IN THE

SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF VIRGINIA,	*	No. 129, Original

Plaintiff,	*	Before Special Master

v.	*	Ralph I. Lancaster, Jr.

STATE OF MARYLAND,	*

Defendant.	*

*	*	*	*	*	*	*	*	*	*	*

BRIEF IN SUPPORT OF DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

Carmen M. Shepard

Deputy Attorney General

Maureen Mullen Dove

Andrew H. Baida*

Adam D. Snyder

M. Rosewin Sweeney

Randolph S. Sergent

Assistant Attorneys General

200 St. Paul Place

Baltimore, Maryland 21202

(410) 576-6318

Attorneys for Defendant

*Counsel of Record	State of Maryland

TABLE OF CONTENTS

Page

INTRODUCTION	1

STATEMENT OF FACTS	2

Pre-Compact History	2

The Compact of 1785	5

Maryland's Post-Compact Regulation of the Potomac through the Black-
Jenkins Award Era	7

Post-Black-Jenkins Award History	11

ARGUMENT	24

I.	MARYLAND HAS REGULATORY AUTHORITY OVER ACCESS TO THE POTOMAC.	24

A.	This Case Is Controlled By The Presumption That Maryland Has The Right, As The Owner Of The Potomac, To Regulate Access To The River	25

B.	The Compact Does Not Contain Any Language That Divests Maryland Of Its Right To Regulate Potomac River Access	30

C.	Post-Compact History Further Substantiates Maryland's Broad Authority Over The Potomac	41

1.	Contemporaneous evidence shows that Maryland retained the right to regulate	41

2.	Maryland and Virginia have consistently recognized the boundary set forth in the Black-Jenkins Award as an absolute line of sovereignty	45

a.	The Award conclusively established Maryland's ownership and authority over the river and its beds up to the low-water mark	45

b.	Taxation	48

c.	Criminal laws and their enforcement	50

d.	Licensing activities	56

e.	Waterway construction activities	61

f.	Water appropriation activities	69

II.	VIRGINIA HAS ACQUIESCED IN MARYLAND'S ASSERTION OF AUTHORITY OVER THE POTOMAC	76

CONCLUSION	85

TABLE OF AUTHORITIES

Cases

Arkansas v. Tennessee, 310 U.S. 563 (1940)	77, 81, 83

Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548 (1914)	35

Atlee v. Packet Co., 88 U.S. 389 (1874)	29, 40

Binney's Case, 2 Bland 99 (Md. 1829)	9

Bostick v. Smoot Sand & Gravel Corporation, 260 F.2d 534 (4th Cir. 1958)	12, 13

Bowen v. Public Agencies Opposed to Social Security Entrapment,

477 U.S. 41 (1986)	33

California v. Nevada, 447 U.S. 125 (1980)	76

Central Railroad Co. of New Jersey v. Mayor and Alderman of New Jersey,

209 U.S. 473 (1908)	28, 32, 45

Dutton v. Strong, 66 U.S. 23 (1861)	28, 29, 61

Georgia v. South Carolina, 497 U.S. 376 (1990)	77, 81

Handly's Lessee v. Anthony, 5 Wheat. 374 (1820)	83

Harbor Island Marina, Inc. v. Board of County Comm'rs of Calvert County, Md.,

286 Md. 303, 407 A.2d 738 (1979)	8

Howard v. Ingersoll, 54 U.S. 381 (1851)	2

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997)	25

Idaho v. United States, 121 S.Ct. 2135 (2001)	25, 28

Illinois v. Kentucky, 500 U.S. 380 (1991)	44, 77, 82

Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892)	25, 29, 35, 36, 61

Indiana v. Kentucky, 136 U.S. 479 (1890)	82

Jefferson Branch Bank v. Skelly, 66 U.S. 436 (1861)	34

Johnson v. McIntosh, 21 U.S. 543 (1823)	2

Louisiana v. Mississippi, 202 U.S. 1, (1906)	81

McCready v. Virginia, 94 U.S. 391 (1876)	25

Marine Ry. & Coal Co., Inc., 257 U.S. 47 (1921)	4

Martin v. Waddell, 41 U.S. 367 (1842)	30, 32, 33

Maryland v. West Virginia, 217 U.S. 1 (1910)	3, 27, 77, 83, 84

Massachusetts v. New York, 271 U.S. 65 (1926)	25, 30, 33, 37, 41, 46

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982)	33

Michigan v. Wisconsin, 270 U.S. 295 (1926)	76, 77, 84

Miedzinski v. Landman, 218 Md. 3, 145 A.2d 220 (1958)	16, 52, 53

Montana v. United States, 450 U.S. 544 (1981)	25, 34, 46

Morris v. United States, 174 U.S. 196 (1899)	2, 3, 4, 7, 8, 26, 41, 45

New Jersey v. Delaware, 291 U.S. 361 (1934)	34

New Jersey v. New York, 523 U.S. 767 (1998)	48, 77, 81, 83, 84

Nicoulin v. O'Brien, 248 U.S. 113 (1918)	32

Norfolk City v. Cooke, 68 Va. 430, 434 (1876)	29, 36

Ohio v. Kentucky, 410 U.S. 641 (1973)	77

Oklahoma Water Resources Board v. Central Oklahoma Conservancy District,

464 P.2d 748 (Okl. 1969)	40

O'Neal v. Virginia and Maryland Bridge Co. at Shepherdstown,

18 Md. 1 (1861)	10, 79, 80

Pernell v. City of Henderson, 220 N.C. 79, 16 S.E.2d 449 (1941)	39, 40

Potomac Steam-Boat Co. v. Upper Potomac Steam-Boat Co., 109 U.S. 672 (1884)	43

Proprietors of Charles River Bridge v. Proprietors of Warren Bridge,

36 U.S. 420 (1837)	33

Providence Bank v. Billings, 29 U.S. 514 (1830)	36

Rhode Island v. Massachusetts, 4 How. 591 (1846)	77

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977)	76, 84

Shively v. Bowlby, 152 U.S. 1 (1894)	28

Smoot Sand & Gravel Corp. v. Washington Airport, 283 U.S. 348 (1931)	34

Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982)	39

Stone v. Mississippi, 101 U.S. 814 (1879)	35

Taylor v. Commonwealth, 102 Va. 759, 47 S.E. 875 (1904)	29, 36, 38, 61

Thurston v. Portsmouth, 205 Va. 909, 140 S.E.2d 678 (1965)	80

Town of Gordonsville v. Zinn, 129 Va. 542 S.E. 508 (1921)	39

Town of Purcellville v. Potts, 179 Va. 514 19 S.E.2d 700 (1942)	39

Traverso v. Commonwealth, 6 Va.App. 172 S.E.2d 719 (1988)	54

Traverso v. Maryland, 83 Md.App. 389 A.2d 923 (1990)	54

United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987)	32

United States ex rel. Greathouse v. Dern, 289 U.S. 352 (1933)	42

United States v. Oregon, 295 U.S. 1, 14 (1935)	25

United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899)	39

United States v. Stone, 69 U.S. 525 (1865)	84

United States v. Winstar, 518 U.S. 839, (1996)	33, 35

Utah Division of State Lands v. United States, 482 U.S. 193 (1987)	25

Vermont v. New Hampshire, 289 U.S. 593 (1933)	46, 77, 82, 83

Virginia v. Tennessee, 148 U.S. 503 (1893)	27, 46, 76, 84

West River Bridge Co. v. Dix, 47 U.S. 507 (1848)	35

Wharton v. Wise, 153 U.S. 155 (1894)	6

Yates v. Milwaukee, 77 U.S. 497 (1870)	29, 30

Constitutional Provisions, Statutes, And Laws

Acts of Congress of 1852, Ch. 97, March 3, 1853	43

Md. Envtl. Code Ann.

§ 5-501.	18

§ 16-202	62

1791 Md. Laws Ch. 45	8

1853 Md. Laws Ch. 179	10, 43, 67

1862 Md. Laws Ch. 129	8

1876 Md. Laws Ch. 242	10, 67

1888 Md. Laws Ch. 362	13, 47

1900 Md. Laws Ch. 577	13

1906 Md. Laws Ch. 426	13

1908 Md. Laws Ch. 487	15, 47

1933 Md. Laws Ch. 526	18, 67

1947 Md. Laws, Extra Session, Ch. 32	52

1949 Md. Laws, Ch. 417	52

1949 Md. Laws, Ch. 678	52

1951 Md. Laws Ch. 181	52

1951 Md. Laws Ch. 183	52

1970 Md. Laws Ch. 241	21

Code of Maryland Regulations (COMAR)

23.02.04.21	23, 65, 66

26.17.06.02B.	40, 74

Virginia Constitution of June 29, 1776	26

Va. Code Ann. § 28.2 -1205	62

1789 Va. Laws Ch. 32	7

1854 Va. Laws Ch. 5	10, 44

Attorney General Opinions

February 3, 1956 Md. Att'y Gen. Op. 335	80

July 2, 1906 Va. Atty. Gen. Op. 87	14, 57

June 21, 1935 Va. Atty. Gen. Op 147	14, 48

September 1, 1944 Va. Atty. Gen. Op. 91	14, 51

July 13, 1948 Va. Atty. Gen. Op. 118	14, 51

July 30, 1952 Va. Atty. Gen. Op. 116	15, 57

April 25, 1967 Va. Atty. Gen. Op. 48	15, 29, 58, 80

Other Authorities

Browne, ed., Proceedings of the Council of Maryland, 1636-67	3

Boyd, Julian P., ed., Papers of Thomas Jefferson (Princeton, 1950)	4

Lucas & Deaver, eds., Proceedings of the Conventions of the Province

of Maryland (Baltimore, 1836)	5

1 L. Oppenheim, International Law (H. Lauterpacht 5th ed. 1937)	84

Rutland, Robert A., The Papers of James Madison	4

Rutland, Robert A., The Papers of George Mason	6

INTRODUCTION

Maryland seeks the entry of summary judgment in its favor because there is simply no merit in Virginia's claim that Maryland's waterway permitting laws "infringe upon Virginia's sovereignty" and "impede and interfere with Virginia's rights of access to the Potomac River." Complaint ¶ 48. Maryland's present-day regulation of the river is comprehensive in all respects and the result of such longstanding ownership of the Potomac that Virginia has acknowledged it since colonial times. Virginia's claims are contradicted not simply by the history pre-dating Virginia's suit against Maryland, but also by the Commonwealth's continued recognition, even after suit was filed, that its authority over the river ends, and Maryland's begins, at the low-water mark boundary on the Virginia side of the river.

Maryland's authority over the Potomac River traces back almost four hundred years to the time the Potomac was included in the territory granted by King Charles I to Lord Baltimore. That authority was explicitly recognized in Virginia's first Constitution, it was reaffirmed a century later by the Black-Jenkins Award, and it applies to the activity that Virginia now claims is beyond Maryland's jurisdiction, as that activity takes place in Maryland. Neither the Compact nor the Black-Jenkins Award contains any language that strips Maryland of this fundamental aspect of its ownership of and sovereignty over the River. On the contrary, both States have acted in innumerable ways since their adoption of the Award to reflect their clear understanding that the boundary described there represents the line of sovereignty for all purposes and confirms Maryland's right to regulate waterway construction activity in and water withdrawals from the Potomac River up to the low-water mark on Virginia's side. For these reasons, as discussed more fully below, Maryland's motion for summary judgment should be granted.

STATEMENT OF FACTS

Pre-Compact History

Virginia traces its territorial roots to 1609, when King James I of England issued a charter to the London Company encompassing all of the lands 200 miles north and south of Point Comfort and extending inland, without limitation, "from the sea, west and northwest." Johnson v. McIntosh, 21 U.S. 543, 544 (1823). This 1609 grant included within its reach much of the land now comprising Maryland and Pennsylvania, as well as the uninhabited western lands to the Pacific Ocean. It is on this 1609 grant that Virginia in earlier times based its historical claims to the Potomac, Maryland, and the frontier.

The 1609 grant was short-lived. As a result of a dispute between the London Company and the Crown, the grant was annulled in 1624 by judgment of the Court of King's Bench and the powers of government and title to the lands within the limits of the grant were re-vested in the Crown. Johnson v. McIntosh, 21 U.S. at 545. As of 1624, Virginia had become a royal colony, whose boundaries were subject to change at the pleasure of the Crown. Id.; Howard v. Ingersoll, 54 U.S. 381, 400 (1851).

In 1632, King Charles I issued to Lord Baltimore the charter that marks the origin of the Province and State of Maryland.1 The charter encompassed land previously included within the annulled 1609 grant and specifically included the entire Potomac River from bank to bank. Morris v. United States, 174 U.S. 196, 225 (1899). The charter was also significant for the breadth of the powers vested in the newly created colony. See Declaration of Jack N. Rakove, Exhibit A, at 8 (Maryland's powers granted in Charter, and as a proprietorial colony, provided it with "more extensive powers of governance within its respective bounds" than other colonies).

Virginia was aware of the breadth of the Maryland Charter and, in fact, argued before the King and the Lords Commissioners for Foreign Plantations that the Charter improperly granted Lord Baltimore powers of sovereignty far more expansive than those given the other colonies, including almost royal power to grant lands, declare war, and manage his colony independent of the other colonies.2 The Lords Commissioners, after "having heard and maturely considered the sayde propositions, answers and reasons, and whatsoever else was alleged in either parte, did think fit to leave the Lord Baltimore to his Patent and the other partie to the course of Lawe according to their desire."3

Subsequent to the issuance of the Maryland Charter and the rejection of Virginia's challenge thereto, King Charles II issued patents in 1649 and 1688 for what is commonly known as the "Northern Neck" of Virginia – the land lying between, and including, the Potomac and Rappahanock rivers.4 The 1688 grant was of no effect to the extent it purported to alter the boundary in Maryland's prior Charter because the Charter was "never devested by any valid proceedings prior to the Revolution, nor was such grant affected by the subsequent grant to Lord Culpeper" who never made "any substantial claim . . . to property rights in the Potomac river, or in the soil thereunder. . . ." Morris v. United States, 174 U.S. at 225. See also Marine Ry. & Coal Co., Inc., 257 U.S. 47, 63 (1921) ("The latter grant is subordinate to the former.").

Although the 1609, 1649, and 1688 grants did not alter the scope of Maryland's Charter, Virginia in 1776 formally renounced any rights or claims it may have harbored with respect to Maryland territory:

[T]he territories within the charters erecting the colonies Maryland, Pennsylvania, North and South Carolina, are hereby ceded, released, and forever confirmed to the people of those colonies respectively, with all the rights of property, jurisdiction, and government, and all other rights whatsoever which may at any time heretofore have been claimed by Virginia, except the free navigation and use of the rivers Potowmack and Pokomoke, with the property of the Virginia shores or strands bordering on either of the said rivers, and all improvements which have been made or shall be made thereon.5

The effect of Virginia's concession was not lost on James Madison, who, writing just eight years after the enactment of the Virginia Constitution, recognized that this provision constituted "an entire relinquishment of the Jurisdiction of these [the Potomac and Pocomoke] rivers."6

Maryland reacted swiftly and passed a resolution at a convention of its delegates in October of that year denying that Virginia had any territorial rights over the Potomac or any other portion of Maryland territory to begin with:

Resolved unanimously, That it is the opinion of this convention, that the state of Virginia hath not any right or title to any of the territory, bays, rivers, or waters, included in the charter granted by his majesty Charles the first to Caecilius Calvert, baron of Baltimore.7

Maryland explicitly rejected Virginia's effort to reserve even limited rights in the Potomac:

Resolved unanimously, That it is the opinion of this convention, That the sole and exclusive jurisdiction over the territory, bays, rivers, and waters, included in the said charter, belongs to this state; and that the river Potowmack, and almost the whole of the river Pocomoke, being comprehended in the said charter, the sole and exclusive jurisdiction over the said river Potowmack, and also over such part of the river Pocomoke as is comprehended in the said charter, belongs to this state; and that the river Potowmack and that part of Chesapeake bay which lies between the capes and the south boundary of this state, and so much thereof as is necessary to the navigation of the rivers Potowmack and Pocomoke, ought to be considered as a common highway, free for the people of both states, without being subject to any duty, burthens or charge, as hath been heretofore accustomed.8

Maryland's assertion of its Charter rights, like Virginia's disclaimer of any such rights, could not have been clearer.

The Compact of 1785

Thus, when the two States came to the negotiations that would result in the Compact of 1785, Maryland held a decided advantage with respect to the Potomac. Virginia had already conceded to Maryland "all the rights of property, jurisdiction, and government" in the Potomac, reserving only "the free navigation and use" of the river and property rights to the shore and shoreline improvements. As recognized by its congressional delegation less than twenty years later, Virginia claimed no rights of jurisdiction or governance whatsoever. See, e.g., Annals of Cong., 8th Cong., 2nd Sess. at 715 (Tidewater Exhibit 84) (Virginia representative John Randolph, stating that "[Virginia's] limits did not extend beyond high water mark on the western bank of the Potomac. Her right of highway on the river was a natural right acknowledged and secured by convention with Maryland. Her civil jurisdiction over its water was a conventional right, entirely derived from compact with that State, was a jurisdiction not within her limits"), 717 (Randolph stating that Virginia's "concurrent jurisdiction over the Potomac" was "confessedly without her limits").

