, the court granted Virginia’s petition to file a bill of complaint in equity against West Virginia seeking adjudication of the amount of Virginia’s pre-Civil War debt owed to Virginia by West Virginia. The ten western counties of Virginia remained loyal to the Union and were admitted by Congress to the Union as the State of West Virginia in 1863.9 The latter, however, failed to pay its share of the pre-Civil War debt to Virginia, despite the fact the West Virginia constitution stipulated the state would assume “an equitable proportion of the public debt of the Commonwealth.” West Virginia replied to the complaint by alleging the court lacked jurisdiction because the issue does not constitute an interstate controversy and power to enforce any final decree. The court, after hearing elaborate arguments in 1907, overruled the demurrer of West Virginia and decreed further proceedings would be postponed to a final hearing.10 In 1908, the court appointed Charles E. Littlefield as special master to gather evidence and transmit it to the court including alternative amounts specified by either party.11

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The special master’s report was filed in 1910 and arguments on a motion to take further testimony were held in 1911, when the court decided the controversy and determined the amount—$12,393,929.50—owed to Virginia by West Virginia.12 In October 1911, Virginia filed a motion to proceed to final judgment, but West Virginia requested additional time to consider the matter. The court overruled Virginia’s motion.13 Virginia, in November 1913, filed another motion to set the case for final disposal on the ground no agreement could be reached with West Virginia. The latter responded the states “were engaged in an honest endeavor” to settle the dispute and the court refused Virginia’s motion.14 In 1914, the court granted West Virginia’s motion to file a supplemental answer and referred the subject matter again to special master Littlefield to take additional testimony and prepare a report.15 Virginia, having an unsatisfied judgment against West Virginia, sought the enforcement of the judgment in the form of a writ of mandamus, directing the West Virginia State Legislature to levy a tax so as to raise revenue to pay the judgment. In 1918, the court declared the judicial power includes the right to enforce the decree, but West Virginia maintained that its reserved powers can not be controlled for the purposes of enforcing the required payment.16 The court held it possessed the authority to enforce a decree by appropriate proceedings against a state, and made reference to the congressional grant of consent to the interstate compact between Virginia and West Virginia (providing for the separation of the ten western counties from Virginia and their admission as the State of West Virginia into the Union), and emphasized Congress possesses plenary power to control agreements between states and to legislate for the enforcement of the obligation of West Virginia.17 The court concluded its opinion by holding “we should not now finally dispose of the case, but because of the character of the parties and the nature of the controversy, a contract approved by Congress and subject to be by it enforced, we should reserve further action in order that full opportunity may be afforded to Congress to exercise the power which it undoubtedly possesses.”18 The court also announced the case would be restored to the docket for additional arguments and reserved the right, if necessary, to appoint a special master to examine and prepare a report on the method and amount of taxation to enforce payment of the judgment. The need for Congress, or the court, to act to enforce the judgment was rendered moot as a 1919 special session of the West Virginia Legislature levied a tax to raise the funds necessary to satisfy the judgment.

Alabama v. Arizona et al. This interstate dispute involved the sale of articles made by inmates of Alabama prisons. In 1933, the court considered Alabama’s motion for permission to file

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a bill of complaint in equity against nineteen states with statutes prohibiting or regulating the same of articles made by convict labor in Alabama. The motion prayed the court would invalidate the state statutes on the ground they violated the interstate commerce clause of the U.S. Constitution and a 1929 act of Congress divesting in certain cases articles of their interstate character.19 Seventeen states in their response briefs maintained the complaint was multifarious and the facts did not entitle Alabama to judicial relief. At the hearing, Alabama obtained leave to file a complaint and subsequently eliminated fourteen states from the suit. Only Arizona, Idaho, Montana, New York, and Pennsylvania remained as potential defendant states. Each defendant state had a law prohibiting the sale in the open market of articles made entirely or in part by convicts in sister states. The 1929 congressional statute stipulates articles provided by convict labor and transported to another state are subject to the laws of this state in the same manner as if the articles were produced in this state. At the time, Alabama had a prison population of approximately 5,500, and operated in conjunction with the prisons, farms, cotton mills, and a shirt factory. The state invested more than $300,000 in the cotton mills and shirt factory and these facilities would lose all value if there were no markets for prison-made goods. The court was faced with the question of whether or not the motion to file a complaint in equity was multifarious. The court noted “[t]here is no rule of general application by which to determine whether a complaint is multifarious. The question is to be decided by the court in the exercise of sound discretion having regard to the facts alleged, circumstances disclosed, and the character of the relief sought.”20 Alabama, in this case, did not assert there was a concert of action on the part of the defendant states. The court opined that a suit by a state against a number of sister states, seeking the invalidation of a law in each state, is multifarious unless there is a necessity for convenient, effective, and prompt administration of justice. Should Alabama invoke the court’s original jurisdiction to file a suit against a sister state, and the court invalidated a statute of the sister state, this action would be a precedent for all federal and state courts. The court concluded: “The facts alleged are not sufficient to warrant a finding that the enforcement of the statutes of any defendant would cause Alabama to suffer great loss or any serious injury. If filed, the bill would have to be dismissed for want of equity.”21

Pennsylvania v. West Virginia The Supreme Court granted leave to both Pennsylvania and Ohio to file a suit in equity against West Virginia challenging its 1919 statute authorizing the

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state public service commission, during a time of shortage of natural gas, to require any person engaged in distributing such gas to furnish it for public use within the state.22 Earlier, West Virginia chartered corporations authorized to construct pipe lines from her gas fields to users in sister states. Pennsylvania and Ohio alleged their citizens and business firms would be injured by the threatened curtailment of the export of West Virginia natural gas. The court determined the suits: 1. involved a justiciable controversy because the health and welfare of citizens could be injured by the threatened withdrawal of the gas from interstate commerce, 2. the suits were not brought prematurely, 3. it was not essential for pipe line companies to be parties to the suit, 4. the interstate commerce clause does not “prevent a State from giving a preference to its inhabitants in the enjoyment of its natural advantages,” and 5. the 1919 statute is void because it “is a regulation of interstate commerce—a prohibited interference.”23 Justice Louis Brandeis wrote a strong dissent, opining the court lacks jurisdiction of the subject matter because “there is, in a legal sense, [no] danger of invasion of the alleged rights,” the public service commission may never “be called upon to act,” the absence of the twelve exporting pipeline companies as parties to the suit, and the inability of the court “to grant the only relief appropriate” because the determinations of “equitable distribution would be a task of such complexity and difficulty that even an interstate public service commission . . . might fail to perform it satisfactorily.”24

Delaware v. New York Delegates to the 1787 constitutional convention addressed the questions of the method to be employed to elect the president, his/her term of office, and eligibility for reelection. Opinions were divided on direct versus indirect election.25 Initially, a majority of the delegates were in favor of authorizing Congress to select the president, but subsequently became convinced such an electoral system would destroy the system of checks and balances. Most delegates were opposed to direct election of the president on the ground it could lead to the selection of a demagogue as president. A decision was made to create an Electoral College, embodying a system of indirect election of the president and vice president as fewer delegates objected to such a system.

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Section 1 of article II of the U.S. Constitution confers broad powers upon each state to “appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.” The original constitutional provision did not require the electors to cast a distinct ballot for president and a second distinct ballot for vice president. Each state is directed to send an electoral certificate containing the number of votes for candidates to the President of the Senate who, in a joint session of Congress, opens the certificates and the votes are counted. A majority vote of the electors is required for the election of the president. This provision confers an electoral advantage upon the large states. However, small states were elevated to a position of electoral equality with the large states in the event no candidate receives the required majority vote of the electors for the election of the president. In this event, the House of Representatives selects the president from among the five candidates receiving the highest number of Electoral College votes with “the representation from each State having one vote.” The presidential election of 1800 revealed a flaw in the Electoral College system. Thomas Jefferson and Aaron Burr each received an equal number of votes with no specification of whether the votes were cast for president or vice president, and the election was transferred to the House of Representatives since neither candidate received the required majority of the Electoral College votes. This flaw was remedied in 1804, when the requisite three-quarters of states ratified the congressionally proposed Twelfth Amendment to the U.S. Constitution requiring electors to “name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President.” Dissatisfaction with the Electoral College as the electoral method for selecting the president and the vice president of the United States dates to 1824, when no candidate received a majority of the electoral votes and the House of Representatives elected John Quincy Adams president, although Andrew Jackson received a larger number of Electoral College votes. A similar controversy erupted in 1876, when Rutherford B. Hayes was elected president with fewer popular votes (4,036,572) than Samuel J. Tilden received (4,284,020). The controversy was precipitated by several states sending two different electoral certificates to the President of the Senate, and the question was, which ones should be counted? Republicans controlled the Senate and Democrats controlled the House of Representatives. The joint rules of Congress stipulated disputed election returns could not be counted unless each house separately authorized the counting. The leaders of the two parties decided Congress should create a fifteen member electoral commission—five senators, five representatives, and the five

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justices of the Supreme Court—with authority to investigate and determine which disputed returns should be counted.26 The two houses agreed to accept the commission’s decision. Three Supreme Court justices were Republicans, and two were Democrats. In effect, there were eight Republicans and seven Democrats on the Commission and the outcome of the presidential election was decided on a party vote basis. Richard Claude examined the dispute and concluded: “House Democrats agreed not to circumvent the electoral result because of assurances given to Democratic leaders that President Hayes would recall federal troops from their occupation of the South, the principal source of security for Reconstruction-era Negroes who voted Republican in large numbers.”27 Congress responded belatedly to the dispute by enacting the Electoral Count Act of 1887 which was amended in 1948.28 The act currently provides: If any State shall have provided, by law enacted prior to the day fixed for the appointment of electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.29 No major efforts, however, were made to replace the Electoral College until the U.S. Supreme Court issued its “one person, one vote” dictum in 1963 in Sanders v. Gray, striking down Georgia’s county-unit electoral system in congressional and statewide elections on grounds of violation of the equal protection of the laws clause of the Fourteenth Amendment to the U.S. Constitution.30 Delaware in 1966 filed a bill of complaint in equity against New York alleging the Electoral College violated the court’s “one person, one vote” dictum by amplifying the electoral vote of the eleven largest states. The target of Delaware’s complaint was a statute in each state establishing the unit-rule under which the plurality winner in the state receives all electoral votes instead of the largest proportional share of such votes. Twelve additional states sought permission to be realigned as plaintiffs. The court, without comment, decided not to enter the “political thicket” and denied Delaware’s motion to file a bill of complaint.31 If the court had granted permission for the filing of the bill of complaint and the court was sympathetic, it could have ordered the proportional division of Electoral College votes among the candidates based on their individual share of the total votes cast in each state for a presidential candidate

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or alternatively ordered the allocation of two votes to the plurality winner in the state and the allocation of one vote to the plurality winner in each congressional district. The court’s denial of Delaware’s motion to file a bill of complaint, however, may have been based upon its decision the involvement of five justices in the disputed presidential election of 1876 was unwise.

Idaho v. Oregon and Washington In 1976, the court granted leave to Idaho to file a bill of complaint in equity against the two sister states requesting an equitable apportionment of anadromous fish in the Columbia-Snake River system.32 Anadromous fish, Chinook salmon, and steelhead trout, spend part of their life in fresh water and the other part in salt water. Oregon and Washington enacted The Oregon-Washington Columbia River Fish Compact in order to provide uniform regulation of anadromous fish in the Columbia River and Congress granted its consent to the compact in 1918.33 Idaho expressed its desire to join the compact on a number of occasions, but was rebuffed by compact members. The court appointed as special master Senior Judge Jean S. Breitenstein of the U.S. Court of Appeals for the Tenth Circuit who gathered evidence from the party states and recommended the court dismiss the suit without prejudice because the United States, an indispensable party, did not join the suit. The court rejected this recommendation and the dispute was remanded for trial.34 The court in its ruling specifically wrote Idaho “must shoulder the burden of proving that the [non-Indian] fisheries [in Oregon and Washington] have adversely and unfairly affected the number of fish arriving in Idaho.”35 The special master, after oral argument and trial, issued his final report recommending the action be dismissed without prejudice as the plaintiff state failed to demonstrate it suffered any injury from actions of the defendant states and concluded it would not be possible to draft a decree providing for the equitable apportionment of the anadromous fish among the three states. Idaho objected and filed exceptions to the master’s report. The master concluded the doctrine of equitable apportionment, established by the court in Kansas v. Colorado in 1907 to settle a water rights dispute (see chapter 6), applied to the current dispute. The court agreed by noting a water dispute involving the Columbia-Snake River system would be resolved by this doctrine and there was no reason not to apply it to a suit involving a similar natural resource.36 The court opined in 1907 “whenever . . . the action of one State reaches through the agency of natural laws into the territory of another State, the question of the extent and the limitations of the rights of the two States becomes a matter of justiciable dispute between them, and this court

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is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them.”37 In 1983, the court explained the principle underlying the doctrine “is the same principle that animates many of the Court’s commerce clause cases: A State may not preserve solely for its own inhabitants natural resources located within its borders.”38 The court rejected the special master’s conclusion that it would be impossible to draft “a workable decree” and noted Idaho’s proposal for a formula apportioning the fish was a “possible basis for a decree.”39 Nevertheless, the court agreed with the special master in that the fish run figures did not reveal the two defendant states were currently over-fishing the Columbia-Snake River system, thereby injuring Idaho, and concluded evidence is lacking that the states will cause injury in the future. In consequence, the court adopted the special master’s recommendation that the action be dismissed “without prejudice to the right of Idaho to bring new proceedings whenever it shall appear that it is being deprived of its equitable share of anadromous fish.”40 Justice Sandra Day O’Connor, joined by Justices William Brennan and John Paul Stevens, dissented and found merit in several points Idaho had raised. Justice O’Connor specifically noted, relative to the master finding Idaho suffered no injury, “I am at a loss to understand how he reached that conclusion without specifying the nature and extent of Idaho’s entitlement.”41 She opined the master should be required “to determine whether Idaho has a protectible interest in the preservation of the runs and what Idaho’s proper share is. . . . Only after making this initial determination can we decide whether Idaho has been wrongfully deprived of fish.”42 She admitted the task of estimating the runs and apportioning the fish between the states is a difficult one, but emphasized “the difficulty of providing equitable relief has never provided an excuse for shirking the duty imposed on us by the Constitution” citing the court’s 1980 decision in Evans v. Oregon.43

SUMMARY The court’s 1900 decision in Louisiana v. Texas, upholding the constitutionality of a state-imposed quarantine to prevent the spread of yellow fever, is the only one involving a clash between the dormant interstate commerce clause of the U.S. Constitution and the police power reserved to the states by the Tenth Amendment. The court upholds exercise of the police power even though it may have an incidental, adverse effect on interstate commerce provided the exercise is not blatant state economic protectionism. The five to four decision of the court in South Dakota v. North Carolina upholding the right of the former to invoke the court’s original jurisdiction is

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a unique interstate dispute involving two private individuals donating unpaid past due North Carolina bonds to South Dakota which brought suit in the Supreme Court to collect the bond proceeds. The court was sharply divided in its opinion with the five member majority ruling the controversy is determined by the current holder, South Dakota, of the bonds, and the four dissenting justices raising questions relative to the means by which the interstate controversy was generated. Virginia v. West Virginia raised the issue of whether the Supreme Court or Congress should enforce the court’s judgment that West Virginia be required to pay to Virginia the former’s pre-Civil War share of the debt of the commonwealth. The court, in its 1918 decision referred to the grant of consent by Congress to an interstate compact providing for the detachment of the ten western counties of Virginia and their admission into the Union as the State of West Virginia, and opined Congress possesses complete power to enact a statute for enforcement of the court’s judgment. The question of enforcement, however, became moot when the 1919 West Virginia State Legislature voted to levy a tax to raise sufficient funds to pay the judgment. Alabama’s attempt to invoke the Supreme Court’s original jurisdiction by filing a motion seeking leave to file a bill of complaint in equity against nineteen states with statutes prohibiting sale of prison-made articles was another unique case. The court denied the motion on the ground the suit was multifarious. The 1824 and 1876 presidential elections brought into focus the question of the desirability of the Electoral College system for selecting the president since the system permits a candidate gaining the most electoral votes to be elected although another candidate received a larger number of electoral votes. Delaware’s attempt in 1966 to invoke the court’s original jurisdiction also is unique. The state, subsequently joined by twelve additional states, sought to invoke the court’s original jurisdiction in an attempt to have voided state statutes requiring all of a state’s electoral votes be awarded to the highest vote getter. The motion seeking leave to file a bill of complaint in equity was based upon the court’s 1963 “one vote, one person” doctrine. The court decided not to enter the presidential election thicket. The interstate dispute over apportionment of anadromous fish in the Columbia-Snake River basin is a most interesting one because the defendant states entered into an interstate compact, consented to by Congress, in 1918 in order to ensure harmonious regulation of fishing in the river basin, yet refused to allow Idaho to join the compact. Had the latter state been a member of the compact, it is possible the dispute would have been solved by the negotiations by the party states and the Supreme Court would not have been called upon to resolve the dispute. Chapter 8 examines alternatives to an original jurisdiction suit in the U.S. Supreme Court for the resolution of an interstate dispute.

8

Alternative Resolution of Interstate Controversies

The theory of dual federalism seeks to explain the exercise of powers by Congress and by state legislatures, but offers no insight into interstate relations including controversies. The interstate commerce clause was included in the U.S. Constitution by its drafters on the theory Congress would enact preemption statutes invalidating state and local government erected barriers to the flow of free trade and initiating other actions to prevent interstate controversies. The failure of Congress in general to police interstate relations has by default led to the U.S. Supreme Court assuming much of the responsibility for solving disputes between sister states. This chapter explores alternative means of settling interstate controversies, reaches conclusions relative to the extent to which the theory of cooperative federalism has explanatory value with respect to settlement of controversies, and offers an outline of a broader theory of interstate relations incorporating cooperative, conflictive, and competitive postulates. The U.S. Supreme Court, on several occasions, urged states not to seek to invoke its original jurisdiction as there are more effective and less costly means of resolving controversies. In 1982, the court rendered a decision in Texas v. New Mexico, involving a dispute over provisions of the Pecos River Interstate Compact, and offered the following advice to the states: Time and again we have counseled States engaged in litigation with one another before this Court that their dispute “is more likely to be wisely solved by-co-operative study and by conference and mutual concession on the part of the representatives of the States which are vitally interested than by proceedings in any court however constituted.” New

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York v. New Jersey, 256 U.S. 296, 313, 41 S.Ct. 492, 65 L.Ed.937 (1921) . . . it is difficult to believe that the bona fide differences in the two States’ view of how much water Texas is entitled to receive justify the expense and time necessary to obtain a judicial resolution of this controversy.1 The appellate burden of the Supreme Court makes essential the discretionary exercise of its original jurisdiction when petitioned by a state(s) for permission to file a bill of complaint in equity against a sister state(s), and the appointment of a special master whenever original jurisdiction is invoked to make findings of fact and draft recommendations for the court’s consideration (see chapters 2–3). The adopted procedures have lessened the burden that would have been placed upon the court if section 2 of Article III of the constitution was interpreted to require a trial whenever a state decided to sue a sister state(s). There is relatively little more the court can do to lessen its original jurisdiction burden other than utilizing three-justice panels or rejecting a higher percentage of the petitions by states seeking permission to file a bill of complaint in equity against another state(s). The court has praised the work of several special masters in facilitating the resolution of interstate disputes. In Kansas v. Missouri (1944), the court acknowledged the “fair, disinterested, painstaking effort and attitude” of Samuel M. Wilson, of Lexington, Kentucky, as special master, and in Louisiana v. Mississippi (1995) referred to Special Master Vincent L. McKusick’s “careful and well documented findings and conclusions.”2 Nevertheless, Anne-Marie C. Carstens (see chapter 3) is highly critical of the role of special masters in interstate controversies, principally because the president does not appoint them with the advice and consent of the Senate, and there are no special procedural rules masters must follow other than very limited ones contained in the appointment order. Carstens identified, as one solution, the restoration of “the trial functions inherent in original jurisdiction cases to the Court,” noted the probable objections of the justices to such a restoration, and recognized the prospect of implementation of this proposal was low.3 An approach to possibly reducing the justices’ objections to a restoration of trial functions, identified by Carstens, is the use of a panel of three justices to preside over proceedings in an interstate controversy trial.4 McKusick, a retired Chief Judge of the Maine Supreme Court and a former special master, determined the court had issued an opinion in each of 121 original jurisdiction cases between October 1, 1961 and April 1, 1992.5 He also reported that 102 state motions were filed with the court seeking leave to file a bill of complaint in equity against a sister state(s) during the same period, an annual average of 3.5 motions, and the court denied 50.6 Carstens employed these figures, in combination with her proposal of three-judge pan-

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els, to suggest the additional burden placed on the justices would not be an undue one. As a political realist, she is aware the court views complex interstate pollution cases as “a serious intrusion on society’s interest in our most deliberate and considerate performance of our paramount role as the supreme federal appellate court could, in our view, be justified only by the strictest necessity, an element which is evidently totally lacking in this instance.”7 According recognition to the fact her proposals will not be implemented by Congress, Carstens recommended the court alternatively should reinstate its earlier practice of appointing senior and retired U.S. judges as special masters. In her judgment, the reduced duties of a senior judge would not “preempt appointment to an original jurisdiction case” as such a judge “needs only to complete in each twelve-month period the workload that an active non-senior judge would accomplish in a three-month period.”8 She acknowledged the death or resignation of a senior or retired judge serving as a special master would disrupt proceedings in an interstate controversy, yet maintained “the benefits triumph.”9 An aging special master, who is not a serving or retired judge, of course, could also die, thereby delaying the proceedings. In addition to the above proposals, it is apparent Congress possesses constitutional authority to enact four types of statutes designed to reduce the number of interstate controversies reaching the court: 1. Grant concurrent original jurisdiction to the U.S. District Court or a new court of limited jurisdiction, 2, increase the number of Supreme Court justices, 3. preempt regulatory authority of states in specified fields where interstate controversies have occurred, and 4. encourage state legislatures to enact interstate compacts and federalstate compacts creating commissions with authority to promulgate regulations superseding member state regulations and to resolve disputes. Prospects for congressional enactment of a statute conferring concurrent jurisdiction on the District Court or a new court of limited jurisdiction are nil, are slightly better for expanding the number of justices, and are much better for enactment of statutes preempting the regulatory authority of states and/or encouraging state legislatures to enact interstate compacts and federal-state compacts.

