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.	*

*	*	*	*	*	*	*	*	*	*	*

DEFENDANT'S SURREBUTTAL BRIEF IN OPPOSITION TO

PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

Carmen M. Shepard

Deputy Attorney General

Maureen M. 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

SURREBUTTAL ARGUMENT	1

I.	THE COMPACT OF 1785 DOES NOT APPLY TO THE NON-TIDAL PORTION OF THE POTOMAC RIVER	2

A.	The Compact Contains Language That Must Be Interpreted By Examining The Entire Context Of The Compact's Formation	2

B.	The Compact And The Potomac Company Legislation Conflict If

They Are Construed To Apply To The Same Portion Of

The Potomac River	7

II.	NEITHER MARYLAND v. WEST VIRGINIA NOR THE BLACK JENKINS AWARD SUPPORTS VIRGINIA'S MOTION FOR PARTIAL SUMMARY JUDGMENT	13

III.	VIRGINIA IS BARRED FROM CLAIMING THAT THE COMPACT APPLIES ABOVE TIDEWATER	15

CONCLUSION	20

TABLE OF AUTHORITIES

Cases

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)	1

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)	1

Binney's Case, 2 Bland 95 (1829).	10,15,16

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)	1

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)	10

Everson v. Bd. of Ed. of Ewing Tp., 330 U.S. 1 (1947)	5

Great Falls Manufacturing Co. v. Garland, 25 F. 521 (D. Md. 1885)	17

Great Falls Manufacturing Co. v. Garland, 124 U.S. 581 (1888)	17

Great Falls Manufacturing Co. v. United States, 16 Ct. Cl. 160 (U.S. Ct. Cl. 1880)	17

Great Falls Manufacturing Co. v. United States, 112 U.S. 645 (1884)	17

Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938)	13

Howard v. Ingersoll, 54 U.S. 381 (1851)	11

Hunt v. Cromartie, 526 U.S. 541 (1999)	1

Idaho Ex Rel. Evans v. Oregon, 462 U.S. 1017 (1983)	13

Kansas v. Colorado, 206 U.S. 46 (1907)	13

King v. St. Vincent's Hospital, 502 U.S. 215 (1991)	7

Martin v. Waddell, 41 U.S. 367 (1842)	3

Maryland v. West Virginia, 217 U.S. 577 (1910)	14,19

Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)	1

Michigan v. Wisconsin, 270 U.S. 295 (1926)	20

Middlekauff v. LeCompte, 149 Md. 621, 132 A. 48 (1926)	13,19

Miedzinski v. Landman, 218 Md. 3, 145 A.2d 220 (1958)	15

Nebraska v. Wyoming, 515 U.S. 1 (1995)	13

New Jersey v. New York, 523 U.S. 767 (1998)	19

O'Neal v. Virginia & Maryland Bridge Co. at Shepherdstown, 18 Md. 1 (1861)	18

Ohio v. Kentucky, 410 U.S. 641 (1973)	20

Oklahoma v. New Mexico, 501 U.S. 221 (1991)	7

Peyroux v. Howard, 32 U.S. 324 (1833)	11

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)	5

Smith v. People of the State of California, 361 U.S. 147 (1959)	5

Texas v. New Mexico, 462 U.S. 554 (1983)	7

The Genessee Chief v. Fitzhugh, 53 U.S. 443 (1851)	11

United States v. Diebold, Inc., 369 U.S. 654 (1962)	1

United States v. Great Falls Manufacturing Co.

(Cir. Crt. Mont. Cty, 1858)	3,7,10,16,17

United States use of Washington Aqueduct v. Great Falls Manufacturing Co.,

21 Md. 119 (Md. 1864)	16

Vermont v. New Hampshire, 289 U.S. 593 (1933)	4,11

West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994)	5

Statutes and Laws

1784 Md. Laws, Ch. 33	8,9,10,12

1853 Md. Laws, Ch. 179	18

1874 Md. Laws, Ch. 247	15

1785 Va. Laws, Ch. 43	8,9,10,13

1854 Va. Laws, Ch. 5	18

1874 Va. Laws, Ch. 135	15

22 Stat. 168 (July 15, 1882)	17

Treatises and Other Authorities

Angell on Watercourses (4th Ed. 1854)	12

Angell on Tide Waters (Boston 1826)	3

Elliot, Jonathan, The Debates in the Several State Conventions on the Adoption of the

