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City of Newark v. Natural Resource Council

Decided: May 15, 1980.

CITY OF NEWARK, A MUNICIPAL CORPORATION, CITY OF ELIZABETH, A MUNICIPAL CORPORATION, ESTHER G. BERTONI, LOUELLA DEVITA, LOIS BERTONI, LOUIS B. BERTONI; ESTHER G. BERTONI, STEPHEN DUDIAK AND ESTELLE SMITH, TRUSTEES UNDER THE LAST WILL AND TESTAMENT OF LOUIS P. BERTONI FOR THE BENEFIT OF LOUELLA DEVITA, LOUIS B. BERTONI AND LOIS BERTONI; MARION BOSCIA; THE ESTATE OF DAVID COLEMAN; VINCENT P. MAZZOLA; SARA TACCETTA; ANTHONY TACCETTA, JR., BARBARA TACCETTA SANTANGELO AND FRANK STAMATO, PARTNERS TRADING AS C & S DEVELOPMENT COMPANY; NEW JERSEY LAND TITLE INSURANCE ASSOCIATION, A NEW JERSEY CORPORATION, APPELLANTS,
v.
NATURAL RESOURCE COUNCIL IN THE DEPARTMENT OF ENVIRONMENTAL PROTECTION, AS THE TIDELAND AGENT OF THE STATE OF NEW JERSEY; NAVIGATION BUREAU OF THE DIVISION OF MARINE SERVICES IN THE DEPARTMENT OF ENVIRONMENTAL PROTECTION, AS THE AGENT DESIGNATED BY N.J.S.A. 13:1B-13:2 FOR THE PERFORMANCE OF TITLE STUDIES AND SURVEYS OF THE MEADOWLANDS THROUGHOUT THE STATE OF NEW JERSEY; WILLIAM T. CAHILL, GOVERNOR OF NEW JERSEY, GEORGE F. KUGLER, JR., ATTORNEY GENERAL, ROBERT J. FALCEY, ACTING SECRETARY OF STATE, WALTER WECHSLER, STATE COMPTROLLER, WILLIAM E. MARFUGGI, STATE TREASURER, AND EDWARD KILPATRICK, ACTING COMMISSIONER OF EDUCATION, AS THE TRUSTEES FOR THE SUPPORT OF PUBLIC SCHOOLS DESIGNATED BY N.J.S.A. 18A:56-1; AND THE STATE OF NEW JERSEY, RESPONDENTS



On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz and Justices Sullivan, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Schreiber, J.

Schreiber

This case concerns the long-standing and continuing dispute over claims to the ownership of New Jersey's tidally-flowed lands. It is before us as an appeal from an Appellate Division decision upholding the validity of certain claims maps prepared by the State depicting its purported ownership of property in the Hackensack and Newark-Elizabeth meadowlands.

The maps in question were prepared by the Natural Resource Council (NRC) of the State Department of Environmental Protection (DEP) pursuant to N.J.S.A. 13:1B-13.1 et seq. That statute directed the NRC to undertake title studies and surveys of the State's meadowlands to determine what portions were state-owned. It was a response to our decision in O'Neill v. State Highway Dept., 50 N.J. 307, 320, 323 (1967), where we held that the State owns in fee simple all lands flowed by the tide up to the mean high water line, and exhorted the State "[a]s a matter of good housekeeping, [to] do what is feasible to catalogue [its] far-flung [tidelands] holdings . . .."*fn1

Following the NRC's adoption of the maps, the appellants Newark and Elizabeth, along with the New Jersey Land Title Insurance Association, Inc., and several named individuals and estates whose titles were threatened by the sovereign ownership claims reflected in the maps, sought to invalidate the maps on the ground that the NRC's mapping methodology failed to comply with the requirements set out in N.J.S.A. 13:1B-13.3.

In mapping the Hackensack Meadowlands, the NRC relied on a novel technique of biological delineation instead of using the traditional tidal mapping program of tide gauging to locate mean high water points in the marsh and surveying to connect those points into a mean high water line. The NRC method involved the analysis of color infrared aerial photographs of the meadows. This procedure was premised on the theory that there is a correlation between the various spectral reflectance patterns of Phragmites communis, a reedlike grass which grows extensively in the Hackensack meadows, and the extent of tidal inundation where the plants exist. Certain color patterns are said to indicate areas which are regularly flowed by the tide, while other patterns indicate areas not susceptible to tidal flow. The data from the biological delineation was then supplemented with information from earlier tide gauging and from a number of historical sources.

In mapping the mean high water line in the Newark-Elizabeth meadows, the NRC again rejected tide gauging and surveying, this time in favor of historical sources which depicted the location of tidal creeks and streams in the meadowlands prior to their development. These locations were then adjusted for tidal overflow on the basis of data describing the overflow in the Tuckerton meadows in southern New Jersey. NRC claimed that reliance on historical sources was necessary given the extensive filling and development of the Newark-Elizabeth meadows, where Newark Airport, the Port of Newark-Elizabeth and an extensive network of highways are now located.

In addition to challenging the mapping methodology used, the appellants also argued that the State's attempt to claim sovereign ownership of tidally-flowed, but non-navigable, interior meadowlands violated principles of state law and the Due Process Clause of the Fourteenth Amendment. Finally, they asserted that these claims of title should be barred by the application of principles of estoppel.

Faced with the appellants' challenge, the Appellate Division remanded the matter to Judge Trautwein in the Law Division, for the purpose of creating an adequate administrative record, R. 2:5-5(b), and for proposed findings of fact and conclusions of law. After hearing nearly nine months of testimony (the record consists of more than 3,000 pages of transcript and 591 exhibits), Judge Trautwein filed his findings in August 1978. He concluded that the maps certified by the NRC had been promulgated and published in accordance with N.J.S.A. 13:1B-13.4, and represented a reasonable implementation of the mandated duty to prepare such maps in accordance with N.J.S.A. 13:1B-13.2 and 13.3. Implicit in this conclusion was the finding that the methodology used by the NRC in mapping conformed with those legislative directives.

The Appellate Division affirmed Judge Trautwein's findings in an unreported per curiam decision. The court reasoned that, notwithstanding the arguable merits of the appellants' challenge, there was competent expert testimony and evidence in the record to support the delineation program adopted by the NRC, as well as its decision to forego a traditional mapping program based on tide gauging and surveying. Given the presumption of validity of the NRC's mapping as administrative action pursuant to an express statutory directive, the conflicting evidence in the record and the technical nature of the subject matter, the court felt compelled to affirm Judge Trautwein's findings. The court concluded that its limited scope of review precluded it from choosing between the contending views of experts on debatable subject matter. We granted plaintiffs'

petition and the Attorney General's cross-petition for certification. 81 N.J. 335 (1979).

I

Enacted in 1969, N.J.S.A. 13:1B-13.2 directed the NRC "to undertake title studies and surveys of meadowlands throughout the State and to determine and certify those lands which it [found to be] State owned lands." Upon completion of each study and survey, the council was to publish a map portraying the results and clearly indicating those areas claimed by the State. N.J.S.A. 13:1B-13.4. In making those studies and preparing those maps, the NRC was directed "to take into account" four categories of source material:

(1) the mean high water line as established by the United States Coast ...


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