While the Compact was drafted to address generally issues of navigation and jurisdiction with respect to the Potomac and Pocomoke Rivers and the Chesapeake Bay, Virginia succeeded in Article VII of the Compact in obtaining Maryland's agreement that the citizens of Virginia who own land on the Potomac would have the "privilege" to build wharves and other improvements so long as those improvements do not impede navigation, and the common right of fishery. It was this last point that was most hotly contested, with George Mason noting for Virginia that "[t]he Idea of the Right of fishing on both Shores of Potomack River is one the Marylanders are not fond of parting with . . . ." Robert A. Rutland, The Papers of George Mason, vol. 2 at 838 (Tidewater Exhibit 67). Having successfully negotiated a common right of fishery, Mason noted "I trust it will be found we have obtained every thing for Virginia, with Respect to Potomack River, which she can desire." Id.

While Article VII addressed Potomac River access and use, Article VIII reaches specific but limited jurisdictional issues, agreeing that "all laws and regulations" for the preservation of fish, the performance of quarantine, or preserving and keeping open the channel and navigation of the Potomac "shall be made with the mutual consent and approbation of both states." Tidewater Exhibit 63; Wharton v. Wise, 153 U.S. 155, 163-66 (1894). No such provision is made in Article VII regarding the "laws and regulations" governing other uses of the River, including the privilege of wharfage recognized therein.

Maryland's Post-Compact Regulation of the Potomac through the Black-Jenkins Award Era

Maryland's regulation of the Potomac in the late 18th and 19th centuries is reflected in the actions of its legislature, courts, and its Commissioner of Land Records. The modern administrative State, and its attendant files and records, were still some years off, and so the regulatory record is reflected in periodic events that shed light on how Maryland exercised its sovereign role in the Potomac.

The first such event arises in the context of the creation of the District of Columbia. Maryland and Virginia each enacted laws ceding an area ten miles square for the formation the new Nation's capital. On December 23, 1788, Maryland passed "An act to cede to congress a district of ten miles square in this state for the seat of the government of the United States." Morris v. United States, 174 U.S. at 198 (citing Kilty's Laws Md. p. 46, Ch. 2). On December 3, 1789, Virginia passed its analog, purporting to cede property "on the banks of the river Patowmack, above tidewater." 1789 Va. Laws Ch. 32 (preamble). Subsequently, on September 8, 1791, Thomas Jefferson and James Madison attended a meeting of the District of Columbia commissioners in which the commissioners wrote the Maryland legislature:

That it will conduct much to convenience and use, as well as beauty and order, that wharfing should be under proper regulations from the beginning. . . . Your memorialists therefore presume to submit to your honors whether it will not be proper to . . . enable the commissioners or some other corporation, till congress assumes the government, to license the building of wharves, of the materials, in the manner, and of the extent they may judge disirable and convenient, and agreeing with general order.

Morris v. United States, 174 U.S. at 306 (White, J., dissenting) (quoting letter). On December 19, 1791, Maryland responded and passed amendatory legislation that ratified the earlier cession and gave the commissioners the powers they sought:

That the commissioners aforesaid, for the time being, or any two of them, shall, from time to time, until congress shall exercise the jurisdiction and government within said territory, have power to license the building of wharves in the waters of the Patowmack and the Eastern Branch, adjoining the said city, of the materials, in the manner and extent, they may judge durable, convenient and agreeing with general order; but no license shall be granted to one to build a wharf before the land of another, nor shall any wharf be built in the said waters without license as aforesaid; and if any wharf shall be built without such license or different therefrom, the same is hereby declared a common nuisance.

1791 Md. Laws Ch. 45, § 12. On July 20, 1795, the Board of Commissioners of the District of Columbia acted under Maryland's grant of authority to publish wharfing regulations, stating that such regulations were enacted "in virtue of the powers vested in them by the act of the Maryland legislature to license the building of wharves in the city of Washington." Morris v. United States, 174 U.S. at 283. After promulgation of the regulations, the Board in fact proceeded to issue licenses to individual wharves. Id.

With the bulk of commerce on the river originating in Georgetown, little record exists of Maryland's regulation of wharves and other improvements outside of the District of Columbia until 1862, when Maryland granted to each of its citizens owning land on the navigable waters of the State "the exclusive right of making improvements into the waters in front of his said land" provided that such improvements not "interfere with the navigation of the stream of water into which the said improvement is made," 1862 Md. Laws Ch. 129, § 46, and subject to the continuing regulation and control of the State legislature. See, e.g., Harbor Island Marina, Inc. v. Board of County Comm'rs of Calvert County, Md., 286 Md. 303, 318-319, 407 A.2d 738, 747 (1979) ("This Court has previously recognized that riparian rights are "subject . . . to (the) general rules and regulations (properly) imposed by the public authorities (as) necessary to protect the rights of the public."). Maryland did not establish a formal licensing program for wharves, piers, and other improvements in the tidal portion of the Potomac until 1970.

Maryland's regulation of water withdrawals from the Potomac in the 19th century followed a similar pattern. Prior to Maryland's establishment in 1933 of a formalized permitting system, water rights disputes were resolved by the courts and the legislature. With respect to the Potomac, such disputes were decided by the Maryland courts. In the 1820s, Amos Binney went to the Maryland Chancery Court to secure, unsuccessfully, water rights for the operation of his mill on the Maryland shore against the increasing withdrawals of the Chesapeake & Ohio Canal Co. ("C&O Canal"). Binney's Case, 2 Bland 99 (Md. 1829). In the 1850s, the Great Falls Manufacturing Company of Virginia went to the Circuit Court for Montgomery County, Maryland, to press its claim for water rights on the Virginia shore of the Potomac against the Washington Aqueduct's withdrawals. United States v. Great Falls Manufacturing Co., Circuit Court for Montgomery County, Maryland, reprinted as Sen. Doc. 42, 35th Cong., 2d Sess. (1859), Tidewater Exhibit 85.

The circumstances surrounding the Great Falls Manufacturing case show how other Maryland institutions, particularly the legislature and the Commissioner of Land Records, were regulating water rights in the Potomac. When the United States sought to withdraw water from the Potomac to supply the District of Columbia, it came to the Maryland legislature for approval. In 1853, the Maryland General Assembly passed "An Act giving the assent of the State of Maryland, to such plan as may be adopted by the President of the United States, for supplying the City of Washington with Water." 1853 Md. Laws Ch. 179.9 The Maryland Land Office also regulated water rights through the patent process. For example, when the Great Falls Manufacturing Company sought to secure water rights to the Potomac in the wake of the Montgomery County Circuit Court decision denying the same, it came to the Maryland Land Office to take out a patent to Neilson's Desire, which included the water within the Potomac between Conn's Island and the Virginia shore. See United States v. Great Falls Manufacturing Co., 21 Md. 119 (Md. 1864).

Maryland's power to tax structures on the Potomac is likewise revealed during periodic episodes of litigation over the river. In the late 1850s, the Virginia and Maryland Bridge Co. at Shepherdstown, a Virginia corporation, contested the right of Maryland to tax a bridge across the Potomac at Shepherdstown, in what was then Virginia and is now West Virginia. With the Virginia Attorney General arguing on behalf of the Company, the Maryland Court of Appeals upheld the validity of the tax. O'Neal v. Virginia and Maryland Bridge Co. at Shepherdstown, 18 Md. 1 (1861).

Maryland regulated bridges in other ways besides taxing them. In 1876, Maryland enacted a law requiring the approval of the Maryland Board of Public Works for all railway bridge crossings of Maryland's navigable waters. 1876 Md. Laws Ch. 242, § 21. This was a formal permitting regime, requiring the review and approval of specific plans and proposals. In 1907, the law was applied to a Virginia corporation, the Norfolk & Western Railway, which sought to construct a railway bridge across the Potomac and the C&O Canal near Shepherdstown, West Virginia. As the General Manager of the C&O Canal twice noted in letters to the company, "It will be necessary to procure the approval of the Board of Public Works before you can cross the Potomac River." May 11, 1907 letter to Charles S. Churchill, Chief Engineer, Norfolk & Western Ry. Co. from G.L. Nicholson, General Manager, C&O Canal Co. (Exhibit Z-1 at MD-BPW-00039-40); see also May 17, 1907 letter to Charles S. Churchill, Chief Engineer, Norfolk & Western Ry. Co. from G.L. Nicholson, General Manager, C&O Canal Co. (Exhibit Z-2 at MD-BPW-00040) (noting that "[y]ou will, however, have to obtain the approval of the Board of Public Works for the crossing of the Potomac River, as well as the canal").

Post-Black-Jenkins Award History

Although Virginia by its 1776 Constitution relinquished any claim to the Potomac River beyond its "shores or strands," the precise location of the boundary line on the south side of the River had not been decided, with Maryland claiming under its Charter to the high water mark. The two States also disagreed about the location of the line, called for in the Maryland Charter, that extended across the Chesapeake Bay and Eastern Shore to the Atlantic. To avoid litigation over the issues, Maryland and Virginia appointed commissioners in 1872 and 1873 to negotiate a settlement of the outstanding disputes. When that effort failed, the two States turned to binding arbitration. The arbitrators issued their award on January 16, 1877, and determined the boundary to be the low water mark on the south shore of the Potomac. (App. 45a.)10

The arbitrators noted that while Virginia had made a "claim for a boundary on the left [or north] bank of the Potomac" (App. 17a), "[t]he intent of the charter is manifest all through to include the whole river within Lord Baltimore's grant." (App. 19a.) The arbitrators thus stated that "the charter was on the right bank of the Potomac, where the high- water mark is impressed upon it, and that line follows the bank along the whole course of the river, from its first fountain to its mouth . . . ." Id. The arbitrators concluded, however, that Virginia had acquired title to the strip of land lying between high water mark and low water mark through a long history of prescription. (App. 28a-29a.) Accordingly, the arbitrators' Award stated, among other things, that Virginia was entitled "not only to full dominion over the soil to low-water 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 . . . ." (App. 48a-49a.) This right could not be exercised with the effect of "impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five." (App. 49a.)

Since their adoption of the Black-Jenkins Award, Maryland and Virginia have embarked and continued on a course of conduct for more than a century manifesting the belief and understanding of both States that the low-water mark boundary line represented a uniform line of sovereignty with respect to all activity occurring on Maryland's side of the line. In 1888, Maryland began the active regulation of sand and gravel mining from Maryland waters, including the Potomac. Under the common law, riparian owners had no right to mine sand and gravel from the navigable waters in front of their land. Bostick v. Smoot Sand & Gravel Corporation, 260 F.2d 534, 537 (4th Cir. 1958). With the advent of the mechanical dredge in the 19th century, it became possible to dredge sand and gravel from the river bed itself without the permission or knowledge of the riparian owners on the shoreline. Id. In response to unauthorized dredging, Maryland in 1888 adopted a criminal statute which forbade "any person to dig, dredge, take and carry away any sand, gravel or other material from the bed of the Potomac River . . . ." 1888 Md. Laws Ch. 362 (Ex. CC-2). In 1900, Maryland created an exception to the 1888 law's blanket prohibition, making it

lawful for any riparian owner of lands bordering on said Potomac River, or for any person or corporation with whom such owner shall have a contract in writing for the purpose, or for the agents, servants or employees of such person or corporation to dig, dredge, take and carry away sand, gravel or other material from the bed of said river opposite said lands from high water mark on the shore bordering on said lands to the outer line of the channel nearest said shore, subject to the laws of the United States relating to navigation. And provided, further, that none of the provisions of this section shall be deemed to interfere in any manner with the provisions of any law of the State of Maryland relating to the taking and catching of fish and oysters.

1900 Md. Laws Ch. 577; see also 1906 Md. Laws Ch. 426 (extending sand and gravel rights to riparian owners throughout Maryland). In 1958, the United States Court of Appeals for the Fourth Circuit held that the phrase "any riparian owner of lands bordering on said Potomac River" in the Maryland law was "equally descriptive of the owners of lands in Virginia as of those of lands in Maryland" and that the riparian rights of Virginia landowners were governed by the Maryland law. Bostick v. Smoot Sand & Gravel Corporation, 260 F.2d at 539.

The 20th century bore witness to a number of other actions substantiating the understanding of both States that the boundary line set forth in the Black-Jenkins Award represented the point at which Virginia's sovereignty ended and Maryland's began. In 1906, for example, an assistant to the Virginia Attorney General observed that the Potomac River beyond the low water mark is not Virginia territory, that Virginia had no authority to license or otherwise regulate the sale of liquor upon a vessel anchored below low water mark, and that the liquor laws of Maryland controlled because Maryland has jurisdiction over such activity. See July 2, 1906 Va. Att'y Gen. 87 (Exhibit CC-8). In 1935, the Virginia Attorney General recognized the territorial limitation on Virginia's sovereignty in another context, stating to the Virginia Commissioner of Fisheries that Virginia's oyster tax did not apply to oysters taken from the Potomac River because the tax was limited to oysters taken from the river beds of Virginia, and the bed of the Potomac is not owned or leased by the Commonwealth. See June 21, 1935 Va. Att'y Gen. Op. 147 (Exhibit CC-9). Virginia's Attorney General later informed the Virginia Governor in the 1940s that the Commonwealth had only limited jurisdiction under the Compact over certain crimes that occur in the Potomac, that Virginia had no statute that gave it general criminal jurisdiction over the river, and that Virginia was thus unable to regulate slot machines operated on the Maryland side of the low-water mark. See September 1, 1944 Va. Att'y Gen. Op. 91 (Exhibit CC-10).

Virginia has expanded upon this recognition of its limited jurisdiction by stipulating in this case that, since at least 1900, its statutory laws have not provided for, and it has not exercised, general criminal jurisdiction over crimes occurring on the Maryland side of the boundary line, even crimes that occur on structures that extend from Virginia's side of the river. See Exhibit CC-14, ¶¶ 7, 8. Over sixty years before it made this concession, however, Virginia's Attorney General stated that Virginia could do nothing about an individual who had a Maryland license to sell beer on Sundays on a pier attached to the Virginia side of the Potomac, asserting that, even though this activity was unlawful in Virginia, the territorial jurisdiction of the Commonwealth ends at the low-water mark and does not extend to any portion of a pier built beyond the boundary line into Maryland. See July 13, 1948 Va. Att'y Gen. Op. 118 (Exhibit CC-11).

In 1952, the Virginia Attorney General again recognized the boundary line and the jurisdictional line of sovereignty in expressing the view that the Commonwealth lacks the authority to license waterfowl blinds beyond its boundary in the Potomac. See July 30, 1952 Va. Att'y Gen. Op. 116 (Exhibit CC-12). Fifteen years following that recognition, the Virginia Attorney General concluded that filling in and construction beneath a pier also would not change the Commonwealth's lack of authority over that portion of the pier in Maryland, stating that while the rights of a riparian owner include the right to build a pier or wharf that is subject to regulation, the lawful exercise of such a right does not alter the boundary line between Maryland and Virginia. See April 25, 1967 Va. Att'y Gen. Op. 48 (Exhibit CC-13). Similarly, much like the stipulation concerning general criminal jurisdiction, Virginia has stipulated that since at least the turn of the last century it has not enforced any law relating to gambling, gaming, health, or occupational safety with respect to activities or structures in the river, see Exhibit CC-14, ¶ 10, and it has admitted in its responses to Maryland's interrogatories that, with respect to the same activities and structures, Virginia does not enforce, to this day, any laws relating either to these subjects or to alcohol, public safety, hunting or fishing. See Exhibit CC-15, Interrogatory Response No. 13.

Conversely, during this same time frame, Maryland has exercised the precise regulatory authority that Virginia has recognized it could not. Since 1908, Maryland law has provided that the jurisdiction of every county bounded by navigable waters extends from the shore to the inside of the channel, "except where said waters adjoin neighboring States, in which case the jurisdiction of said counties shall continue to the ultimate limits of the State at the place in question." 1908 Md. Laws Ch. 487 (Exhibit CC-3). Pursuant to this law, Maryland and its political subdivisions have asserted and extended their police power authority to the low-water mark on the Virginia side of the river, and to piers, wharves and other structures that extend beyond the boundary line into Maryland, in virtually every conceivable way in which that authority could be exercised.

Maryland has, for example, routinely applied and enforced its criminal laws with respect to a broad range of activities occurring on Maryland's side of the low-water mark, including those that have taken place on piers and wharves attached to the Virginia side of the river. See Declaration of Fred Davis, Exhibit B; Declaration of Francis "Buddy" Garner, Exhibit C; Declaration of Richard Voorhaar, Exhibit C; Declaration of Dennis I. Leland, Exhibit D. Indeed, while some of those activities, specifically, slot machine gambling, were initially lawful in Maryland, they were illegal in Virginia and so Maryland prohibited such activities to accommodate Virginia's request that Maryland take action where Virginia could not. See Miedzinski v. Landman, 218 Md. 3, 145 A.2d 220 (1958). Maryland has also routinely issued a variety of licenses with respect to structures extending from the Virginia side of the Potomac into Maryland and activities occurring on those structures. See Declaration of Edward C. Papenfuse, Exhibit W; Declaration of Lisa Bailey, Exhibit K; Declaration of Patricia Insley, Exhibit L; Declaration of Janice C. DeAtley, Exhibit T; Declaration of Faye Gatton, Exhibit U; Declaration of Elinor A. Mattingly, Exhibit V; Declaration of Kenneth A. Schertle, Exhibit O; Declaration of Michael Williams, Exhibit M; Declaration of Rick Forrester, Exhibit N. Maryland has taxed those structures and activities, see Declaration of Robert C. Farr , Exhibit F; Declaration of James W. Spence, Exhibit H; Declaration of James Loftus, Exhibit J; Declaration of Edward Muth, Exhibit I; Declaration of Joseph W. Norris, Exhibit G; Declaration of Edward C. Papenfuse, Exhibit W; it has performed health and safety inspections, not only for activities on the piers and wharves, but also for the structures themselves, see Declaration of Patricia Herriman, Exhibit P; Declaration of Ann Rose, Exhibit Q; Declaration of Walter Miles, Exhibit R; Declaration of Walter Raum, Exhibit S; and it has exercised its regulatory authority at the specific request of Virginia officials to accomplish what those officials recognized they were unable to achieve due to the jurisdictional limitations imposed on them by the low-water mark boundary line. See Herriman Decl., Exhibit P, ¶¶ 24-29, 33; Davis Decl., Exhibit B, ¶¶ 3-4.