Federal Constitution, Vol. 1 (2nd Ed. 1836)	12

Fitzpatrick, John C., The Diaries of George Washington (1925)	5

Rowland, Kate Mason, The Life of George Mason	6

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

Rutland, Robert A., The Papers of George Mason	5,6

SURREBUTTAL ARGUMENT

Virginia's Reply Brief underscores the impropriety of granting Virginia's request for partial summary judgment because, in stark contrast to Maryland's production of two sworn and well-documented affidavits of expert historians based on original sources that "demonstrate the absence of a genuine issue of material fact," Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), Virginia has come forward with no countering affidavits or evidence that contradict Maryland's factual showing. Rather, all that Virginia has produced in its reply to Maryland's brief – indeed, all that the Commonwealth offers in support of its underlying motion – are legal arguments. A party in these circumstances, however, "may not rest upon mere allegation or denials of his pleading," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), nor may it stand by "without offering 'any significant probative evidence tending to support the complaint.'" Id. (citation omitted). While summary judgment in favor of Maryland may be appropriate on the basis of its uncontroverted and undisputed evidence, that proof compels the denial of Virginia's motion.

"[I]n ruling on a motion for summary judgment, the nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255 (brackets added by the Court)). Moreover, in assessing Virginia's request for summary judgment against the backdrop of the sworn materials produced by Maryland, "the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). See also Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970). Summary judgment is proper only if there is no dispute as to any material fact, or any reasonable inferences that can be drawn from such a fact, and must be denied when the non-moving party can show that the inferences it relies upon are "reasonable in light of the competing inferences." Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). Virginia's motion should be denied because the Commonwealth has "the burden of persuasion" and, at a minimum, Maryland's "evidence is susceptible of different interpretations or inferences by the trier of fact." Hunt v. Cromartie, 526 U.S. at 553.

I.	THE COMPACT OF 1785 DOES NOT APPLY TO THE NON-TIDAL PORTION OF THE POTOMAC RIVER.

A.	The Compact Contains Language That Must Be Interpreted By Examining The Entire Context Of The Compact's Formation.

Rather than come forward with any proof that contradicts the historical affidavits of Maryland's experts, Virginia argues that resort to history is unnecessary and it is entitled to partial summary judgment because the text of the Compact "contains no ambiguity." Reply Br. at 17. But even if it were proper to look no further than the words of the Compact, Virginia's motion should be denied because the Commonwealth has failed to produce any historical evidence or affidavits rebutting Professor Ronald Hoffman's conclusion that, when viewed in its historical context, the plain language of the Compact was not intended to apply above tidewater. See, e.g., Exhibit A to Maryland's Brief in Opposition (hereinafter "Md. Ex.") at 70. See also id. at 6, 9, 13 and n.14, 14-15, 30, 59-63. In rebuttal, Virginia emphasizes that "[t]he words 'shores of Potowmack River' are unmodified and unrestricted in any way," Reply Br. at 18, but concedes, as it must, that the similarly "unmodified and unrestricted" words "Potomac River" used in Article IX of the Compact "no doubt" applied only to the tidewater portions of the river, id. at 19, and that the same words in Article V likewise did not apply to boats on the non-tidal Potomac. Id. at 37. The same non-textual limitation that Virginia applies to these Compact provisions as a matter of "[e]lementary logic," id., also applies to Article VII.

Indeed, the unrefuted affidavits before the Court establish that "the use of the word 'wharf' in [Article VII of the Compact] implies the tidewater," Md. Ex. A at 63, where wharves were necessary for the loading and unloading of deep draught sea-going vessels, Md. Ex. B at 14-15, as opposed to the non-tidal Potomac, which was pliable only by boats drawing one foot of water. Id. at 13. See also Md. Ex. A at 16-17. The word "shore," like the word "strand" also used by Virginia in its 1776 Constitution, has a similarly tidal connotation. The Commonwealth offers no response to the observation made in United States v. Great Falls Manufacturing Company in 1858 that "shore" is defined by Webster as the "coast or land adjacent to the sea or ocean, or to a large lake or river" and that the term used to describe the edge of a river above tidewater is "bank." Md. Ex. 85 at 7 (emphasis in original). See also Angell on Tide Waters (Boston, 1826), at 64 (observing that "[i]n legal construction," the word "shore" is defined as "that space of land which is alternately covered and left dry, by the rising and falling of the tide"). These contemporaneous sources all support the expert historian's conclusion that the focus of Article VII of the Compact was tidewater. See Md. Ex. A at 59.