CONCURRENT ORIGINAL JURISDICTION There is no barrier in the U.S. Constitution to congressional enactment of a statute granting concurrent original jurisdiction over interstate disputes to the

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District Court or a court of limited jurisdiction as Congress specifically is authorized “[to] constitute Tribunals inferior to the Supreme Court” (Art. I, §8) and the fundamental document does not make the assignment of the court’s jurisdiction over interstate controversies exclusive (Art. III, §2). The first Congress in 1789 recognized the importance of the subject matters included in the U.S. Constitution’s definition of the judicial power of the United States (Art. III, §2) by creating inferior courts and making exclusive the Supreme Court’s jurisdiction over interstate controversies at a time when the court’s appellate burden was anticipated to be relatively light.10 Congress, of course, is free to repeal the court’s exclusive original jurisdiction over such controversies and grant concurrent jurisdiction to the District Court or to a special court for interstate disputes as revealed by the court’s statements below. The U.S. Supreme Court, in Ames v. Kansas, in 1884, commented on the question whether Congress possessed the constitutional authority to make such a conferral: In view of the practical construction put on this provision [Art. III, §2] of the Constitution by Congress at the very moment of the organization of the government, and of the significant fact that from 1789 until now no court of the United States has ever in its actual adjudications determined to the contrary, we are unable to say that it is not within the power of Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction.11 Additional clarification was provided by Justice William O. Douglas in 1972, when he delivered the court’s opinion in Illinois v. Milwaukee, a case involving a motion by Illinois to file a bill of complaint against four Wisconsin cities, the Sewerage Commission of the City of Milwaukee, and the Metropolitan Sewerage Commission of Milwaukee, alleging pollution of Lake Michigan (see chapter 6). He referred to the court’s practice of invoking its original jurisdiction sparingly and concluded “that while, under appropriate pleadings, Wisconsin could be joined as a defendant in the present controversy, it is not mandatory that it be made one.”12 Douglas explained that the “political subdivisions are citizens of their respective States” for purposes of diversity of citizenship, Illinois may sue the Wisconsin subdivisions in the U.S. District Court, and hence “our original jurisdiction is not mandatory.”13 He acknowledged: “the remedy Illinois sought is not within the precise scope of remedies prescribed by Congress. Yet the remedies which Congress provide are not necessarily the only federal remedies available. ‘It is not uncommon for federal courts to fashion federal law where federal rights are concerned.” Textile Workers v. Lincoln Mills, 353 U.S. 448, 457, 77 S.Ct. 912, 918 . . .’”14

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Douglas wrote that there is no inconsistency between the Federal Water Pollution Control Act and a court’s application of federal common law to abate a nuisance in navigable waters.15 The court denied Illinois’ motion to file a bill of complaint in equity against the Wisconsin political subdivisions and, while acknowledging “this original suit normally might be the appropriate vehicle for resolving this controversy,” the court exercised its discretion by remitting parties to the U.S. District Court which the justices said possesses adequate powers to resolve the dispute.16 Justice William Rehnquist opined in Maryland v. Louisiana (1987) “I for one think justice is far better served by trials in lower courts, with appropriate review, than by trials before a Special Master whose ruling this Court simply cannot consider with the care and attention it should. It is one thing to review findings of a district or state court . . . and quite another to accept (or reject) recommendations when this Court is in theory the primary factfinder.”17 Agreeing with Justice Rehnquist, McKusick wrote in 1993, “the court is illsuited” to discover facts or “to fashion and enforce the remedial orders that in some situations are necessary or appropriate.”18 If Congress possesses the constitutional authority to grant the U.S. District Court concurrent original jurisdiction with the Supreme Court over interstate controversies, it is apparent Congress may create a court of limited jurisdiction with concurrent original jurisdiction over such disputes. In 1994, James E. Pfander recommended abandonment of the “‘dignified tribunal’ account of the court’s original docket to the extent the account posits that the lower federal courts would be unable to deal justly with claims involving the states.”19 Recognizing the strong opposition to a broad grant of concurrent original jurisdiction to lower federal courts, Pfander suggested they be granted concurrent jurisdiction over specific types of interstate controversies, particularly “those in the nature of interpleader that grow out of disputes between states over rights of escheat and the imposition of taxes on decedents’ estates” (see chapter 5).20 Granting the District Court or a newly created specialized court concurrent jurisdiction in theory might result in no original jurisdiction cases in the U.S. Supreme Court as either lower court would render decisions involving interstate controversies and they would reach the Supreme Court only through the appellate process. Alternatively, the court could achieve the same result by referring all original jurisdiction cases to the District Court. In particular, Justice Rehnquist’s proposal of a congressional grant of concurrent jurisdiction over interstate controversies to the District Court, in Carstens’ view, should not be implemented because such jurisdiction would be susceptible to creating serious and avoidable interstate tensions, given

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that the geographical jurisdiction of the federal district courts is coterminous with existing state boundaries. The federal courts of one state, therefore, would sit in judgment of two or more coequal sister states, and judgments of that court could be imputed to the state in which such court sat, with unfortunate consequences to the relationship between the state of the court and one or more state litigants.21 Carsten explained each judge of the District Court commonly resided in the district at the time of appointment by the president with the consent of the Senate, and this fact may give the appearance of favoritism in the judge’s decisions in original jurisdiction cases.22 As an alternative overcoming Carstens’ objection, Congress could grant such concurrent jurisdiction only to the District Court for the District of Columbia, a court viewed as a more state neutral tribunal. Carstens also maintained that congressional creation of a specialized court sharing concurrent original jurisdiction over interstate controversies would eliminate the problems associated with the court’s use of special masters and described four advantages of such a court: First, appointment of judges to the court through the Article III appointment mechanism would ensure greater accountability and independence, if one believes that these aims are achieved, at least in part, by the life tenure and salary protections. Second, the specialized federal common law that applies to boundary and water rights disputes, which constitute the bulk of original jurisdiction disputes, would be implemented and developed with a greater degree of consistency because a specialized court could better preserve institutional memory. Third, a specialized court likely would be better equipped to standardize the procedures applicable to original jurisdiction cases, given their continued exposure to cases raising similar procedural difficulties. Finally, judicial review by the Supreme Court would be available in the more traditional sense because the Court could review a decision entered with the full force of Article III judicial authority, thereby arguably granting the benefits of another layer of review.23 Today, there are only two specialized U.S. courts created by Congress under powers delegated to it by Article III of the constitution: The Court of Appeals for the Federal Circuit, the sole specialized appellate court, and the Court of International Trade, the sole specialized trial court.24 After reviewing the criticisms and experience of specialized federal courts including the Commerce Court which was created in 1909 and abolished in 1913, Carstens

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quoted with approval Felix Frankfurter’s and James M. Landis’ statement that these courts “acquire the vices of specialization—narrowness and partiality” and concluded their disadvantages suggest a court with jurisdiction limited to interstate controversies should not be created.25 It is difficult to disagree with her conclusion. Furthermore, it is most improbable that Congress would create such a court.

ENLARGEMENT OF THE COURT The constitution authorizes Congress to determine the number of justices of the Supreme Court which has varied from six in 1789 to five in 1801, to seven in 1802, to nine in 1837, to ten in 1861, to seven in 1866, and to nine in 1869, the current number. The original jurisdiction and appellate jurisdiction workload of the court has increased substantially since the last change in the number of members, and a case can be made for increasing the size of the court. In 2004, Jonathan Turley made a strong case for expanding the number of justices by highlighting the facts justices in recent decades have been serving longer terms, many decisions of the court are 5 to 4, and adding: “The result is that a single justice effectively can determine the outcome of important cases over a long period of time. The current split on the court produces not only concentrations of power but also, in my view, opinions of low-quality. The ubiquitous 5–4 decisions often reflect the division in methodology and logic.”26 Turley, however, did not justify his proposal on the basis of the need for the court to adjudicate additional disputes between sister states. An expanded court, relying on panels of three justices, would be able to adjudicate an increased number of interstate controversies without significantly burdening the court, thereby ensuring that a semisovereign state aggrieved by what is perceived to be a wrong committed by a sister state would be more apt to be granted the court’s permission to file a bill in equity against the sister state. Nevertheless, prospects that Congress would increase the number of justices are slim.

CONGRESSIONAL PREEMPTION In The Federalist Papers, James Madison held Congress’ lack of regulatory power over interstate commerce was a serious defect of the Articles of Confederation and Perpetual Union and argued “a superintending authority” over interstate and foreign commerce was needed.27 The defect, according to Madison, would be remedied by state ratification of the proposed U.S. Constitution with its broad grant of regulatory power to Congress over interstate and foreign commerce.

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Can Congress be required to exercise any of the specific powers delegated to it by section 8 of Article I of the U.S. Constitution? The answer is no, as the delegated powers are latent ones exercisable at the discretion of Congress. The constitution’s necessary and proper clause (Art. I, §8) and the supremacy of the laws clause (Art. VI) supplement the specifically delegated powers. The former clause allows Congress to legislate on a subject, such as the chartering of a bank, beyond the specifically delegated ones. The latter clause generally ensures the nullification by a federal or state court of any challenged state or local government law or regulation conflicting directly with a congressional statute on the same subject unless the conflict is a very minor one.28 The Supreme Court on a number of occasions rendered opinions holding Congress, the political branch, was better equipped to address the instant interstate controversy and other such controversies than the judicial branch. The court, in 1918, in response to Virginia’s prayer for issuance of a writ of mandamus to enforce the court’s judgment favoring the Commonwealth, deferred action on the ground Congress has plenary authority to enforce the judgment (see chapter 7).29 In Arizona v. California (1936), the court explained: “The Colorado River is a navigable stream of the United States. The privilege of the states through which it flows and their inhabitants to appropriate and use water is subject to the paramount power of the United States to control it for the purpose of improving navigation” (see chapter 6).30 In 1992, the court in Quill Corporation v. North Dakota, which involved the question whether the state possessed the authority to tax mail order sales to its citizens, wrote “the underlying issue is not only one that Congress may be better qualified to resolve, but also one that Congress has the ultimate power to resolve.”31 The suit involved the question whether the state possessed the authority to tax mail order sales to its citizens. In several instances, the court’s reference was indirect. In 1906, Justice Oliver Wendell Holmes in Missouri v. Illinois wrote: “It hardly was disputed that Congress could deal with the matter under its power to regulate commerce.”32 Justice Felix Frankfurter in Texas v. Florida in 1939 referred to practical problems encountered by the Supreme Court in adjudicating interstate controversies: “The limitations of litigation—its episodic character, its necessarily restricted scope of inquiry, its confined regard for considerations of policy, its dependence on the contingencies of a particularly record, and other circumscribing factors—often denature and even mutilate the actualities of a problem and thereby render the litigious process unsuited for its solution.”33 Although the above statements reveal the court would prefer to have Congress resolve certain interstate disputes, its continued failure to address important interstate issues—such as apportionment of state corporation income taxes, escheats, severance taxes, interstate shipment of waste prod-

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ucts, and state tax credits—ensures the court’s original and appellate work load will continue to increase.34 During its first session, Congress exercised two specific constitutional grants of power by enacting the Copyright Act of 1790 and the Patent Act of 1790 completely preempting the power of states to regulate copyrights and patents.35 Nevertheless, Congress historically was reluctant to exercise its plenary power over interstate commerce to invalidate state and local government erected barriers to commerce among the several states and did not enact a major act on the subject until The Act to Regulate Commerce of 1887.36 In consequence, the silence of Congress became a common term as only twenty-nine preemption statutes were enacted by 1899, and several were subsequently repealed.37 The failure of Congress to enact statutes to solve certain types of interstate disputes led to the Supreme Court developing what is termed federal, or interstate common law which Congress could amend or repeal, but has not done so. The silence of Congress was broken more frequently between 1900 and 1959, as 124 complete or partial preemption statutes were enacted. Fortyseven such statutes were enacted during the 1960s with thirty-six enacted between 1965 and 1969. A federalism revolution commenced in 1965, with the enactment of the first minimum standards preemption act. The Water Quality Act of 1965 directed the secretary of the interior, now the environmental protection agency administrator, to promulgate minimum water quality standards for interstate waterways.38 States are authorized to continue to regulate water pollution provided their water quality standards are at least as stringent as the national ones and are enforced. This act, now termed the Clean Water Act, has helped to reduce the discharge of pollutants into lakes and rivers, and offers downstream states the alternative of filing a complaint against the polluting state with the EPA requesting it to initiate enforcement action, thereby reducing the number of interstate controversies involving such pollution the Supreme Court may be called upon to address. Justice Douglas, in Illinois v. Milwaukee, prognosticated in 1972 “[i]t may happen that new federal laws and new federal regulations may in time preempt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution.”39 In effect, the justice was inviting Congress to act to resolve such interstate controversies by using its plenary powers over navigable waters. Congress enacted 102 preemption statutes during the decade of the 1970s, 93 such statutes during the decade of the 1980s, 83 during the decade of the 1990s, and 51 in the period 2000 to 2004. A total of 535 preemption statutes have been enacted since 1789, with some amending or extending earlier statutes. Only two of these statutes were designed specifically to end interstate

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controversies, although the environmental ones establishing minimum national regulatory standards—Clean Air Act, Clean Water Act, Safe Drinking Water Act, and Surface Mining Reclamation and Control Act—possess the potential to reduce the number of interstate controversies. Interstate boundary controversies and interstate water controversies have been the most common ones adjudicated by the Supreme Court. The latter type of controversy will occur more frequently in the future unless Congress apportions the water of major rivers, particularly those in the western states. To date, Congress has employed its interstate commerce power over navigable water to apportion water between states on only two occasions—The Boulder-Canyon Project Act of 1928 involving the water of the Colorado River and the Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act of 1990 relating to Lake Tahoe, the Carson River, and the Truckee River.40 The latter act settled a more than 100-year-old water apportionment controversy involving California, Nevada, and two Indian tribes and provided for the termination of pending litigation by the two tribes. E. Leif Reid reviewed the history of this act, emphasized the impact of federal grants-in-aid in promoting an agreement, concluded “[t]he advantages of congressional apportionment are clear,” and added: “Water resource development will increasingly involve river basin management, and operations will transgress state lines and require large federal expenditures. Such basin development plans must necessarily come before Congress, and it is a highly appropriate time when they do so to settle interstate conflicts over water allocation. Without such a settlement development cannot go forward.”41 Congress could remove the causes of certain other interstate disputes by enacting contingent preemption statutes effective only in the event all or a specified number of state legislatures fail to enact harmonious model regulatory statutes drafted by the National Conference of Commissioners on Uniform State Laws or the Multistate Tax Commission, or interstate compacts on designated subjects generating interstate controversies by a specified date. Congress employed this approach in the Gramm-Leach-Bliley Financial Modernization Act of 1999.42 This approach respects states’ rights since their representatives draft the model statutes and/or the compacts. The Conference to date, however, has not drafted model state laws on all regulatory subjects and compacts have not been drafted on all regulatory subjects. In 1951, Congress first enacted a statute allowing a state legislature to opt out of a preemption section.43 Congress could employ this approach in crafting a statute designed to prevent interstate controversies by enacting a model law, drafted by the Conference or the Multi-State Tax Commission, as a preemption statute with an opt out provision permitting a state legislature to vote to exclude the state from the coverage of the statute. It is most improbable that a state legislature would vote to opt out of a model law clearly designed to strengthen the national economy or achieve another societal purpose.