The two States have accorded identical treatment to the boundary line set forth in the Black-Jenkins Award in the area of water withdrawals from and construction in the Potomac River, as they have in the other areas discussed above. Both Virginia and Maryland have recognized the boundary as the point at which Virginia's authority over the river terminates and Maryland's begins. Virginia has stipulated, for example, that "[n]either the Virginia Marine Resources Commission, nor any of its predecessor agencies has issued a permit, certification, or other authorization governing construction in the Potomac River on the Maryland side of the Maryland-Virginia line." Exhibit CC-14, ¶ 6. Similarly, the Commonwealth "has never set or enforced water quality standards with respect to the Potomac River on the Maryland side of the Maryland-Virginia line." Id., ¶ 4. Likewise, Virginia has admitted that "no agency of the State government of Virginia currently requires a permit from any Virginia user to withdraw water from the Potomac River," Exhibit CC-15, Interrogatory Response No. 4; that "it has not issued or been requested to issue any licenses or permits for the withdrawal of water from the Potomac River," id., Interrogatory Response No. 5, and that "it has not, to date, issued or denied any water appropriation permits with respect to the withdrawal of water from the Potomac River." Exhibit CC-16, Response to Request for Admission No. 29.

Maryland, in contrast, has long regulated the Potomac in these areas. The modern Maryland regulatory system for controlling waterway construction and water withdrawals was established in 1933. 1933 Md. Laws Ch. 526 (currently codified at Md. Code Ann., Envir. Art. § 5-501 et seq.) ("Water Resources Law") (Exhibit CC-4). The Water Resources law established permitting systems for both water withdrawals and waterway construction in the waters of the State. Maryland issued the first water appropriation permits under the law in the 1930s. See, e.g., Declaration of Matthew G. Pajerowski, Exhibit X, ¶¶ 4-5. The first application to withdraw water from the Potomac came in 1955, when the Potomac Electric Power Company (PEPCO) sought to withdraw water in connection with a power plant initially planned for the Virginia side of the Potomac in Loudoun County and then later relocated to Maryland. Id., ¶¶ 6-7.

Fairfax County, Virginia was the first Virginia entity to follow through on an application for a Maryland permit. Fairfax County submitted its application in 1956 and was issued a permit on February 25, 1957, authorizing the withdrawal of up to 15 million gallons per day from the Potomac. Id., ¶¶ 8-9. Four months after the Fairfax County Water Authority was created in 1957, Fairfax County requested that the Maryland permit be transferred to the Authority, which Maryland did on January 24, 1958. Id., ¶ 10. Although the Authority's permit eventually lapsed for failure to initiate withdrawals, id., ¶¶ 11-15, Virginia applicants continued to come to Maryland for permits during the 1960s. Id., ¶¶ 16 (Great Eastern Utilities Corp.), 18 (Town of Leesburg). During this time, Virginia and its political subdivisions participated in the Maryland permit process by submitting comments on the proposed applications and, in the instance of the Town of Leesburg, asking that Maryland not grant the requested permit. Id., ¶¶ 47-49.

The Fairfax County Water Authority in 1973 was the next, and most controversial, Virginia application for a Maryland withdrawal permit. The Authority's application came at a time of great concern about the ability of the Potomac to meet the water supply needs of the Washington Metropolitan Area. The Washington Suburban Sanitation Commission ("WSSC"), which serves many of the Maryland suburbs of Washington, had recently applied for a permit from the U.S. Army Corps of Engineers ("the Corps") to construct a weir across the Potomac to facilitate its withdrawal of water during periods of low flow. The Corps declined to authorize the structure unless and until an agreement could be worked out allocating the water in the river during periods of low flow. See Ex. CC-22 at VA-SRC-
002656.

The Authority's application prompted a response from both sides of the river, with most commenters – including the Towns of Leesburg and Herndon, Virginia – expressing concern about how the Authority's withdrawal would impact their ability to use the river. Exhibit X, ¶¶ 55-57. The Commonwealth of Virginia itself supported the Authority's application and, while acknowledging that Potomac flows were not sufficient to meet all demands, expressed hope that "under the auspices of Maryland Water Resources Administration some equitable basis for allocating withdrawals during times of critical low flow can be developed." Id., ¶ 58. While Maryland had already included conditions in its permits requiring permittees to reduce their use during such periods, see, e.g., Exhibit X-17 (Town of Leesburg permit), the Washington Aqueduct, which was the largest user on the river, claimed exemption from Maryland's permit system. Exhibit CC-20 at VA-SRC-
002724-25.

While the Authority's application was pending, the process of negotiating a low flow allocation agreement that would require all users to reduce their withdrawals during periods of low flow began in earnest. Although Maryland and Virginia stood together through most aspects of the negotiations, the Commonwealth eventually noted "for the record" that it had not "recognized" Maryland's permitting authority over Virginia withdrawals from the Potomac. Ex. CC-21. Maryland, for its part, maintained that all withdrawals from the mainstem Potomac River in Maryland were subject to its regulatory authority, as exercised since 1933 and earlier. Exhibits CC-20 and 26.

The version of the Low Flow Allocation Agreement ("LFAA") eventually signed by Virginia, Maryland, the Corps, the WSSC, and the Fairfax County Water Authority specifically recognizes Maryland's permitting program and uses it as a means of enforcing the agreement with respect to non-signatories, which include a number of Virginia permittees. See Pajerowski Decl., Exhibit X, ¶ 75. All parties agreed in Article 3.C that nothing in the LFAA was meant to undermine Maryland's permitting system (App. 94a), and Virginia applicants continued to come to Maryland for both new and renewed permits, applying for them without objection or protest. In fact, since 1976, twenty-two permits have been issued to Virginia entities, Exhibit X, ¶¶ 23-45, including permits to seven new users.11

Maryland's regulation of waterway construction in the Potomac since enactment of the 1933 Water Resources Law follows much the same pattern as its regulation of water appropriations. In 1964, the Fairfax County Board of Supervisors applied to construct a sanitary sewer across the Potomac in order to connect with the Potomac Interceptor sewer line near the town of Carderock, Montgomery County, Maryland. Exhibit W-35, MD-OAG- 00342. In 1968, the Town of Leesburg sought a permit to construct a drinking water intake to effectuate its withdrawal of water under its Maryland water appropriation permit. Declaration of Amanda Sigillito, Exhibit Y, ¶ 3. Other Virginia political subdivisions – e.g., the Fairfax County Water Authority, Northern Virginia Regional Park Authority – sought Maryland permits for water intakes and other, smaller structures. Id., ¶¶ 4-20.

Maryland has issued several waterway construction permits to Virginia entities and political subdivisions since 1933 and, until the Fairfax County Water Authority's 1996 application for a mid-river that gave rise to this case, no Virginia entity, public or private, had ever questioned Maryland's authority to regulate the placement of structures in, on, or over the bed of the Potomac River in Maryland territory. See id., ¶ 22. In fact, the Commonwealth has actively referred Virginia applicants to Maryland for review of non-tidal shoreline projects. See, e.g., Sigillito Declaration, Exhibit Y, ¶ 26; Exhibit CC-27, VA-
MRC-F-00756; Exhibits CC-32 and 33.

In 1970 Maryland enacted the Tidal Wetlands Act to regulate more closely the construction occurring on the tidewater stretch of the Potomac River. This law established a formal licensing system for obtaining the approval of the Maryland Board of Public Works for the dredging or filling of, and the placement of structures in, Maryland's tidal waters and wetlands, defined to include all the lands beneath the high water mark within the State. 1970 Md. Laws Ch. 241. On the Virginia side of the Potomac, this means Maryland regulates all structures extending beyond low water mark as established in the Black-Jenkins Award and mapped by the Mathews-Nelson Survey.12

The first Maryland licenses for projects on the Virginia shoreline of the Potomac River were issued in 1971. While most of these early licenses were for dredging projects, Maryland soon licensed a number of jetties, groins, bulkheads, piers, and other similar structures. From the earliest period, Virginia referred these applicants to Maryland.13 The Virginia Marine Resources Commission ("VMRC") – the Virginia agency charged with regulating the construction of riparian improvements on submerged lands – routinely notified Potomac applicants that it did not have jurisdiction over their projects and copied Maryland on the letter. See, e.g., Ayella Decl., Exhibit BB, ¶¶ 21-23. For example, on August 19, 1985, the VMRC informed John A. Taylor, Virginia Power, that

if your proposed project extends channelward of the mean low water you will encroach on subaqueous bottom under the jurisdiction of the State of Maryland. I recommend that you contact the Maryland Department of Natural Resources, Wetlands Permit Section, Water Resources Administration, Tawes State Office Building, Annapolis, Maryland 21401, for more information on their permitting requirements.

Exhibit BB-29, VA-MRC-00075.

In 1987, the Maryland Board of Public Works established a policy to clarify for Virginia riparian owners along the Potomac the types of activities that would require a formal license from Maryland. In 1994, that policy was formalized by regulation. See Code of Maryland Regulations ("COMAR") 23.02.04.21. Under the policy, the Commonwealth continues to refer Virginia applicants to Maryland through letters informing them of Maryland's jurisdiction.

Since the advent of the 1987 policy, most of these authorizations have come in the form of a letter from Maryland informing the applicant that the project, while under Maryland's jurisdiction, does not require the issuance of a formal wetlands license, with its attendant public hearing and notice and comment process. While the vast majority of Virginia applications are granted, on occasion authorization is denied, usually early in the process before significant resources are expended. For example, officials from the Maryland Department of Natural Resources informed representatives of the Town of Quantico, Virginia, that Maryland would not authorize a marina dredging project in the Potomac due to the presence of ecologically valuable submerged aquatic vegetation. See Exhibit CC-29.

According to existing records, Maryland has issued between 250 and 350 authorizations to Virginia citizens for the placement of piers, bulkheads, and other structures extending beyond the low water mark on the Virginia shore of the Potomac River. See Ayella Decl., Exhibit BB, ¶¶ 15-18. Maryland has located roughly the same number of letters from the Commonwealth to its citizens along the Potomac acknowledging that Maryland has jurisdiction over the construction of improvements beyond low water mark in the Potomac River. See, e.g., Exhibit BB-346 (collecting VMRC referral letters not included in other exhibits). The Commonwealth continues to acknowledge Maryland's jurisdiction over the construction of riparian improvements on the Virginia shoreline of the Potomac, even after the Supreme Court granted Virginia's Motion to File a Bill of Complaint in May, 2000. See Ayella Decl., Exhibit BB, ¶¶ 24-30, Exhibit BB-269 (August 1, 2001, VMRC letter advising Virginia applicant that area channelward of mean low water is subject to Maryland jurisdiction).

ARGUMENT

I.	MARYLAND HAS REGULATORY AUTHORITY OVER ACCESS TO THE POTOMAC.

Maryland is entitled to the entry of summary judgment in its favor for the principal reason that the relief Virginia seeks is based on an incorrect interpretation of the Compact of 1785 and the Black-Jenkins Award of 1877. While Article VII of the Compact provides that "[t]he citizens of each state respectively shall have full property in the shores of [the] Patowmack river adjoining their lands, with all emoluments and advantages thereunto belonging," the Compact, as Virginia acknowledges, "did not determine the boundary between the States." Complaint ¶ 9. Rather than relinquish any of the rights of government, sovereignty, and jurisdiction that accompany a boundary determination, Article VII merely recognizes that Virginia citizens may exercise "the privilege of making and carrying out wharfs and other improvements, so as not to obstruct or injure the navigation of the river." The exercise of such a privilege is subject to Maryland regulatory authority because that authority is an inherent part of, and incidental to, a State's ownership of the riverbed on which the wharf or pier is to be placed, and Maryland is the owner of the Potomac, including the land underlying the river, as Virginia recognized in its own Constitution and as subsequently confirmed in the Black-Jenkins Award. Maryland has acted properly in regulating the Potomac as it has for more than two hundred years because the Compact does not address, much less in any way restrict, Maryland's broad authority over property within its territory, which includes the power to regulate the placement by Virginia citizens of wharves and improvements beyond the low-water mark in the Maryland portion of the river.

A.	This Case Is Controlled By The Presumption That Maryland Has The Right, As The Owner Of The Potomac, To Regulate Access To The River.

"The principle has long been settled in this court, that each State owns the beds of all tide-waters within its jurisdiction, unless they have been granted away." McCready v. Virginia, 94 U.S. 391, 394 (1876). This principle is reinforced by a "strong presumption of state ownership" because "navigable waters uniquely implicate sovereign interests." Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 283 (1997). The "ownership of this land was considered an essential attribute of sovereignty," Utah Division of State Lands v. United States, 482 U.S. 193, 195 (1987); see also Idaho v. United States, 121 S.Ct. 2135, 2142 (2001) (citing cases), because "title to such land was important to the sovereign's ability to control navigation, fishing, and other commercial activity on rivers and lakes. . . ." Utah Division of State Lands v. United States, 482 U.S. at 195. See also Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 452 (1894). Such "control over the property underlying navigable waters is so strongly identified with the sovereign power of government," Montana v. United States, 450 U.S. 544, 552 (1981), that "a presumption against their separation from sovereignty must be indulged. . . ." Massachusetts v. New York, 271 U.S. 65, 89 (1926). See also Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. at 283-84. This presumption applies "in construing either grants by the sovereign of the lands to be held in private ownership or transfer of sovereignty itself," United States v. Oregon, 295 U.S. 1, 14 (1935), and is applicable here, as Maryland's ownership of the river is undisputed and its right to regulate the construction of wharves and other improvements beyond the low-water mark on the Virginia side of the Potomac is a fundamental feature of Maryland's sovereign control over the river. Virginia is unable to overcome this presumption and cannot demonstrate that Maryland divested itself of its sovereign right to regulate access to the Potomac when it ratified either the Compact or the Black-Jenkins Award.

Maryland's territorial claim over the Potomac derives from the charter granted on June 20, 1632 from King Charles I to Cecilius Calvert, Lord Baltimore. As the Court long ago recognized, that grant "in unmistakable terms included the Potomac River, . . . and declared that thereafter the province of Maryland and its freeholders and inhabitants should not be held or reputed a member or part of the land of Virginia, 'from which we do separate both the said province and the inhabitants thereof.'" Morris v. United States, 174 U.S. at 223 (quoting Maryland charter). While King James II in 1688 purported to give by patent to Lord Culpeper territory that also included the Potomac River, "the territory and title thus granted to Lord Baltimore, his heirs and assigns, were never devested by any valid proceedings prior to the Revolution, nor was such grant affected by the subsequent grant to Lord Culpeper." Id. at 225.

Rather than claim any rights of government in the Potomac, Virginia expressly disavowed any such assertion of sovereignty in its first Constitution of June 29, 1776. Explicitly acknowledging the rights of Maryland and several other States to the territories described in the charters establishing those colonies, the Commonwealth stated that those territories "are hereby ceded, released, and forever confirmed to the people of those colonies, respectively, with all the rights of property, jurisdiction, and government, and all other rights whatsoever which might, at any time heretofore, have been claimed by Virginia . . . ." Maryland v. West Virginia, 217 U.S. 1, 23 (1910) (quoting Virginia Constitution). See also Virginia v. Tennessee, 148 U.S. 503, 509 (1893) (stating that "on the 6th of May, 1776, the state of Virginia, in a general convention, with that generous public spirit which on all occasions since has characterized her conduct in the disposition of her claims to territory under different charters from the English government, had declared that the territories within the charters erecting the colonies of Maryland, Pennsylvania, North Carolina, and South Carolina were thereby ceded and forever confirmed to the people of those colonies, respectively."); Johnson and Graham's Lessee v. M'Intosh, 21 U.S. 543, 558 (1823). In contrast to this broad relinquishment of any claim of property, jurisdiction, government, and any other right that Virginia might have asserted with respect to the territories of all of these States, Virginia reserved only limited claims with respect to two rivers, namely, "the free navigation and use of the rivers Potowmack and Pokomoke, with the property of the Virginia shores or strands bordering on either of the said rivers, and all improvements which have been or shall be made thereon." Tidewater Exhibit 19.

While James Madison, upon learning of Virginia's broad renunciation of any rights or claims over the Potomac, wrote Thomas Jefferson decrying the Commonwealth's "entire relinquishment of the Jurisdiction" of the river, Tidewater Exhibit 34, the Maryland legislature rejected even the limited claim Virginia made with respect to the Potomac, declaring that "the state of Virginia hath not any right or title to any of the territory, bays, rivers, or waters, included in the charter granted by his majesty Charles the first to Caecilius Calvert, baron of Baltimore;" that "the sole and exclusive jurisdiction over the territory, bays, rivers, and waters, included in the said charter belongs to this state; and that the river Potowmack, and almost the whole of the river Pocomoke, being comprehended in the said charter, the sole and exclusive jurisdiction over the said river Potowmack, and also over such part of the river Pocomoke as is comprehended in the said charter, belongs to this state. . . ." Tidewater Exhibit 20.

Thus, as the drafters of the Compact came to Mt. Vernon in 1785, the two States' claims to the Potomac conflicted only as to (1) ownership of the Virginia shore, and (2) Virginians' use and navigation of the river. Beyond the Virginia shore, Maryland's authority to exercise its "rights of property, jurisdiction, and government" was undisputed from the perspectives of both States. Given that "[t]he boundary line is the line of sovereignty," Central Railroad Co. of New Jersey v. Mayor and Alderman of New Jersey, 209 U.S. 473, 593 (1908), Maryland had broad powers of government over the Potomac at the time it formed the Compact with Virginia in 1785, as its "ownership of the land underlying such waters is 'strongly identified with the sovereign power of government.'" Idaho v. United States, 121 S.Ct. at 2142. This power included the authority to regulate the construction of wharves and other improvements in the Potomac.

