In Counts # 4 and # 8 of Indictment SGJ-113-83-3, the State alleges the unlawful abandonment and/or disposal of hazardous waste at the U.S. Army Corps of Engineers site in Oldmans Township, N.J. by the defendant, Albert Ingram, contrary to N.J.S.A. 2C:17-2 and N.J.S.A. 13:1E-9(g)(2) respectively.
Defendant moved to dismiss these counts at the end of the State's case on the basis of lack of jurisdiction in the Superior Court of New Jersey to hear and try these counts. It was the defendant's contention that abandonment of hazardous waste on property owned by the U.S. Army Corps of Engineers would have to be heard by the United States District Court for the District of New Jersey based on a federal indictment alleging a violation of federal law.*fn1
Defendant also moved for dismissal of these counts on the alternate ground that the State had failed to prove an essential element of the offense, namely, that the illegal abandonment or disposal of hazardous waste had occurred within the territorial jurisdiction of the State since the land in question is a Federal facility. The defendant contends that N.J.S.A. 2C:1-3 makes territorial jurisdiction an essential element of any crime alleged under 2C:1-1 et seq. of our statutes, citing State v. Schumann, 218 N.J. Super. 501 (App.Div.1987). See also State in Interest of G.W., 206 N.J. Super. 50 (App.Div.1985).
The motion alleging the lack of jurisdiction in the Court was denied. Since the motion was brought during the pendency of the trial, a ruling on the merits of the motion was precluded by R. 3:10-4. The philosophy of the Rule as expressed in Pressler, Current N.J. Court Rules, Comment R. 3:10-3, 4 (1988) is to preserve the State's right to appeal from a trial court's determination of lack of jurisdiction.
Generally, territorial jurisdiction is not specifically required to be proved as an element of an offense until it is placed in issue. State v. Schumann. Therefore, the Court at the conclusion of the State's case, since the defendant had not placed territorial jurisdiction in issue until the State had rested, permitted the State to reopen its case for the sole purpose of proving the territorial jurisdiction of the offenses in Counts # 4 and # 8.
The Court gave the State a three day period in which to produce such facts as would establish territorial jurisdiction as a matter of law. In permitting the State to reopen after resting to supply a deficiency in the evidence the Court relied upon the authority contained in State v. Menke, 25 N.J. 66 (1957) and State in Interest of C.K., 198 N.J. Super. 290 (Law Div.1984)
The State, after being given three days to produce evidence evidencing territorial jurisdiction, conceded that for purposes of the motion to dismiss Counts # 4 and # 8 that the land on which the hazardous waste was allegedly abandoned and/or disposed was federally owned land. The defendant did not dispute the State's contention.
The State cited 42 U.S.C.A. § 6961 (a section of the Federal Solid Waste Disposal Act) as establishing in clear and unambiguous language the waiver of sovereign immunity by the United States and thus, vesting in the State of New Jersey the authority to regulate the disposal of hazardous waste within the State. Absent such a waiver, the jurisdiction of the United States over lands purchased for forts, magazines, arsenals, dockyards and other needful buildings is exclusive. Surplus Trading Co. v. Cook, 281 U.S. 647, 50 S. Ct. 455, 74 L. Ed. 1091 (1930).
Section 6001 of the Solid Waste Disposal Act, in relevant part, reads:
Each department, agency and instrumentality of the executive, legislative and judicial branches of the Federal Government (1) having jurisdiction over any solid waste management facility or disposal site, or (2) engaged in any activity resulting, or which may result, in the disposal or management of solid waste or hazardous waste shall be subject to and comply with all Federal, State, interstate and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief), respecting control and abatement of solid waste or hazardous waste disposal in the same manner and, to the same extent, as any person is subject to such requirements, including the payment of reasonable service charges.
This Court concluded in an oral ruling, giving all inferences to the State from the evidence, that the State had put forward
sufficient evidence which, if believed, would establish territorial jurisdiction beyond a reasonable doubt and, therefore, denied defendant's motion to dismiss. ...