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INTERSTATE COMPACTS The U.S. Constitution authorizes states to enter into compacts with the consent of Congress (Art. I, §10) allowing them to engage in joint regulation, construction and operation of facilities, and resolution of disputes including ones over boundary lines.44 The inclusion of the compact clause in the constitution was based in part upon experience with a similar clause (Art. VI) in the Articles of Confederation and Perpetual Union, which led to the unicameral Congress granting its sanction to three interstate boundary compacts, and the regulatory compact between Maryland and Virginia relating to fishing and navigation on the Potomac River and the Chesapeake Bay. A regulatory compact has a great advantage because its provisions supersede existing conflicting statutes and rules and regulations of the party states, thereby promoting harmonious interstate relations. The U.S. Supreme Court, in Pennsylvania v. Wheeling & B. Bridge Company, in 1851, held that Congress could resolve the controversy and had not expressly forbidden a state to obstruct navigation on the Ohio River by erection of a bridge, yet granted its consent to the compact between Virginia and Kentucky providing for the admission of the latter to the Union as a state, thereby converting the compact, providing for free and common use of the river, into federal law and a state law violating the compact was unconstitutional.45 States were slow to employ interstate compacts. In 1925, Felix Frankfurter and James M. Landis examined the use of the compact device and reported that a total of thirty-nine compacts were granted consent by Congress with thirty-three settling boundary disputes.46 In 1921, the enactment of the Port of New York Authority Compact by the New Jersey State Legislature and New York State Legislature and congressional grant of consent spurred the use of the compact device for a wide variety of other purposes. Frankfurter and Landis fully recognized the potential of compacts for solving problems: “The imaginative adaptation of the compact idea should add considerably to resources available to statesmen in the solution of problems presented by the growing interdependence, social and economic, of groups of States forming distinct regions.”47 In 1936, Alice M. Dodd supported these views, explained partisan politics was not involved in the development of interstate compacts, and concluded the device is “admirably adapted to action and to result.”48 Similarly, in 1937, Marshall E. Dimock and George C. S. Benson held “the potential utility of the device extends to the entire range of permissible legislative activity.”49 In 1940, Garland C. Routt reviewed experience with compacts and concluded they possess the potential to solve major interstate problems beyond the delegated powers of Congress.50

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The above conclusions suggest an important question: Would negotiations by two or more states leading to an interstate compact be a preferable alternative to an original jurisdiction suit to settle an interstate controversy? The court has answered this question in the affirmative. In 1921, the court rendered a decision involving pollution of the waters of New York Bay and advanced the suggestion the problem would be better solved by means of conferences, cooperative studies, and concessions by New Jersey and New York than by the court (see chapter 6).51 The court provided similar advice in 1947, after Vermont sought the court’s permission to file a bill of complaint in equity against New York on the ground an International Paper Company mill was discharging waste into the waters of Lake Champlain (the boundary line between the states) forming a sludge on the bottom of the lake and polluting its waters. The court rejected the special master’s proposal of a South Lake Master to police implementation of a proposed settlement on the ground approval would mean the court “would be acting more in an arbitral rather than a judicial manner,” and added there are other means of settling the dispute, and concluded: “An interstate compact under Art.I, §10, cl. 3, is a possible solution of the conflict here. Vermont and New York (along with Connecticut, Maine, Massachusetts, New Hampshire, and Rhode Island) are already parties to the New England Interstate Water Pollution Control Compact, 61 Stat. 682 (1947).”52 This above advice differed from the 1921 advice, as New York and Vermont could have requested the assistance of the compact commission in fashioning a solution to their dispute or, if need be, suggest an amendment to the compact to facilitate an agreement terminating the controversy. In 1974, the court also indicated that a resolution of the controversy by an agreement of the party states, citing Missouri v. Nebraska, is another possible alternative and a motion to dismiss the complaint could be based upon such an agreement provided it does not violate an interstate compact.53 Interstate compacts have been employed to settle boundary disputes. In 1973, New Hampshire sought leave from the U.S. Supreme Court to file a motion of complaint in equity against Maine involving a disputed boundary line in the Atlantic Ocean. New Hampshire continued to negotiate with Maine and in 1976 successfully reached an agreement. The court approved the agreement and dismissed the suit.54 The agreement in effect was a political interstate boundary compact not submitted to Congress for its consent. The General Assembly in North Carolina and in South Carolina each enacted an interstate boundary compact to settle a dispute and in 1981, Congress sanctioned the compact.55 More recently, the Missouri General Assembly and the Nebraska State Legislature each enacted an interstate boundary compact consented to by Congress in 1999, and the following year Congress granted its consent to an Oklahoma-Texas interstate boundary compact.56

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Is the grant of congressional consent to an interstate boundary compact a permanent settlement of a dispute? The answer usually is “yes,” but New Hampshire (as explained in chapter 4), attempted unsuccessfully to reopen a boundary dispute. The construction by New York City, under state legislative authorization, of large reservoirs in the Catskill Mountains, the head waters of the interstate Delaware River and several of its tributaries, led to major interstate disputes and issuance of a 1931 U.S. Supreme Court decree that forbade the city to divert in excess of 440,000,000 gallons of water daily from the river and its tributaries and mandated construction of a sewage treatment plant in Port Jervis, New York, before sewage would be allowed to be discharged into the Delaware River and the Neversink River.57 New York petitioned the court for an amended decree to permit the city to divert a larger quantity of water from the Delaware River and its tributaries. In 1954, the court approved the report of its special master, suspended the earlier decree, and approved the diversion of additional river water upon the completion of the construction of a new reservoir and an additional diversion upon the completion of a second reservoir.58 The court’s action only provided a temporary respite from the interstate water dispute which subsequently led to the first federal-interstate compact—Delaware River Basin Compact—enacted by Congress and the Delaware, New Jersey, New York, and Pennsylvania state legislatures.59 This compact has achieved successfully its various goals including allocation of the waters of the Delaware River and its tributaries.60 An almost identically worded federal-state compact—Susquehanna River Basin Compact—subsequently was enacted by Congress and the state legislatures of Maryland, New York, and Pennsylvania.61 This compact has also been successful.62 General Counsel Richard A. Cairo of the Susquehanna River Basin Commission reported in 1995 that “each time the commission meets, the dialogue among its member is an exercise in cooperation which often heads off possible disputes and identifies areas where the states can work together either on their own initiative or through the commission.”63 He added that his commission settles river basin water disputes and hence obviates the need for a “more expensive, time consuming, and unpredictable” original jurisdiction suit.64 In 1989, Joseph W. Girardot reviewed the compact device and concluded it “finds the middle ground. . . . By involving Congress in the process of compact formation, national concerns may be aired, obviating the need for congressional statutory preemption.”65 In 1998, a note in the Harvard Law Review, on the other hand, explained that the semisovereign states recognize there will be a partial loss of their sovereignty upon enactment of compacts creating commissions, a type of public authority, which “are relatively insulated from the political process and only indirectly accountable to the electorate through their appointed officials.

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Indeed, these entities with inherently divided loyalties may be even less responsive than traditional agencies located within a single state.”66 The criticisms that a public authority is insulated from the political process and not directly accountable to voters have often been directed at state and local government public authorities such as the Massachusetts Turnpike Authority or a local government economic development authority.67 How valid are these criticisms? There is some evidence that the criticisms may not be based upon a careful analysis of public authorities. The author of a recent in-depth study of the New York State Thruway Authority and the author of a recent in-depth study of the New York State Environmental Facilities Corporation examined the above criticisms and each concluded that the studied authority is a responsible one fully accountable to the governor and the state legislature.68

Interstate and Federal-Interstate Water Compact Disputes Have interstate water compacts prevented original jurisdiction suits? Unfortunately, the answer is no. The court has been called upon to interpret disputed provisions of four interstate water compacts—Pecos River, Arkansas River, Republican River, and Canadian River compacts. An interstate compact is generally similar to an international treaty and the court employs rules of international treaty construction and interpretation when examining a interstate controversy involving a compact. Chapter 6 reviews the water allocation dispute between New Mexico and Texas involving the Pecos River Interstate Compact, that led Texas, after many years of negotiations with New Mexico, to file a petition for leave to file a complaint in equity against New Mexico in 1974. The court granted leave to Texas, appointed a special master, and adopted his subsequent report containing an inflow-outflow methodology for determining the amount of water Texas was entitled to receive.69 In 1984, court approval of the methodology resulted in each state raising objections.70 Three years later, the court rejected New Mexico’s contention the state “had no obligation to deliver water that it, in good faith, believed it had no obligation to refrain from using,” held in favor of Texas, and explained that its remedy was not limited to prospective relief and could include monetary relief.71 A dispute involving the Arkansas River Interstate Compact, consented to by Congress in 1949, was brought to the Supreme Court by Kansas. In 2001, the court determined Colorado had violated the provision of the compact forbidding material depletion of the flows of the river waters and awarded damages to Kansas.72 This decision prompted a sharp dissent in part by Justices Sandra Day O’Connor, Antonin Scalia, and Clarence Thomas who main-

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tained the award of prejudgment interest after fifty-two years of the compact’s life “is clearly improper under our precedents.”73 The court in Kansas v. Nebraska (2003), resolved a dispute involving the Republican River Interstate Compact and Kansas’ contention that Nebraska had failed to deliver water to Kansas. The dispute was resolved by the issuance of a court decree approving the final settlement stipulation executed by the parties with the special master as of December 15, 2002 (see chapter 6).74 In 1993, the court granted a joint motion for the entry of a stipulated judgment and decree as modified holding that “New Mexico has been in violation of Article IV (b) of the Canadian River Compact from 1987 to date” and directed New Mexico to release from the Ute dam specified amounts of water “at the call of Texas.”75 The court retained jurisdiction of the suit for the purposes of any order, direction, or modification of the decree, or any supplementary decree subject to the condition that a party state attempting to invoke the court’s original jurisdiction must certify it has attempted to reach a resolution of the controversy through negotiation in good faith with the other party state(s). It is apparent that great care must be exercised in drafting an interstate or federal-state regulatory compact to ensure there will be no future disputes by party states over the meaning of the various sections of a compact. The careful drafting of a compact no doubt will prolong the process, which often is long, of securing the enactment of a compact by each concerned state legislature. Experience reveals that a bistate compact stipulating the compact commission cannot initiate any action absent the approval of the member representing each state has a great potential for producing a deadlock on crucial issues. A compact provision authorizing appointment of a mediator in the event of disputes between party states, found in a few compacts, can be helpful, but will not solve an intractable problem such as water apportionment. In consequence, it is essential to incorporate a clause in an interstate or federalstate river basin compact providing for the establishment of an arbitration panel to obviate the need for an original jurisdiction suit in the Supreme Court to resolve a contentious issue. Each state representative would select an arbitrator who would join with the other arbitrators to select the chairperson of the panel. Alternatively, Congress can condition its consent upon the compact providing for a federal representative with concurrent voting rights who would serve as commission chairman. Drafting an interstate or federal-state compact to solve a complex problem may end in failure even with congressional encouragement. Congress in 1997, for example, granted its consent-in-advance to the Apalachicola-Chattahoochee-Flint River Basin Compact, a federal-interstate compact between Alabama, Florida, Georgia, and the United States of America.76 Article I of the compact declared the purposes of the compact were promotion of interstate

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comity, removal of causes of present and future controversies, equitable apportionment of the surface waters of the basin, engagement in water planning, and development of common shared data bases. Article V stipulated the compact would not be binding until it is enacted into law by the legislatures of the three states and Congress. The compact did not provide for the allocation of water between the states, but did create a commission [Art. VI] with water apportionment authority [Art. VII (a)]. Compact article VIII provided for the automatic termination of the compact if the three states are unable to agree upon a water apportionment plan by December 31, 1998, unless the commissioners from the party states vote to extend the deadline. It was extended several times and prospects for an agreement on disputed provisions were increased on July 22, 2003, when Governor Jeb Bush of Florida, Governor Sonny Perdue of Georgia, and Governor Bob Riley of Alabama signed a memorandum of understanding regarding the initial allocation formula for the river basin.77 Unfortunately, negotiations collapsed on August 31, 2003, because of “the discovery of a secret settlement agreement between the State of Georgia and the Corps of Engineers that provided water to the Atlanta metro area without consideration of downstream needs in Alabama and Florida. This settlement agreement currently is being contested in court by Alabama and Florida.”78 The Alabama-Coosa-Tallapoosa River Basin Compact (ACT), a similar federal-interstate compact between Alabama, Georgia, and the United States of America, expired at midnight on July 31, 2004, because negotiations on equitable water apportionment failed.79 Article VIII of ACT stipulated it would be terminated if the two states do not reach an agreement on an equitable apportionment of surface waters by December 31, 1998, unless the commission’s voting members agree to an extension of the deadline. The deadline was extended, but Alabama and Georgia could not reach an apportionment agreement. On August 2, 2004, Alabama Governor Bob Riley issued a statement explaining his state could not agree to a water allocation formula ”that does not adequately address demand management because some of the provisions designed by Georgia (e.g., Rome minimum flow cutback provision) necessitate upstream limitations to ensure that Alabama’s downstream interest are not harmed.”80 In addition, Governor Riley objected to the clause allowing Georgia during severe drought conditions to suspend the flow requirements into Alabama with no limits on the use of upstream waters in Georgia. The experience with the attempts to form the above two federal-interstate water basin commissions reveals how difficult it is to reach an agreement involving a most important resource which is in short supply. Nevertheless, we conclude a carefully drafted interstate or federal-state compact enacted by all concerned states possesses the potential for resolving most disputes that would

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arise in the absence of a compact. Such compacts can be bilateral, multilateral, sectional or national in membership. Currently, there are twenty-six functional types of interstate compacts administered by a commission or by a regular department or agency of party states.

Congressional Encouragement Congress can initiate four specific actions to encourage states to enter into interstate compacts and to avoid controversies. First, Congress can grant blanket consent-in-advance to states to enter into compacts and to amend compacts in lieu of its practice of granting such consent with the proviso that any resulting compact or amendment must be submitted to Congress prior to becoming effective.81 Congress under this proposal should require the transmittal of a new compact or compact amendment to the clerk of the Senate and clerk of the House of Representatives, thereby enabling Congress to initiate action, if needed, to protect the national interest. Prospects for congressional implementation of this proposal are minimal. It is more probable that Congress would be willing to grant prior consent to amendments within the confines of a compact granted consent provided copies are transmitted to the clerk of each house. Congress, of course, possesses the authority to enact a statute striking down any compact or compact amendment found to be offensive and it is most improbable that states would enter into any such compact or compact amendment. The congressional agenda is crowded and the question can be raised as to why Congress should devote committee and floor time to consideration of a proposed interstate compact or proposed amendment to a compact? Congress considered thirteen proposed compacts or compact amendments prior to granting its consent in the period 1992 to 2002. These compacts and amendments are not political ones encroaching upon the domain of the national government and include the Interstate Rail Passenger Network Compact, New Hampshire-Maine Interstate School Compact, Kansas and Missouri Metropolitan Culture District Compact, Central Midwest Interstate Low-Level Radioactive Waste Compact Amendments, Jennings Randolph Lake Compact, Bristol, Virginia and Bristol Tennessee Mutual Aid Compact, Texas Low-Level Radioactive Waste Disposal Compact, Washington Metropolitan Area Transit Compact, Chickasaw Trail Economic Development Compact, Potomac Highlands Airport Authority Compact, Pacific Northwest Emergency Management Arrangement, The Northwest Wildland Fire Protection Agreement, and a New Hampshire-Vermont Interstate School Compact amendment. The latter simply authorizes the Dresden Interstate School District to incur debts to finance capital projects when approved by a majority vote at an annual or special district meeting of voters

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conducted by a secret ballot.82 Forty-eight additional bills relating to interstate compacts had been introduced in Congress as of August 2004. Second, Congress can offer grants-in-aid to states to encourage them to conduct research on key interstate issues, and draft and enact compacts. Grants, in particular, also could be made to the Council of State Government’s Center for Interstate Compacts to conduct research and assist states in drafting such concords. Furthermore, Congress could enact a cross-over sanction threatening states with the loss of part of their federal highway grantsin-aid for failure to enact compacts to solve specified problems.83 Third, Congress could enact a contingent preemption statute to encourage all or a group of states by a specified date to draft and enact an interstate compact on each regulatory subject that has involved major interstate disputes. To date, Congress has enacted one contingent statute threatening states with preemption for failure to initiate a regulatory harmonious policy within a prescribed period of time. The business of insurance historically was regulated by states, but the U.S. Supreme Court in 1944 reversed its 1868 decision holding such business was not interstate commerce.84 States, fearing the loss of revenues, successfully lobbied Congress to enact the McCarran-Ferguson Act of 1945 devolving to states authority to regulate the business of insurance.85 Subsequent enactment of nonharmonious insurance statutes and promulgation of similar regulations encouraged the industry to lobby Congress for relief. Congress responded by enacting the Gramm-Leach-Bliley Financial Modernization Act of 1999 preempting thirteen specific areas of insurance regulation and threatening to establish a national system of licensing insurance agents if twenty-six states fail to adopt a uniform insurance agent licensing system by November 12, 2002.86 This contingent preemption provision achieved its goal prior to the deadline date as thirty-five states were certified on September 10, 2002, to have a uniform licensing system. The 1999 act also prompted the National Association of Insurance Commissioners to initiate other actions to harmonize state insurance regulation, including the drafting of an Insurance Product Regulation Compact establishing a commission with regulatory authority.87 The Utah State Legislature in the spring of 2003 enacted the compact and its lead has been followed by twentythree additional states as of 2006. Fourth, Congress can direct specific federal departments and agencies to work closely with concerned state governments to develop solutions for problems such as water shortages. The U.S. General Accounting Office (GAO) in 2003, for example, released a report on the contentious issue of the supply of freshwater after receiving a joint request from the chairpersons of the Senate Committee on Energy and Natural Resources and the Senate Committee on Environment and Public Works for such a study. GAO interviewed state

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water managers in thirty-six states who reported they anticipated water shortages during the forthcoming decade with drought exacerbating current shortages, and recommended 1. federal grants-in-aid to increase water storage and distribution capacity, 2. authorization for additional state flexibility in complying with or administering national environmental statutes, 3. improved federal agency coordination in water-management agreements, and 4. additional consultation with states with respect to federal and/or Indian tribal use of water rights.88

CONCLUDING COMMENTS The U.S. Supreme Court developed original jurisdiction procedures allowing it to resolve interstate controversies in a manner similar to those employed when it exercises its appellate jurisdiction. If the court invokes its original jurisdiction, a full trial before the court, acting as judge and jury, does not occur as the court appoints a special master to take testimony, collect data and information, and prepare a report with recommendations for submittal to the court. The master, in effect, performs functions similar to those of a U.S. District Court judge and the Supreme Court exercises what amounts to its appellate jurisdiction only if a party state(s) files an exception(s) to the master’s report. Evidence is lacking that Congress, in the foreseeable future, will grant concurrent jurisdiction to the District Court to adjudicate interstate controversies, create a specialized court for the same purpose, or expand the number of Supreme Court justices as evidenced by its failure to respond to the campaign by retired Chief Justice Warren E. Burger for the creation of a new appellate court above the Court of Appeals to reduce the Supreme Court’s work load. In view of the fact the Supreme Court will continue to invoke its original jurisdiction periodically and appoint special masters, the court should implement the recommendation of Special Master Paul Verkuil who reported his work in New Jersey v. New York would have been facilitated if a procedural manual for special masters had been available.89 The conclusion is inescapable that the U.S. Supreme Court will continue to play a key role in resolving interstate controversies, particularly boundary and water allocation ones. Congressional adoption of the recommendations advanced in this study will not eliminate completely the need for the court to adjudicate interstate disputes. Only the court, drawing upon international law,

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is capable of adjudicating equitably disputes over the boundary lines between states if negotiations fail to produce an agreement. Although interstate compacts possess potential for resolving many existing interstate controversies and preventing the emergence of new controversies, experience reveals the drafters of a bistate compact may provide for equal voting rights for each state on the compact commission and may fail to include an arbitration provision, thereby creating a controversy over a compact provision(s) leading to a party state seeking to invoke the court’s original jurisdiction. Furthermore, drafters may not be able to incorporate provisions to address unanticipated future controversies differing significantly in their nature from earlier controversies. The limited amount of time on its crowded agenda Congress devotes to interstate issues suggests it is unlikely to initiate action to apportion the waters of interstate rivers or to address the complexities of tax exportation and tax credits, subjects that generate interstate controversies. We are more hopeful that Congress will recognize the adversarial limitations of interstate litigation in the Supreme Court, including its restriction, typically, to the narrow issue(s) in a controversy rather than broad policy issues, and will implement our recommendations to encourage states to negotiate, draft, and implement interstate and/or federal-interstate compacts to resolve major disputes and to establish commissions with authority to promulgate harmonious regulations. States deservedly have won the title “laboratories of democracy” and congressional encouragement for new interstate and federal-state compacts will enable states to continue to develop innovative solutions to interstate controversies. A need, however, remains for congressional action to resolve growing river water apportionment problems in the absence of interstate and federalstate compacts. We conclude with a question: How adequately do the two current theories of Untied States federalism explain interstate relations? Our answer is brief. Chapter 1 notes the theory of dual federalism explains the United States is a compound republic, but does not explain interstate relations. The theory of cooperative federalism, however, is an adequate explanation of interstate relations epitomized by functioning interstate compacts and formal and informal administrative agreements.90 In sum, a broader nonequilibrium theory of dynamic interstate relations in the United States must explain asymmetrical relations between sister states by including competitive, and conflictive interstate postulates as well as cooperative ones. The competitive postulates would relate to competition for business firms, tourists, and gamblers, and tax revenue including tax exportation. The conflictive postulates would explain the nature of controversies and alternative settlement procedures. This broader theory also would include a theory of congressional avoidance of addressing interstate controversies by relying upon state negotiators or the U.S. Supreme Court to resolve them.

Notes

CHAPTER 1 1. Joseph F. Zimmerman, Interstate Cooperation: Compacts and Administrative Agreements (Westport, CT: Praeger Publishers, 2002), and Joseph F. Zimmerman, Interstate Economic Relations (Albany: State University of New York Press, 2004). 2. New York v. Connecticut, 4 U.S. 3, 4 Dall. 3 (1797). 3. Donald Janson, “Iowa is Called Aggressor State: Nebraska Fears Shooting War,” The New York Times, July 26, 1964, pp. 1, 24. 4. Nebraska v. Iowa, 406 U.S. 117, 92 S.Ct. 1329 (1972). 5. New Hampshire Laws of 2003, chap. 103. 6. Joseph F. Zimmerman, Interstate Relations: The Neglected Dimension of Federalism (Westport, CT: Praeger Publishers, 1996), Zimmerman, Interstate Cooperation: Compacts and Agreements, and Zimmerman, Interstate Economic Relations. 7. An unsigned note in a 1959 law review presents the best overview of the subject of the court’s original jurisdiction. See “The Original Jurisdiction of the United States Supreme Court,” Stanford Law Review 11, July 1959, pp. 665–719. The appendix to the article list all cases arising under original jurisdiction, except memorandum opinions, commencing with the October 1789 term of the court. 8. United States Constitution, Art. III, §2. 9. Hampton L. Carson, The History of the Supreme Court of the United States (Philadelphia: A. R. Keller Company, 1892), vol. I, p. 6. 10. Ibid., pp. 40–47. 11. Ibid., p. 43. 12. Ibid., p. 61. 13. Ibid. 14. Merrill Jensen, The Articles of Confederation (Madison: The University of Wisconsin Press, 1940), pp. 12 and 163. 15. Ibid., pp. 66–74.