Perhaps more fundamentally, Virginia's argument cannot be reconciled with the governing summary judgment standard as applied to the construction of historical documents. Virginia's "plain language" approach may be appropriate when construing an ordinary statute or contract, but the Compact, like a charter, "is not a deed conveying private property, to be interpreted by the rules applicable to cases of that description." Martin v. Waddell, 41 U.S. 367, 411 (1842). In these kinds of cases, "we must not look merely to the strict technical meaning of the words" but to "the history of the times, the object of the charter, the contemporaneous construction given to it, and the usages under it. . . ." Id. This is not simply "legislative history," Reply Br. at 4, nor is consideration of the history surrounding the formation of the Compact irrelevant "to a legal interpretation of Article VII of the Compact. . . ." Id. "We cannot disregard this history without disregarding decisions of this court, which establish either expressly or by example that in the interpretation of a treaty or grant between two states for the settlement of boundary dispute the nature and history of the controversy must be considered." Vermont v. New Hampshire, 289 U.S. 593, 605 (1933). Virginia offers no reason why that history is any less critical in this case than in any other in which the Court has been asked to interpret a document written centuries ago.

The inappropriateness of granting Virginia's motion is highlighted by the Commonwealth's belated attempt to minimize the correspondence of the Compact's principal advocate, James Madison, who stated in clear and unambiguous language that the Compact was to be negotiated between the two States to address issues of navigation and jurisdiction "below tide water." Md. Ex. 57; see also Md. Exs. 37, 65. Virginia does not deny the factual authenticity of these letters, nor does it dispute that Madison was the driving force behind the Compact's formation. Madison's letters, when viewed in the appropriate historical context, are not mere "passing comments," Reply Br. at 29 (quotations and citation omitted), but represent strong evidence about the scope of the Compact.

The importance of Madison's role as the Compact's leading supporter, as Professor Hoffman notes, "must be emphasized." Md. Ex. A at 7. As a nationalist "concerned primarily with uniting the new nation," id. at 35, Madison's interest in harmonizing commercial relations between the two States would lead to his call for the Annapolis Convention. Robert A. Rutland, The Papers of James Madison, Vol. 2, 824 (editorial note) (hereinafter Madison Papers). Moreover, in routinely relying upon Madison's letters and writings as authoritative indicators of the Framers' intent, this Court has done so based on Madison's forceful presence in, and rigorous documentation of, political developments of the time.1 Madison was thus not simply "one Member" of the Virginia Assembly. Reply Br. at 29. Rather, the Compact was Madison's initiative, which he advanced by sponsoring the Virginia legislation appointing himself and others as commissioners, authoring the Virginia commissioners' instructions, and shepherding the Compact through the Virginia legislature.2

Virginia dismisses Madison's letters on the grounds that they were written before Madison had "learned the results of the Mt. Vernon conference," Reply Br. at 26, but the only evidence it cites is an April 27, 1785 letter that demonstrates quite clearly that Madison had received information concerning the outcome. Md. Ex. 65. While the letter does not specify who conveyed the information, it could only have originated from one of the participants in the conference – of whom at least Mason and Henderson were known to Madison and active in Virginia politics. Nor would the drafters' "unmodified and unrestricted" (Reply Br. at 18) reference to the Potomac River have surprised Madison when his letters from the Spring of 1784 (Md. Exs. 37, 57) show clearly that his use of the term "Potomac River" in the commissioners' instructions described the tidewater Potomac only.

Although Virginia bears the burden of establishing the absence of a factual dispute, it offers no evidence whatsoever to support its contention that the drafters of the Compact either were "unacquainted with," Reply Br. at 30, or disagreed with Madison's statements that the agreement applied only to the tidewater Potomac. Instead, Virginia extracts two sentences from a single letter from George Mason dated December 7, 1785, that shed no light, much less "more light" than Madison's letters, on the issue of whether the Compact applies above tidewater. Id. at 33-35. Even a cursory reading of the Mason letter shows that it does not even touch upon the issue of whether the Compact applies above tidewater. Rather, the letter relates only his particular concern that the Compact might prevent Virginians who, like Mason, owned property in both States "from fishing with Nets or Seins upon their own Shores." 2 Mason Papers at 837. Given that Mason's estate, Gunston Hall, his lands on the Potomac in Charles County, Maryland, and his island of Barbadoes (now Roosevelt Island) all were located on the tidewater stretch of the river,3 Mason's concern can hardly be used as evidence that the Compact applied above that stretch.

