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Seattle Journal of Environmental Law

[Vol. 5:1

A. History of Conflict
First, it is important to define the precise geographical area in contest.
Inside of the so-called “Twelve-Mile Circle,”12 Delaware claimed
ownership of the Delaware River and the “subaqueous soil up to the lowwater mark on the New Jersey side.”13 New Jersey claimed ownership of
the river and the subaqueous soil up to the thalweg.14
The conflict between the two states flared up for the first time near
the end of the nineteenth century. In 1871, Delaware’s legislature passed
a statute requiring fishing licenses on the Delaware River. Delaware
residents paid five dollars for the privilege to fish in this area; nonresidents
paid twenty dollars.15 The following year, “Delaware arrested several New
Jersey citizens at gunpoint” for fishing on the river without the requisite
licenses.16 The arrests set off a chain of fruitless negotiations, which ended
with New Jersey suing Delaware in 1877.17
The Court never issued an opinion on the merits in this first lawsuit
because the parties settled the dispute with a Compact in 1905.18 In 1907,
Congress ratified the Compact, giving it both the structure of a contract
and the force of federal law.19 The Compact contains nine articles,20 only
12. The Twelve-Mile Circle is an area of land and water, centered on New Castle, Delaware,
with a diameter of twelve miles. See New Jersey’s Brief in Support of its Motion for Summary
Judgment to the Special Master at 47, New Jersey v. Delaware III, 552 U.S. 597 (2008) (No. 134,
Original), available at http://goo.gl/lEx1g2 [hereinafter New Jersey Special Master Brief] for a
relatively clear visual representation of the area.
13. Delaware III, 552 U.S. at 605.
14. Special Master Report, supra note 1 at 15. The thalweg is the area of strongest current,
typically close to or in the middle of the river. Id. Delaware’s claim to the entire river was based on “a
deed of feoffment from the Duke of York to William Penn on August 24, 1682.” Id. In other words,
within the Twelve-Mile Circle, Delaware claimed ownership of the river and subaqueous soil
extending to the low tide line on the New Jersey side of the river, while New Jersey claimed that each
state owned half of the river and soil.
15. Id. at 3.
16. Id. at 3–4. The New Jersey citizens were fishing on the part of the river New Jersey claimed
as its own. Id. at 4.
17. Id. at 5.
18. Id. at 8.
19. Report of the Special Master Apps. at B-1, New Jersey v. Delaware III, 552 U.S. 597 (2008)
(No. 134, Original) [hereinafter Appendices].
20. Id. at B-2–B-6. Articles I and II use parallel language to give the States of New Jersey and
Delaware the ability to serve civil and criminal process upon individuals anywhere on the Delaware
River. Id. at B-2–B-3. This ability is essentially limited only by the state’s jurisdiction over the
criminal and civil defendant. Id. Article III gives the States common rights of fishing. Article IV directs
the States to appoint a commission charged with the drafting of uniform fishing laws. Id. at B-3–B-5.
Article V preserves the status quo with respect to fishing laws, except those that are inconsistent with
common fishing rights. Id. at B-5. Article VI preserves the status quo with respect to oysters and other
shellfish. Id. Article IX directs the way by which the Compact will be ratified and further mandates
the dismissal of the pending lawsuit upon passage. Id.