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Notes to Chapter 1 16. Ibid., p. 71.

17. Gaillard Hunt, ed., The Writings of James Madison (New York: G. P. Putnam’ Sons, 1901), vol. II, p. 362. 18. Ibid., p. 365. 19. The title of the current compact is the Potomac River Fisheries Compact which received the consent of Congress. See 76 Stat. 797 (1962). 20. Max Farrand, ed. The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1966), vol. II, p. 24. 21. Ibid., p. 27. 22. Max Farrand, The Framing of the Constitution of the United States (New Haven: Yale University Press, 1913), p. 154. 23. Carl Van Doren, The Great Rehearsal: The Story of the Making and Ratifying of the Constitution of the United States (New York: The Viking Press, 1948), pp. 63–67. 24. Jonathan Elliot, Debates on the Adoption of the Federal Constitution Held at Philadelphia in 1787 (New York: Burt Russell, n.d.), p. 156. Originally published in 1888. 25. Ibid., pp. 189–90, and 565. 26. Articles of Confederation and Perpetual Union, Art. X. 27. John P. Kaminski and Gaspare J. Saladino, The Documentary History of the Ratification of the Constitution (Madison: State Historical Society of Wisconsin, 1981), vol. XIII, p. 348. 28. The Federalist Papers (New York: New American Library, 1961), p. 246. 29. Ibid., p. 119. 30. Ibid., p. 204. 31. Ibid., p. 477. 32. Ibid., p. 478 33. These and other opposition letters are contained in Ralph Ketcham, ed. The Anti-federalist Papers and the Constitutional Convention Debates (New York: New American Library, 1986). 34. Ibid., p. 272. 35. McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316 (1819). 36. Gibbons v. Ogden, 22 U.S. 1, 9 Wheat.1 (1824). 37. Zimmerman, Interstate Relations and Zimmerman, Interstate Economic Relations. 38. Georgia-South Carolina Interstate Boundary Compact, Georgia Acts of 1994, Act 1044; South Carolina Acts of 1996, Act 375; and 113 Stat. 1307 (1999). 39. Judiciary Act of 1789, 1 Stat. 73 at 90–91, 28 U.S.C. §1251(a). See also Wythe Holt, “’To Establish Justice: Politics, the Judiciary Act of 1789, and the Invention of the Federal Courts,” Duke Law Journal 1989, December 1989, pp. 1421–531.

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40. Farrand, The Records of the Federal Convention of 1787. 41. For details, consult Zimmerman, Interstate Relations, pp. 59–85. 42. Ibid., pp. 87–101. 43. Ibid., pp. 103–16. 44. Judiciary Act of 1789, 1 Stat. 73. 45. Daniel J. Meltzer, “Article III and the Judiciary Act of 1789: The History and Structure of Article III,” University of Pennsylvania Law Review 138, June 1990, pp. 1569–632. 46. Farrand, The Framing of the Constitution of the United States, p. 156. 47. Judiciary Act of 1789, 1 Stat. 73 at 90–91, 28 U.S.C. §1251(a). 48. “Supreme Court Original Jurisdiction,” 92 Stat. 810, 28 U.S.C. §1251. 49. Robert H. Jackson, The Struggle for Judicial Supremacy (New York: Alfred A. Knopf, 1941), p. ix. Jackson subsequently served as a member of the court. 50. William H. Rehnquist, “The Changing Role of the Supreme Court,” Florida State University Law Review 14, Spring 1986, pp. 2–7. An 1801 act (2 Stat. 89) abolished circuit riding by Supreme Court justices, but the act was repealed the following year (2 Stat. 132) and circuit riding continued until 1869. 51. Judiciary Act of 1891, 26 Stat. 826. 52. Judiciary Act of 1925, 43 Stat. 936. 53. The Federalist Papers, p. 476. 54. Ibid. 55. Ibid., p. 487. 56. Judiciary Act of 1789, 1 Stat. 73 at 90–91, 28 U.S.C. §1251. 57. Diplomatic Relations Act of 1978, 92 Stat. 810, 28 U.S.C. §1251. See also Convention on the Privileges and Immunities of the United Nations Adopted by the General Assembly of the United Nations, San Francisco, February 13, 1946. 58. Traore v. State, 290 Md. 585, 431 A.2d 96 (1981). 59. Paul B. Stephan III, “International Law in the Supreme Court,” The Supreme Court Review 1990 (1990): 133–61. 60. United States v. Ravara, 2 U.S. 297, 2 Dall. 297 (1793). 61. Ibid. 62. Ibid. 63. Jones v. Le Tombe, 3 U.S. 384, 3 Dall. 384 (1798). 64. United States v. Ortega, 24 U.S. 467, 11Wheat. 467 (1826). 65. Cherokee Nation v. Georgia, 5 U.S. 1 at 17, 5 Pet. 1 at 17 (1831).

178

Notes to Chapter 2

66. Ibid., 5 U.S. 1 at 20, 5 Pet. 1 at 20. See also James H. Lengel, “The Role of International Law in the Development of Constitutional Jurisprudence in the Supreme Court: The Marshall Court and American Indians,” The American Journal of Legal History 43, April 1999, pp. 117–32. 67. Davis v. Packard et al., 32 U.S. 276, 7 Pet. 276 (1833). 68. Valarino v. Thompson, 7 N.Y. 576 at 578 (1853). 69. National Bank Act of 1864, 13 Stat. 112. 70. Casey v. Galli, 94 U.S. 673, 4 Otto 673 (1876). 71. Bors v. Preston 111 U.S. 252, 4 S.Ct. 407 (1884). 72. In re Baiz, 135 U.S. 403 at 431, 10 S.Ct. 854 at 862 (1890). 73. Ex parte Gruber, 269 U.S. 302, 46 S.Ct. 112 (1925). 74. Ibid. 75. Founding Church of Scientology v. Cromer and Crowe, 404 U.S. 933, 92 S.Ct. 266 (1971); Webb v. Porter, 406 U.S. 941, 92 S.Ct. 2036 (1972); Petersen v. Spiliotopoulos, 412 U.S. 903, 93 S.Ct. 2285 (1973); Kostadinov v. Smith, 469 U.S. 1203, 105 S.Ct. 1161 (1985); and In the Matter of the Republic of Suriname, ex rel. Etienne Boervenveen, 484 U.S. 961, 108 S.Ct. 447 (1987). 76. Consult Hollander v. Baiz, 41 Fed. 732 (S.D.N.Y. 1890); Pooley v. Luco, 76 Fed. 146 (S. D. Cal. 1896); and Farnsworth v. Sanford, 115 P.2d 375 (5th Cir. 1940). 77. United States v. Coplon, 84 F. Supp. 472 (D.C.N.Y. 1949). 78. Ibid. at 477. 79. Judiciary Act of 1789, 1 Stat. 73. 80. Linda Greenhouse, “Reviewing Foreigners’ Use of Federal Courts,” The New York Times, December 2, 2003, p. A29. 81. United States v. Caro-Quintero, 745 F. Supp. 599 (CDCA 1990). 82. United States v. Alvarez-Machain, 946 F.2d 1466 (9th Cir. 1991). 83. United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188 (1992). 84. Alvarez-Machain v. Untied States, 331 F.3d 604 (2003). 85. Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). 86. Ibid., 124 S.Ct. 2739 at 2759.

CHAPTER 2 1. The Eleventh Amendment, ratified by the required three-quarters of the States in 1795, removed the bracketed materials from the Constitution. 2. Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 251 (1900).

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3. Judiciary Act of 1789, 1 Stat. 73 at 90–91, 28 U.S.C. §1251(a). The Supreme Court also was granted authority by the act to promulgate necessary rules for the conduct of business of all United States courts. 4. Marbury v. Madison, 5 U.S. 137 at 174, 1 Cranch 137 at 174 (1803). 5. Cohens v. Virginia, 19 U.S. 264 at 404, 6 Wheat. 264 at 404 (1821). 6. United States v. Ferreira, 54 U.S. 40 at 53, 13 How. 40 at 53 (1851). 7. Consult Arizona v. New Mexico, 425 U.S. 794, 96 S.Ct. 1845 (1976). 8. Missouri v. Illinois, 200 U.S. 496 at 521, 26 S.Ct. 268 at 270 (1905). 9. Texas v. New Mexico, 462 U.S. 554 at 570, 103 S.Ct. 2558 at 2569 (1983), and Wyoming v. Oklahoma, 502 U.S. 437 at 450, 112 S.Ct. 789 at 798 (1992). 10. “The Original Jurisdiction of the United States Supreme Court,” Stanford Law Review 11, July 1959, pp. 665–719, and Vincent L. McKusick, “Discretionary Gatekeeping: The Supreme Court’s Management of its Original Jurisdiction Docket Since 1961,” Maine Law Review 45, no. 2, 1993, p. 188. 11. Judiciary Act of 1789, 1 Stat. 73 at 83. 12. Oklahoma v. Arkansas, 439 U.S. 812, 99 S.Ct. 71 (1978). 13. Virginia v. Maryland, 355 U.S. 269, 78 S.Ct. 327 (1957) and California v. Washington, 365 U.S. 955, 78 S.Ct. 991 (1958). 14. New Jersey v. New York, 345 U.S. 369 at 373, 73 S.Ct. 689 at 691 (1953). 15. Ibid., 345 U.S. 369 at 374–75, 73 S.Ct. 689 at 692. 16. Arizona v. California, 298 U.S. 558 at 569, 56 S.Ct. 848 at 854 (1936). 17. Ibid., 298 U.S. 558 at 572, 56 S.Ct. 848 at 855. 18. The motions of Illinois and Tennessee for leave to file a bill as amici curiae in Oklahoma v. Arkansas were granted by the Court in 1983. See 460 U.S. 1020, 103 S.Ct. 1268. 19. Texas v. New Jersey, 379 U.S. 674 at 677, 85 S.Ct. 626 at 628 (1965). See also Texas v. New Jersey, 373 U.S. 948, 83 S.Ct. 1677 (1963). 20. Justice William H. Rehnquist’s dissent in Maryland v. Louisiana, 451 U.S. 725 at 765, 101 S.Ct. 2114 at 2139 (1981). 21. Kentucky v. Indiana, 281 U.S. 163 at 177, 50 S.Ct. 275 at 278 (1930). 22. Arkansas v. Texas, 346 U.S. 368 at 371, 74 S.Ct. 109 at 111 (1953). 23. Ibid. 24. New York v. New Jersey, 256 U.S. 296 at 309, 41 S.Ct. 492 at 496 (1921) 25. Alabama v. Arizona, 291 U.S. 286 at 291, 54 S.Ct. 399 at 401 (1934). 26. New Hampshire v. Louisiana, 108 U.S. 76, 2 S.Ct. 176 (1883). 27. Chisholm v. Georgia, 2 U.S. 419, 2 Dall. 419 (1793). 28. New Hampshire v. Louisiana, 108 U.S. 76 at 88, 2 S.Ct. 176 at 182 (1883).

180

Notes to Chapter 2 29. Ibid., 108 U.S. 76 at 90, 2 S.Ct. 176 at 183. 30. Ibid., 108 U.S. 76 at 91, 2 S.Ct. 176 at 184. 31. In re Debs, 158 U.S. 564, 15 S.Ct. 900 (1895). 32. Ibid., 158 U.S. 564 at 581, 15 S.Ct. 900 at 905. 33. Ibid., 158 U.S. 564 at 592, 15 S.Ct. 900 at 909. 34. Louisiana v. Texas, 176 U.S. 1 at 16, 22, 20 S.Ct. 251 at 256, 258 (1900). 35. Missouri v. Illinois, 180 U.S. 208 at 241, 21 S.Ct. 331 at 344 (1901). 36. North Dakota v. Minnesota, 263 U.S. 583 at 585, 44 S.Ct. 208 at 209 (1924). 37. Massachusetts v. Missouri, 308 U.S. 1 at 18, 60 S.Ct. 39 at 43 (1939). 38. Ibid., 308 U.S. 1 at 19, 60 S.Ct. 39 at 44. 39. Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385 (1972) 40. Ibid., 406 U.S. 91 at 93–94, 92 S.Ct. 1385 at 1388. 41. Puerto Rico v. Iowa, 464 U.S. 1034, 104 S.Ct. 691 (1984). 42. Kentucky v. Indiana, 281 U.S. 163 at 173, 50 S.Ct. 275 at 277 (1930). 43. Kentucky v. Indiana, 281 U.S. 163 at 178, 50 S.Ct. 275 at 279 (1930).

44. Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658 (1923). See also West Virginia Laws of 1919, chap. 71. 45. Pennsylvania v. West Virginia, 262 U.S. 553 at 592, 43 S.Ct. 658 at 663 (1923). 46. Ibid., 262 U.S. 553 at 600–01, 43 S.Ct. 658 at 666. 47. Pennsylvania v. New Jersey, 426 U.S. 660 at 666, 96 S.Ct. 2333 at 2337 (1976). 48. Ibid., 426 U.S. 660 at 665, 96 S.Ct. 2333 at 2336. 49. Oklahoma v. Arkansas, 439 U.S. 1812, 99 S.Ct. 71 (1978). 50. Oklahoma v. Arkansas, 469 U. S. 1101, 105 S.Ct. 770 (1985). 51. “The Original Jurisdiction of the United States Supreme Court,” p. 674. 52. Consult Joseph F. Zimmerman, Interstate Economic Relations (Albany: State University of New York Press, 2004). 53. Tax Reform Act of 1976, 90 Stat. 1914, 15 U.S.C. §391, and United States Constitution, Art. I, §8; Art. IV, §2; Art. VI; and Fourteenth Amendment. 54. Connecticut et al. v. New Hampshire. Answer of Defendant State of New Hampshire, March 24, 1992. 55. Connecticut, Massachusetts, and Rhode Island v. New Hampshire, 502 U.S. 1069, 112 S.Ct. 962 (1992), and 503 U.S. 1002, 112 S.Ct. 1756 (1992). 56. Ibid., 504 U.S. 983, 112 S.Ct. 2961 at 2962 (1992). 57. Connecticut, Massachusetts, and Rhode Island: Report of the Special Master, December 30, 1992, p. 16.

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58. Ibid., p. 17. 59. Connecticut, Massachusetts, and Rhode Island v. New Hampshire, 507 U.S. 1026, 113 S.Ct. 1837 (1993). 60. Telephone interview with New Hampshire Senior Assistant Attorney General Harold T. Judd, October 22, 1993. 61. Ibid. 62. Alabama v. Arizona, 291 U.S. 286 at 292, 545 S.Ct. 399 at 402 (1934). 63. Ibid. 64. Ibid., 291 U.S. 286 at 290, 545 S.Ct. 399 at 401. 65. Ibid. 66. Massachusetts v. Missouri, 308 U.S. 1, 60 S.Ct. 39 (1939). 67. Ibid., 308 U.S. 1 at 15, 60 S.Ct. 39 at 42. 68. Submerged Lands Act of 1953, 67 Stat. 30, 43 U.S.C. §1311(a). 69. Alabama v. Texas and Rhode Island v. Louisiana, 347 U.S. 272, 74 S.Ct. 481 (1954). 70. Ibid., 374 U.S. 272 at 281, 74 S.Ct. 481 at 486. 71. Delaware v. New York, 385 U.S. 895, 87 S.Ct. 198 (1966). 72. Texas v. Florida, 306 U.S. 398, 59 S.Ct. 830 (1939). 73. California v. Texas, 437 U.S. 601, 98 S.Ct. 3107 (1978). 74. California v. Texas, 457 U.S. 164, 102 S.Ct. 2335 (1982). 75. Ibid., 457 U.S. 164 at 169, 102 S.Ct. Ct. 2335 at 2338. 76. California v. Texas, 454 U.S. 886, 102 S.Ct. 378 (1981). 77. Ohio v. Wyandotte Chemicals Corporation, 401 U.S. 493 at 499, 91 S.Ct. 1005 at 1010 (1971); Arizona v. New Mexico 425 U.S. 794 at 796, 96 S.Ct. 1845 at 1847 (1976); California v. West Virginia, 454 U.S. 127, 102 S.Ct. 561 (1981); and Louisiana v. Mississippi, 488 U.S. 990, 109 S.Ct. 551 (1988). 78. California v. West Virginia, 454 U.S. 1027, 102 S.Ct. 561(1981). 79. Ibid., 454 U.S. 1027–028, 102 S.Ct. 561–62. 80. Arizona v. New Mexico, 425 U.S. 794 at 797, 96 S.Ct. 1845 at 1847(1976). 81. Federal Interpleader Act of 1948, 62 Stat. 931, 28 U.S.C. §1335. 82. Cory v. White, 457 U.S. 85 at 89, 102 S.Ct. 2325 at 2328 (1981). 83. California v. Texas, 457 U.S. 164 at 165, 102 S.Ct. 2335 at 2336 (1982). See also California v. Texas, 459 U.S. 1096, 103 S.Ct. 714 (1983). 84. California V. Texas, 457 U.S. 164 at 170–71, 102 S.Ct. 2335 at 2338–339. 85. Louisiana v. Mississippi, 488 U.S. 990, 109 S.Ct. 551 (1988). 86. Ibid.

182

Notes to Chapter 3 87. Ibid. 88. McKusick, “Discretionary Gatekeeping,” p. 202. 89. Ibid. 90. Chisholm v. Georgia 2 U.S. 419, 2 Dall. 419 (1799). 91. Kentucky v. Dennison 65 U.S. 66 at 107, 24 How. 66 at 107 (1860).

92. Virginia v. West Virginia, 246 U.S. 565 at 600 and 605, 38 S.Ct. 400 at 405 and 407 (1918). 93. Ibid., 246 U.S. 565 at 605, 38 S.Ct. 400 at 407. 94. “The Original Jurisdiction of the United States Supreme Court,” p. 693. 95. Rhode Island v. Massachusetts, 37 U.S. 657 at 751, 12 Pet. 657 at 751 (1838). 96. Pacific State Telephone and Telegraph Company v. Oregon, 223 U.S. 118, 32 S.Ct. 224 (1912). 97. New York v. New Jersey, 256 U.S. 196 at 313, 41 S.Ct. 492 at 498 (1921). 98. Texas v. Florida, 306 U.S. 398 at 428, 55 S.Ct. 563 at 577 (1939). 99. Virginia v. West Virginia, 246 U.S. 565 at 601–05, 38 S.Ct. 400 at 405–08 (1918).

CHAPTER 3 1. New Hampshire v. Maine, 426 U.S. 363 at 366, 96 S.Ct. 2113 at 2116 (1976). 2. James S. Degraw, “Rule 53, Inherent Powers, and Institutional Reform: The Lack of Limits on Special Masters,” New York University Law Review 66, June 1991, pp. 800–49, and Linda J. Silberman, “Masters and Magistrates Part II: The American Analogue,” New York University Law Review 50,1975, pp. 1322–372. 3. Anne-Marie C. Carstens, “Lurking in the Shadows of Judicial Process: Special Masters in the Supreme Court’s Original Jurisdiction Cases,” Minnesota Law Review 86, February 2002, pp. 625–715. This chapter draws heavily upon Carstens’ article. For information on special masters in other courts, consult Wayne D. Brazil, “Special Masters in Complex Cases: Extending the Judiciary or Reshaping Adjudication?” University of Chicago Law Review 53, Spring 1986, pp. 394–423. 4. Tony Mauro, “Mastering the Court,” Legal Times 26, September 29, 2003, p. 8. 5. Carstens, “Lurking in the Shadows of Judicial Process,” p. 642. See also Vanstophorst v. Maryland, 2 U.S. 401, 2 Dall. 401 (1791). 6. Georgia v. Brailsford et al., 3 U.S. 1, 3 Dall. 1 (1794). 7. 8 Stat. 58 at 81 (1783). 8. Huger v. South Carolina, 3 U.S. 339 at 341, 3 Dall. 339 at 341 (1797).