Virginia claims to find further support for its argument that the Compact applies above tidewater in Mason's statement that "I trust it will be found we have obtained every thing for Virginia, with Respect to Potomack River, which she can desire." Reply Br. at 35 (emphasis omitted). Although Virginia suggests that this sentence is evidence that it drove a hard bargain at Mt. Vernon, when read in context, the sentence means the opposite:

I wish the Article [VII] to be no[t] otherwise altered; for this was the most difficult Business we had to settle with the Maryland Commissioners. The Idea of the Right of fishing on both Shores of Potomack River is one the Marylanders are not fond of parting with; and I trust it will be found we have obtained every thing for Virginia, with Respect to Potomack River, which she can desire.

2 Mason Papers at 838. Far from showing that Maryland simply conceded everything Virginia wanted, Mason's statement demonstrates that Maryland was reluctant to yield anything related to its increasingly valuable fisheries, which, according to Judge Brewer writing in 1858, and Professor Hoffman writing in 2001, were located below tidewater. See Md. Ex. 85 at 7 (stating in United States v. Great Falls Manufacturing Co. that "[t]here were no fisheries of any consequence above tide"); Md. Ex. A at 63 (observing that "the fisheries on the tidewater portion of the river, as in the rest of the bay, were big business, and worthy of regulation, while fishing above the fall line was much smaller in scale").

In sum, the "elementary logic" that Virginia concedes may be used to interpret the Compact's otherwise "unambiguous" terms, Reply Br. at 17, "depends on context," King v. St. Vincent's Hospital, 502 U.S. 215, 221 (1991), and that context includes not simply the language of Article VII and the contemporaneous understanding of the words contained in the Compact, but also "evidence regarding the negotiating history," Oklahoma v. New Mexico, 501 U.S. 221, 235 n.5 (1991), such as the Madison letters. These letters are "an important part of the context in which the Compact was framed." Texas v. New Mexico, 462 U.S. 554, 569 (1983). Virginia has offered no evidence that contradicts these letters that, by themselves, refute Virginia's assertion that it is entitled to partial summary judgment on the question whether the Compact applies to the non-tidal portion of the Potomac.

B.	The Compact And The Potomac Company Legislation Conflict If They Are Construed To Apply To The Same Portion Of The Potomac River.

Virginia has also offered no evidence that contradicts other proof that Maryland produced in opposing the Commonwealth's motion. As Maryland demonstrated in its expert historians' affidavits, the Compact and the Potomac Company legislation were created to advance entirely different goals, were developed in independent but complimentary processes, and were intended to regulate different parts of the River. See, e.g., Md. Ex. A at 7-9, 67-68; Md. Ex. B at 19-20. Virginia presents no proof challenging any aspect of this well-documented evidentiary showing, and presents only argument disputing the third component. That argument falls far short of satisfying Virginia's burden.

Morever, the limited argument that Virginia makes underscores that the Compact and the Potomac Company were designed to regulate entirely separate parts of the Potomac River. While Virginia argues there is nothing "inconsistent" (Reply Br. at 38) between Article XII of the Compact, which allows citizens of either State to use the Potomac River to transport produce "free from any duty, tax or charge whatsoever," and Section X of the Potomac Company legislation, which conditions such activity on the payment of tolls, Virginia's conclusion is based on its view that Article XII concerned itself solely with movement "across" the River rather than up and down it. Id. The word "across," however, is nowhere to be found in either provision even though the drafters of both were presumably aware of what Virginia characterizes as the "many ferry crossings" (id.) on the Potomac at the time the Compact and legislation were written. Similarly, while Virginia argues that "[p]ermitting the Potomac Company to charge tolls at three specific locations for commerce along the River posed no 'irreconcilable conflict,'" id. (emphasis in original), Virginia apparently does not disagree that such a conflict would exist if a Virginia citizen transported produce from the Maryland side of the Potomac across the river and through the Potomac Company's canals and locks: Under the Compact, no duty, tax or charge "whatsoever" could be imposed in these circumstances, while under the Potomac Company legislation, the Virginian's vessel could be seized and sold at auction if he "refused to pay the required toll." 1784 Md. Laws Ch. 33, § IX, Md. Ex. 70; 1785 Va. Laws Ch. 43, § IX, Md. Ex. 71.

Characterizing this conflict as a mere "overlap" (Reply Br. at 39), Virginia downplays its significance by arguing that "[t]he Compact was intended to govern the States' relations for a very long time. . . ." Id. It is difficult to envision a longer time period than that contemplated by the legislatures of both Virginia and Maryland when they provided that the operators of the Potomac Company shall "be empowered to receive reasonable tolls for ever, in satisfaction for the money advanced by them in carrying the work into execution, and the risk they run." 1785 Va. Laws Ch. 43, § I, Md. Ex. 71; 1784 Md. Laws Ch. 33, § I, Md. Ex. 70. Indeed, while Virginia's view today is that "joint navigational projects could not be expected to have the same longevity as an interstate treaty," Reply Br. at 39, that is not what its legislative body expected when it created the Potomac Company and provided that the "canals and works, with all their profits, shall be, and the same are hereby vested in the said proprietors [of the Potomac Company], their heirs and assigns forever." 1785 Va. Laws Ch. 43, § IX, Md. Ex. 71. Accord 1784 Md. Laws Ch. 33, § X, Md. Ex. 70.

