New Jersey v. New York, 523 U.S. 767, 47 (1998)

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Cite as: 523 U. S. 767 (1998)

Breyer, J., concurring

rely. See ante, at 773-775, 781-782, and nn. 3, 4 (discussing Article Third). The State has basically rested its case upon Article First and Article Second. See Brief for Defendant 11-15; Tr. of Oral Arg. 33, 35-36, 46. Those Articles specify that Ellis Island is in New Jersey waters, for the border between the States lies far to the east. Those Articles do mention an exception for New York's "present jurisdiction of and over Bedlow's and Ellis's islands," but they are silent about what would happen to an Ellis Island "avulsion," i. e., the creation of significant additional territory through land-fill. As Justice Souter points out, ante, at 783, n. 6, silence is not ambiguity; silence means that ordinary background law applies; and that ordinary background law gives an island's avulsion not to the State that owns the island, but to the State in whose waters the avulsion is found. See Georgia v. South Carolina, 497 U. S. 376, 404 (1990); Nebraska v. Iowa, 143 U. S. 359, 361-362 (1892); see also ante, at 783-784.

Nor can I agree with Justice Stevens that New Jersey lost through prescription what once rightfully was its own. Too much of the evidence upon which he relies is evidence of events that took place during the time that neither New York nor New Jersey, but the Federal Government, controlled Ellis Island. At that time, Judge Wyzanski expressed the view that:

"Ellis Island and Bedloe's Island are no more a part of New York or New Jersey than the Philippine Islands or Hawaii are. They are territories of the United States not falling under the jurisdiction of any one of the forty-eight states." N. J. Exh. 43.

The Federal Government's virtually exclusive authority over the Island means that New Jersey could well have thought about the same. Perhaps more specialized property lawyers would have phrased their own conclusions in less ringing terms and with more numerous qualifications. But, still,

813

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