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9. Carstens, “Lurking in the Shadows of Judicial Process,” p. 643. See also Missouri v. Iowa, 51 U.S. 1 at 1–2, 10 How. 1 at 1–2 (1850) and Indiana v. Kentucky, 159 U.S. 275 at 277, 16 S.Ct. 320 at 320 (1895). 10. Florida v. Georgia, 58 U.S. 478 at 524, 17 How. 478 at 524 (1854). 11. United States Constitution, Art. I, §10. See also Joseph F. Zimmerman, Interstate Cooperation: Compacts and Administrative Agreements (Westport, CT: Praeger, 2002). 12. Virginia v. West Virginia, 209 U.S. 514 at 535–36, 28 S.Ct. 614 at 614–15 (1908). 13. Ibid., 209 U.S. 514 at 536, 28 S.Ct. 614 at 615. 14. Virginia v. West Virginia, 246 U.S. 565 at 601–02 and 604, 48 S.Ct. 400 at 405–06 (1918). See also Zimmerman, Interstate Cooperation and Joseph F. Zimmerman, Interstate Economic Relations (Albany: State University of New York Press, 2004). 15. Texas v. New Mexico, 462 U.S. 554 at 566, 103 S.Ct. 2558 at 2566 (1983). 16. Carstens, “Lurking in the Shadows of Judicial Process,” p. 644. 17. See, for example, Kansas v. Colorado, 478 U.S. 1018 at 1019,106 S.Ct. 3330 (1986). 18. Missouri v. Iowa, 51 U.S. 1 at 2, 10 How. 1 at 2 (1850). 19. Louisiana v. Mississippi, 278 U.S. 557, 49 S.Ct. 16 (1928). 20. New Jersey v. Delaware, 280 U.S. 529, 50 S.Ct. 151 (1930). 21. Mississippi v. Louisiana, 346 U.S. 862–63, 74 S.Ct. 102 (1953). 22. Arizona v. California, 350 U.S. 812, 76 S.Ct. 43 (1955). 23. Pennsylvania v. New York, 400 U.S. 811, 91 S.Ct. 30 (1970). 24. Kansas v. Colorado, 484 U.S. 910, 108 S.Ct. 254 (1987). 25. Carstens, “Lurking in the Shadows,” pp. 647–48. 26. Colorado v. Kansas, 316 U.S. 645, 62 S.Ct. 1102 (1942). 27. Virginia v. Maryland, 355 U.S. 946, 78 S.Ct. 529 (1958) and New Hampshire v. Maine, 414 U.S. 996, 94 S.Ct. 348 (1973). 28. Nebraska v. Iowa, 379 U.S. 996, 85 S.Ct. 716 (1965); Illinois v. Missouri, 384 U.S. 924, 86 S.Ct. 1440 (1966); Ohio v. Kentucky, 385 U.S. 803, 87 S.Ct. 29 (1966); and Mississippi v. Arkansas, 402 U.S. 926, 91 S.Ct. 1521 (1971). 29. Carstens, “Lurking in the Shadows,” p. 647–48. 30. My research associate, Sesan Badejo, conducted the review. 31. Charles Warren, The Supreme Court in United States History (Boston: Little Brown and Company, 1922). 32. Mauro, “Mastering the Court,” p. 1. 33. Louisiana v. Mississippi, 515 U.S. 22 at 24, 116 S.Ct. 290 at 292 (1995).

184

Notes to Chapter 3 34. Mauro, “Mastering the Court,” p. 10. 35. Grayson v. Virginia, 3 U.S. 320, 3 Dall. 320 (1796). 36. Florida v. Georgia, 58 U.S. 478 at 492, 17 How. 478 at 492 (1854). 37. Texas v. New Mexico, 344 U.S. 906, 73 S.Ct. 326 (1952). 38. New Jersey v. New York, 513 U.S. 924, 115 S.Ct. 309 (1994). 39. Pennsylvania v. West Virginia, 252 U.S. 563 at 564, 40 S.Ct. 347 (1920). 40. New Mexico v. Texas, 266 U.S. 586 at 586–87, 45 S.Ct. 127 (1924).

41. See for example the 1997 report of special master Paul Verkuil, in New Jersey v. New York, relative to the ownership of Ellis Island in New York harbor. Available at 1997 WL 291594. The reports of the other Supreme Court special masters are available in the court’s library in Washington, DC. 42. Arizona v. California, 348 U.S. 947, 75 S.Ct. 434 (1955). 43. New York v. Illinois, 361 U.S. 927, 80 S.Ct. 364 (1960). 44. Wisconsin v. Illinois, 362 U.S. 957, 80 S.Ct. 875 (1960). 45. Delaware v. New York, 498 U.S. 803, 111 S.Ct. 31 (1990). 46. New Mexico v. Colorado, 364 U.S. 296, 81 S.Ct. 267 (1960), and New Mexico v. Colorado, 268 U.S. 108, 45 S.Ct. 388 (1925). 47. New Mexico v. Colorado, 364 U.S. 296, 81 S.Ct. 267 (1960). 48. Mississippi v. Arkansas, 415 U.S. 289 at 292, 94 S.Ct. 1046 at 1048 (1974). 49. Oklahoma v. Arkansas, 469 U.S. 1101, 105 S.Ct. 770 (1985). 50. Wisconsin v. Illinois, 388 U.S. 426, 87 S.Ct. 1774 (1967). 51. Carstens, “Lurking in the Shadows,” p. 654. 52. Benjamin G. Cohen, “Wading through the Procedural Marshes of Original Jurisdiction Guided by the Tidelands Cases: A Trial before the United States Supreme Court,” The American Journal of Trial Advocacy 11, 1987, p. 77. 53. See, for example, Tennessee v. Arkansas, 454 U.S.809, 102 S.Ct. 82 at 83 (1981) holding: “The report and Recommendations of the Special Master are adopted. The Special Master is invited to prepare and submit a proposed decree.” 54. Ohio v. Kentucky, 444 U.S. 335 at 341, 100 S.Ct. 588 at 591 (1980). 55. California v. Nevada, 447 U.S. 125 at 132, 100 S.Ct. 2064 at 2069 (1980). 56. New Mexico v. Texas, 275 U.S. 279 at 287, 48 S.Ct. 126 at 128 (1927). 57. Ibid., 275 U.S. 279 at 288–89, 48 S.Ct. 126 at 129. 58. Kansas v. Missouri, 322 U.S. 213 at 231, 64 S.Ct. 975 at 984 (1944). 59. 3 Stat. 348 (1817) and 5 Stat. 50 (1850). 60. Mississippi v. Arkansas, 415 U.S. 289 at 291–92, 94 S.Ct. 1046 at 1047–048 (1974).

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61. Ibid., 415 U.S. 289 at 296, 94 S.Ct. 1046 at 1049. 62. Ibid., 415 U.S. 289 at 296, 94 S.Ct. 1046 at 1049–050. See also Federal Rule of Civil Procedure 52(a) holding findings of fact made by a district court “shall not be set aside unless clearly erroneous.” 63. Mississippi v. Arkansas, 415 U.S. 289 at 298, 94 S.Ct. 1046 at 1050. 64. California v. Nevada, 447 U.S. 125 at 126, 100 S.Ct. 2064 at 2065 (1980). 65. Ibid. 66. Louisiana v. Mississippi, 454 U.S. 937, 102 S.Ct. 471 (1981). 67. Louisiana v. Mississippi, 466 U.S. 96 at 98, 104 S.Ct. 1645 at 647 (1984). 68. Ibid., 466 U.S. 96 at 106, 104 S.Ct. 1645 at 1651. 69. Oklahoma v. Arkansas, 473 U.S. 610 at 612, 105 S.Ct. 3519 at 3521 (1985). 70. California v. Nevada, 447 U.S. 125, 100 S.Ct. 2064 (1980). 71. Ohio v. Kentucky, 471 U.S. 153, 105 S.Ct. 2011 (1985). 72. Ohio v. Kentucky, 478 U.S. 1002, 106 S.Ct. 3290 (1986). 73. Nebraska v. Iowa, 406 U.S. 117 at 127, 92 S.Ct. 1379 at 1385 (1972). 74. Illinois v. Kentucky, 500 U.S. 380 at 389–90, 111 S.Ct. 1877 at 1884 (1991). 75. Kansas v. Colorado, 533 U.S. 1, 121 S.Ct. 2023 (2001). Congress granted its consent to the compact in 1949. See 63 Stat. 145. 76. Kansas v. Colorado, 533 U.S. 1 at 5–6, 14, 121 S.Ct. 2023 at 2027, 2031. 77. Ibid., 533 U.S. 1 at 20, 121 S.Ct. 2023 at 2035. 78. Ibid., 533 U.S. 1 at 20, 121 S.Ct. 2023 at 2036. 79. For information on the fees of special masters in the lower United States courts, consult David I. Levine, “Calculating Fees of Special Masters,” Hastings Law Journal 37, September 1985, pp. 141–200. 80. Indiana v. Kentucky, 167 U.S. 270, 17 S.Ct. 999 (1897). 81. Ibid. 82. North Dakota v. Minnesota, 263 U.S. 583 at 585, 44 S.Ct. 208 at 209 (1924). 83. Arizona v. California, 354 U.S. 918, 77 S.Ct. 1374 (1957). 84. Indiana v. Kentucky, 167 U.S. 270 at 273–74, 17 S.Ct. 999 (1897). 85. South Carolina v. Baker, 485 U.S. 931, 108 S.Ct. 1103 (1988). 86. Wisconsin v. Illinois, 281 U.S. 696, 50 S.Ct. 331 (1930). 87. Texas v. New Mexico, 354 U.S. 918, 77 S.Ct. 1374 (1957). 88. South Carolina v. Baker, 484 U.S. 973, 108 S.Ct. 482 (1987), and Kansas v. Colorado, 485 U.S. 931, 108 S.Ct. 1103 (1988). 89. Louisiana v. Mississippi, 466 U.S. 921, 104 S.Ct. 1701 (1984), Texas v. New Mexico, 475 U.S. 1004, 106 S.Ct. 1168 (1986), and Texas v. New Mexico, 485 U.S. 953, 108 S.Ct. 1212 (1988).

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Notes to Chapter 4

90. Louisiana v. Mississippi et al., 466 U.S. 921 at 922–23, 104 S.Ct. 1701 at 1702 (1984). 91. Texas v. New Mexico, 475 U.S. 1004, 106 S.Ct. 1168 (1986). 92. Ibid., 475 U.S. 1004 at 1005, 106 S.Ct. 1168 at 1169. 93. Texas v. New Mexico, 485 U.S. 953 at 955, 108 S.Ct. 1212 at 1213 (1988). 94. Mauro, “Mastering the Court,” p. 10. 95. Illinois v. Kentucky, 498 U.S. 803, 111 S.Ct. 31 (1990). 96. Illinois v. Kentucky, 513 U.S. 177, 115 S.Ct. 896 (1995). 97. Mauro, “Mastering the Court,” p. 8. 98. Ibid., p. 10. 99. Ibid. 100. See his dissent in Maryland v. Louisiana, 451 U.S. 725 at 762–63, 101 S.Ct. 2114 at 2137 (1981). 101. Carstens, “Lurking in the Shadows,” p. 668. 102. Ibid. 103. Ibid., pp. 685–703.

CHAPTER 4 1. California v. West Virginia, 454 U.S. 1027, 102 S.Ct. 561 (1981). 2. Kansas v. Colorado, 185 U.S. 125 at 146, 22 S.Ct. 552 at 559 (1902). 3. Kansas v. Colorado, 206 U.S. 46 at 97, 27 S.Ct. 655 at 667 (1907). 4. New Jersey v. Delaware, 291 U.S. 361 at 379, 53 S.Ct. 407 at 413 (1934). 5. Ibid., 291 U.S. 361 at 381–85, 53 S.Ct. 407 at 414–15. 6. Arizona v. California, 292 U.S. 341 at 359–60, 54 S.Ct. 735 at 742 (1934). 7. The Original Jurisdiction of the United States Supreme Court,” Stanford Law Review 11, July 1959, pp. 682–83. 8. Missouri v. Illinois, 200 U.S. 496 at 520, 26 S.Ct. 268 at 269 (1906). 9. Consult Andrew E. Nuquist and Edith W. Nuquist, Vermont State Government and Administration (Burlington: Government Research Center, 1966), p. 2; Keene History Committee, Upper Ashuelot: A History of Keene, New Hampshire (Keene: City of Keene, 1968), p. 30; and Joseph F. Zimmerman, The New England Town Meeting: Democracy in Action (Westport, CT: Praeger, 1999), pp. 83–84. 10. 103 Stat. 1328 (1990). 11. William Yardley, “Line Dispute Would Make Connecticut’s Gain Rhode Islander’s Pain.” The New York Times, April 3, 2004, pp. B1, B5.

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12. Rhode Island v. Massachusetts 37 U.S. 657 at 714, 37 Pet. 657 at 714 (1838). 13. New York v. Connecticut, 4 U.S. 3 at 6, 4 Dall. 3 at 6 (1791). 14. Rhode Island v. Massachusetts 37 U.S. 657, 12 Pet. 657 (1838). 15. Ibid., 37 U.S. 657 at 673, 12 Pet. 657 at 673. 16. Ibid., 37 U.S. 657 at 751, 12 Pet. 657 at 751. 17. Florida v. Georgia, 52 U.S. 293, 11 How. 293 (1850). 18. Florida v. Georgia, 58 U.S. 478 at 482, 17 How. 478 at 482 (1854). 19. Act of March 3, 1845, for Admitting the State of Florida into the Union, 5 Stat. 743 (1845). 20. Florida v. Georgia, 58 U.S. 478 at 495, 17 How. 478 at 495. 21. Ibid., 58 U.S. 478 at 501, 17 How. 478 at 501. 22. Indiana v. Kentucky, 136 U.S. 479 at 508–09, 10 S.Ct. 1051 at 1053 (1890). See also Handly’s Lessee v. Anthony, 18 U.S. 374, 5 Wheat. 374 (1820). 23. Indiana v. Kentucky, 136 U.S. 479 at 515, 10 S.Ct. 1051 at 1056. 24. Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239 (1893). 25. Jenkinson’s Collection of Treaties, pp. 177 and 410, 8 Stat. 80, 208 (1803). 26. Iowa v. Illinois, 147 U.S. 1 at 7–8, 13 S.Ct. 239 at 241. 27. Ibid., 147 U.S. 1 at 13–14, 13 S.Ct. 239 at 244. 28. New Orleans v. United States, 35 U.S. 662 at 717, 10 Pet. 661 at 717 (1836). 29. Missouri v. Nebraska, 196 U.S. 23 at 37, 25 S.Ct. 155 at 158 (1904). 30. 3 Stat. 545 (1820). 31. 5 Stat. 34, 7 Stat. 511 (1836). 32. 5 Stat. 802 (1836). 33. Missouri v. Kansas, 213 U.S. 78 at 85, 29 S.Ct. 417 at 419 (1909). 34. Belding v. Hebard, 43 C.C.A. 296, 103 Fed. 532 (1900). 35. Stevenson et al. v. Fain et al., 53 C.C.A. 467, 116 F. 147 (1902). 36. North Carolina v. Tennessee, 235 U.S. 1 at 13–14, 35 S.Ct. 8 at 14 (1914). 37. 5 Stat. 49 and 5 Stat. 144 (1836). 38. 5 Stat. 10 (1836). 39. Michigan v. Wisconsin, 270 U.S. 295 at 300, 46 S.Ct. 290 at 291 (1926). 40. 5 Stat 244, 5 Stat. 404 at 407. 41. 9 Stat. 85 at 97. 42. 9 Stat. 233. 43. Michigan v. Wisconsin, 270 U.S. 295 at 308, 46 S.Ct. 290 at 294 (1926).

188

Notes to Chapter 4 44. Ibid., 270 U.S. 295 at 315, 46 S.Ct. 290 at 296. 45. Ibid., 270 U.S. 295 at 318, 46 U.S. 290 at 297. 46. United States v. Texas, 162 U.S. 1, 16 S.Ct. 725 (1896). 47. Oklahoma v. Texas, 256 U.S. 70, 41 S.Ct. 420 (1921). 48. Oklahoma v. Texas, 258 U.S. 574 at 580, 42 S.Ct. 406 at 409 (1922). 49. Ibid., 258 U.S. 574 at 592, 602, 42 S.Ct. 406 at 413, 417. 50. Oklahoma v. Texas, 272 U.S. 21 at 48, 47 S.Ct. 9 at 18 (1926). 51. New Mexico v. Texas, 275 U.S. 279 at 287, 48 S.Ct. 126 at 128 (1927). 52. Ibid., 275 U.S. 179 at 303, 48 S.Ct. 126 at 134. 53. Vermont v. New Hampshire, 289 U.S. 593 at 597, 53 S.Ct. 708 at 710 (1933). 54. Ibid., 289 U.S. 593 at 618, 53 S.Ct. 708 at 717.

55. David Gram, “In New England, Good State Borders Make Good Neighbors,” Foster’s Daily Democrat, February 6, 2004 (Internet edition). 56. New Jersey v. Delaware, 280 U.S. 529, 50 S.Ct. 151 (1930). 57. 34 Stat. 394 (1905). 58. New Jersey v. Delaware, 291 U.S. 361 at 378, 54 S.Ct. 407 at 413 (1934). 59. Ibid., 291 U.S. 361 at 384, 54 S.Ct. 407 at 415–16. 60. Kansas v. Missouri, 322 U.S. 213 at 231–32, 64 S.Ct. 975 at 984 (1944). 61. Ohio v. Kentucky, 410 U.S. 641 at 644, 93 S.Ct. 1178 at 1181 (1973). 62. Ibid., 410 U.S. 641 at 649, 93 S.Ct. 1178 at 1183. 63. Handly’s Lessee v. Anthony, 18 U.S. 374, 5 Wheat. 374 (1820). 64. Ibid., 18 U.S. 374 at 379, 5 Wheat. 374 at 379. 65. Ohio v. Kentucky, 410 U.S. 641 at 649, 93 S.Ct.1178 at 1183 (1973). 66. Ibid., 410 U.S. 641 at 652–53, 93 S.Ct. 1178 at 1185. 67. Ibid., 410 U.S. 641 at 655, 93 S.Ct. 1178 at 1186. 68. Ohio v. Kentucky, 444 U.S. 335 at 341, 100 S.Ct. 588 at 591 (1980). 69. Ibid. 70. New Hampshire v. Maine, 414 U.S. 810, 94 S.Ct. 25 (1973). See “New Hampshire Goes to High Court in Lobster Dispute,” The New York Times, June 7, 1973, p. 43. 71. Vermont v. New York, 417 U.S. 270 at 277, 94 S.Ct. 2248 at 2252 (1974). 72. Ibid. 73. New Hampshire v. Maine, 426 U.S. 363 at 369, 96 S.Ct. 2113 at 2117 (1976). 74. Ibid., 426 U.S. 363 at 371, 96 S.Ct. 2113 at 2118. 75. New Hampshire v. Maine, 434 U.S. 1, 98 S.Ct. 42 (1977).