These provisions are further proof that the Compact and the Potomac Company legislation, when considered together as part of the overall context in ascertaining the breadth and scope of the Compact, apply to different portions of the Potomac River. Rather than come forward with any evidence of its own, Virginia simply contests Dr. Douglas R. Littlefield's alleged "suggestion" that "the records of the Potomac Company were silent about Virginia and Maryland's respective claims to the non-tidal Potomac." Reply Br. at 42. Virginia ignores and offers no evidence to rebut Dr. Littlefield's actual testimony, namely, that he conducted a thorough review of "the historical record regarding the Potomac Company and the 1785 Compact" and "there is no mention whatsoever of the Compact in the Potomac Company's records." Md. Ex. B at 4, 19. Nor does Virginia dispute a letter that Dr. Littlefield uncovered during his review of the historical record showing that "company officials believed they held the sole authority to regulate uses of the Potomac River above tidewater." Id. at 19. This belief of officials designated by the legislatures of both States to regulate the non-tidal portion of the Potomac provides further proof that the Compact does not apply to that part of the Potomac River, as the Supreme Court has "long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer. . . ." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984) (footnote omitted). Virginia has offered nothing to undermine this evidence.

Instead, the Commonwealth argues that the Compact must have applied above tidewater because, without it, there would have been no "jurisdictional rules for trying offenses against persons or property on either side of the River." Reply Br. at 39-40. But there was no need for the Compact or the Potomac Company legislation to establish such rules for the non-tidal portion because, as courts have pointed out, "the whole of the river, above tide, not being navigable, or a common highway, was within the bodies of the respective adjacent counties; and could afford no sanctuary to those who should flee from the justice of the municipal law; since they would be there fully within reach of process from the Courts of common law of the State to which the river belonged." Binney's Case, 2 Bland 95, 120 (1829). Accord United States v. Great Falls Manufacturing Co., Md. Ex. 85 at 7.

Virginia's assertion that the Potomac was, in fact, navigable at the time (Reply Br. at 45-53) similarly rests on factual and legal inaccuracies. As a factual matter, although the non-tidal river was boatable for small craft in some places, both the Virginia and Maryland legislatures recognized that the river was not navigable above tidewater when they enacted the Potomac Company legislation. See 1785 Va. Laws Ch. 43, Whereas Clause (stating that "the extension of the navigation of the Potowmack river, from tide water to the highest place practicable on the North branch, will be of great public utility"), Md. Ex. 71; id. § X. Accord 1784 Md. Laws Ch. 33, Whereas Clause and § X, Md. Ex. 70. As a legal matter, Virginia misplaces its reliance on a series of post-1850 Supreme Court cases for its definition of navigability because the common law definition of navigability in effect at that the time the Compact was drafted considered rivers "not navigable" above tidewater even when, as Virginia argues was the pre-Compact situation with the Potomac, see Reply Br. at 46-48, they were capable of being used for transportation purposes. See, e.g., Peyroux v. Howard, 32 U.S. 324, 331 (1833).4 Rejecting a similar attempt to interpret a historical document according to current jurisprudence, this Court stated "[o]bviously the meaning of the words of the order could not be established by a rule of law declared long after its promulgation; and nothing in the decisions relied upon . . . admonishes us to disregard that meaning when, as here, it is clearly established." Vermont v. New Hampshire, 289 U.S. at 604.