While "[w]harves, quays, piers, and landing places, for the loading and unloading of vessels, were constructed in the navigable waters of the Atlantic States by riparian proprietors at a very early period in colonial times," Dutton v. Strong, 66 U.S. 23, 31-32 (1861), "[b]y the law of England, also, every building or wharf erected, without license, below high-water mark, where the soil is the king's, is a purpresture, and may, at the suit of the king, either be demolished, or seized and rented for his benefit, if it is not a nuisance to navigation." Shively v. Bowlby, 152 U.S. 1, 14 (1894). Following the American Revolution, such activity remained, as it had been before, "subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public." Yates v. Milwaukee, 77 U.S. 497, 504 (1870). The "legislature" responsible for regulating this activity is the legislature of the State that owns the riverbed, as "title necessarily carries with it control over the waters above them, whenever the lands are subjected to use." Illinois Central Railroad Co. v. Illinois, 146 U.S. at 452.14 This control includes such regulation or "control over the location, erection, and use of such wharves or landings, which will prevent their being made obstructions to navigation and standing menaces of danger. . . [T]he control which the State exercises over them is such as to secure at once their usefulness and their safety." Atlee v. Packet Co., 88 U.S. 389, 393 (1874). See also Norfolk City v. Cooke, 68 Va. 430, 434 (1876) ("These rights both at common law and by statute, are secured to the riparian owner, to erect wharves, piers, or bulk heads . . ., subject only to such general rules and regulations as the legislature may prescribe; and the only limitation upon such right is, that navigation may not be obstructed, or the rights of others be injured.").

Thus, at the time it formed the Compact with Virginia, Maryland had well-settled sovereign authority over the Potomac and the construction of wharves and other improvements in the river. See also Dutton v. Strong, 66 U.S. at 32 ("the right to build such erections, subject to the limitations before mentioned, has been claimed and exercised by the owner of the adjacent land from the first settlement of the country to the present time"); Taylor v. Commonwealth, 102 Va. 759, 47 S.E. 875, 880 (1904) ("we think it well established that the right to build wharves is one which is subject to state regulation"). Applying the appropriate rule of construction in cases such as this shows that Maryland's formation of the Compact retained these important powers of government.

B.	The Compact Does Not Contain Any Language That Divests Maryland Of Its Right To Regulate Potomac River Access.

As the cases demonstrate, Maryland is presumed not to have relinquished any governmental authority over the exercise of Virginia citizens' "privilege of making and carrying out wharfs and other improvements" in the Potomac River. That presumption can be overcome only by clear, especial, or plain language to the contrary in the Compact, as Maryland's regulation of such a privilege is an essential part of its ownership of the Potomac and its "absolute right" – as the trustee for its citizens – "to all their navigable waters, and the soils under them, for their own common use, subject only to the rights surrendered by the constitution to the general government." Martin v. Waddell, 41 U.S. 367, 410 (1842). See also Yates v. Milwaukee, 77 U.S. at 504. While the Compact addressed Virginia's interest in having access to the Potomac, it did nothing to change the Potomac River's location within the State of Maryland as set forth in the original 1632 charter from King Charles I. Under the presumption and rule of construction set forth in other comparable cases, the Compact does not contain any language that strips Maryland of its governmental authority over the Potomac originating in the 1632 charter that Virginia expressly recognized in its 1776 Constitution.

In Massachusetts v. New York, 271 U.S. 65 (1926), for example, the Court applied a rule of strict construction in holding that Massachusetts did not acquire any title to the bed of Lake Ontario by the Treaty of Hartford, in which New York granted to Massachusetts "the Right of pre-emption of the Soil from the native Indians and all other the Estate, Right, Title and Property (the Right and Title of Government Sovereignty and Jurisdiction excepted) which the State of New York hath" in the lake, and Massachusetts granted to New York "'all the claim, right and Title which the Commonwealth of Massachusetts hath to the Government Sovereignty and Jurisdiction' in all the lands in controversy between the two states." Id. at 80, 85. The Court stated that "[t]he dominion over navigable waters and property in the soil under them, are so identified with the exercise of the sovereign powers of government that a presumption against their separation from sovereignty must be indulged, in construing all grants by the sovereign, of lands to be held in private ownership." Id. at 89.

In applying that presumption and concluding that Massachusetts did not acquire private title to the bed of Lake Ontario, the Court observed that "[t]he right of Massachusetts and her grantees to use the waters of the lake was amply secured and protected by a clause of the treaty" providing that the citizens of Massachusetts shall "have and enjoy the same and equal Rights respecting the navigation and fishery on and in Lake Ontario . . . as shall from time to time be had and enjoyed by the Citizens of the State of New York." Id. at 88. Stating that "a grant of the soil under water in private ownership would have set material limits on the free exercise of the sovereign control of New York over navigable waters of the state and on the free use of the principal waterway of the newly settled territory," id., the Court held that "all grants by or to a sovereign government as distinguished from private grants, must be construed so as to diminish the public rights of the sovereign only so far as is made necessary by an unavoidable construction." Id. at 89.

Similarly, in upholding New Jersey's right under a compact it formed with New York to tax land in New York Bay on the New Jersey side of the boundary between the two States established by the compact, "but under the 'exclusive jurisdiction' of New York, subject to the exclusive right of property in New Jersey," Central Railroad Co. of New Jersey v. Mayor and Aldermen of Jersey City, 209 U.S. 473, 478 (1908), the Court took the same approach described above, stating that "boundary means sovereignty, since, in modern times, sovereignty is mainly territorial, unless a different meaning clearly applies." Id. at 479. Rejecting the argument that a "different meaning does appear in the article (3) [of the compact] that gives New York exclusive jurisdiction over this land as well as the water above it," id., the Court asserted "we agree with the state courts that have been called on to construe that part of the agreement, that the purpose was to promote the interests of commerce and navigation, not to take back the sovereignty that otherwise was the consequence of article 1," id., which established the boundary between New Jersey and New York. See also United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987) (holding that the United States had not waived its sovereign interest in its navigational servitude in submerged lands when it entered into a treaty with the Choctaw Indian tribe of the sovereign Cherokee Nation conveying title to those lands); Nicoulin v. O'Brien, 248 U.S. 113, 114 (1918) ("And we think it clear that no limitation upon the power of [Kentucky] to protect fish within her own boundaries by proper legislation resulted from the mere establishment of concurrent jurisdiction by the Virginia Compact."); Martin v. Waddell, 41 U.S. at 414 ("it would require very plain language in these letters-patent, to persuade us that the public and common right of fishery in navigable waters, which has been so long and so carefully guarded in England, and which was preserved in every other colony founded on the Atlantic borders, was intended, in this one instance, to be taken away").

As these cases show, Virginia must point to unambiguous language in the Compact demonstrating that Maryland intended to separate, and then surrender, its right to regulate wharves and other improvements from the bundle of other rights accompanying its ownership of the lands beneath the Potomac. See also Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U.S. 41, 52 (1986) (citing well-established canon of contract construction that no sovereign power will be considered surrendered absent clear and unambiguous language set forth in "unmistakable terms") (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982)); Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420, 548 (1837) ("[W]henever any power of the state is said to be surrendered or diminished, whether it be the taxing power or any other affecting the public interest, the same principle applies, and the rule of construction must be the same."). See generally United States v. Winstar, 518 U.S. 839, 871-79 (1996). Indeed, "if the great right of dominion and ownership in the rivers, bays and arms of the sea, and the soils under them, were to have been severed from the sovereignty" and "intended to be withdrawn, the design to make this important change in this particular territory would have been clearly indicated by appropriate terms; and would not have been left for inference from ambiguous language." Martin v. Waddell, 41 U.S. at 416.

No such appropriate terms exist here, nor does this case involve language that could be characterized as ambiguous. While "a grant by a state having plenary power to make it, of the rights and title of government and sovereignty over a specified territory, . . . carries with it, as an incident, title to lands under navigable waters," Massachusetts v. New York, 271 U.S. at 89, the Compact "in no way expressly referred to the riverbed, nor was an intention to convey the riverbed expressed in 'clear and especial words,' or 'definitely declared or otherwise made very plain.'" Montana v. United States, 450 U.S. at 554 (citations omitted). The Compact simply does not contain any language remotely suggesting that Maryland transferred to Virginia any authority over the construction of wharves and other improvements in the Potomac. Absent such a provision, no such transfer of authority can be assumed. See also Jefferson Branch Bank v. Skelly, 66 U.S. 436, 446 (1861) ("[N]either the right of taxation, nor any other power of sovereignty, will be held . . . to have been surrendered, unless such surrender has been expressed in terms too plain to be mistaken.").

Nor does the Compact confer on Virginia citizens an unrestricted "privilege" of constructing improvements in the river. First, although Maryland clearly contemplated from the plain language of the Compact that wharves and piers would be built from the Virginia side of the Potomac, "[t]here is nothing in their presence to indicate an abandonment by the Sovereign of title to the soil. . . [R]iparian proprietors have very commonly enjoyed the privilege of gaining access to a stream by building wharves and piers, and this though the title to the foreshore or the bed may have been vested in the state." New Jersey v. Delaware, 291 U.S. 361, 375 (1934). Observing that "Article 7 gave the citizens of each State full property in the shores of the River adjoining their lands and the privilege of carrying out wharves etc., but left the question of boundary open to long continued disputes," the Court in Smoot Sand & Gravel Corp. v. Washington Airport, 283 U.S. 348, 351 (1931), concluded that such "private ownership does not affect State boundaries" and that the use of the word "shores" "is merely a topographical indication and imports nothing as to the sovereignty over them." Id. Maryland's mere recognition that the "citizens" of Virginia would have the "privilege" of building wharves and other improvements into the Potomac, like Delaware's "approval" of identical construction in the Delaware River, New Jersey v. Delaware, 291 U.S. at 375, gives rise to "no legitimate inference" that either Maryland or Delaware relinquished its "title to the stream up to the middle of the channel or even the soil under the piers. The privilege or license was accorded to the owners individually and even as to them was bounded by the lines of their possession." Id. at 376.

Second, even if an inference could be drawn that Maryland intended to give Virginia citizens (as opposed to the Commonwealth) the uncontrolled right to build wharves and piers, Maryland could not confer such a right, as "[t]he state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties . . . than it can abdicate its police powers in the administration of government and the preservation of the peace." Illinois Central Railroad Co. v. Illinois, 146 U.S. at 453. The absence of any Compact language designed to effect a blanket surrender of Maryland's sovereignty is not inadvertent, as "the power of the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community . . . can neither be abdicated nor bargained away, and is inalienable even by express grant." Atlantic Coast Line R. Co. v. City of Goldsboro, 232 U.S. 548, 558 (1914). See also Stone v. Mississippi, 101 U.S. 814 (1879); West River Bridge Co. v. Dix, 47 U.S. 507 (1848). See generally United States v. Winstar Corp., 518 U.S. at 874 & n.20, 888-89 & nn.33 and 34.

The Compact's qualification of Maryland's regulatory authority in other respects underscores the absence of any intention to relinquish Maryland's regulatory authority over the construction of wharves and other improvements in the Potomac. For example, Article VIII expressly requires the "mutual consent and approbation of both states" in passing "laws and regulations which may be necessary for the preservation of fish, or for the performance of quarantine, in the river Patowmack, or for preserving and keeping open the channel and navigation thereof. . . ." Similarly, Article X specifically conditions the exercise of the "jurisdiction of each state over the river Patowmack" with respect to certain "piracies, crimes or offences," depending on where they occur and the citizenship of both the victim and the criminal. Conversely, Article VII of the Compact makes no reference to the laws of either State, nor does it even hint that one State rather than the other will have "jurisdiction" over the exercise of the "privilege" described in that provision. Absent such language, the rights of sovereignty remain with Maryland.

Virginia's claims fail, therefore, because the Compact imposes no restrictions of any kind on Maryland's authority, as the owner of the waters and beds of the Potomac, to subject an individual's right "to make a landing, wharf, or pier . . . to such general rules and regulations as the legislature may prescribe for the protection of the rights of the public." Illinois Central Railroad Co. v. Illinois, 146 U.S. at 445-46. That authority was not unique to Maryland at the time the Compact was formed but rather is a power of all sovereign entities, as Virginia's own courts have recognized, see, e.g., Taylor v. Commonwealth, 102 Va. 759, 47 S.E. at 880; Norfolk City v. Cooke, 68 Va. at 434, and, like any governmental power, may not be deemed relinquished "in a case in which the deliberate purpose of the state to abandon it does not appear." Providence Bank v. Billings, 29 U.S. 514, 561 (1830). Virginia's challenge to Maryland's assertion of authority over construction activity in the Potomac should be rejected because Maryland has not manifested in any portion of the Compact any purpose to abandon such regulatory power.

The absence of such a purpose to relinquish that authority – and the need for it to be stated in clear and unequivocal language to have any effect at all – is perhaps best understood by the history preceding the Compact's formation. While Virginia has argued previously in this case that the boundary between the two States was in dispute as of 1785, Virginia had nine years earlier in its Constitution explicitly "ceded, released, and forever confirmed to the people of" Maryland "all the rights of property, jurisdiction, and government, and all other rights whatsoever which might, at any time heretofore, have been claimed by Virginia" with respect to the territory described in the Maryland Charter, and reserved only limited navigation, access, and property claims concerning the Potomac. The presence of similar language in the Treaty of Hartford in which Massachusetts recognized New York's "Government Sovereignty and Jurisdiction" over the bed of Lake Ontario was sufficient to divest Massachusetts of title to that land, notwithstanding that Massachusetts, unlike Virginia in its Constitution, retained the significantly more sweeping "right of preemption of the soil" and "the estate, right, title and property," Massachusetts v. New York, 271 U.S. at 85, in the land in question. The concession made by Virginia in its Constitution, and Maryland's strongly worded response at its next legislative session challenging even the limited claim that Virginia asserted with respect to the Potomac, demonstrates that both States understood the extent of Maryland's claimed ownership and sovereignty over the river. The Compact contains no language that remotely suggests the States intended to alter this basic understanding, by simply providing that the citizens of each State would have "full property" in the shores of the Potomac adjoining their lands and the privilege of building wharves and other improvements thereon.

Even if ownership of the Potomac were in dispute at that time, despite the plain statements to the contrary made in Virginia's Constitution and the Maryland legislative session, the Compact does not strip Maryland of any regulatory authority over the exercise of access rights. Rather, the Compact did not resolve any boundary issues but only recognized a privilege to build wharves, wherever the boundary was, without stating anything about which State could regulate the exercise of such a privilege. Thus, even if the States disagreed on the location of the boundary at the time the Compact was formed and elected to leave that question for another day, the Compact neither divests Maryland of, nor vests Virginia with, any regulatory authority. As demonstrated by the language found in Virginia's Constitution, Maryland's 1776 legislative response, the Treaty of Hartford, and other contemporaneous historical documents, see Rakove Aff. (Exhibit A) at 13-20, the States were well aware of the differences between the words "property, jurisdiction, government, and sovereignty." The mere recognition of a "privilege of making and carrying out wharfs and other improvements" simply does not, by itself, operate to strip Maryland of, or imbue Virginia with, any jurisdictional, governmental, or sovereign rights over the exercise of such a privilege.

Nor does such a privilege confer, as Virginia alleges in its Complaint, any unilateral and unrestricted right upon Virginia or "her riparian communities" "to withdraw water from the Potomac River. . . ." Complaint ¶ 46. First, Maryland's ownership of the Potomac River bed and waters to the low water mark confirms that Maryland has the authority to regulate the reasonable use, including the withdrawal, of water from a river within its own boundaries. Indeed, as Virginia's highest court has stated, "the navigable waters and the soil under them, within the territorial limits of a state, are the property of the state, to be controlled by the state, in its own discretion, for the benefit of the people of the state . . . ." Taylor v. Commonwealth, 102 Va. 759, 47 S.E. at 879. That control includes the authority to regulate the appropriation of waters within that State's boundaries. See United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 702-03 (1899) ("as to every stream within its dominion a state may . . . permit the appropriation of the flowing waters for such purposes as it deems wise"); see also Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 956-57 (1982) (recognizing State's police power to regulate water withdrawals within its boundaries, while striking down Nebraska's reciprocity requirement as discriminating against interstate commerce in appropriated groundwaters).

Second, neither Virginia nor its "riparian communities" have any riparian right to withdraw water from the Potomac. Rather, such a right belongs only to the individual property owner. Indeed, in Virginia, as in many other States, "[w]hile a riparian owner is entitled to a reasonable use of the water, he has no right to divert it for use beyond his riparian land . . . ." Town of Purcellville v. Potts, 179 Va. 514, 521, 19 S.E.2d 700, 703 (1942). Recognizing that "[t]he use of the waters of a stream to supply the inhabitants of a municipality with water for domestic purposes is not a riparian right," id. (quoting Pernell v. City of Henderson, 220 N.C. 79, 16 S.E.2d 449, 451 (1941) (other citations omitted), "[t]he weight of authority * * * holds a municipal corporation civilly liable for diverting the waters of a private watercourse for the purposes of a public water supply, either with or without legislative authority." Id. See also Town of Gordonsville v. Zinn, 129 Va. 542, 106 S.E. 508 (1921).