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76. Ibid., 434 U.S. 1 at 4, 98 S.Ct. 42 at 44. 77. New Hampshire v. Maine, 532 U.S. 742 at 754, 121 S.Ct. 1808 at 1817–818 (2001). 78. New Hampshire v. Maine, 533 U.S. 968, 122 S.Ct. 10 (2001). 79. Jennifer L. Saunders, “Maine Tells N.H. to ‘Move on’ in Boundary Dispute,” Foster’s Daily Democrat, May 1, 2003, p. 1. 80. Kenneth E. Thompson, Jr., Deceive to Win: The Maine-New Hampshire Border Controversy (Portland, ME: The Thompson Group, 2003). 81. Nebraska v. Iowa, 143 U.S. 359 at 360, 12 S.Ct. 396 (1892). 82. Ibid., 143 U.S. 359 at 370, 12 S.Ct. 396 at 400. 83. 57 Stat 494, 28 U.S.C. §1251 (1943). 84. Nebraska v. Iowa, 406 U.S. 117 at 124, 92 S.Ct. 1379 at 1384 (1973). 85. California v. Nevada, 447 U.S. 125, 109 S.Ct. 2064 (1980). 86. 12 Stat. 209–10 (1861). 87. California v. Nevada, 447 U.S. 125 at 132, 100 S.Ct. 2064 at 2068. 88. Ibid., 447 U.S. 125 at 133, 100 S.Ct. 2064 at 2069. 89. Louisiana v. Mississippi, 466 U.S. 96 at 106, 104 S.Ct. 1645 at 1651 (1984). 90. Ibid., 466 U.S. 96 at 107–08, 104 S.Ct. 1645 at 1651–652. 91. Houston v. Thomas, 937 F.2d 247 (1991). 92. Louisiana v. Mississippi, 516 U.S. 22 at 25–28, 116 S.Ct. 290 at 292–94 (1995). 93. Illinois v. Kentucky, 500 U.S. 380 at 382–83, 111 S.Ct. 1877 at 1880 (1991). 94. Ohio v. Kentucky, 444 U.S. 335, 100 S.Ct. 588 (1980). 95. Illinois v. Kentucky, 500 U.S. 380 at 384, 111 S.Ct. 1877 at 1881. 96. Ibid., 500 U.S. 380 at 386, 111 S.Ct. 1877 at 1882. 97. Patrick T. Pottola, “Article III, Section 2, Clause 2—Original Jurisdiction of the United States Supreme Court—In an Interstate Boundary Dispute, New Jersey was Granted Sovereign Authority Over the Landfilled Portion of Ellis Island, with New York Retaining Sovereign Authority Over the Original Portion, Pursuant to the Express Terms of the States’ Compact of 1834,” Seton Hall Constitutional Journal 9, Summer 1999, pp. 1113–164. 98. New Jersey v. New York, 523 U.S. 767 at 771–72, 118 S.Ct. 1726 at 1731 (1999). 99. New York Laws of 1800, chap. 6. 100. New York Laws of 1808, chap. 51. 101. New Jersey Laws of 1833–34, pp. 118–21, New York Laws of 1834, chap. 8, and 4 Stat. 708 (1834).

190

Notes to Chapter 5 102. Special master Paul Verkuil’s report is available at WL291594 (Westlaw). 103. New Jersey v. New York, 523 U.S. 767 at 811, 118 S.Ct. 1726 at 1750. 104. New Jersey v. New York, 526 U.S. 589, 119 S.Ct. 1743 (1999).

CHAPTER 5 1. For information on the Virginia Uniform Disposition of Unclaimed Property Act, consult K. Reed Mayo, “Virginia’s Acquisition of Unclaimed and Abandoned Personal Property,” William and Mary Law Review 27, Winter 1986, pp. 409–41. 2. Anderson National Bank v. Luckett, 321 U.S. 233 at 240, 64 S.Ct. 599 at 603 (1944). 3. See, for example, New York Abandoned Property Law, §511. 4. Tennessee Code Annotated, §66–27–113 and 66–29–115(a). 5. For details on the Tennessee unclaimed property laws, consult Joan M. Heminway, “Don’t Cheat: Escheat! What Every Business Lawyer Ought to Know About Tennessee’s Abandoned Property Laws.” Transaction: The Tennessee Journal of Business Law 3, Fall 2001, pp. 7–14. 6. Texas v. New Jersey, 379 U.S. 674, 85 S.Ct. 626 (1965). 7. Ibid., 379 U.S. 674 at 680–81, 85 S.Ct. 626 at 630. 8. Pennsylvania v. New York, 407 U.S. 206, 92 S.Ct. 2075 (1972). 9. Ibid., 407 U.S. 206 at 215–16, 92 S.Ct. 2075 at 2080. 10. Ibid., 407 U.S. 206 at 219–20, 92 S.Ct. 2075 at 2082. 11. Disposition of Abandoned Money Orders and Traveler’s Checks Act of 1974, 88 Stat. 1500, 12 U.S.C. §§2501–503. 12. Delaware v. New York, 507 U.S. 490 at 494, 113 S.Ct. 1550 at 1553 (1993). 13. Ibid., 507 U.S. 490 at 509, 113 S.Ct. 1550 at 1561. 14. Ibid., 507 U.S. 490 at 510, 113 S.Ct. 1550 at 1562. 15. Suellen M. Wolfe, “Escheat and the Concept of Apportionment: A Bright Line Test to Slice a Shadow,” Arizona State Law Journal 27, Spring 1995, p. 176. 16. Ibid., p. 249. 17. Union Refrigerator Transit Company v. Kentucky, 199 U.S. 196 at 204, 26 S.Ct. 36 at 38 (1935), and Frick v. Pennsylvania, 268 U.S. 473 at 488, 45 S.Ct. 603 at 605 (1925). 18. Greenough v. Tax Assessors, 331 U.S. 486 at 493, 67 S.Ct. 1400 at 1403 (1947). 19. Revenue Act of 1926, 44 Stat. 9, 26 U.S.C. §2011. 20. Economic Growth and Tax Relief Reconciliation Act of 2001, 115 Stat. 70–73, 26 U.S.C. §§2001, 2011, 2511, 2631.

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21. Worcester County Trust Company v. Riley, 302 U.S. 292 at 299, 58 S.Ct. 185 at 188 (1937), and Federal Interpleader Act of 1936, 49 Stat. 1096, 28 U.S.C. §1335. 22. Texas v. Florida et al. 306 U.S. 398 at 407–08, 59 S.Ct. 563 at 568 (1939). 23. Ibid., 306 U.S. 398 at 424, 59 S.Ct. 563 at 576. 24. Ibid., 306 U.S. 398 at 431, 59 S.Ct. 563 at 579. 25. Ibid., 306 U.S. 398 at 432–33, 59 S.Ct. 563 at 579. 26. Massachusetts v. Missouri, 308 U.S. 1 at 15, 60 S.Ct. 39 at 42 (1939). 27. Ibid., 308 U.S. 1 at 16–17, 60 S.Ct. 39 at 43. 28. Ibid., 308 U.S. 1 at 17, 60 S.Ct. 39 at 43. 29. Ibid., 308 U.S. 1 at 19–20, 60 S.Ct. 39 at 44. 30. California v. Texas, 437 U.S. 601, 98 S.Ct. 3107 (1978). 31. Ibid. 32. Ibid., 437 U.S. 601 at 605, 98 S.Ct. 3107 at 3110. 33. Ibid., 437 U.S. 601 at 607, 98 S.Ct. 3107 at 3111. 34. Ibid., 437 U.S. 601 at 614, 98 S.Ct. 3107 at 3115. 35. California v. Texas, 457 U.S. 164, 102 S.Ct. 2335 (1982). 36. Ibid., 457 U.S. 164, 102 S.Ct. 2335 (1982). See also Cory v. White, 457 U.S. 85, 102 S.Ct. 2325 (1982). 37. California v. Texas, 457 U.S. 164 at 169, 102 S.Ct. 2325 at 2338. 38. Ibid., 457 U.S. 164 at 170, 102 S.Ct. 2325 at 2338. 39. Ibid., 457 U.S. 164 at 171, 102 S.Ct. 2325 at 2339. 40. Dunlieth & Dubuque Bridge Company v. County of Dubuque, 44 Iowa 558, 8 N.W. 443 (1881). 41. Iowa v. Illinois, 147 U.S. 1 at 8, 13 S.Ct. 239 at 241 (1893). 42. Buttenuth v. Bridge Company, 123 Ill. 535, 17 N.E. 439 (1888). 43. Iowa v. Illinois, 147 U.S. 1 at 10, 13 S.Ct. 239 at 242. 44. Ibid., 147 U.S. 1 at 13, 13 S.Ct. 239 at 244. 45. New Mexico Statutes Annotated, §§72–34–1 et seq. (1975 Supp.). 46. Ibid., §72–16A–16.1B (1975 Supp.). 47. Arizona v. New Mexico, 425 U.S. 794 at 798, 96 S.Ct. 1845 at 1847 (1976). 48. Ibid. 49. Pennsylvania v. New York et al., 426 U.S. 660, 96 S.Ct. 2333 (1976). 50. New Jersey Transportation Benefits Tax Act, New Jersey Laws of 1971, chap. 222, New Jersey Statutes Annotated, §§54:8A et seq. (1976–77 Supp.). 51. Austin v. New Hampshire, 420 U.S. 656, 95 S.Ct. 1191 (1975).

192

Notes to Chapter 5 52. Pennsylvania v. New Jersey, 426 U.S. 660 at 662, 96 S.Ct. 2333 at 2334 (1976). 53. Ibid., 426 U.S. 660 at 664, 96 S.Ct. 2333 at 2335. 54. Ibid., 426 U.S. 660 at 665, 96 S.Ct. 2333 at 2336. 55. Ibid., 426 U.S. 660 at 666, 96 S.Ct. 2333 at 2336. 56. Ibid., 426 U.S. 660 at 666–67, 96 S.Ct. 2333 at 2336–337.

57. Louisiana Laws of 1978, chap. 294, Louisiana Revised Statutes Annotated, §§47:1301–47:1307 (1981 West Supp.). 58. Pennsylvania v. West Virginia, 262 U.S. 553, 43 S.Ct. 658 (1923), and Maryland v. Louisiana, 451 U.S. 725 at 739, 101 S.Ct. 2114 at 2125 (1981). 59. Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385 (1972). 60. Maryland v. Louisiana, 451 U.S. 725 at 741, 101 S.Ct. 2114 at 2126 (1981). 61. Arizona v. New Mexico, 425 U.S. 794 at 797, 96 S.Ct. 1845 at 1847 (1976). 62. Natural Gas Policy Act of 1978, 92 Stat. 3351, 15 U.S.C. §3301, 42 U.S.C. §7255. 63. Maryland v. Louisiana, 451 U.S. 725 at 749, 101 S.Ct. 2114 at 2130. 64. Ibid., 451 U.S. 725 at 757, 101 S.Ct. 2114 at 1234. 65. Ibid., 451 U.S. 725 at 759, 101 S.Ct. 2114 at 2135. For details of subsequent Louisiana proposed hydrocarbon taxes, consult Ernest L. Edwards, Deborah F. Zenner, and B. Richard Moore, Jr., “Constitutional and Policy Implications of Louisiana’s Proposed Environmental Energy Tax: Political Expediency or Effective Regulation?” Tulane Law Review 58, October 1983, pp. 215–98; and James C. Exnicios, “The Louisiana Hydrocarbon Processing Tax,” Louisiana Law Review 61, Summer 2001, pp. 833–59. 66. United States v. Louisiana, 339 U.S. 699 at 706, 70 S.Ct. 914 at 917 (1950). 67. Maryland v. Louisiana, 451 U.S. 725 at 760, 101 S.Ct. 2114 at 2136. 68. Ibid., 451 U.S. 725 at 764–65, 101 S.Ct. 2114 at 2138. 69. Ibid., 451 U.S. 725 at 760, 101 S.Ct. 2114 at 2136. 70. New Hampshire Laws of 1991, chap. 354, New Hampshire Revised Statutes Annotated, chap. 83-D. 71. Tax Reform Act of 1976, 90 Stat. 1914, 15 U.S.C. §391. 72. Connecticut et al. v. New Hampshire: Answer of Defendant State of New Hampshire, March 24, 1992. 73. Connecticut, Massachusetts, and Rhode Island v. New Hampshire, 502 U.S. 1069, 112 S.Ct. 962 (1992). 74. Ibid., 504 U.S. 982, 112 S.Ct. 2961–962 (1992). 75. New Hampshire Statutes Annotated, chap. 77-A, §2 and chap.83-c, §2 (1991 and 1991 Supp.).

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76. New Hampshire Laws of 1991, chap. 354 and New Hampshire Statutes Annotated, chap. 83-D (1991 Supp.). 77. New Hampshire Revised Statutes Annotated, chap. 83D, §9 (1991 Supp.). 78. Ibid., chap. 77-A, §§1–2 (1991 and 1991 Supp.). 79. Ibid., §3(1) (1991 and 1991 Supp.). 80. Connecticut, Massachusetts, and Rhode Island v. New Hampshire: Report of the Special Master, December 30, 1992, p. 11. 81. Answering Brief of New Hampshire Before the Special Master, November 9, 1992, p. 1. 82. Ibid., p. 2. 83. Ibid. 84. Ibid., p. 6. See also New Hampshire Revised Statutes Annotated, chap. 83-C, §2 (1991). 85. Connecticut, Massachusetts, and Rhode Land v. New Hampshire: Report of the Special Master, December 30, 1992, pp. 16–17. 86. Telephone interview with New Hampshire Senior Assistant Attorney General Harold T. Judd, October 22, 1993 (hereinafter referred to as Judd Interview). 87. New Hampshire Laws of 1993, chap. 49, New Hampshire Revised Statutes Annotated, §83-C (1994 Supp.); and Connecticut, Massachusetts, and Rhode Island v. New Hampshire, 507 U.S. 1026, 113 S.Ct. 1837 (1993). 88. Judd Interview. 89. Ibid. 90. Oklahoma Laws of 1986, chap. 43, Oklahoma Statutes Annotated, tit. 45, §§939 and 939.1 (1998 Supp.). 91. Wyoming Statutes, §§39–6–301to 39–6–308 (1990 and 1991 Supp.). 92. Oklahoma Laws of 1985, chap. 1694. 93. Oklahoma Laws of 1986, chap. 43, and Oklahoma Statutes Annotated, tit. 56, §§939 and 939.1 (1988 Supp.). 94. Oklahoma Laws of 1988 chap. 1915. 95. Wyoming v. Oklahoma, 502 U.S. 437 at 446, 112 S.Ct. 789 at 796 (1992). 96. Maryland v. Louisiana, 451 U.S. 725 at 735–36, 101 S.Ct. 2114 at 2123–124 (1981). 97. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2424 (1977). 98. New York v. New Jersey, 256 U.S. 296 at 309, 41 S.Ct. 492 at 496. 99. Pennsylvania v. West Virginia, 262 U.S. 533, 43 S.Ct. 658 (1923). 100. Public Utility Regulatory Practices Act of 1978, 92 Stat. 3117, 16 U.S.C. §824(b)(1).

194

Notes to Chapter 6

101. New England Power Company v. New Hampshire, 455 U.S. 331, 102 S.Ct. 1096 (1982). 102. Wyoming v. Oklahoma, 502 U.S. 437 at 453–54, 112 S.Ct. 789 at 799–800. 103. Ibid., 502 U.S. 437 at 462, 112 S.Ct. 789 at 804. 104. Clark v. Securities Industry Association, 479 U.S. 388 at 394, 399, 207 S.Ct. 750 at 754, 757 (1987). 105. Air Courier Conference v. Postal Workers, 498 U.S. 517 at 528, 111 S.Ct. 913 at 920 (1991). 106. Wyoming v. Oklahoma, 502 U.S. 437 at 477, 112 S.Ct. 789 at 812. 107. Iowa v. Illinois, 147 U.S. 1, 13 S.Ct. 239 (1893).

CHAPTER 6 1. Water Wars (Lexington, KY: The Council of State Governments, 2003). 2. Douglas Jehl, “A New Frontier in Water Wars Emerges in East.” The New York Times, March 3, 2003, pp. 1, A21. See also Freshwater Supply: States’ Views of How Federal Agencies Could Help Them Meet the Challenges of Expected Shortages (Washington, DC: U.S. General Accounting Office, 2003). 3. Water Quality Act of 1965, 79 Stat. 903, 33 U.S.C. §1151. See also Joseph F. Zimmerman, Federal Preemption: The Silent Revolution (Ames: Iowa State University Press, 1991), and Joseph F. Zimmerman, Congressional Preemption: Regulatory Federalism (Albany: State University of New York Press, 2005). 4. Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act of 1990, 104 Stat. 3289. 5. George A. Gould, “A Westerner Looks at Eastern Water Law: Reconsideration of Prior Appropriation in the East.” University of Arkansas at Little Rock Law Review 25, Fall 2002, pp. 89–121. 6. Treaty of May 1, 1888, 25 Stat. 113, and Winters v. United States, 207 U.S. 564, 28 S.Ct. 207 (1908). Consult also Todd A. Fisher, “The Winters of Our Discontent: Federal Reserved Water Rights in the Western States,” Cornell Law Review 69, June 1984, pp. 1077–092. 7. See E. Leif Reid, “Ripples from the Truckee: The Case for Congressional Apportionment of Disputed Interstate Water Rights,” Stanford Environmental Law Journal 14, January 1995, pp. 145–78. 8. Sporhase v. Nebraska, 458 U.S. 941 at 960, 102 S.Ct. 3456 at 3466 (1982). 9. Gladwin Hill, “Western States Fight Hard for Water,” The New York Times, June 9, 1963, p. 6E, and Dean E. Murphy, “Nevada and Part of California May Face Water Shortages,” The New York Times, December 12, 2003, p. A36. 10. Arizona v. California et al., 296 U.S. 552, 56 S.Ct. 303 (1935).

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11. Ibid., 296 U.S. 558 at 559, 56 S.Ct. 848 at 849 (1936). 12. Ibid., 296 U.S. 558 at 559–60, 56 S.Ct.848 at 849–50, and Boulder Canyon Project Act of 1928, 45 Stat. 1057, 43 U.S.C. §§617–617t. 13. Consult Zachary L. McCormick, “The Use of Interstate Compacts to Resolve Trans-boundary Water Allocation Issues.” (Stillwater: Unpublished PhD diss., Okalahoma State University, 1994). 14. Arizona v. California, 283 U.S. 423, 51 S.Ct. 522 (1931). 15. Arizona v. California et al., 298 U.S. 558 at 571, 56 S.Ct. 848 at 855 (1935). 16. See Heather R. Brinton, “Arizona v. California: Riding the Wave of Federal Riparianism.” Villanova Environmental Law Journal 13, 2002, pp. 59–92. 17. Arizona v. California, 373 U.S. 546 at 594, 83 S.Ct.1468 at 1494–495 (1963). 18. David J. Guy, “When the Law Dulls the Edge of Chance: Transferring Upper Basin Water to the Lower Colorado River Basin,” Utah Law Review 1, Spring 1991, pp. 25–54, and Eric L. Garner and Michelle Ouellette, “Future Shock? The Law of the Colorado River in the Twenty-First Century,” Arizona State Law Journal 27, Summer 1995, pp. 469–506. 19. Brinton, “Arizona v. California: Riding the Wave of Federal Riparianism.” 20. Nebraska v. Wyoming, 325 U.S. 589, 65 S.Ct. 1332 (1945). 21. Colorado-Nebraska Interstate Water Compact of 1926, 44 Stat. 195, and Wyoming v. Colorado, 259 U.S. 496, 42 S.Ct. 594 (1922). 22. Nebraska v. Wyoming et al., 3225 U.S. 589 at 616, 65 S.Ct. 1332 at 1350 (1945). 23. Ibid., 325 U.S. 589 at 621–57, 65 S.Ct. 1332 at 1352–368. 24. Ibid., 325 U.S. 589 at 657–58, 65 S.Ct. 1332 at 1369–370. 25. Ibid., 325 U.S. 589 at 671–72, 65 S.Ct. 1332 at 4 (1945). 26. Nebraska v. Wyoming, 345 U.S. 981, 73 S.Ct. 1041 (1953). 27. Nebraska v. Wyoming and Colorado, 507 U.S. 584 at 592, 113 S.Ct. 1689 at 1695 (1993). 28. Ibid., 507 U.S. 584 at 595, 113 S.Ct. 1689 at 1697. 29. Ibid., 507 U.S. 584 at 602, 113 S.Ct. 1689 at 1701. 30. Ibid., 515 U.S.1, 115 S.Ct. 1933 (1995). 31. Ibid., 515 U.S. 1 at 10, 115 S.Ct. 1933 at 1940. 32. Ibid., 515 U.S. 1 at 22, 115 S.Ct. 1933 at 1945. 33. Ibid., 515 U.S. 1 at 28, 115 S.Ct. 1933 at 1948. 34. Nebraska v. Wyoming and Colorado, 534 U.S. 40 at 42, 122 S.Ct. 420 at 421 (2001). 35. Pecos River Compact, 63 Stat. 159 (1949).