Virginia has come forward with no evidence disputing Maryland's proof that, at the time of the Compact's negotiation and adoption, there existed a perfectly well understood difference between tidal and non-tidal waters. See Md. Ex. A at 13 n.14, 14-17; Howard v. Ingersoll, 54 U.S. 381, 421-22 (1851) (describing as "familiar principles of universal application" the differing property rights conveyed by grants of land above and below tidewater). Nor has the Commonwealth offered any evidence showing that, based on this understanding, Maryland intended to violate the private property rights of Maryland citizens who owned land adjacent to the non-tidal Potomac by imposing on those private rights a public right of fishery and a privilege for Virginia citizens to build wharves and engage in other intrusive activity. While Virginia relies on a statement made by Maryland's Attorney General more than one hundred years after the Compact was formed that the ownership of the Potomac was disputed, and thus Maryland merely negotiated "equal rights of access to, and use of, the River" when it formed the Compact with Virginia, Reply Br. at 54, Virginia has not refuted with any Compact-era proof the fact that Maryland was on record a mere nine years before entering into the Compact "that the sole and exclusive jurisdiction over the said river Patowmack, and also over such part of the river Pocomoke as is comprehended in the said [1632] charter [from King Charles I to Lord Baltimore], belongs to this state." Md. Ex. 22. Virginia's constitution similarly recognized Maryland's sovereignty over the Potomac beyond the low water mark on the Virginia side. See Md. Ex. 19.

Thus, regardless of what a Maryland official may have opined a century after the fact, the uncontradicted evidence in this case shows that Maryland clearly thought it owned the Potomac in its entirety when it entered into the Compact.5 In light of this understanding, and the settled principle in effect at the time that non-tidal rivers capable of supporting boat traffic were privately owned and subject only to a public right of transportation, see Angell on Watercourses (4th Ed. 1854) at 506, § 535; 608, § 547, there is no evidence that Maryland intended to negotiate a document containing provisions that violated the rights of Maryland citizens, by creating additional burdens, without containing other provisions, as did the Potomac Company legislation, reimbursing them for such violations. See 1784 Md. Laws Ch. 33, §§ XI and XII, Md. Ex. 70; 1785 Va. Laws Ch. 43, §§ XI and XII, Md. Ex. 71. It is no answer to argue that "the private property rights of Virginia or Maryland citizens presented no impediment to the States' ability to guarantee their respective riparian rights by compact," Reply Br. at 56, because the fundamental problem that Virginia cannot overcome is its inability to come forward with any evidence showing that, notwithstanding this ostensible ability to violate the rights of its citizens, Maryland chose to do so without securing redress as it did when it authorized the formation of the Potomac Company.6 Virginia offers no such evidence because the Compact was never intended to apply to the non-tidal portion of the Potomac. For these reasons alone, Virginia's motion should be denied.

II.	NEITHER MARYLAND v. WEST VIRGINIA NOR THE BLACK JENKINS AWARD SUPPORTS VIRGINIA'S MOTION FOR PARTIAL SUMMARY JUDGMENT.

In the face of Maryland's overwhelming evidence concerning the Compact's inapplicability to the non-tidal Potomac, Virginia subordinates the significance of the Compact by reversing the order of the arguments it made in its initial brief and seeking refuge in Maryland v. West Virginia, 217 U.S. 577 (1910), and the Black Jenkins Award of 1877. Neither is "dispositive" (Reply Br. at 5, 7) of Virginia's argument because neither provides any support for it. Indeed, Maryland v. West Virginia was a dispute between Maryland and West Virginia, not Maryland and Virginia, and so nothing decided in that case bound Maryland in any way with respect to its present dispute with the latter State.

Moreover, the Compact references in the decree entered into in Maryland v. West Virginia establish nothing because the Compact had nothing to do with the boundary issue that was litigated in that case. While Virginia argues that "[i]n all 302 pages of briefing, Maryland never claimed that West Virginia was not entitled to the protections of the Compact," id. at 7 n.4, the Commonwealth simply overlooks the unequivocal statement made in Maryland's 1909 brief that the "Compact dealt only with the southern boundary of Maryland, and was confined in its scope to the consideration of questions of navigation and jurisdiction over that part of the Potomac River which was navigable, and had nothing directly to do with the western boundary of the State of Maryland." Exhibit 65 to Virginia's Reply Br. at 39 (emphasis in original). Maryland's view necessarily meant that West Virginia had no rights secured by the Compact since the Compact did not apply to the non- tidal portion of the Potomac separating the two States. Thus, while Maryland recognized that "[t]his Compact is today a binding and subsisting obligation upon the States of Maryland and Virginia," id., it did not share that view with respect to its relationship with West Virginia. The Compact had nothing to do with Maryland's dispute with West Virginia, and the decree that Maryland proposed is entirely consistent with Maryland's recognition of this in its brief.