This rule is based on the rationale that "giving an individual the right to consume water for his domestic needs is founded upon the needs of the single individual and the possible effect which his use will have on the rights of others, and cannot be expanded so as to render a collection of persons numbering thousands, and perhaps hundreds of thousands, organized into a political unit, a riparian owner, and give this unit the right of the natural unit." Pernell v. City of Henderson, 220 N.C. 79, 16 S.E.2d at 451 (quoting Farnham, Water and Water Rights, Vol. 1, at 611). Accordingly, "[t]here is little, if any, dissent from the generally accepted view that riparian status does not entitle a municipality to abstract stream water for distribution to its inhabitants for domestic purposes." Oklahoma Water Resources Board v. Central Oklahoma Conservancy District, 464 P.2d 748, 755 (Okl. 1969). Cf. Atlee v. Packett Co., 88 U.S. at 394 (rejecting contention that "at any place where a riparian owner can make . . . a structure useful to his personal pursuits or business, he can, without license or special authority, and by virtue of his ownership, and of his own convenience, project a pier or roadway into the deep water of a navigable stream, provided he does it with care, and leaves a large and sufficient passway of the channel unobstructed").

While there is no riparian right to withdraw water on behalf of non-riparian owners, Maryland has long sought to accommodate Virginia's need for water. Maryland follows the "reasonable use" doctrine, which allows for any use of water – even non-riparian uses – so long as that use is reasonable and does not harm other users or the aquatic environment. See generally COMAR 26.17.06.02B. The evidence discussed below demonstrates that, within the Maryland system, Virginians enjoy the same rights as Marylanders and are treated similarly. The Compact does not, however, give Virginians any greater access rights than those possessed by Marylanders.

C.	Post-Compact History Further Substantiates Maryland's Broad Authority Over The Potomac.

1.	Contemporaneous evidence shows that Maryland retained the right to regulate.

Maryland's interpretation of the Compact also finds support in the "contemporaneous construction of it and usage under it for more than a century . . . ." Massachusetts v. New York, 271 U.S. at 87. Maryland's understanding that it retained the authority to regulate wharves and other improvements in the Potomac was reflected in the law that Maryland passed just six years after the Compact was formed, in which it ceded part of Maryland's territory, which included a portion of the Potomac, to the United States for the location of the seat of the federal government. A provision of that law, which was enacted December 19, 1791, vested commissioners appointed by the President with specific licensing authority over wharves built in the Potomac, stating that they "have power to license the building of wharves in the waters of the Potomac and the Eastern Branch, adjoining the said city, of the materials, in the manner and extent, they may judge durable, convenient and agreeing with general order; but no license shall be granted to build a wharf before the land of another, nor shall any wharf be built in the said waters without license as aforesaid. . . ." Morris v. United States, 174 U.S. at 282 (quoting Kilty's Laws of 1791, ch. 45, § 12, attached as Exhibit CC-
1).

This legislation was enacted during the same historical time period in which the Compact was formed and evinces Maryland's clear understanding that it had the right to regulate the building of wharves and other improvements in the Potomac, regardless of the side of the river on which the construction took place. The law unambiguously demonstrates that Maryland's authority existed not simply in "the Eastern Branch" on Maryland's side, but also in "the waters of the Potomac." Indeed, the law's description of the property Maryland ceded to the federal government makes plain that "the waters of the Potomac" extended to Virginia's side of the river:

beginning at Jones's Point, being the upper point of Hunting Creek, in Virginia, and at an angle in the outlet of forty-five degrees west of the north, and running a direct line ten miles for the first line, then beginning again at the same Jones's Point, and running another direct line at a right angle with the first, across the Patowmack, ten miles, for the second line, then from the terminations of the said first and second lines, running two other direct lines ten miles each, the one crossing the Eastern Branch and the other Patowmack, and meeting each other in a point; which has since been called the Territory of Columbia.

Exhibit CC-1. See also United States ex rel. Greathouse v. Dern, 289 U.S. 352, 354 (1933) (stating in a case involving the proposed construction of a wharf from the Virginia side of the Potomac "it is conceded that the bed of the river below high-water mark, where the proposed wharf is to be built, lies within the District of Columbia, and that title to it and sovereignty over it were vested in the United States by cession from the state of Maryland of the area constituting the present District of Columbia").

Maryland's understanding that it had and was transferring to the commissioners of the District of Columbia the authority to regulate the construction of wharves and other improvements was shared by the commissioners, who adopted a regulation in 1795 providing in pertinent part:

The Board of commissioners, in virtue of the powers vested in them by the act of the Maryland legislature to license the building of wharves in the city of Washington, and to regulate the materials, the manner and the extent thereof, hereby make known the following regulations:

That all proprietors of water lots are permitted to wharf and build as far out into the river Potomac and the eastern branch as they think convenient and proper, not injuring or interrupting the channels or navigation of the said waters. . . The buildings on said wharves to be subject to the general regulations for buildings in the city of Washington. . . .

Morris, 174 U.S. at 283. See also Potomac Steam-Boat Co. v. Upper Potomac Steam-Boat Co., 109 U.S. 672, 675-76 (1884).

The same understanding extended to Maryland's jurisdiction over water withdrawals from the Potomac. While there was no formal permitting system in place at the time, the regulation of water rights that occurred through the courts and the legislature took place entirely under Maryland's jurisdiction. When the United States in 1853 first sought access to the Potomac "for the purpose of bringing water into the city of Washington," it came to Maryland for authorization. See Acts of Congress of 1852, ch. 97, March 3, 1853 (authorizing the expenditure of funds for the project and providing that "if the plan adopted by the President of the United States should require water to be drawn from any source within the limits of Maryland, the assent of the legislature of that State should first be obtained"). Maryland agreed, passing "An Act giving the assent of the State of Maryland, to such plan as may be adopted by the President of the United States, for supplying the City of Washington with Water." 1853 Md. Laws Ch. 179. It is this law that, even today, serves as the basis for the federal government's water rights in the non-tidal Potomac.

The development of the District of Columbia water supply system highlights the same understanding by both Maryland and Virginia concerning Maryland's jurisdiction over the Potomac. In its 1853 legislation, Maryland gave its approval for all aspects of the Washington Aqueduct, including "such dams, reservoirs, buildings and other works . . . as may be necessary for the said purpose [of bringing water to the District]." 1853 Md. Laws Ch. 179, § 1. By contrast, the Virginia law passed in connection with the construction of the Aqueduct is limited to providing consent for the United States' acquisition of "land necessary for an abutment and quarries for the construction of a dam across the Potomac." 1854 Va. Laws Ch. 5.

The Washington Aqueduct project also reveals how other Maryland institutions regulated water rights in the Potomac. When the Great Falls Manufacturing Co., a Virginia corporation, sued to press its claims to water rights in the Potomac against the Aqueduct's withdrawals, it went to the Circuit Court for Montgomery County, Maryland. United States v. Great Falls Manufacturing Co., Circuit Court for Montgomery County, Maryland, reprinted as Sen. Doc. 42, 35th Cong., 2d Sess. (1859), Tidewater Exhibit 85. Having lost in Maryland's courts, the Company then sought to secure water rights to the Potomac in the Maryland Land Office by taking out a patent to the water within the Potomac between Conn's Island and the Virginia shore, called Neilson's Desire. See United States v. Great Falls Manufacturing Co., 21 Md. 119 (Md. 1864). In the litigation surrounding this patent, no party questioned that Maryland had the authority and jurisdiction to patent the submerged lands beneath the Potomac. See id. at 123 (assertion of the United States that "[t]he right of the State originally to grant the land sought to be patented, is conceded on all sides"), 127 (assertion of the Great Falls Manufacturing Company that "[t]he title of the State of Maryland to the land at the bottom of the Potomac River to high water mark on the Virginia shore, and her right to grant portions of it not yet granted by patent or otherwise, is too firmly settled to be questioned now").

Thus, ample historical evidence shows that, from the time the Compact of 1785 was formed until Maryland and Virginia's adoption of the Black-Jenkins Award ninety years later, Maryland, the United States, Virginia and others understood that Maryland retained sweeping regulatory authority over the Potomac River.

2.	Maryland and Virginia have consistently recognized the boundary set forth in the Black- Jenkins Award as an absolute line of sovereignty.

a.	The Award conclusively established Maryland's ownership and authority over the river and its beds up to the low-water mark.

The Black-Jenkins Award subsequently confirmed not just Maryland's view that "[t]he boundary line is the line of sovereignty," Central Railroad Co. of New Jersey v. Mayor and Aldermen of Jersey City, 209 U.S. at 478, but also Virginia's understanding that Maryland's regulatory authority over the Potomac extended to the low-water mark on the Virginia side of the river. While the Black-Jenkins arbitrators determined that "Virginia has a proprietory right on the south shore to low-water mark, and, appurtenant thereto, has a privilege to erect any structures connected with the shore which may be necessary to the full enjoyment of her riparian ownership" (App. 29a), they rejected the Commonwealth's argument that, in addition to having "rights on the river[,] . . . she acquired, or that Maryland lost, the islands or the bed of the river. . . ." (App. 30a.) In dismissing that argument and determining that the boundary between the two States was the low-water mark on the Virginia side of the river, the arbitrators also rejected the offer of settlement that Maryland had made earlier in the proceedings to draw the boundary around all of the wharves and piers built out from the Virginia side. See Ex. 121 to Virginia's Motion for Partial Summary Judgment. Thus, "the jurisdictional line and boundary were declared to be the low-water mark on the Virginia shore," Morris v. United States, 174 U.S. at 218, because Maryland's ownership of the Potomac, including the riverbed, was deemed to extend to the low-water mark, even when a wharf or pier is built beyond that point.

Although the Black-Jenkins Award did not explicitly state that the sovereign authority flowing from Maryland's ownership of the bed of the Potomac extended to wharves and other improvements built from the Virginia side of the river, the meaning and interpretation of the Award in this regard are confirmed by the "practical construction of the boundary by the acts of the two states and of their inhabitants." Vermont v. New Hampshire, 289 U.S. 593, 619 (1933). Both States and their citizens have deemed the low-water mark as the boundary line of sovereignty in all respects. See also Massachusetts v. New York, 271 U.S. at 94 ("If any further support were required for the conclusion we reach, it is to be found in the practical construction by the two states of the Treaty of Hartford and of the grants made by Massachusetts immediately following it, and in long-continued acquiescence by Massachusetts in that construction."). The Award's subsequent interpretation by Maryland and Virginia confirm again that Maryland's ownership of the Potomac included the right to regulate Virginia's access to the river.

Since the time both States accepted the Black-Jenkins Award, and in recognition of the well-settled rule that "ownership of land under navigable waters is an incident of sovereignty," Montana v. United States, 450 U.S. at 551, each State for the last century and a quarter has "asserted jurisdiction on its side up to the line designated, and recognized the lawful jurisdiction of the adjoining state up to the line on the opposite side." Virginia v. Tennessee, 148 U.S. at 515. The conduct of both States reflect their clear understanding that, with the exception of the concurrent jurisdiction over fisheries provided for in the Compact, the boundary determination made in the Black-Jenkins Award was the dividing line of sovereignty with respect to all other areas and activities.

It did not take long for that conduct to occur. Just ten years after accepting the award, Maryland passed legislation making it unlawful for any person to dig, dredge, take, and carry away any sand, gravel or other material from the bed of the Potomac between its mouth and the uppermost boundary line of Prince George's County, Maryland. See 1888 Md. Laws Ch. 362 (Exhibit CC-2). Conversely, Virginia has admitted that, although it "regulates all dredging, extraction or mining on state-owned bottomlands (submerged lands) through the Marine Resources Commission," Exhibit CC-15, Interrogatory Response No. 8, "[s]ince at least 1888, Virginia has not regulated mining, dredging, or extraction of materials from property located below the low-water mark of the Potomac River." Exhibit CC-16, Response to Request for Admission No. 162.

A substantial number of similar parallel assertions of authority/non-authority were made in the next century. From Maryland's perspective, a number of these assertions of jurisdiction derive from a Maryland law enacted in 1908 providing that the jurisdiction of any county bounded by waters that adjoined a neighboring State extended to the "ultimate limits" of Maryland "at the place in question." 1908 Md. Laws Ch. 487 (Exhibit CC-3). Since that time, Maryland and its political subdivisions have extended practically every type of police power authority that exists to the low-water mark on the Virginia side of the Potomac River, and have included within their broad regulatory sweep piers, wharves, and water intake pipes attached to Virginia, and activities that take place on structures build from the Virginia side. Conversely, as with its failure to regulate mining, dredging, or extraction activity with respect to the Potomac, Virginia has failed to exert any regulatory authority over the Potomac, subject only to the exception of the limited jurisdiction given it by the Compact of 1785 concerning fisheries and certain crimes. Indeed, the Commonwealth has not only recognized its lack of authority but has also asked Maryland to exercise its regulatory power over property and activity on the Virginia side of the river but beyond Virginia's jurisdictional reach.

b.	Taxation.

A State's "taxing power" is "one of the primary indicia of sovereignty." Illinois v. Kentucky, 500 U.S. at 385. Such a manifestation of a State's sovereignty has been found to be "particularly persuasive in prior cases." New Jersey v. New York, 523 U.S. at 792 (citing cases). Both States have long recognized that Virginia's taxation authority ends at the boundary line between the States and that Maryland's begins at that point. In response to a request for an opinion whether the Commonwealth could tax oysters taken from the Potomac River, the Virginia Attorney General more than 65 years ago responded that Virginia's "tax is confined to oysters taken from the public rocks, beds and shoals of the Commonwealth of Virginia and from oyster grounds leased by the Commonwealth. Since the bed of the Potomac is not owned by the State of Virginia and is not leased by the Commonwealth, I concur in the view you expressed in your letter that the Commission does not possess the authority to levy the tax in question upon oysters taken from the said river." June 21, 1935 Va. Att'y Gen. Op. 147 (Exhibit CC-9). This limitation is not confined to oyster taxes. Rather, as Virginia has stipulated, "Virginia has not imposed any sales or use, litter, entertainment, personal property, or income tax on activities that take place in the Potomac River, or on structures located in the Potomac River, on the Maryland side of the Maryland- Virginia line." Exhibit CC-14, ¶ 13.

Virginia has recognized a similar jurisdictional limitation with respect to the imposition of real property taxes. In its response to Maryland's interrogatories, Virginia asserts that its "localities along the Potomac River are authorized to impose a property tax on real property, structures and improvements that extend from the Virginia shore of the Potomac River," and that the localities "are authorized to include in the value of real property subject to local taxation the value of any structures appurtenant to such property that extend beyond the low-water mark across the Virginia/Maryland line." Exhibit CC-15, Response No. 10. As shown by documents produced by those localities, however, they do not tax structures and improvements that extend beyond the low-water mark into Maryland when the structures and improvements are not simply a pier or a wharf but rather are property, such as a restaurant or tavern, that has value independent of the land in Virginia to which the structure is attached. In contrast, Maryland does tax those properties when they are on the Maryland side of the boundary.

For example, Flanagan's of Colonial Beach, Inc. is the owner of a restaurant built on a pier offshore Colonial Beach, Virginia on Maryland's side of the boundary line. The Westmoreland County, Virginia Commissioner of the Revenue in the year 2001 assessed only the land owned by Flanagan's on the Virginia shore; the Commissioner did not include the restaurant in that assessment. Exhibit CC-38. Conversely, the Department of Assessments and Taxation for Charles County, Maryland taxes the building housing the restaurant, and has been taxing this property since at least 1957. See Declaration of Robert C. Farr, Exhibit F, ¶¶ 15-20 and Farr Exhibits 10-14.

Similarly, the Coles Point Tavern is built on pilings and piers offshore Coles Point, Virginia. The Westmoreland County, Virginia Commissioner of the Revenue in the year 2001 assessed the land at $80,000, and the total improvements at $2,800. Exhibit CC-38. The Department of Assessments and Taxation for St. Mary's County, Maryland most recently assessed the land at $1,000, and the improvements at $84,300, and has been taxing this property since at least 1961. See Declaration of James W. Spence, Exhibit H, ¶¶ 3-7 and Spence Exhibits 1-4.

Maryland has also taxed other properties extending from the Virginia side of the river dating back to at least 1952. See Farr Decl., Exhibit F, ¶¶ 5-14 and Farr Exhibits 1-9; Declaration of Edward C. Papenfuse, Exhibit W, ¶¶ 24–32, 38, 40-41 and Papenfuse Exhibits 17-24, 29, 31-32. Maryland was unable to locate during discovery, however, any documents showing that Virginia has ever taxed these properties, and, as stated previously, Virginia has acknowledged that it has not imposed any other taxes on any activities or structures in the Potomac on the Maryland side of the boundary line. In contrast, since at least 1951, Maryland has imposed sales, entertainment, personal property and other taxes on businesses built on piers and wharves extending from the Virginia side of the river. See Declaration of James Loftus, Exhibit J, and Loftus Exhibits 1-9; Declaration of Edward Muth , Exhibit I, and Muth Exhibits 1-17; Declaration of Joseph W. Norris , Exhibit G, and Norris Exhibits 1-6; Papenfuse Decl., Exhibit W, ¶ 35-37 and Papenfuse Exhibits 27-29. Virginia has also stipulated that it "has not objected to Maryland's jurisdiction to impose any" of these taxes. See Exhibit CC-14, ¶ 14.15

c.	Criminal laws and their enforcement.