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36. Texas v. New Mexico, 421 U.S. 927, 95 S.Ct. 1652 (1975), and Texas v. New Mexico, 423 U.S. 942, 96 S.Ct. 351 (1975). 37. Ibid., 462 U.S. 554 at 564,103 S.Ct. 2558 at 2565 (1983). 38. Upper Colorado River Compact, 63 Stat. 31 at 35–37 (1949), Arkansas River Compact, 63 Stat. 145 at 149–50 (1949), and Yellowstone River Compact, 65 Stat. 663 at 665–66 (1951). 39. Texas v. New Mexico, 446 U.S. 540, 100 S.Ct. 2911 (1980). 40. Texas v. New Mexico, 462 U.S. 554 at 565, 103 S.Ct. 2558 at 2566 (1983). 41. Ibid., 462 U.S. 554 at 566, 103 S.Ct. 2558 at 2566. 42. Ibid., 462 U.S. 554 at 568–69, 103 S.Ct. 2558 at 2567. 43. Ibid., 462 U.S. 554 at 571, 103 S.Ct. 2558 at 2569. 44. Ibid., 467 U.S. 1238, 104 S.Ct. 3505 (1984). 45. Ibid., 482 U.S. 124 at 128, 107 S.Ct. 2279 at 2283 (1987). 46. Ibid., 482 U.S. 124 at 129, 107 S.Ct. 2279 at 2284. 47. Ibid., 482 U.S. 124 at 130–31, 107 S.Ct. 279 at 2284–285. 48. Ibid., 482 U.S. 124 at 133, 107 S.Ct. 2279 at 2287. 49. Ibid., 482 U.S. 124 at 134, 107 S.Ct. 2279 at 2287–288. 50. Ibid., 485 U.S. 388, 108 S.Ct. 1201 (1988). 51. Ibid., 485 U.S. 388 at 391, 108 S.Ct. 1201 at 1202–203. 52. Ibid., 485 U.S. 388 at 904, 108 S.Ct. 1201 at 1204. 53. Canadian River Compact of 1952, 66 Stat. 74 (1952). 54. Oklahoma and Texas v. New Mexico, 501 U.S. 221 at 227, 111 S.Ct. 2281 at 285 (1991). 55. Ibid., 501 U.S. 221 at 228–29, 111 S.Ct. 2281 at 2286. 56. Ibid., 501 U.S. 221 at 229. 111 S.Ct. 2281 at 2286. 57. Ibid., 501 U.S. 221 at 229–30, 111 S.Ct. 2281 at 2286. 58. Ibid., 501 U.S. 221 at 233, 111 S.Ct. 2281 at 2288. 59. Ibid., 501 U.S. 221 at 237, 111 S.Ct. 2281 at 2290. 60. Ibid., 501 U.S. 221 at 242–43, 111 S.Ct. 2281 at 2293. 61. Ibid., 501 U.S. 221 at 245, 111 S.Ct. 2281 at 2294. 62. Ibid., 501 U.S. 221 at 250, 111 S.Ct. 2281 at 2297. 63. Arkansas River Compact of 1949, 63 Stat. 145. 64. Kansas v. Colorado, 206 U.S. 46 at 114–17, 27 S.Ct. 655 at 674–76 (1907). 65. Ibid., 320 U.S.383 at 400, 64 S.Ct. 176 at 184 (1943). 66. Ibid., 475 U.S. 1079, 106 S.Ct. 1454 (1986).

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67. Ibid., 514 U.S. 673 at 685, 115 S.Ct. 1733 at 1743 (1995). 68. Ibid., 514 U.S. 673 at 687, 115 S.Ct. 1733 at 1742. 69. Ibid., 514 U.S. 673 at 689, 115 S.Ct. 1733 at 1743. 70. Ibid., 514 U.S. 673 at 693, 115 S.Ct. 1733 at 1745. 71. Ibid., 522 U.S. 1073, 118 S.Ct. 849 (1998). 72. Ibid., 533 U.S. 1 at 9, 121 S.Ct. 2023 at 2029 (2001). 73. Ibid., 533 U.S. 1 at 10–11, 121 S.Ct. 2023 at 2029–030. 74. Ibid., 533 U.S. 1 at 16, 121 S.Ct. 2023 at 2032. 75. Ibid., 533 U.S. 1 at 19, 121 S.Ct. 2023 at 2034. 76. Ibid., 533 U.S. 1 at 23–24, 121 S.Ct.2023 at 2036. 77. Ibid., 125 S.Ct. 526 at 534, 160 L.Ed.2d 418 (2004). 78. Ibid., 125 S.Ct. 526 at 536. 79. Kansas v. Colorado, 185 U.S. 125 at 147, 22 S.Ct. 552 at 560 (1902). 80. Wyoming v. Colorado, 259 U.S. 419 at 456, 42 S.Ct. 552 at 554 (1922). 81. The Act of July 26, 1866, 14 Stat. 251. 82. Wyoming v. Colorado, 259 U.S. 419 at 463, 42 S.Ct. 552 at 557. 83. Ibid., 259 U.S. 419 at 470, 42 S.Ct. 552 at 559. 84. Ibid., 259 U.S. 419 at 496, 42 S.Ct. 552 at 594 (1922). 85. Sanitary District of Chicago v. United States, 266 U.S. 405, 45 S.Ct.176 (1925). 86. Wisconsin et al. v. Illinois, 278 U.S. 367 at 416–17, 49 S.Ct. 163 at 171 (1929). 87. Ibid., 278 U.S. 367 at 420, 49 S.Ct. 163 at 172. 88. Ibid., 281 U.S. 696, 50 S.Ct. 331 (1930). 89. Connecticut v. Massachusetts, 282 U.S. 660 at 668, 51 S.Ct. 286 at 289 (1931). 90. New Jersey v. New York, 283 U.S. 336 at 341, 51 S.Ct. 478 at 479 (1931). 91. Ibid., 283 U.S. 336 at 341, 51 S.Ct. 478 at 479. 92. Ibid., 283 U.S. 336 at 345, 51 S.Ct. 478 at 480. 93. Ibid., 283 U.S. 336 at 346–47, 51 S.Ct. 478 at 481. The decree was issued on May 25, 1931. See New Jersey v. New York, 283 U.S. 805, 51 S.Ct. 562. 94. New Jersey v. New York, 347 U.S. 995, 74 S.Ct. 842 (1954). 95. Delaware River Basin Compact of 1961, 75 Stat. 688. 96. Maryland-Virginia Interstate Compact of 1785, art. VII. 97. Act of March 3, 1879, 20 Stat. 482. 98. Wharton v. Wise, 153 U.S. 155 at 173, 14 S.Ct. 783 at 801(1894). 99. Virginia v. Maryland, 355 U.S. 269, 78 S.Ct. 327 (1957).

198

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100. Potomac River Compact of 1958, Maryland Laws of 1959, chap. 269, Virginia Acts of 1959, chap. 28, and 76 Stat. 797 (1962). 101. Virginia v. Maryland, 530 U.S. 1201, 120 S.Ct. 2192 (2000), and Virginia v. Maryland, 531 U.S. 922, 121 S.Ct. 294 (2000). 102. Maryland Laws of 1933, chap. 526, §§4–5, and Maryland Environmental Code Annotated, §§501 et seq. 103. Maryland Laws of 2000, chap. 557, §1(b)(2)(ii). 104. Virginia v. Maryland, 540 U.S. 56 at 64, 124 S.Ct. 598 at 604 (2003). 105. Ibid., 540 U.S. 56 at 73, 124 S.Ct. 598 at 609. 106. Ibid., 540 U.S. 56 at 81 124 S.Ct. 598 at 613. 107. Republican River Compact, 57 Stat. 86 (1943). See also the Congressional Record, April 2, 1941, pp. 3285–286. 108. Kansas v. Nebraska, 1998 WL 34081084. 109. Kansas v. Nebraska, 538 U.S. 720, 123 S.Ct. 1898 (2003). 110. “Court OKs Republican River Settlement,” Press & Dakotan (Yankton, SD), May 20, 2003. p. 1. 111. Water Quality Act of 1965, 79 Stat. 903, 33 U.S.C. §1151. 112. Zimmerman, Congressional Preemption. 113. Wisconsin et al. v. Illinois, 278 U.S. 367, 49 S.Ct. 163 (1929). 114. Missouri v. Illinois and the Sanitary District of Chicago, 180 U.S. 208 at 248, 21 S.Ct. 331 at 346 (1901). 115. Ibid., 200 U.S. 496 at 518, 26 S.Ct. 268 (1906). 116. Ibid., 200 U.S. 496 at 521–22, 26 S.Ct. 268 at 270. 117. Ibid., 200 U.S. 496 at 525, 26 S.Ct. 268 at 271–72. 118. New York v. New Jersey, 256 U.S. 296 at 304, 41 S.Ct. 492 at 494 (1921). 119. Ibid., 256 U.S. 296 at 312–13, 41 S.Ct. 492 at 497–98. 120. Illinois v. City of Milwaukee et al., 406 U.S. 91 at 98, 92 S.Ct. 1385 at 1390 (1972). 121. Ibid., 406 U.S. 91 at 104, 107, 92 S.Ct. 1385 at 1393, 1395. 122. Bill Kovach, “Vermont Seeks Ruling Against New York and Paper Mill on Champlain Pollution,” The New York Times, December 6, 1979, p. 62. 123. Vermont v. New York, 417 U.S. 270 at 271, 94 S.Ct. 2248 at 2250 (1974). 124. Ibid., 417 U.S. 270 at 277, 94 S.Ct. 2248 at 2252. 125. Ibid., 417 U.S. 270 at 277–78, 94 S.Ct. 2248 at 2252. 126. Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 33 U.S.C. §1251.

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127. Arkansas et al. v. Oklahoma et al., 908 F.2d 595 (1990). 128. Ibid., 499 U.S. 946, 111 S.Ct. 1412 (1991). 129. Ibid., 503 U.S. 91 at 104, 107, 112 S.Ct. 1046 at 1056–057 (1992). 130. Ibid., 503 U.S. 91 at 107, 112 S.Ct. 1046 at 1057.

CHAPTER 7 1. Louisiana v. Texas et al., 176 U.S. 1 at 22–23, 20 S.Ct. 251 at 258–59 (1900). 2. Ibid., 176 U.S. 1 at 25, 20 S.Ct. 251 at 259. 3. California v. Texas, 454 U.S. 886, 102 S.Ct. 378 (1981). 4. North Carolina Laws of 1849, chap. 82. 5. North Carolina Laws of 1866, chap.106. 6. South Dakota v. North Carolina, 192 U.S. 286 at 312, 24 S.Ct. 269 at 273 (1904). 7. Ibid., 192 U.S. 286 at 321–22, 24 S.Ct. 269 at 277. 8. Ibid., 192 U.S. 286 at 328, 24 S.Ct. 269 at 279–80. 9. 12 Stat. 633 (1862) and 13 Stat. 731 (1863). 10. Virginia v. West Virginia, 206 U.S. 290 at 322, 27 S.Ct. 732 at 741 (1907). 11. Ibid., 209 U.S. 514 at 535–36, 28 S.Ct. 614–15 (1908). 12. Ibid., 220 U.S. 1, 31 S.Ct. 330 (1911). 13. Ibid., 222 U.S. 17, 32 S.Ct. 4 (1911). 14. Ibid., 231 U.S. 89, 34 S.Ct. 29 (1913). 15. Ibid., 234 U.S. 117 at 122, 34 S.Ct.889 at 891 (1915). 16. Ibid., 246 U.S. 565 at 594–95, 38 S.Ct. 400 at 403 (1918). 17. Ibid., 246 U.S. 565 at 601, 38 S.Ct. 400 at 406. 18. Ibid., 246 U.S. 565 at 605, 38 S.Ct. 400 at 406–07. 19. 45 Stat. 1084 (1929). 20. Alabama v. Arizona et al., 291 U.S. 286 at 290, 54 S.Ct. 399 at 401 (1934). 21. Ibid., 291 U.S. 186 at 291, 54 S.Ct. 399 at 402. 22. West Virginia Acts of 1919, chap. 71. 23. Pennsylvania v. West Virginia, 262 U.S. 553 at 597, 43 S.Ct. 658 at 665 (1923). 24. Ibid., 262 U.S. 553 at 607–23, 43 S.Ct. 658 at 668–74. 25. William B. Munro, The Government of the United States, 4th ed. (New York: The Macmillan Company, 1937), pp. 156–63.

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26. See C. Vann Woodward, Reunion and Reason: The Compromise and the End of Reconstruction (New York: Doubleday and Company, 1951), and Paul L. Haworth, “The Hayes-Tilden Disputed Presidential Election of 1876,” PhD diss., 1906. Published in 1966 by Russell & Russell Publishers (New York). 27. Richard Claude, The Supreme Court and the Electoral Process (Baltimore: The Johns Hopkins Press, 1970), p. 232. 28. Electoral Count Act of 1887, 24 Stat. 373, 3 U.S.C. §5. 29. Ibid., 62 Stat. 673, 3 U.S.C. §5. 30. Sanders v. Gray, 372 U.S. 368, 83 S.Ct. 801 (1963). 31. Delaware v. New York, 385 U.S. 895, 87 S.Ct. 198 (1966). See also Claude, The Supreme Court and the Electoral Process, pp. 142–50. 32. Idaho v. Oregon and Washington, 429 U.S. 163, 97 S.Ct. 544 (1976). 33. 40 Stat. 515 (1918). 34. Idaho v. Oregon and Washington, 444 U.S. 380, 100 S.Ct. 616 (1980). 35. Ibid., 444 U.S. 380 at 392, 100 S.Ct. 616 at 623. 36. Kansas v. Colorado, 206 U.S. 46 at 98, 27 S.Ct. 655 at 677 (1907). 37. Ibid., 206 U.S. 46 at 97–98, 27 S.Ct. 655 at 667–68. 38. Idaho v. Oregon and Washington, 462 U.S. 1017 at 1025, 103 S.Ct. 2817 at 2823 (1983). 39. Ibid. 40. Ibid., 462 U.S. 1017 at 1028, 103 S.Ct. 2817 at 2825. 41. Ibid., 462 U.S. 1017 at 1030, 103 S.Ct. 2817 at 2826. 42. Ibid., 462 U.S. 1017 at 1035, 103 S.Ct. 2817 at 2828, 2829. 43. Ibid., 462 U.S. 1017 at 1038, 103 S.Ct. 2817 at 2830. See Evans v. Oregon, 444 U.S. 380 at 390, 100 S.Ct. 616 at 622 (1980).

CHAPTER 8 1. Texas v. New Mexico, 462 U.S. 554 at 576, 103 S.Ct. 2558 at 2571 (1983). 2. Kansas v. Missouri, 322 U.S. 213 at 231, 64 S.Ct. 975 at 984 (1944), and Louisiana v. Mississippi, 515 U.S. 22 at 24, 116 S.Ct. 290 at 292 (1995). 3. Anne-Marie C. Carstens, “Lurking in the Shadows of Judicial Process: Special Masters in the Supreme Court’s Original Jurisdiction Cases,” Minnesota Law Review 86, February 2002, p. 685. 4. Ibid., p. 686. 5. Vincent L. McKusick, “Discretionary Gatekeeping: The Supreme Court’s Management of Its Original Jurisdiction Docket Since 1961,” Maine Law Review 45, no. 2, 1993, p. 188.

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6. Ibid., pp. 188–89. 7. Ohio v. Wyandotte Chemicals Corporation, 401 U.S. 493 at 504–05, 91 S.Ct.1005 at 1013 (1971). Ohio had sought the court’s permission to file a bill of complaint seeking to invoke the court’s original jurisdiction. The court opined it had original jurisdiction under the U.S. Constitution to abate the alleged water pollution nuisance, but declined to invoke it because the issues basically involved local law and numerous regulatory agencies were engaged in the dispute and the court lacked expertise regarding the complex technical factual questions in the case. 8. Carstens, “Lurking in the Shadows, p. 700. 9. Ibid., p. 702. 10. Judiciary Act of 1789, 1 Stat. 73 at 900–91, 28 U.S.C. §1251(a). For details, consult Wythe Holt, “To Establish Justice: Politics, the Judiciary Act of 1789, and the Invention of Federal Courts,” Duke Law Journal 1989, December 1989, pp. 1421–531. 11. Ames v. Kansas, 111 U.S. 449 at 469, 4 S.Ct. 437 at 447 (1884). The reference to “the practical construction put on this provision of the Constitution by Congress” refers to the Judiciary Act of 1789, 1 Stat. 73. 12. Illinois v. Milwaukee, 406 U.S. 91 at 95, 97, 92 S.Ct. 1385 at 1389–390 (1972). See also Missouri v. Illinois, 180 U.S. 208, 21 S.Ct. 331 (1901), and New York v. New Jersey, 256 U.S. 296, 41 S.Ct. 492 (1921). 13. Illinois v. Milwaukee, 406 U.S. 91 at 97, 92 S.Ct. 1385 at 1390. 14. Ibid., 406 U.S. 91 at 103, 92 S.Ct. 1385 at 1392. 15. Ibid., 406 U.S. 91 at 104, 92 S.Ct. 1385 at 1393. 16. Ibid., 406 U.S. 91 at 107, 92 S.Ct. 1385 at 1395. 17. Maryland v. Louisiana, 451 U.S. 725 at 762–63, 101 S.Ct. 2114 at 2137 (1987). 18. McKusick, “Discretionary Gatekeeping,” p. 193. 19. James E. Pfander, “Rethinking the Supreme Court’s Original Jurisdiction in State-Party Cases,” California Law Review 82, May 1994, p. 654. 20. Ibid., p. 657. 21. Carstens, “Lurking in the Shadows,” p. 685. 22. Ibid., pp. 694–95. 23. Ibid., pp. 687–88. 24. Federal Court Improvements Act of 1982, 96 Stat. 25, 28 U.S.C. §41. 25. Carstens, “Lurking in the Shadows,” pp. 688–95. See also Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York: The Macmillan Company, 1928), p. 151. 26. Jonathan Turley, “Unpacking the Court: The Case for the Expansion of the United States Supreme Court in the Twenty-First Century,” Perspectives on Political Science 33, Summer 2004, p. 138.

202

Notes to Chapter 8 27. The Federalist Papers (New York: New American Library, 1961), pp. 267–68.

28. Consult Joseph F. Zimmerman, Congressional Preemption: Regulatory Federalism (Albany: State University of New York Press, 2005). 29. Virginia v. West Virginia, 246 U.S. 565 at 601–05, 38 S.Ct. 400 at 405–408 (1918). 30. Arizona v. California, 298 U.S. 558 at 569, 56 S.Ct. 848 at 854 (1936). 31. Quill Corporation v. North Dakota, 504 U.S. 298, 112 S.Ct. 1904 (1992). 32. Missouri v. Illinois, 200 U.S. 496 at 518–19, 26 S.Ct. 268 at 269 (1906). 33. Texas v. Florida, 306 U.S. 398 at 428, 59 S.Ct. 563 at 577 1939). 34. Consult Joseph F. Zimmerman, Interstate Economic Relations (Albany: State University of New York Press, 2004). 35. Copyright Act of 1790, 1 Stat. 124, 17 U.S.C. §101 and Patent Act of 1790, 1 Stat. 109, 35 U.S.C. §1. 36. The Act to Regulate Commerce of 1887, 24 Stat. 379. 37. Zimmerman, Congressional Preemption: Regulatory Federalism. 38. Water Quality Act of 1965, 79 Stat. 903, 33 U.S.C. §1151. 39. Illinois v. Milwaukee, 406 U.S. 91 at 107, 92 S.Ct. 1385 at 1395 (1972). 40. Boulder-Canyon Project Act of 1928, 45 Stat. 1058, 43 U.S.C. §617 and Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act of 1990, 104 Stat. 3289 at 3296. 41. E. Leif Reid, “Ripples from the Truckee: The Case for Congressional Apportionment of Disputed Interstate Water Rights,” Stanford Environmental Law Journal 14, January 1995, p. 179. 42. Gramm-Leach-Bliley Financial Modernization Act of 1999, 113 Stat. 1353, 5 U.S.C. §6701(d)(2)(A). 43. Johnson Act of 1951, 64 Stat. 1134, 15 U.S.C. §1172(a). 44. Consult Joseph F. Zimmerman, Interstate Cooperation: Compacts and Administrative Agreements (Westport, CT: Praeger, 2002). 45. Pennsylvania v. Wheeling & B. Bridge Company, 54 U.S. 518 at 519, 13 How. 518 at 519 (1851). 46. Felix Frankfurter and James Landis, “The Compact Clause of the Constitution—A Study in Interstate Agreements,” Yale Law Journal 34, May 1925, pp. 685–758. 47. Ibid., p. 696. 48. Alice M. Dodd, “Interstate Compacts,” U.S. Law Review 70, October 1936, p. 573. 49. Marshall E. Dimock and George C. S. Benson, Can Interstate Compacts Succeed? (Chicago: University of Chicago Press, 1937), p. 20.