Virginia's reliance on the Black Jenkins Award is misplaced for the same reasons. Virginia does not dispute that the arbitrators expressly acknowledged that they "are not authority for the construction of this compact, because nothing which concerns it is submitted to us" (App. 29a), and so the Commonwealth finds no support for its position in the arbitrators' disagreement with Chancellor Bland's determination in Binney's Case that the Compact does not extend to the non-tidal portion of the Potomac. While Virginia now argues – almost 125 years after the fact – that the Arbitration Award conferred upon Virginia prescriptive rights along the entire course of the Potomac that do not "stop at the shore," Reply Br. at 9, it offers no rebuttal to its own history in which the Attorney General and Governor of Virginia have conceded that this is precisely where Virginia's authority ends and Maryland's begins. See Md. Exs. 90 and 91; Miedzinski v. Landman, 218 Md. 3, 145 A.2d 220, 222 (1958). The arbitrators established only a boundary line between Virginia and Maryland, and in doing so expressly complied with the commands of both States' legislatures by entering an award that did nothing to change "the rights and privileges enumerated and set forth in the compact . . . entered into in the year seventeen hundred and eighty-five. . . ." 1874 Acts of Virginia, Ch. 135, Md. Ex. 92. See also 1874 Md. Laws, Ch. 247 (same).

III.	VIRGINIA IS BARRED FROM CLAIMING THAT THE COMPACT APPLIES ABOVE TIDEWATER.

Virginia's argument denying that its Compact claim is barred by the doctrine of prescription and acquiescence confirms that just the opposite is true, or at a minimum, that further factual development is warranted before Virginia's claim can be conclusively determined. One particularly glaring factual inaccuracy in Virginia's Reply Brief occurs with respect to the litigation between the Great Falls Manufacturing Company and the United States surrounding the condemnation of property for construction of the Washington Aqueduct. In its reply to Maryland's acquiescence argument, Virginia acknowledges that its General Assembly directed its Attorney General to enter the litigation, Reply Br. at 13, but states that "[t]here is no record of what happened in the case" beyond 1860. Id. "[P]erhaps," Virginia surmises, "the Civil War intervened." Id. On the contrary, while it was not possible to fully develop the pertinent historical facts in the limited context of this surrebuttal, published court decisions reveal a long record of the Great Falls litigation after 1860 that further evidences Virginia's acquiescence in Maryland's paramount authority over the waters of the non-tidal Potomac.

The history of the litigation reveals that, instead of appealing the 1858 decision of the Circuit Court for Montgomery County in United States v. Great Falls Manufacturing Co., Md. Ex. 85, the Great Falls Manufacturing Company took out Maryland patents to Conn's Island and the land and water within the Potomac between Conn's Island and the Virginia shore and based its claim for compensation on the property rights described therein. Although the United States successfully challenged the validity of one of these patents on the ground that Maryland had already granted the same property to the United States when it gave its consent for the United States to condemn property in connection with the Aqueduct, United States use of Washington Aqueduct v. Great Falls Manufacturing Co., 21 Md. 119 (Md. 1864), neither party questioned that Maryland had the authority and jurisdiction to patent the un-granted lands beneath the non-tidal 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"). In fact, the Great Falls Manufacturing Company – which the Virginia Attorney General was directed by the Virginia General Assembly in 1860 to support "before any . . . legal tribunal" – stated 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." Id. at 127 (citing Binney's Case).

The Great Falls Manufacturing Company went on to obtain compensation in the amount of $15,692 for its Maryland property rights after an arbitration panel ruled in its favor. That decision was upheld by the United States Court of Claims, see Great Falls Manufacturing Co. v. United States, 16 Ct. Cl. 160 (U.S. Ct. Cl. 1880), and the United States Supreme Court. Id., 112 U.S. 645 (1884). Then, in 1882, Congress enacted legislation authorizing the extension of the Aqueduct dam from Conn's Island to the Virginia shore for the purpose of increasing "the water supply of the city of Washington, and for other purposes." 22 Stat. 168 (July 15, 1882). This led to another round of condemnation litigation, this time before the Circuit Court of the United States for the District of Maryland, see Great Falls Manufacturing Co. v. Garland, 25 F. 521 (D. Md. 1885), and again on appeal to the United States Supreme Court. Id., 124 U.S. 581 (1888). The opinions rendered by the courts in these cases contain no indication that the United States, the Great Falls Manufacturing Company, or the Virginia Attorney General argued that the Compact applied to the non-tidal portion of the Potomac, conferred any property rights on the Company, or was in any way relevant to the case.