Maryland and Virginia have also demonstrated in the area of criminal law enforcement their same understanding that the boundary line set forth in the Black-Jenkins Award represents the line at which Virginia's sovereignty ends and Maryland's begins. In 1944, Virginia Governor Colgate W. Darden, Jr. requested the Commonwealth's Attorney General, Abram P. Staples, to opine whether "the jurisdiction of the State of Virginia to enforce its criminal laws respecting slot machines extend[s] to offenses alleged to have occurred on the Potomac River." September 1, 1944 Va. Att'y Gen. 91 (Exhibit CC-10). The Attorney General responded that "the State of Virginia has no such jurisdiction." Id. Stating that "[b]y the Compact of 1785 between Virginia and Maryland, the territorial bounds of Virginia extend only to the low-water of the Potomac River on its southern or Virginia shore," the Attorney General declared that "[t]he consequent result is that the Potomac River lies wholly in the State of Maryland, and in the absence of any further legislative compact between the two states, the State of Virginia would have no criminal jurisdiction over the waters of the Potomac." Id. Acknowledging that one article of the Compact "does indeed make provision for concurrent jurisdiction of the two States over certain crimes under certain conditions," General Staples stated that "[t]his article, however, has reference only to offenses committed against the person." Id. Noting that "[o]peration of a slot machine is not an offense against a citizen of Virginia, but an offense purely against the State," the Attorney General concluded that "the State of Virginia has no jurisdiction to enforce the slot machine statutes on the waters of the Potomac River." Id. at 92.

Four years later, Virginia Attorney General J. Lindsay Almond, Jr. issued an opinion stating that Virginia has no jurisdiction over that portion of a pier built from the Virginia side of the Potomac that extends beyond the low-water mark. The issue before him was triggered by an individual's sale of beer on a pier "which is clearly fastened to the Virginia shore. . . ." July 13, 1948 Va. Att'y Gen. Op. 118 (Exhibit CC-11). Quoting from the letter of the Attorney for King George County who raised the issue, the opinion states that "[a]n ordinance in this county forbids the sale of beer on Sunday – but in Maryland it is legal." After quoting the Virginia law that declares the boundary between the two States is the low- water mark, the Virginia Attorney General stated, "[w]hile the above section also provides that the citizens of Virginia shall have full property in the southern shores of the Potomac river and the privilege of building piers so long as navigation is not obstructed, it can be seen that the territorial jurisdiction of the Commonwealth ends at the low-water mark." Id. "Therefore, it is my opinion that that portion of a pier which is beyond the low-water mark on the southern shores of the Potomac River is in the State of Maryland and is not subject to the laws of the Commonwealth." Id.

During the same time period in which Virginia's Attorneys General issued these opinions, the Maryland General Assembly enacted legislation legalizing slot machines in Charles and St. Mary's Counties. See 1947 Md. Laws, Extra Session, Ch. 32; 1949 Md. Laws Chs. 417 and 678; 1951 Md. Laws Chs. 181 and 183. Due to Virginia's lack of jurisdiction over slot machine activities that occur over the Potomac and on piers that extend from Virginia beyond the low-water mark, a number of taverns and restaurants featuring slot machines were constructed on piers affixed to the Virginia side of the Potomac but on Maryland's side of the boundary line. These establishments became controversial because slot machines were unlawful in Virginia and these businesses were "extensively patronized by Virginia residents and others who resort thereto from the Commonwealth." Miedzinski v. Landman, 218 Md. 3, 8, 145 A.2d 220, 222 (1958).

Recognizing that Maryland had authority to regulate activity taking place on piers and wharves extending from Virginia's shore beyond the low-water mark and that Virginia lacked the power to control that activity, Virginia's Governor (and former Attorney General) J. Lindsay Almond, Jr. sought Maryland's assistance to prohibit the activity. In 1958, Maryland responded by enacting very specific legislation, making unlawful gambling activity taking place on piers and wharves built over Maryland waters that could not be entered from the shores of Maryland by foot. As set forth in a case in which the owners and operators of these businesses challenged the lawfulness of this statute, "the Governor of Maryland recommended to the [Maryland] General Assembly the passage of the legislation in question, upon the formal request of the Governor of Virginia." Miedzinski v. Landman, 218 Md. at 8, 145 A.2d at 222. See also Exhibit 6 to Papenfuse Decl., Exhibit W (trial court opinion discussing same request). The Maryland Court of Appeals upheld the validity of the legislation, thus ending the slot machine activity that Virginia's Attorney General 14 years earlier stated Virginia did not have jurisdiction to regulate. A newspaper article covering that decision stated, "[f]ollowing the announcement of the Appeal Court's action, Virginia's Governor J. Lindsay Almond, Jr., said: 'While I have not seen the opinion, I feel it is a wholesome decision and I again applaud the Maryland General Assembly for taking constructive action in enacting laws to control a situation which was beyond the control of Virginia.'" The Baltimore Sun, "Court Bans River Slot Machines," October 15, 1958, Exhibit 7 to Papenfuse Decl., Exhibit W.

The slot machine controversy is just one of many examples demonstrating the manner in which the two States have recognized the boundary identified in the Black-Jenkins Award as the line marking the end of Virginia's law enforcement authority and the beginning of Maryland's. As Virginia has stipulated, "[s]ince at least 1900, Virginia's statutory laws have not provided for general criminal jurisdiction over crimes alleged to have occurred in the Potomac River, or on a structure in the Potomac River, on the Maryland side of the Maryland-Virginia line." Exhibit CC-14, ¶ 7. Indeed, Virginia acknowledges that, during the same time frame, it "has not exercised general criminal jurisdiction" over such crimes. Id., ¶ 8. Virginia also stipulates that, as with the slot machine issue, it "has not objected to Maryland's exercise of its general criminal jurisdiction over" these crimes. Id., ¶ 9. On the contrary, Virginia has benefitted from Maryland's exercise of jurisdiction to accomplish what Virginia's criminal jurisdiction did not enable it to do.

In Traverso v. Commonwealth, 6 Va.App. 172, 366 S.E.2d 719 (1988), for example, the Virginia Court of Appeals reversed a criminal defendant's murder conviction and sentence of life imprisonment and held that Virginia lacked criminal jurisdiction because the decedent's body was found in Maryland between six and seven and one-half feet from the Virginia side of the Potomac River. Maryland subsequently prosecuted and convicted the defendant of first-degree murder, and his conviction was affirmed on appeal by the Maryland Court of Special Appeals, which rejected his argument that "there was insufficient evidence to support the [trial] court's determination that the murder occurred in Maryland, so as to establish its territorial jurisdiction over the prosecution for this crime." Traverso v. Maryland, 83 Md.App. 389, 396, 574 A.2d 923, 926 (1990).

Virginia authorities have also recognized the boundary as the jurisdictional line at which their law enforcement authority ends with respect to crimes that occur on piers and wharves built from the Virginia side on Maryland's side of the boundary. In September of 1989, William F. Bruton, Jr., the Town Manager of the Town of Colonial Beach, Virginia, wrote a letter to the President of the Commissioners of Charles County, Maryland requesting "a relinquishing of sovereign rights over the pier by Charles County and the State of Maryland." Exhibit 1 to Declaration of Fred Davis, Exhibit B. Stating that "the Town owns a public pier which was built out into the Potomac River, many decades ago," Mr. Bruton asserted that "[b]ecause of its location, in Maryland waters, even though it is attached to Virginia soil, the Town does not have jurisdiction over crimes committed on 80% of the structure. Our Police are not able to make arrests, even when they personally witness illegal acts taking place on the pier. This has obviously created a severe law enforcement problem in the Beach." Id.

The law enforcement problem that Mr. Bruton referred to in his letter related to the amount of time it would ordinarily take the Charles County Sheriff's office to respond to reports of crimes occurring on the pier. That office, like the St. Mary's County Sheriff's office and other Maryland law enforcement agencies, had long been and still is responsible for enforcing Maryland's criminal laws with respect to criminal activities occurring past the low-water mark on piers and wharves built from the Virginia side of the Potomac. See Davis Decl., Exhibit B; Declaration of Francis "Buddy" Garner, Exhibit C; Declaration of Richard Voorhaar, Exhibit D; Declaration of Dennis I. Leland, Exhibit E. While access to the crime scene by boat could be relatively prompt, access by car would often take much longer. The Town thus requested a transfer of sovereign authority so that it "would be able to extend its police powers over the entire pier, and take the responsibility for prosecuting all violations of the law. In return, Charles County would not be forced to drive forty miles to respond to pier problems." Exhibit 1 to Davis Decl., Exhibit B. Mr. Bruton stressed, however, that "[t]he Town is not requesting jurisdiction over any other property in Maryland waters. Private businesses are able to hire their own security and do pay taxes to Maryland for police protection." Id. Stating that "[w]ithout our police force, the pier ends up being a lawless area without an enforcement authority for thirty to forty minutes," id., Mr. Bruton enclosed a resolution "passed unanimously by the Town Council of Colonial Beach . . . ." Id. at 2. The resolution, as does Mr. Bruton's letter, affirmatively states that "Town police officers do not have jurisdiction over property which lies in Maryland, and therefore can only exercise their authority over the western one-third of the Town's own pier." Id. at 3. The Town Council accordingly "authorize[d] the Mayor to make a request to the Charles County Board of Commissioners and the Governor of Maryland, asking that the State of Maryland relinquish its sovereign rights over the Colonial Beach Municipal Pier." Id.

While the Charles County Administrator subsequently responded that Charles County did not have sovereign rights that it could relinquish, as those rights belonged to the State and so the Town of Colonial Beach needed to discuss the issue with Maryland, Exhibit CC-28, the Commissioners and Sheriff of Charles County in 1998 entered into a Memorandum of Understanding with the Town of Colonial Beach and the Colonial Beach Police Department delegating to the latter certain law enforcement authority over activities occurring on the Colonial Beach Town Pier on the Maryland side of the Maryland/Virginia boundary. See Exhibit 2 to Davis Decl., Exhibit B. The Commissioners and Sheriff of Charles County the following year entered into a similar Memorandum of Understanding delegating to the County and Sheriff of King George County, Virginia law enforcement authority over activities taking place on the Fairview Beach Pier, again, on the Maryland side of the Maryland/Virginia boundary. Exhibit 3 to Davis Decl.

d.	Licensing activities.

Both States have also recognized that the jurisdictional dividing line set forth in the Black-Jenkins Award marks the point at which Virginia's general police power authority terminates and Maryland's starts. Responding to an inquiry made in 1906 whether Virginia could license a boat upon which alcohol was believed to be sold while on the Potomac, an assistant to the Virginia Attorney General stated that no such licensing authority existed because the boat was anchored below the low water mark on the Virginia side of the river and thus on Maryland's side of the boundary line. "I am, therefore, of [the] opinion that the Potomac river beyond low water mark is not Virginia territory, hence this State has no legal right to impose a license for the conduct of any business carried on outside of her territory. From this it necessarily follows that this State can neither require a license to sell, or prohibit the sale of, liquor on a vessel of any kind habitually anchored below low water mark." July 2, 1906 Va. Att'y Gen. Op. 87 (Exhibit CC-8). Stating that "[t]here are agreements by compact and concurrent legislation between the States of Virginia and Maryland, as to fish and oysters, and the prosecution of certain offenses committed on the Potomac, but there is no provision as to the sale of alcohol," id., the opinion concludes "that the State of Maryland has jurisdiction of this case, and the liquor laws of that State must control." Id.

Half a century later, the Virginia Attorney General recognized the same jurisdictional limitation in responding to a similar request concerning the scope of the Commonwealth's licensing authority over constructing waterfowl blinds on Maryland's side of the low water mark. Citing the boundary line between the States, the Virginia Attorney General in 1952 informed the Clerk of the King George County Circuit Court that "the Commonwealth of Virginia possesses no authority to regulate or license waterfowl blinds beyond the boundary and inside of the State of Maryland. Accordingly, it does not appear that you, as Clerk, have authority to issue Virginia licenses for waterfowl blinds outside of the Virginia boundary line in the Potomac River." July 30, 1952 Va. Att'y Gen. Op. 116 (Exhibit CC-12). Fifteen years after issuing that opinion, the Virginia Attorney General reiterated the Commonwealth's lack of alcohol licensing authority over a restaurant built on a pier, stating that even though the restaurant owners contemplated filling in and construction beneath the pier, "an artificial change in the low-water mark, occasioned by an owner in the lawful exercise of his right to construct a pier, would not change the boundary line between Virginia and Maryland." April 25, 1967 Va. Att'y Gen. Op. 48, 49 (Exhibit CC-13).

Virginia's stipulations demonstrate that the same jurisdictional limitations on the Commonwealth's licensing authority that its Attorney General has recognized extend broadly to all exercises of Virginia's police powers, other than those embodied in the concurrent fisheries jurisdiction provision of the Compact. Indeed, as set forth in those stipulations, Virginia concedes that, "[s]ince at least 1900, Virginia has not enforced any law relating to gambling, gaming, health, or occupational safety with respect to any activity taking place in the Potomac River, or on a structure in the Potomac River, on the Maryland side of the Maryland-Virginia line." Exhibit CC-14, ¶ 10. Virginia's interrogatory responses expand on this, stating that Virginia "does not presently enforce its laws relating to public safety, occupational safety, health, alcohol, gambling, gaming, hunting or fishing in that portion of the Potomac River that lies below the low-water mark of the Potomac River beyond the Virginia/Maryland line." Exhibit CC-15, Interrogatory Response No. 13.

Conversely, just as Virginia has recognized Maryland's exercise of its criminal law enforcement authority over piers, wharves, and activities taking place on the Maryland side of the boundary, the Commonwealth has also stipulated that "Virginia has not objected to Maryland's enforcement of any law relating to gambling, gaming, health, or occupational safety with respect to any activity taking place in the Potomac River, or on a structure in the Potomac River, on the Maryland side of the Maryland-Virginia line." Exhibit CC-14, ¶ 11. See also id., ¶ 12 ("Virginia has not objected to Maryland's jurisdiction to issue liquor licenses to structures located in the Potomac River on the Maryland side of the Maryland- Virginia line."). At approximately the same time that the Virginia Attorney General stated that the Commonwealth did not have authority to license duck blinds beyond the boundary line, Maryland authorities were issuing to business establishments located on piers and wharves affixed to the Virginia side of the Potomac River not simply licenses for the slot machines discussed earlier, but also trader's licenses, music box licenses, cigarette licenses, restaurant licenses, amusement licenses, dance licenses, vending machine licenses, billiards licenses, soda fountain licenses, liquor licenses, food service facility licenses, food and drink permits, and other licenses and permits. See Papenfuse Decl., Exhibit W, ¶¶ 2-17 and Papenfuse Exhibits 1-10; Declaration of Lisa Bailey, Exhibit K, and attached Exhibits; Declaration of Patricia Insley, Exhibit L, and attached Exhibits; Declaration of Janice C. DeAtley, Exhibit T, and attached Exhibits; Declaration of Elinor A. Mattingly, Exhibit V, and attached Exhibits; Declaration of Faye Gatton, Exhibit U, and attached Exhibits.

This licensing activity continues to the present and has expanded with the advent of new technologies. For example, since 1973, Maryland has issued licenses to sell Maryland lottery tickets to businesses built on piers and wharves adjacent to the Virginia side of the Potomac but on Maryland's side of the boundary line. See Declaration of Michael Williams, Exhibit M, and attached Exhibits; Declaration of Rick Forrester, Exhibit N, and attached Exhibits. One of these businesses, the Riverboat on the Potomac, actually straddles the boundary line and bears a sign a few feet from the entrance stating "Welcome to Maryland." Declaration of Rick Forrester, Exhibit N, ¶ 3. While Virginia has its own lottery and has placed lottery terminals on the Virginia side of the boundary at this facility, id., ¶ 1; Declaration of Kenneth A. Schertle, Exhibit O, ¶ 9, it admits that it "has not issued licenses to sell Virginia lottery tickets on property located below the low-water mark of the Potomac River." Exhibit CC-16, Response to Request for Admission No. 88. Maryland has also issued a license to one of these businesses to operate a Maryland off-track-betting operation. See Schertle Decl., Exhibit O. Virginia admits that it has not issued licenses to operate any Virginia off-track-betting operations at such businesses. Exhibit CC-16, Response to Request for Admission No. 95.

Rather than object to such exercises of Maryland's regulatory authority, Virginia governmental entities have appealed to Maryland to exercise that authority to Virginia's benefit. Since at least 1952, for example, the Charles and St. Mary's County Departments of Health have licensed and inspected food service facilities built on piers and wharves adjacent to Virginia's side of the river. See Declaration of Walter Raum, Exhibit S, ¶¶ 2, 3 (stating that such inspections at Coles Point Tavern date back to approximately 1952 and were a "coveted assignment"); Declaration of Walter Miles, Exhibit R; Declaration of Patricia Herriman, Exhibit P, ¶¶ 5-33 and Exhibits 1-122; Declaration of Ann Rose, Exhibit Q, ¶¶ 3-7 and Exhibits 1-24. In a letter dated August 12, 1993, the Rappahannock Area Health District of the Virginia Department of Health complained to the Charles County Department of Health that an onsite sewage disposal system located in Fairview Beach, Virginia was "not adequate to handle the sewage" that would be generated by a restaurant on the Fairview Beach Pier if the restaurant was to be open for business. "Since the restaurant is located in the jurisdiction of the Charles County Environmental Health Department, the Rappahannock Area Health District and King George County Health Department request that the restaurant not be allowed to open as long as it is connected to the onsite sewage disposal system." Exhibit 120 to Herriman Decl., Exhibit P. Virginia agencies have also referred to Maryland other complaints about establishments regulated by Maryland. Herriman Decl. ¶¶ 25-29 and Herriman Exhibits 112-116.

e.	Waterway construction activities.

Notwithstanding the claim it makes in its Complaint that the Commonwealth and its citizens have the unrestricted right to build piers and wharves from the Virginia side of the Potomac beyond the low water mark, Virginia has treated these waterway construction activities in precisely the same way it has addressed every other activity that takes place on Maryland's side of the boundary line. Virginia has not regulated this construction activity, and, in case after case, and project after project, it has referred applicants to Maryland and admitted Maryland's jurisdiction.