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50. Garland C. Routt, “Interstate Compacts and Administrative Co-operation,” The Annals of the American Academy of Political and Social Science 207, January 1940, p. 101. 51. New Jersey v. New York, 256 U.S. 296 at 313, 41 S.Ct. 492 at 498 (1921). 52. Vermont v. New York, 417 U.S. 270 at 277–78, 94 S.Ct. 2248 at 2252 (1974). 53. Missouri v. Nebraska, 417 U.S. 904, 94 S.Ct. 2599 (1974). 54. New Hampshire v. Maine, 426 U.S. 363, 96 S.Ct. 2113 (1976). Consult also “New Hampshire Goes to High Court in Lobster Dispute,” New York Times, June 7, 1973, p. 43, and “230-Year Border Fight Settled by Maine and New Hampshire,” New York Times, July 11, 1974, p. 18. 55. 95 Stat. 988 (1981). Consult also “North Carolina-South Carolina Seaward Boundary Agreement,” Congressional Record, September 29, 1981, pp. H6667–668. 56. 113 Stat. 1333 (1999) and 114 Stat. 919 (2000). 57. New Jersey v. New York, 283 U.S. 805, 51 S.Ct. 562 (1931). 58. New Jersey v. New York, 347 U.S. 995, 74 S.Ct. 842 (1954). 59. 75 Stat. 688 (1961); Delaware Laws of 1961, Chap. 71; New Jersey Laws of 1961, Chap. 13; New York Laws of 1961, Chap. 148; and Pennsylvania Acts of 1961, Act 268. 60. Jeffrey P. Featherstone, “An Evaluation of Federal-Interstate Compacts as an Institutional Model for Intergovernmental Coordination and Management: Water Resources for Interstate River Basins in the United States,” unpublished PhD diss., Temple University, 1999, p. 84. 61. 84 Stat. 1509 (1971), Maryland Laws of 1967, chap. 391, New York Laws of 1967, chap. 785, and Pennsylvania Acts of 1968, Act 181. 62. Consult William Voigt, Jr., The Susquehanna Compact (New Brunswick, NJ: Rutgers University Press, 1972), and the annual reports of the compact commission. 63. Letter to author from General Counsel Richard A. Cairo of the Susquehanna River Basin Commission dated July 14, 1995, p. 1. 64. Ibid. 65. Joseph W. Girardot, “Toward a Rational Scheme of Interstate Water Compact Adjudication,” University of Michigan Journal of Law Reform 23, Fall 1989, p. 151. 66. “Charting No Man’s Land: Applying Jurisdictional and Choice of Law Doctrines to Interstate Compacts,” Harvard Law Review 111, May 1998, p. 1995. 67. See Donald Axelrod, Shadow Government: The Hidden World of Public Authorities and How They Control over $1 Trillion of Your Money (New York: John Wiley & Sons, 1992), Diana B. Henriques, The Machinery of Greed (Lexington, MA: Lexington Books, 1996), and Jerry Mitchell, ed. Public Authorities and Public Policy: The Business of Government (New York: Greenwood Press, 1992).

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Notes to Chapter 8

68. Consult Edward E. Winders, “Public Authorities in New York State: The Interdependent Governmental Roles of the New York State Thruway Authority,” unpublished PhD diss., Rockefeller College, State University of New York at Albany, 1998, and Wook-Jin Hwang, “Are Public Authorities Accountable and Responsible? A Case Study of the New York State Environmental Facilities Corporation,” unpublished PhD diss., Rockefeller College, State University of New York at Albany, 2004. 69. Texas v. New Mexico, 446 U.S. 540, 100 S.Ct. 2911 (1980). 70. Texas v. New Mexico, 467 U.S. 1238, 104 S.Ct. 3505 (1984). 71. Texas v. New Mexico, 482 U.S. 124 at 129, 107 S.Ct. 2279 at 2284 (1987). The court in 1988 issued an injunction, appointed a river master, and retained jurisdiction. See Texas v. New Mexico, 485 U.S. 388, 108 S.Ct. 1201 (1988). 72. Kansas v. Colorado, 533 U.S. 1, 121 S.Ct. 2023 (2001). 73. Ibid., 533 U.S. 1 at 5–6, 14, 121 S.Ct. 2023 at 2027, 2031. 74. Kansas v. Nebraska, 538 U.S. 720, 123 S.Ct. 1898 (2003). 75. Oklahoma and Texas v. New Mexico, 510 U.S. 126, 114 S.Ct. 628 (1993). In 1952, Congress granted its consent to the Canadian River Compact. 66 Stat.74. 76. Apalachicola-Chattahoochee-Flint River Basins Compact, 111 Stat 2219 (1997). 77. “Memorandum of Understanding Regarding Initial Allocation Formula for the ACF River Basin.” Issued by the office of Governor Jeb Bush of Florida on July 22, 2003. 78. “Riley: Georgia Position Unacceptable,” a press release issued by the office of Governor Bob Riley of Alabama, August 2, 2004, p. 2. 79. Alabama-Coosa-Tallapoosa River Basin Compact, 111 Stat. 2233 (1997). 80. “Riley: Georgia Position Unacceptable,” pp. 1–2. 81. Consult Zimmerman, Interstate Cooperation: Compacts and Administrative Agreements. 82. 116 Stat. 2981 (2002). For the procedures followed by the school district, consult Joseph F. Zimmerman, The New England Town Meeting: Democracy in Action (Westport, CT: Praeger, 1999). 83. Consult Zimmerman, Congressional Preemption: Regulatory Federalism. 84. Paul v. Virginia, 75 U.S. 1, 8 Wall. 1 (1868), and United States v. South-Eastern Underwriters Association, 322 U.S. 533, 64 S.Ct. 1162 (1944). 85. McCarran-Ferguson Act of 1945, 59 Stat. 33, 15 U.S.C. §1011. 86. Gramm-Leach-Bliley Financial Modernization Act of 1999, 113 Stat. 1422, 15 U.S.C. §6751. 87. Consult Joseph F. Zimmerman, “The Interstate Insurance Product Regulation Compact,” a paper presented at a meeting of the National Conference of State Legislatures Executive Committee’s Task Force to Streamline and Simplify Insurance Regulation, New York, March 22, 2003.

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88. Freshwater Supply: States’ Views of How Federal Agencies Could Help Them Meet the Challenges of Expected Shortages (Washington, DC: U.S. General Accounting Office, 2003). GAO has been renamed the Government Accountability Office. 89. Tony Mauro, “Mastering the Court,” Legal Times 26, September 29, 2003, p. 8. 90. Consult Zimmerman, Interstate Cooperation: Compacts and Administrative Agreements.

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Index

Act to Regulate Commerce of 1887, 163 Alabama v. Arizona et al., 36–37, 147–48 Alabama-Coosa-Tallapoosa river basin compact, 170 alternatives to original jurisdiction suits, 41–42, 155–75 Alien Tort Statute, 22 Alves, Gaston M., 56 ambassadors, ministers, and consuls, 16–18 Ames v. Kansas, 158 Apalachicola-Chattahoochee-Flint River Basin Compact, 169–70 appropriateness, 38–40 Arkansas river interstate compact, 54–55, 58, 109, 122 Arizona v. California, 28–29, 48, 50, 110–12, 162 Arizona v. New Mexico, 96–97 Arkansas v. Oklahoma, 140–41 Arkansas river basin compact, 117, 168–69 Arkansas v. Texas, 30 Articles of Confederation and Perpetual Union, 3–5, 7 defects, 5–6 Austin v. New Hampshire, 98 Avalrez-Machain, Humberto, 22 Baiz, Jacob, 20–21 Baldwin, Henry, 63 Benson, George C.S., 165 Black, Hugo L., 91 Black-Jenkins Award, 132

Blackman, Harry, 56–58, 77, 87–88, 99 Blake, Madge B., 92 boulder canyon project act of 1928, 111, 164 Brandeis, Louis, 149 Breitenstein, Jean Sala, 117, 152–53 Brennan, William, 79, 93, 153 Brinton, Heather R., 112 Brutus, 11 Burger, Warren E., 56–57, 101, 173 Bush, Jeb, 170 Cairo, Richard A., 167 California v. Nevada, 51, 53–54, 79–80 California v. Texas, 93–95 California v. Washington, 28 Canadian river compact, 109, 120, 169 Cardozo, Benjamin, 61 Carson, Hampton L., 2 Carstens, Ann-Marie C., 43–44, 47, 51, 59, 156–57, 159–61 Carver, John A., Jr., 48 cases, 25 Cavanah, Charles C., 47 Chisholm v. Georgia, 31 Clark, Thomas, 47 Clarke v. Securities Industry Association, 107 Clean Air Act, 164 Clean Water Act, 135, 141, 163–64 Cohens v. Virginia, 26 Colorado v. Kansas, 47 Colorado-Nevada Interstate Compact, 112

227

228

Index

Colorado River Compact of 1922, ?? compact clause, 77 concurrent original jurisdiction, 157–61 congressional encouragement, 171–73 congressional preemption, 161–64 Connecticut v. Massachusetts, 128–29 Connecticut, Massachusetts, and Rhode Island v. New Hampshire, 101–5 constitutional convention, 6–8 ratification campaign, 9–12 constitutional allocation of powers, 12–13 controversies, 25 Cook, Catherine W., 63 cooperative federalism, 2 copyright act of 1790, 163 Cory v. White, 94 criticisms of use of masters, 58–59 Cushing, Caleb, 64–65 Cutter, Richard A., 48 Davis v. Packard et al., 20 deceive to win, 78 decree enforcement, 40–41 Delaware v. New York, 51, 87–88, 107, 149–52 Delaware River Basin Compact, 167 de Ortega, Juan Gualberto, 19 Dimock, Marshall E., 165 Diplomatic relations act of 1978, 17–18 discretionary Original Jurisdiction, 25–42 Disposition of Abandoned Money Orders and Traveler’s Checks Act of 1974, 87 Dodd, Alice M., 165 Doherty, Michael J., 113 Douglas, William O., 37, 53, 75, 139, 158 Dresden Interstate School District, 171 dual federalism, 2 Dunlieth and Dubuque Bridge Company v. County of Dubuque, 96 electoral college, 149–52, 154 Electoral Count Act of 1887, 151

Eleventh Amendment, 32, 34, 39, 123–24, 146 enlargement of the court, 161 escheats, 85–88 estate tax disputes, 89–95 Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act of 1990, 109, 164 Farrand, Max, 8 Federal Interpleader Act of 1948, ?? Federal Interpleader Act of 1936, 89, 93–94 Federal Power Act, 106 federal rules of evidence, ?? federal rules of judicial procedure, 27, 49 Federal Tort Claims Act, 22 Federal Water Pollution Control Act, 139, 159 federalism theories, 2, 174 Federalist papers, 10–12 fees and expenses, 55–58 filing procedure, 27–30 Florida v. Georgia, 44–45, 64–65 Forman, Phillip, 47, 74–75 Fourteenth Amendment, 97 Frankfurter, Felix, 48, 91–92, 161–62, 165 Girardot, Joseph W., 167 Gramm-Leach-Bliley Financial Modernization Act of 1999, 164, 172 Grayson v. Virginia, 49 Green, Edward H., 89–92 Green, John Raeburn, 49–50, 56 Gubitchev, Valentine A., 21 Gustavus V. Menzies, 56 Haight, Thomas G., 46–47 Hamilton, Alexander, 6, 10–11, 16–17 Handly’s Lease v. Anthony, 65, 75 Harlan, John M., 144 Holmes, Oliver Wendell, 34, 129, 136, 162 Hughes, Charles Evans, 47, 56, 127–28 Hughes, Howard, 39, 93–95

Index Hunt v. Washington State Apple Advertising Commission, 106 Idaho v. Oregon and Washington, 152 Illinois v. City of Milwaukee et al., 100, 138–39, 158, 163 Illinois v. Kentucky, 54, 58, 69 Illinois v. Missouri, 47 in re Debs, 31–32 Indiana v. Kentucky, 55–56, 65, 81–82 insurance product regulation compact, 172 interstate common law, 62 interstate compacts, 165–73 interstate and federal-interest water compact disputes, 168 interstate relations, 13–14 interstate water controversies, 109–42 Iowa v. Illinois, 65–66, 95–96, 107 Iowa-Nebraska boundary compact, 65–66 Jackson, Robert H., 15–16 Jasen, Matthew J., 82 Jay, John, 10 Judd, Harold T., 104–5 judicial power of the United States, 25 Judiciary Act of 1789, ix, 17, 19, 22, 26–27, 42 Judiciary Act of 1925, 16 justiciable controversy, 36–38 Kansas v. Colorado, 47, 58, 61, 122–27, 152, 156 Kansas v. Missouri, 74 Kansas v. Nebraska, 134–35, 169 Kennedy, Anthony M., 122, 133–34 Kentucky v. Indiana, 29–30 Lancaster, Ralph I., 48, 58, 133 Landes, James M., 161, 16 Littlefield, Charles E., 45, 146–47 Littleworth, Arthur, 48, 58, 146 Louisiana v. Mississippi, 46, 56–57, 80–81 Louisiana v. Texas et al., 32, 143–45

229

Madden, Joseph W., 47 Madison, James, 7–8, 10, 161 Maggs, Gregory, 48 Marshall, John, 19, 26, 76 Marshall, Thurgood, 95 Maryland v. Louisiana, 99–101, 106 Mason, George, 9 Massachusetts v. Missouri, 32–33, 37, 92–93 Mauro, Tony, 43, 48 McCarran-Ferguson Act of 1945, 172 McCree, Wade H., Jr., 48, 56 McCulloch v. Maryland, 12 McKusick, Vincent L. 35, 40, 48, 58, 102–3, 156–57 Merrill, Stephen E., 104 Michigan v. Wisconsin, 68–69 miscellaneous court decisions, 143–54 Mississippi v. Arkansas, 47, 52–53 Mississippi v. Louisiana, 46 Missouri v. Illinois, 62, 162 Missouri v. Illinois and the sanitary district of Chicago, 136 Missouri v. Kansas, 67 Missouri v. Nebraska, 66–67, 166 Muys, Jerome C., 28 Meyers, Charles J., 53–54, 56, 80–80, 118 National Bank Act of 1864, 20 Natural Gas Policy Act of 1978, 100 Nebraska v. Iowa, 47, 78–79 Nebraska v. Wyoming, 112 New England Power Company v. New Hampshire, 106 New Hampshire v. Louisiana, 30–32 New Hampshire v. Maine, 47, 76 New Jersey v. Delaware, 46, 61, 72–73 New Jersey v. Nevada, ?? New Jersey v. New York, 50, 82–83, 129–31 New Mexico v. Texas, 50, 52, 71 New York v. Connecticut, 28, 63–64 New York v. New Jersey, 106, 137–38, 155–56, 173 North Carolina v. Tennessee, 68

230

Index

O’Connor, Sandra Day, 55, 122, 124, 153, 168–69 Ohio v. Kentucky, 47, 51, 54, 74–75, 82 Oklahoma v. Arkansas, 28 Oklahoma v. New Mexico, 48 Oklahoma v. Texas, 69–70 Oklahoma-Texas interstate boundary compact, 166 Oklahoma and Texas v. New Mexico, 120–22 Olpin, Owen, 116 Oregon-Washington Columbia River Fish Compact, 152 O’Sullivan, Clifford, 51 parens patriae, 31–32, 34, 36, 97, 99, 104, 128 party states, 30–34 patent act of, 1790 Pecos River Compact, 116–18, 155–56 Pennsylvania v. New Jersey et al., 98–99 Pennsylvania v. New York, 47, 86–87 Pennsylvania v. Wheeling and B Bridge Company, 165 Pennsylvania v. West Virginia, 100, 106, 148–49 Perdue, Sonny, 170 Pierce-Atwood, 48, 58 Powell, Lewis F., Jr., 76, 87, 93 pre-constitutional disputes resolution, 2–3 proceedings, 49–55 Quill Corporation v. North Dakota, 162 Rawls, William L., 46, 73 Reed, Stanley F., 47 Rehnquist, William H., 16, 58–59, 76, 87, 95, 101, 107–8, 122, 159 Republican River Compact, 109, 134, 169 Rhode Island v. Massachusetts, 41, 63 Rifkind, Simon H., 46 Riley, Bob, 170 Roberts, Owen J., 113 Roberts, Samuel J., 56 Routt, Garland C., 165

Sanders v. Gray, 151 Scalia, Antonin, 39, 55, 107, 122, 124, 168–69 Seabrook case, 34–36, 101–5 Shays rebellion, 5–6 silence of Congress, 163 Sosa, Jose Francisco, 22 South Dakota v. North Carolina, 145, 153–54 special master, 29, 43–60 origin and appointment, 44–48 proceedings, 49–55 Sporhase v. Nebraska, 110 state boundary disputes, 1 Stevens, John Paul, 39, 77, 88, 93, 95, 97, 133–34, 153 Stewart, Potter, 93–94 Stickley, Amos, 56 Submerged Lands Act of 1953, 37 supreme court rule, 17, 46 Susquehanna River Basin Compact, 167 Taney, Robert F., 26 tax loss suit, 105–7 tax reform act of 1976, 101, 103 taxation controversies, 88–108 Texas v. Florida et al., 89–94 162 Texas v. New Jersey, 29, 85–86 Texas v. New Mexico, 50, 57, 116–20, 155 Texas v. Oklahoma, 48 Textile Workers v. Lincoln Mills, 158 Thomas, Clarence, 107, 115–16, 124, 168–69 Thomas, Joseph C., 51 Treaty of 1763, 95–96 Treaty of 1819, 69–70 Treaty of Paris, 4, 44 Tuttle, Elbert P., 48 Uniform Unclaimed Property Act, ?? United States Supreme Court, 14–16 Upper Colorado River Compact, 117 U.S. Environmental Protection Agency, 135, 140

Index Van Pelt, Robert, 75–76 Verkuil, Paul, 48, 58, 173 Vermont v. New Hampshire, 71–72 Vermont v. New York, 48, 76–77, 139–40 Vienna Convention on Diplomatic Relations, 17 Virginia-Kentucky compact, 7 Virginia v. Maryland, 28, 47, 131–34 Virginia v. West Virginia, 146–47, 154 Warren, Charles, 48, 50 Washington, George, 7 water apportionment, 110–25

231

water diversion, 125–35 water pollution, 135–41 Water Pollution Control Act, 139, 159 Water Quality Act of 1965, 109, 163 Wentworth, Benning, 62 Whitaker, Sam E., 47 White, Byron, 39, 76–77, 88 Winters v. United States, 110 Wisconsin enabling act, 69 Wisconsin v. Illinois, 56, 127–28, 135 Wyoming v. Colorado, 126–27 Wyoming v. Oklahoma, 105–7 Yellowstone River Compact, 117

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POLITICAL SCIENCE

interstate

DISPUTES The Supreme Court’s Original Jurisdiction JOSEPH F. ZIMMERMAN With respect to “controversies between two or more states,” the U.S. Constitution grants original jurisdiction to the U.S. Supreme Court, and in 1789 Congress made exclusive the Court’s jurisdiction over interstate disputes. In this book, Joseph F. Zimmerman examines the role of the Supreme Court in settling disputes between states, the criteria developed by the Court to determine whether its original jurisdiction should be invoked, and the function of special masters, who, as adjuncts to the Court, facilitate negotiated settlements or provide the factual information needed by the Court to render sound decisions. Zimmerman analyzes a wide range of specific disputes, from boundary lines to financial matters to water allocation, diversion, and pollution. To alleviate the Court’s exceptionally heavy and critically important appellate workload, the author proposes alternative mechanisms for resolving controversies between sister states, including interstate boundary compacts, interstate regulatory compacts, and several congressional initiatives. “Zimmerman has done a masterful job of identifying and elaborating upon those interstate disputes that have been most commonly adjudicated by the U.S. Supreme Court, and he also takes note of the rather unique interstate disputes that have been settled by the Court, including matters involving the bonds of one state held by another state, the pre–Civil War debt of Virginia, sale of convict-made articles, state quarantines, and the electoral college voting system. He presents a convincing case for the states to make a stronger effort to negotiate their differences and resolve their disputes by entering into interstate compacts. The book fills a serious void in the literature on interstate relations.” — Nelson Wikstrom, coauthor of American Intergovernmental Relations: A Fragmented Federal Polity JOSEPH F. ZIMMERMAN is Professor of Political Science at the University at Albany, State University of New York. He is the author of many books, including Congressional Preemption: Regulatory Federalism and Interstate Economic Relations, both also published by SUNY Press. State University of New York Press www.sunypress.edu