The controversy in this case centers around the Statue of Liberty and the rights and interests of the States of New Jersey and New York to the statue and the land on which the statue rests.*fn1
The Statue of Liberty is one of America's most treasured possessions. Its timeless message of hope and promise has found fulfillment in the lives of millions of immigrants and their descendants. The statue is truly an eternal symbol of the essence of America. The statue lies on an island in the Hudson River, the border between New Jersey and New York. The island and an adjoining island are on the New Jersey side of the river; however, the State of New York pursuant to an interstate compact with New Jersey has exercised jurisdiction over the two islands and the statue for at least 150 years.
Plaintiffs are public officials and prominent citizens who are residents of New Jersey. They contend that since the islands are located in the New Jersey portion of the Hudson River, this court should declare that the islands and the statue are under the jurisdiction and sovereignty of New Jersey.
The State of New York moves to dismiss this action asserting various defenses, the most significant of which are: (1) lack of
jurisdiction in this court; (2) sovereign immunity of New York from suit; (3) the doctrine of comity between states; and (4) plaintiffs' lack of standing.
Plaintiffs cross-move for partial summary judgment.
The court, after a careful examination of the facts and the legal authorities concludes that New York's defenses are valid and bar this action.
In 1833 New Jersey and New York entered into an interstate compact concerning the Hudson River. The compact was approved by the United States Congress in 1834 and, therefore, became binding upon New Jersey and New York. Poole v. Fleeger, 36 U.S. (11 Pet.) 184, 9 L. Ed. 680 (1937).
Under the terms of the compact the boundary between New Jersey and New York is established, with some exceptions, as the middle of the Hudson River. The two islands in question are in the New Jersey half of the river and, therefore, within the territory of New Jersey. The compact, however, expressly provides that New York will retain "present jurisdiction" over the islands, and New York has continued to exercise that jurisdiction to the present day.
Plaintiffs contend that this court should declare the compact void and ultra vires, or should modify the compact so as to give New Jersey jurisdiction over the islands and the statue. Plaintiffs also allege that the islands have been enlarged through accretion of soil and that this additional area should be administered by New Jersey. Plaintiffs in their cross-motion for partial summary judgment seek a declaration by this court that the islands are "a part of the sovereign territory of New Jersey."
Viewed precisely, this case involves either (1) a border dispute; or (2) an abrogation or modification of an interstate
compact; or (3) a declaration of the rights of the party states under that compact. In all of these instances, this court lacks jurisdiction.
If this case is viewed as a border dispute between states, then the proper forum is the United States Supreme Court. Congress has provided that the United States Supreme Court "shall have original and exclusive jurisdiction of (1) all controversies between two or more states." 28 U.S.C.A. § 1251(a). See also U.S. Const., Art. III, § 2, and Ohio v. Kentucky, 410 U.S. 641, 644, 93 S. Ct. 1178, 1180, 35 L. Ed. 2d 560 (1973).
Notwithstanding the above statutory language of "exclusive jurisdiction," the United States Supreme Court has deferred to other forums in "appropriate" cases, i.e., "where there is jurisdiction over the named parties, where the issues tendered may be litigated and where appropriate relief may be had." Illinois v. Milwaukee, 406 U.S. 91, 93, 92 S. Ct. 1385, 1388, 31 L. Ed. 2d 712 (1972); Maryland v. Louisiana, 451 U.S. 725, 739, 101 S. Ct. 2114, 2125, 68 L. Ed. 2d 576 (1981), and Texas v. New Mexico, 462 U.S. 554, 570, 103 S. Ct. 2558, 2568, 77 L. Ed. 2d 1 (1983). Under those criteria, this case and this forum are plainly not "appropriate." On the contrary, the issues here present a classic case for the exercise of original and exclusive jurisdiction by the United States Supreme Court. The issues do not arise in the context of a suit by private parties over private property, in which the forum might appropriately be a state court. See Durfee v. Duke, 375 U.S. 106, 115-116, 84 S. Ct. 242, 247-248, 11 L. Ed. 2d 186 (1963). The United States is not a party and, therefore, the discretionary jurisdictional language of paragraph (b) of the code is not implicated. See 28 U.S.C.A. § 1251(b). Here we deal with a dispute over state boundaries, over an interstate compact, over jurisdiction and sovereignty under that compact. Such an action patently lies only in the United States Supreme Court, not in the state court of one of the states involved.
Fundamental principles of law preclude state boundaries from being affected by suits brought by individuals. Suits between private parties as to their interests in land cannot bind the states "with respect to any controversy they might have, now or in the future, as to the location of the boundaries between them, or as to their respective sovereignty over the land in question." Durfee v. Duke, supra at 115, 84 S. Ct. at 247.
No court, and certainly no state court, has the power to abrogate or modify interstate compacts approved by Congress. See Texas v. New Mexico, supra 462 U.S. at 564, 103 S. Ct. at 2565. No state court has the authority to declare the rights and interests of states over disputed territory especially when the dispute has apparently been resolved by an interstate compact. On the contrary, the cases suggest that it is only the United States Supreme Court that has that authority. In Texas v. New Mexico, the Court pointed out that the authority of the United States Supreme Court to resolve controversies between two states "extends to a suit by one state to enforce its compact with another state or to declare rights under a compact . . . If there is a compact, it is a law of the United States . . . and our first and last order of business is interpreting the compact." Id. at 567, 103 S. Ct. at 2567. See also Durfee v. Duke, supra 375 U.S. at 110, 84 S. Ct. at 244.
Plaintiffs cannot, therefore, through the medium of a lawsuit in a state court oust or curtail another state's exercise of jurisdiction over land, particularly when that jurisdiction is being exercised pursuant to the express terms of an interstate compact, a "law of the United States." This can be done, if at all, only through an action filed in the United States Supreme Court by a state which is a party to the compact. See Ohio v. Kentucky, supra 410 U.S. at 648, 93 S. Ct. at 1182; Texas v. New Mexico, supra 462 U.S. at 570, 103 S. Ct. at 2568.
Plaintiffs assert that the doctrine of sovereign immunity has had its day and should not be applied here. The immunity of the sovereign from suit springs from the inability at common law to sue the king in his own court without his consent. The king was at the zenith of the feudal hierarchy. He was not subject to suit elsewhere since there was no court higher than his own. See F. Pollock & F. Maitland, History of English Law (2 ed. 1899), 518. Much misconstrued is the phrase "A king can do no wrong." As the Magna Carta shows, a king is capable of and may, indeed, tend toward doing wrong. See also Shakespeare, King Richard the 3rd.
Procedures were, therefore, developed in England to redress the king's wrong and to secure a government under law. This was frequently done by the petition of right which the king could not rightfully refuse. See Crosswhite, "Comity Bows To Wall Street: Ehrlich-Bober v. University of Houston," 14 Conn.L.Rev. 369, 373 n. 27 (1983). In practice, "the king often endorsed on such petitions let justice be done" which empowered the courts to proceed. Case Comment, "Eleventh Amendment Does Not Preclude Suit Against One State In the Courts of A Sister State: Nevada v. Hall," 440 U.S. 410, 99 S. Ct. 1182, 59 L. Ed. 2d 416 (1979), 58 Wash. U.L.Q. 481, 482 (1980).
Notwithstanding these modifications in England, the doctrine of sovereign immunity took firm root in this country, and the states of this union have applied the doctrine in various contexts. However, even in the United States, sovereign immunity has probably never been applied in its "literal breadth." East Orange v. Palmer, 47 N.J. 307, 328 (1966). Moreover, in recent years it has lost some force. See Willis v. Dept. of Cons. & ...