As was undoubtedly the case in 1785, the vast majority of waterway construction on the Potomac occurs in the tidal portion, below Washington, D.C. Owners of riparian property on both sides of the Potomac routinely seek to build wharves, docks, piers, or landings to allow for easier access to the navigable channels of the river, or bulkheads, groins, jetties, or breakwaters to protect their shoreline property against erosion. As was also the case in 1785, these activities are subject to government regulation. See, e.g., Dutton v. Strong, 66 U.S. at 32; Illinois Central Railroad Co. v. Illinois, 146 U.S. at 445-46; Taylor v. Commonwealth, 102 Va. at 773, 47 S.E. at 880.

In Virginia, the agency that "issues permits for all reasonable uses of state-owned bottomlands (submerged lands)" is the Virginia Marine Resources Commission ("VMRC"). See Virginia Response to Maryland Interrogatory No. 7, Exhibit CC-15. The VMRC "considers the effect of the proposed use on other reasonable and permissible uses of state waters and state-owned bottomlands, marine and fisheries resources of the Commonwealth, tidal wetlands, adjacent or nearby properties, water quality and submerged aquatic vegetation." Id. The VMRC also regulates "all dredging, extraction or mining on state-
owned bottomlands (submerged lands)." Id., Response No. 8. Virginia has conceded, however, that, with respect to the submerged lands of the Potomac River, the Commonwealth follows the principle that regulatory power comes with ownership: "These [VMRC] permits are only issued for structures in the Potomac River which are within those embayments that are within the boundaries of Virginia; they are not issued for structures below the low-water mark of the Potomac River where that low-water mark is the boundary between Virginia and Maryland." Virginia's Response to Maryland Interrogatory No. 7, Exhibit CC-15. See also Va. Code Ann. § 28.2-1205 (stating that the VMRC has jurisdiction over all state-owned bottomlands).

In Maryland, the Maryland Department of the Environment ("MDE") regulates the dredging and filling of tidal waters and wetlands, including the placement of wharves, piers, and other structures therein. Md. Code Ann., Envir. Art. § 16-202.16 Maryland asserts jurisdiction under its Tidal Wetlands Act over all the lands beneath the high water mark within the State. In the Potomac, this means that Maryland's jurisdiction reaches all structures extending out beyond the low water mark established in the Black-Jenkins Award, as mapped by the Mathews-Nelson Survey. At all times since the enactment of the Tidal Wetlands Act, Maryland has actively regulated the placement of structures in the Potomac River beyond the low water mark on the Virginia side of the river. As reflected in Ex. BB-
349, Maryland has issued approximately between 250 and 350 authorizations for Virginia shoreline projects, including piers, decks, bulkheads, jetties, groins, and other exercises of the "privilege" encompassed under the Compact. It has issued authorizations to properties along the entire length of the Potomac on the Virginia side, to all varieties of applicants, public and private.

Conversely, as it has with respect to the other regulatory activities discussed earlier, Virginia has acknowledged on hundreds of occasions that Maryland has jurisdiction over construction activities taking place beyond low water mark on the Potomac. At first, in the 1970s, the VMRC acknowledged Maryland's jurisdiction by copying the Maryland Department of Natural Resources on letters to applicants informing them that, because their projects extend out beyond low water mark, they are not subject to the VMRC's jurisdiction. See, e.g., Ayella Decl., Exhibit BB-17. Maryland would process the applications and determine what form of Maryland authorization, wetlands license or letter of no-objection, was appropriate. Id., ¶¶ 3-10, 21.

Beginning in the 1980s, Virginia's acknowledgment of Maryland's jurisdiction became more explicit, stating, for example, in an April 6, 1982, letter to an individual who had objected to the timber groin project proposal of his neighbor, that the VMRC "would not have jurisdiction" over the project because it extended beyond the low water mark of the Potomac and that the VMRC only "has jurisdiction over all State-owned subaqueous land, channelward of the mean low water, not conveyed by special grant or compact according to law. . . . I am forwarding a copy of your letter to the U.S. Army Corps of Engineers, Baltimore Maryland District, and the Maryland Department of Natural Resources. Both of these agencies would have jurisdiction over this project." Ex. BB-346, at VA-MRC-F-
00274. Virginia continued to acknowledge Maryland's jurisdiction, and to refer applicants to the Maryland Department of Natural Resources for authorization, based on the VMRC's understanding of the boundary line as the justification for both Maryland's jurisdiction beyond low water mark and the VMRC's lack of authority over Virginia applicants who proposed building past that boundary line.17 Indeed, in one effort to help an applicant "in understanding the agencies with jurisdiction along the shoreline of the Potomac River at Colonial Beach," the VMRC in a letter dated April 4, 1984 stated that "[i]n 1785, Maryland and Virginia signed a compact in which Maryland took jurisdiction over the subaqueous lands of the Potomac River to the mean low water mark of the Virginia shore. As a consequence, projects constructed channelward of mean low water in the Potomac River fall under the jurisdiction of the Maryland Department of Natural Resources, rather than the Virginia Marine Resources Commission." Ex. BB-346 at VA-MRC-F-00354. A more direct admission and understanding about the jurisdictional nature of the boundary line between the two States would be hard to imagine.

The Maryland Board of Public Works in 1987 adopted a "Policy Clarifying Wetlands License Requirements for Projects in Maryland Waters Along the Virginia Shore of the Tidal Portion of the Potomac River" ("1987 Policy"). Ex. AA-11.18 The 1987 Policy set forth the types of projects for which Maryland would require a wetlands license from the Board. Such a license was not required for piers, bulkheads, and other projects involving near-shore impacts. See Moore Decl., Exhibit AA, ¶ 20. These projects would typically be authorized under a "No License" letter, by which Maryland would notify the Virginia applicant that the project, while subject to Maryland's jurisdiction, did not require a Maryland license. See id., ¶ 21; Ayella Decl., Exhibit BB, ¶¶ 9, 10; see also Ex.BB-33 at VA-MRC-00048.19

Notwithstanding its streamlined review of these kinds of projects, the 1987 Policy unequivocally asserts Maryland's jurisdiction over Virginia projects extending beyond the low water mark on the Virginia shoreline. See Ex. AA-11 at MD-BPW-000400 ("Along the Virginia shore, Maryland waters generally commence at the low water mark or exist along a line from headlands and continue offshore therefrom and therefore dredging, filling, breakwaters, jetties, and groin projects affect Maryland waters and are subject to the requirements of Maryland law.") (endnote omitted). The Policy was adopted only after it had been shared with representatives of the Virginia counties along the Potomac, the VMRC, and the VMRC's counsel, Frederick Fisher, who offered no changes. See Moore Decl., Exhibit AA, ¶¶ 9-22. After Maryland's adoption of the 1987 Policy, Virginia continued to refer Virginia applicants to Maryland for piers, jetties, bulkheads and every other variety of riparian improvement. See Ayella Decl., Exhibit BB, ¶¶ 25-30.

In 1994, the Maryland Board of Public Works promulgated the 1987 Policy as a regulation. COMAR 23.02.04.21. The 1994 regulation continued the policy of not requiring a formal license for Virginia shoreline improvements that meet certain criteria for width, length, and coverage. See, e.g., Exhibit BB-139 at VA-MRC-01026. As in the past, Virginia continued to acknowledge Maryland's jurisdiction and has continued to refer its citizens and political subdivisions to Maryland, even after the Commonwealth filed its Motion for Leave to File Bill of Complaint in this case. Ayella Decl., Exhibit BB, ¶ 29. This practice has continued more than a year after the Supreme Court agreed to review the case in May, 2000, id., ¶ 30, and confirms both States' understanding – consistently followed since the Black-
Jenkins Award in 1877 – that the boundary is the line of sovereignty, that Maryland's regulatory jurisdiction over the construction of wharves, piers, and other riparian shoreline improvements begins at the low water mark on the Potomac,20 and that, if the riparian improvement crosses the boundary line, the portion lying beyond the line is within Maryland's jurisdiction, and not Virginia's.21

The same understanding has extended to construction activity taking place in the non-
tidal portion of the Potomac River. Maryland began comprehensive regulation of all construction activities that changed the "course, current, or cross-section" of the non-tidal Potomac in 1933, when the legislature enacted the first comprehensive water resources law in Maryland. 1933 Md. Laws Ch. 526 ("Water Resources Law").22 Maryland issued a number of permits in the 1960s for pipelines, cables, and other utility crossings of the Potomac River. Maryland issued the first waterway construction permit for work occurring solely on the Virginia side of the non-tidal Potomac in 1968, when the Town of Leesburg sought to construct a drinking water intake extending beyond the low water mark, Ex. Y-1, and has issued dozens of permits for construction on the Virginia side to Virginia applicants for both large and small projects ever since. See Sigillito Decl., Exhibit Y, ¶¶ 3-20.

There is no evidence that, prior to the Authority's 1996 application for its second mid- river intake, any of the Virginia applicants ever submitted their applications under protest or otherwise claimed that Maryland did not have jurisdiction over the project. Id., ¶ 22. Nor did the Virginia entities that participated in the Maryland permit process for these projects claim that Virginia alone could regulate the projects at issue or that Maryland did not have jurisdiction over such activity. On the contrary, Virginia has agreed, as it has with respect to the tidal Potomac, that Maryland has regulatory jurisdiction over construction extending beyond the low water mark on the non-tidal Potomac. For example, in 1979, the Virginia State Water Control Board ("SWCB") referred the Northern Virginia Regional Park Authority – itself a political subdivision of the Commonwealth – to Maryland for review of the Park Authority's proposed boat ramp. The SWCB stated that "[w]hile the work you have described will take place on the Virginia shoreline, any work done in the waterway will take place in the Potomac River and will be under the jurisdiction of the State of Maryland." Exhibit CC-27, VA-MRC-F-00756. The Park Authority subsequently applied for and obtained a Maryland waterway construction permit. Sigillito Decl., Exhibit Y, ¶ 10.

In fact, the Virginia Department of Health and the VMRC have both stated unequivocally that the Fairfax County Water Authority's mid-river intake – the very waterway construction that gave rise to this case – was beyond Virginia's jurisdiction because it extended into Maryland territory. The Department of Health, writing to the Authority on January 24, 1994, stated that:

We have received your letter and sketches on the proposed mid-river intake and have no objections to this proposal. While no further formal permitting requirements are necessary for this type of project since the modifications or new construction will be located in Maryland, we request the opportunity to see the final plans and design information prior to the start of any construction.

Ex. CC-32. Two years later, the VMRC put a finer point on it:

You have inquired regarding a permit to construct a 120,000 square foot concrete intake structure to withdraw water from a nontidal portion of the Potomac River upstream of Seneca Dam in Loudoun County, Virginia, and Montgomery County, Maryland.

Please be advised that your proposed project does not fall within the jurisdiction of the Marine Resources Commission; therefore, no authorization will be required from this agency.

Your project will, however, encroach on subaqueous bottom under the jurisdiction of the State of Maryland. They have been forwarded a copy of your application and the archeological investigations report and will contact you if further authorization is required.

Ex. CC-33 (emphasis added).

Virginia's repeated admissions that Maryland, and not Virginia, has jurisdiction over construction occurring in the Potomac River beyond the low water mark on the Virginia side simply cannot be squared with the claims it now makes in this case.

f.	Water appropriation activities.

The regulation of water withdrawals from the Potomac is another context in which both States have recognized that the boundary line established by the Black-Jenkins Award represents the point at which Virginia's territorial sovereign jurisdiction terminates and Maryland's starts. Subject to a brief time period discussed below, both States have understood that it has been Maryland, and not Virginia, that has regulated the withdrawal of water from the Potomac since the Black-Jenkins Award of 1877. Indeed, Virginia concedes that, to this day, it has never implemented an administrative system for regulating the withdrawal of water from the Potomac River. See Exhibit CC-15, Virginia Interrogatory Responses 4 and 5. By contrast, Maryland has regulated water withdrawals from the Potomac since 1933, when it established the first and only formalized water appropriation permitting system in use on the Potomac River.

Ironically, while Virginia now claims the right to withdraw water from the Potomac River without submitting to Maryland's authority, a political subdivision of the Commonwealth, Fairfax County, was among the first to apply for, and obtain, a Maryland permit to engage in that activity. Fairfax County submitted its application on October 10, 1956, without protesting Maryland's authority to require a permit or otherwise contesting Maryland's jurisdiction. Pajerowski Decl., Exhibit X, ¶ 8. The Maryland Department of Geology, Mines and Water Resources issued the permit on February 25, 1957, and it was accepted by Fairfax County on March 22, 1957. Id., ¶ 9.23 Thus, while the regulation of water withdrawals was a fairly new phenomenon in the 20th century, Fairfax County's submission to Maryland's regulatory authority in this area was another example of how widely all parties understood that the boundary line represented the line of sovereignty for all purposes.

That understanding has continued through the present. Virginia entities have on at least 29 occasions applied for and obtained Maryland permits to withdraw water from the Potomac. Id., ¶¶ 9, 16, 17, 18, 20-44. As with Fairfax County four decades earlier, not one of these Virginia applicants contested or in any way objected to Maryland's jurisdiction. Id., ¶ 45. On the contrary, throughout the forty-plus years since Fairfax County first applied in 1956, Virginia and its political subdivisions actively participated in the Maryland permit process by submitting comments on proposed applications and stating their position.24

Moreover, all of this occurred with the knowledge of the Virginia Governor and the SWCB. The Office of the Virginia Governor reviewed the Town of Leesburg's application for financial assistance for its Potomac River Water Supply Project and supported the "essential project," Ex. X-50 at MD-MDE-13085-10, noting in another letter that "[n]o conflict was found to exist at the State." Ex. X-49 at MD-MDE-13085-08.25 The SWCB also received notification of permit applications as a matter of routine, see, e.g., Ex. X-47, and took part in many of the more significant permit actions.26 Indeed, the SWCB played an active role in the Fairfax County Water Authority's 1974 application, and did so in a manner that reinforced the validity of Maryland's regulatory authority. After noting the allocation crisis in the Potomac and expressing hope that "under the auspices of Maryland Water Resources Administration some equitable basis for allocating withdrawals during times of critical low flow can be developed for all users of this vital water resource," Exhibit X-54 at MD-MDE-13122-27, the SWCB advised Maryland that "we support Fairfax County Water Authority's application for a withdrawal permit, and request that you act favorably on its application." Id. at MD-MDE-13122-28. At one point, a member of the Board, R.V. Davis, even contacted Herbert Sachs, Director of the Water Resources Administration, requesting that the Authority's permit be issued to the Commonwealth itself, instead of the Authority. Exhibit CC-17, Deposition of Herbert M. Sachs, at 110-111.

It was not until 1976 and the negotiations that led to the Low Flow Allocation Agreement of 1978 ("LFAA") that the Commonwealth, through the SWCB, first raised any concerns whatsoever to the application of Maryland's permit process to Virginians. Virginia's concerns initially arose out of the introduction of H.R. 12215, which mandated the negotiation of a low flow allocation agreement as a condition of federal approval of WSSC's long-delayed weir but did not include Virginia as a party to the negotiations. See Ex. CC-22 at VA-SRC-002654-55. Later, the Commonwealth objected to the Corps's insistence that the allocation of low flows be based on existing levels of withdrawals, because no Virginia entity had actually begun withdrawing water, with the result that Virginia would effectively be shut off from the river during low flows. Ex. CC-24. Maryland and Virginia eventually came to terms on Virginia's participation in the agreement, Exhibit CC-23, but in the course of their negotiations, Virginia noted "for the record" that it "has not recognized the Maryland permit and appropriation authority" over the Potomac. Exhibit CC-21. Maryland, for its part, continued to assert that its permitting authority extended to the use of the Potomac by any person or entity, from either side of the river. Exhibits CC-20 at VA-SRC-002724; CC- 26.

The LFAA that both States subsequently signed specifically recognized the Maryland permitting system by including a clause stating that "the State of Maryland has enacted an appropriation permit statute which requires that all non-exempt jurisdictions obtain a permit from the Water Resources Administration of the State's Department of Natural Resources (hereinafter called 'the Administration') to appropriate and use the water of the Potomac River" (App. 79a),27 and stating further in Article 3.C that "[n]othing herein shall restrict or limit such authority as the Administration may properly have to issue permits or impose low flow allocation requirements upon any other water appropriating permittee withdrawing water from other segments of the Potomac River, or to enforce provisions of its permits in the subject portion of the Potomac River . . . ." Id. Indeed, Article 3.E of the LFAA puts all new users – Virginians and Marylanders alike – to a choice: achieve compliance with the low flow provisions either by becoming signatories to the agreement or by obtaining an appropriation permit that contains the agreement's low flow provisions. (App. 94a.) For the four new Virginia users withdrawing water from the portion of the Potomac governed by the LFAA28 – the Northern Virginia Regional Park Authority, P.D. Gravett, the Williams Gas Pipeline Corp., and the Bondy Way Development Corp. – it is their Maryland permit that alone achieves compliance with the LFAA. Pajerowski Decl., Exhibit X, ¶ 75.

As with other exercises of Maryland regulatory authority over the Potomac, Virginia and its citizens have benefitted from the manner in which Maryland has regulated water withdrawals. Indeed, it is only through the Maryland permitting system that the Fairfax County Water Authority and other Virginia municipal users can legally withdraw Potomac River water for use on non-riparian land. As discussed previously, Virginia law does not permit a municipality to divert water in such a manner. See Town of Purceville v. Potts 179 Va. at 521, 19 S.E.2d at 703. Under the Virginia system of water law, the Fairfax County Water Authority could not legally provide water for municipal use throughout its service area because its service area is not itself riparian to the Potomac. See Ex. X-53 at MD-MDE-
13122-30 (Authority official J. Corbalis stating at Maryland public hearing that the Authority's options were limited by "the Virginia law which forbids diversions of water from one stream to another").