This record undermines Virginia's request for partial summary judgment in four key respects. First, it suggests that the first Virginia entity ever to assert the Compact's applicability above tidewater abandoned that argument in favor of a Maryland patent after the Montgomery County Circuit Court's decision in United States v. Great Falls Manufacturing Co. Second, it shows that all of the parties and courts involved in the litigation – including this Court – agreed that Maryland law controlled the use of the land beneath, and the waters of, the non-tidal Potomac.7 Third, all of this unfolded after the Virginia Attorney General was directed by his General Assembly to defend whatever rights Virginia had to the Potomac in "any . . . legal tribunal." Fourth, and perhaps most importantly, it shows that, at a minimum, it is necessary to conduct further factual development of the issue of whether the Compact applies above tidewater, as even Virginia – which included a four-volume set of factual information in support of a partial summary judgment motion premised on the absence of a factual dispute – apparently was not aware of this subsequent record of the litigation and what it reveals about Maryland's predominant role in the non-tidal Potomac. The centuries-old issues raised by Virginia's request for summary judgment are simply too important to be decided on an incomplete record compiled over four months.

Virginia's lack of entitlement to summary judgment at this stage is also underscored by its effort to minimize the significance of its acquiescence in the Maryland Court of Appeals' decision in O'Neal v. Virginia & Maryland Bridge Co. at Shepherdstown, 18 Md. 1 (1861). Virginia states that the court "expressly avoided reaching the question" raised by the Virginia Attorney General that the Compact applied above tidewater and prohibited Maryland from imposing a tax on a Virginia owner of a bridge crossing the non-tidal portion of the Potomac, Reply Br. at 12, but the Commonwealth ignores that, in sidestepping the Virginia Attorney General's argument, the Court of Appeals upheld the propriety of the tax. Virginia could have sought this Court's review of Maryland's assertion of authority over the bridge, but instead chose to do nothing, precisely as it did nothing when its legislature the year before, expressing concern about Virginia's "acquiescence" in and "submission to a violation of rights on the Potomac river" caused by the "destructive" decision entered in the Great Falls Manufacturing litigation, instructed its Attorney General to intervene in or otherwise seek redress with respect to that litigation. Md. Ex. 93.

Virginia's request for partial summary judgment simply cannot be squared with the consequences of its acquiescence in the face of these two court decisions and the adverse impact that they had on Virginia citizens. If anything, Virginia's tepid defense of its inaction in the wake of the Maryland Court of Appeals' decision in Middlekauff v. LeCompte, 149 Md. 621, 132 A. 48 (1926), confirms that the Commonwealth long ago relinquished its right to assert that the Compact applies above tidewater. While Virginia suggests that it could simply ignore Middlekauff because the decision was "squarely at odds with Maryland v. West Virginia," Reply Br. at 15, as stated previously, the Supreme Court in the latter case never addressed the question whether the Compact applied to the non-tidal portion of the Potomac. More importantly, regardless of whether Middlekauff was wrongly decided, the decision authorized the Maryland game warden to seize and destroy the property of Virginia citizens in the non-tidal portion of the Potomac, and Virginia admits it did nothing other than to write a letter to the Maryland Conservation Commissioner stating that it "disagreed with the ruling." Id.

Although Virginia argues that this "protest was more than sufficient to protect Virginia's rights against Maryland's claim of acquiescence," id. at 16, that argument finds no support in the Special Master's report in New Jersey v. New York that Virginia cites, nor did the Supreme Court in that case, or in any other, hold such a form of "protest" is adequate when, as a result of the decisions of one State's legislature and courts, the property of citizens of another State has either been negated or declared subject to taxation or exposed to seizure and destruction. In the face of these "legislative and judicial assertions of sovereignty over the river," Virginia had the obligation "to assert, through proceedings available in this Court," Ohio v. Kentucky, 410 U.S. 641, 650 (1973), the same claim it raised in its present suit against Maryland, which was triggered by yet another Maryland assertion of regulatory authority and belies Virginia's contention that, in these other instances, "Virginia had no ability to 'appeal.'" Reply Br. at 15. If this centuries-old failure to "appeal" is not "long acquiescence . . . in the exercise of sovereignty and dominion" that is "conclusive" of the Compact's inapplicability to and Maryland's "rightful authority" over the non-tidal portion of the Potomac, Michigan v. Wisconsin, 270 U.S. 295, 308 (1926), then nothing is.

CONCLUSION

For the additional reasons stated, Virginia's motion for partial summary judgment should be denied.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

Carmen M. Shepard

Deputy Attorney General

Maureen M. 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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 23rd day of March, 2001, I sent by overnight delivery copies of the foregoing papers to Frederick S. Fisher, Assistant Attorney General, 900 East Main Street, Richmond, Virginia 23219; and Stuart A. Raphael, Esq., Hunton & Williams, 1751 Pinnacle Drive, Suite 1700, McLean, Virginia.

_______________________

Andrew H. Baida