Maryland, by contrast, employs the "reasonable use" variation of riparian water law, under which any use is allowed provided that it is reasonable. COMAR 26.17.06.02B. A variety of factors determine reasonableness, including the impact of the use on other users and on the aquatic environment, COMAR 26.17.06.05A(2), B, but the non-riparian use of the water is not prohibited, as it is in Virginia. As a result, the Town of Leesburg and the Fairfax County Water Authority have been able, as have the WSSC and the City of Rockville, to use Maryland law to provide water without regard to the parcels on which it is to be used.

Virginia has thus recognized and received the advantages of the Maryland permit program, and has chosen to agree to Maryland's "continued operation of the permit system in the interest of the riparian owners on both sides of the River." Ex. CC-25. Manifesting their understanding that Maryland has unqualified jurisdiction over the Potomac even after the initiation of this litigation, Virginia political subdivisions have continued to acknowledge that Maryland has jurisdiction over the withdrawal of water from the river, including Fairfax County, which represents to the public, as it did almost twenty years ago, that "[t]he State of Maryland has jurisdiction over the withdrawal, appropriation and use of water from the Potomac River and regulates all users, including the Authority." Ex. CC-37. See also Ex. X-58 at MD-MDE-13122-11 (September 1973 statement of Fairfax County Water Authority that the "[Maryland Water Resources] Administration has the authority to make allocations of Potomac River water among the users"); Ex. X-56 at MD-MDE-13132-16 (July 16, 1973 resolution passed by Fairfax County Board of Supervisors noting the Authority's application to "the State of Maryland which has jurisdiction over the upper Potomac").

These statements and actions are consistent with numerous others that have preceded them. Indeed, at the same time Maryland asserted its authority over Fairfax County's request to withdraw water from the river in 1956, Virginia conceded in the 1958 Compact that "Maryland is the owner of the Potomac River bed and waters to the low water mark of the southern shore thereof" (App. 60a) (emphasis added), and the 1958 commissioners concluded that Virginia's access rights under Article VII of the Compact of 1785 "have not been in controversy." (App. 58a.) Virginia's newly made assertion in its complaint in this case that "Maryland does not own the water in the River," Complaint ¶ 46, is simply belied by a well-documented history in which Virginia, its political subdivisions, and its citizens repeatedly manifested a completely contrary understanding concerning Maryland's jurisdiction over the Potomac.

In sum, since the Black-Jenkins Award drew the boundary line at the low-water mark on Virginia's side of the Potomac, both Maryland and Virginia have recognized that boundary line as the line of sovereignty in all respects. Maryland has exercised authority over property and activities located on wharves and piers extending from the Virginia side of the Potomac onto Maryland's side of the boundary line, by subjecting that property and those activities to permitting, taxing, licensing, policing, public safety, health, gambling, and other regulatory actions. In contrast, Virginia has not engaged in such regulation, has not objected to Maryland's regulation and, in many instances, has recognized, participated in, and aided Maryland's regulation. Virginia's belated and post hoc interpretation of the Black-
Jenkins Award should be rejected because the "longstanding assumption of jurisdiction" described above "not only demonstrates the parties' understanding . . . but has created justifiable expectations which should not be upset . . . ." Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604-05 (1977).

II.	VIRGINIA HAS ACQUIESCED IN MARYLAND'S ASSERTION OF AUTHORITY OVER THE POTOMAC.

Maryland's authority over the Potomac River is supported by the additional and independent reason that Maryland has long exercised regulatory authority over the river without any objection from Virginia. "The rule, long settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter's title and rightful authority." Michigan v. Wisconsin, 270 U.S. 295, 308 (1926). Accordingly, even if the Compact and the Black-Jenkins Award had given Virginia citizens access rights to the Potomac without the need to submit to Maryland's regulatory authority, "[i]ndependently of any effect due to the compact as such, a boundary line between the states or provinces, as between private persons, which has been run out, located, and marked upon the earth, and afterwards recognized and acquiesced in for a long course of years, is conclusive, even if it be ascertained that it varies somewhat from the courses given in the original grant." Virginia v. Tennessee, 148 U.S. at 522. See also California v. Nevada, 447 U.S. 125, 131-32 (1980); Ohio v. Kentucky, 410 U.S. 641, 649-52 (1973); Vermont v. New Hampshire, 289 U.S. at 613-20; Michigan v. Wisconsin, 270 U.S. at 306-08, 316-19; Maryland v. West Virginia, 217 U.S. at 40-46. Maryland and Virginia's longstanding treatment of the Black-Jenkins boundary as the line of sovereignty for all purposes is conclusive and bars Virginia's claims in this case.

While the Court has applied these principles in a number of cases, it has almost always done so for the purpose of establishing the boundary line between the States that are parties in those cases. See, e.g., Illinois v. Kentucky, 500 U.S. 380, 384 (1991) ("Although Kentucky has styled its acquiescence claim an affirmative defense, this 'defense,' if successfully proved, would not only counter Illinois' boundary claim but also establish Kentucky's own position."); Georgia v. South Carolina, 497 U.S. 376, 389 (1990) ("Georgia's argument is essentially this: long acquiescence in the practical location of an interstate boundary, and possession in accordance therewith, often has been used as an aid in resolving boundary disputes."); Arkansas v. Tennessee, 310 U.S. 563, 569 (1940) ("The contentions of Arkansas in opposition to the application of the principle of prescription and acquiescence in determining the boundary between States cannot be sustained."); Maryland v. West Virginia, 217 U.S. 1, 42-43 (1910) ("[T]here is no controversy in which this great principle may be involved with greater justice and propriety than in a case of disputed boundary.") (quoting Rhode Island v. Massachusetts, 4 How. 591, 639 (1846)). As between Maryland and Virginia, the boundary was resolved more than 120 years ago and is not an issue in this case.

The Court has also applied the doctrine of prescription and acquiescence in resolving rival claims of sovereign authority over land, see New Jersey v. New York, 523 U.S. 767, 786-806 (1998), and the preceding discussion demonstrates that Virginia for more than a century has treated the boundary between the States as an absolute line of sovereignty that has not been subject to any of the exceptions the Commonwealth now asks the Court to declare. Indeed, even after Virginia filed this suit asserting the right to build piers, wharves, and water intake pipes in the Potomac without submitting to Maryland's regulatory authority, its agencies and officials have continued to recognize that Virginia has no jurisdiction over construction activity that extends from the Virginia side of the river past the low-water mark. See Ayella Decl., Exhibit BB, ¶¶ 29-30. Virginia has informed its citizens in these circumstances, not that they must seek permission from Maryland to engage in this activity because they will risk criminal or civil sanctions if they do not, but rather that "since your proposed project will extend channelward of the mean low-water mark, you will encroach on subaqueous bottom under the jurisdiction of the State of Maryland." Exhibit BB-269 at VA-MRC-02640 August 1, 2001 letter).29

Virginia's discovery responses confirm that the Commonwealth long ago acquiesced in Maryland's broad assertion of sovereignty over the Potomac and specific regulation of Virginians' access to the river. In response to Maryland's Request for Admission No. 16 that "[p]rior to the events that led to the filing of this lawsuit, Virginia has recognized that Maryland may properly exercise regulatory authority over activities occurring below the low- water mark of the Potomac River, including activities of Virginia citizens, residents and entities," the Commonwealth stated "Virginia admits that it does not dispute Maryland's authority to exercise certain police powers in the Potomac River on its own side of the Virginia/Maryland line, provided that the exercise of such powers does not interfere with Virginia's federal common law or interstate compact rights." Exhibit CC-16.30 While Virginia denies "it has recognized that Maryland may require that Virginians obtain water appropriation or waterway construction permits as a condition of withdrawing water from the Potomac River, or building improvements appurtenant to the Virginia shore of the Potomac River," id., Virginia long ago acquiesced in Maryland's authority to regulate the Commonwealth's purported "federal common law or interstate compact rights," including any rights Virginia claims to have to pursue waterway construction or appropriation activities in the Potomac.

Although the Commonwealth in one instance argued before the Court of Appeals of Maryland one hundred and forty years ago that the "privilege" set forth in the Compact to build wharves and other improvements "surrendered in favor of Virginia her power to tax the property within her chartered limits on that shore, and all improvements projected therefrom," O'Neal v. Virginia and Maryland Bridge Co. at Shepherdstown, 18 Md. 1, 9 (1861), Virginia never renewed that argument after it accepted the Black-Jenkins Award, even though since that time Maryland officials have engaged in a number of taxation and other regulatory activities with respect to property built from the Virginia side of the river, and, as discussed earlier, the documentation for those activities dates back at least fifty years. Indeed, rather than contend anew that Virginia has power and authority over improvements projecting from its side of the Potomac River, Virginia's Attorney General a century later acknowledged the opposite in responding to an inquiry concerning the Commonwealth's jurisdiction over the use of alcohol at a restaurant built on a pier attached to Virginia, stating that even though "[t]he rights of a riparian owner . . . include the '. . . right to build a pier or wharf out to navigable water, subject to any regulations of the State,'" the "lawful exercise" of such a right "would not change the boundary line between Virginia and Maryland." April 25, 1967 Va. Att'y Gen. Op. 48, 49 (quoting Thurston v. Portsmouth, 205 Va. 909, 140 S.E.2d 678 (1965)) (Exhibit CC-13). At the same time, Maryland's Attorney General expressed the view that the Compact of 1785 "does not in any way detract from Maryland's right to levy taxes against improvements located in the River beyond the low watermark," even "when those improvements were made to shore properties on the Virginia side of the river." February 3, 1956 Md. Att'y Gen. Op. 335, 336 (Exhibit CC-6).

Maryland has accordingly long "infringed" Virginia's newly alleged federal common law or interstate compact rights, without any objection from the Commonwealth, see Exhibit CC-14, ¶¶ 9, 11, 12, 14, by regulating what Virginia's Attorney General long ago claimed is "Virginia property, or property attached to the Virginia shore" that, according to his interpretation of the Compact, is "exempt" from the "power of Maryland." O'Neal v. Virginia and Maryland Bridge Co. at Shepherdstown, 18 Md. at 9. Maryland's exercise of that power is a fundamental aspect of its sovereignty over this property and, as stated in New Jersey v. New York, 523 U.S. at 792, "the kind of evidence of prescription that we have found particularly persuasive . . . ." See also Georgia v. South Carolina, 497 U.S. at 392-93 (citing as evidence of South Carolina's "sovereignty by prescription and acquiescence" "[t]he South Carolina grant in 1813, the almost-uniform taxation of the property, the South Carolina seizure and subsequent sale for unpaid taxes, policing and prosecutorial activities by South Carolina authorities, patrolling by South Carolina wildlife officers, and other factors"); Arkansas v. Tennessee, 310 U.S. at 567-68 (discussing similar evidence); Louisiana v. Mississippi, 202 U.S. 1, 54-55 (1906) (same).

This evidence of Virginia's acquiescence is insurmountable when considered with the repeated exercises of Maryland regulatory authority that, as discussed above, Virginia has not challenged and, indeed, has readily accepted at the same time it acknowledged it did not have such authority. If Virginia truly believed that its citizens had a common law or interstate compact right to build a wharf or other improvement beyond the low-water mark without submitting to Maryland's regulatory authority, then the Commonwealth would not have spent at least the last 34 years informing its citizens that it has no jurisdiction over that activity, that the activity does not change the boundary line between the States, and that the activity will encroach upon the Potomac River bottom under the State of Maryland's jurisdiction. Similarly, the Commonwealth would not have conceded, as it has since at least the 1940s, that its criminal laws do not extend to that portion of a Virginia-based pier or wharf beyond the low-water mark, but that Maryland's do. Nor would Virginia have failed to enforce, since at least 1900, a number of its other laws with respect to piers, wharves, and other structures extending from the Virginia side of the Potomac beyond the low-water mark, see Exhibit CC-14, ¶¶ 6-8, 10, 11, that Maryland authorities, in contrast, have comprehensively regulated. The Commonwealth's sudden attempt to reverse course, following its "long continued failure . . .to assert any dominion over the . . . river" and its "long acquiescence in the dominion asserted there by" Maryland, Vermont v. New Hampshire, 289 U.S. at 613, "is of substantial weight in indicating acquiescence . . . in the boundary line restricting her jurisdiction to the river at the low-water mark." Id. at 616.

A State's failure to assert authority in circumstances like these is significant. See also Indiana v. Kentucky, 136 U.S. 479, 510 (1890) ("Such acquiescence in the assertion of authority by the state of Kentucky, such omission to take any steps to assert her present claim by the state of Indiana, can only be regarded as a recognition of the right of Kentucky too plain to be overcome except by the clearest and most unquestioned proof."). The Court has also declared, in determining whether one State has acquiesced in another's exercise of such authority, "we are concerned not only with what its officers have done, but with what they have said, as well." Illinois v. Kentucky, 500 U.S. at 386. As set forth above, the Attorney General and other officials of the Commonwealth have stated on several hundred different occasions, in a variety of contexts, that Virginia's jurisdiction over the Potomac ends at the low-water mark, that the Commonwealth does not have authority beyond that point over activities or piers and wharves, that the exercise of the right to construct such improvements does not change the boundary line between the two States, and that Maryland has jurisdiction over the river because Maryland owns the Potomac. In reliance on these statements, Virginia's citizens and political subdivisions have turned to Maryland seeking permission to erect piers, wharves, jetties, and other structures from the Virginia side beyond the low- water mark into Maryland, they have asked Maryland to allow them to withdraw water from the river, and the Governor of Virginia requested his Maryland counterpart to sponsor legislation outlawing activity taking place on piers and wharves that the highest law enforcement official in the Commonwealth stated was beyond Virginia's reach. This evidence underscores Maryland's sovereignty over the activities that Virginia now claims it may engage in without seeking Maryland's permission.

This evidence is also relevant not simply to show "the conduct of the states," but also to cast light on "the belief of the people concerning the purpose of the boundary line . . . ." Maryland v. West Virginia, 217 U.S. at 44. As the Court has recognized, "the belief of the inhabitants of disputed territory . . . is 'of no inconsiderable importance.'" New Jersey v. New York, 523 U.S. at 798 (quoting Handly's Lessee v. Anthony, 5 Wheat. 374, 384 (1820)). As discussed above, for years Virginians have applied to Maryland for permission to build piers and other structures beyond the low-water mark, filed with Maryland courts and agencies deeds and other documents relating to property extending from the Virginia side of the river into Maryland, paid taxes on improvements built on structures extending into Maryland, requested law enforcement assistance from Maryland officials with respect to activities taking place on such structures on Maryland's side of the boundary, and complied with a broad array of licensing requirements in areas as diverse as alcohol consumption to gambling activities to restaurant health inspections to water withdrawals. These facts, at a minimum, have "some persuasive force in showing that inhabitants along the questioned boundary considered that it extended along the river at low-water mark," Vermont v. New Hampshire, 289 U.S. at 615, in a consistent and uniform manner, and did not believe that piers, wharves, or water intake structures attached to the Virginia side of the Potomac were exempt from Maryland's regulatory authority. See also Arkansas v. Tennessee, 310 U.S. at 567-68; Michigan v. Wisconsin, 270 U.S. at 306-07; Maryland v. West Virginia, 217 U.S. at 40-41, 44; Virginia v. Tennessee, 148 U.S. at 515-16, 527.

While "no general rule can be laid down as regards the length of time and other circumstances which are necessary to create a title by prescription," New Jersey v. New York, 523 U.S. 789 (quoting 1 L. Oppenheim, International Law § 242 at 456-57 (H. Lauterpacht 5th ed.1937)), the Court stated, in addressing the conduct of the United States and the Delaware Indians who each claimed up to a boundary line established by a survey, that "[i]n the case of private persons, a boundary surveyed by the parties and acquiesced in for more than thirty years, could not be made the subject of dispute by reference to courses and distances called for in the patents under which the parties claimed, or on some newly discovered construction of their title deeds. We see no reason why the same principle should not apply in the present case. . . ." United States v. Stone, 69 U.S. 525, 537 (1865) (quoted in Rosebud Sioux Tribe v. Kneip, 430 U.S. at 605 n.28). Indeed, the arbitrators who established the boundary between Maryland and Virginia stated that "[t]he length of time which creates a right by prescription in a private party raises a presumption in favor of a State, that is to say, twenty years." (App. 28a). Regardless of the period of time required, Maryland's longstanding assertion of authority over the Potomac in all respects, coupled with Virginia's acquiescence in and recognition of that authority, demonstrate Maryland's right to regulate the activity at issue in this case.

For these reasons, judgment should be entered in favor of Maryland and against Virginia because Maryland has acted properly in regulating the Potomac as it has for the past two centuries.

CONCLUSION

For the reasons stated, Maryland's motion for summary judgment should be granted.

Respectfully submitted,

J. Joseph Curran, Jr.

Attorney General of Maryland

Carmen M. Shepard

Deputy Attorney General

Maureen Mullen Dove

Andrew H. Baida*

Randolph Stuart Sergent

Assistant Attorneys General

200 St. Paul Place

Baltimore, Maryland 21202

(410) 576-6318

M. Rosewin Sweeney

Adam D. Snyder

Assistant Attorneys General

2500 Broening Highway

Baltimore, Maryland 21224

(410) 631-3034

Attorneys for Defendant

*Counsel of Record	State of Maryland