830
Scalia, J., dissenting
could have been eliminated only by prescription. The status of Ellis Island is governed by a contract between New York and New Jersey—the Compact of 1834—that is, on this point, poorly drafted and ambiguous.* It is hornbook contracts
*Justice Breyer asserts that there is no "sufficient, relevant ambiguity" because New York has "basically rested its case upon Article First and Article Second" of the Compact, which "are silent about what would happen to an Ellis Island 'avulsion,' " leading Justice Breyer to the conclusion that the normal rules of avulsion apply. Ante, at 812, 813 (concur-ring opinion). It is true that the State of New York did not claim title through Article Third, but it relied heavily upon Article Third in giving meaning to Articles First and Second—as we must do as well, since the Compact was meant to form an integrated whole. Justice Breyer contends that Articles First and Second "specify that Ellis Island is in New Jersey waters, for the [Article First] border between the States lies far to the east." Ante, at 813. But Article First establishes a boundary down the middle of the Hudson only "except as hereinafter otherwise particularly mentioned." The exceptions include (in Article Second) New York's jurisdiction over Ellis Island, and its "exclusive jurisdiction of and over the other islands lying in the waters above mentioned and now under the jurisdiction of that state." New York's claim that the normal rules of avulsion were not meant to apply to this exception rests largely upon its contention that one of the major purposes of the Compact was to "guarante[e] New York's control over commerce and navigation in New York Harbor," which was achieved (1) by Article Second's giving New York "exclusive jurisdiction" over all the islands in the bay, and (2) by Article Third's giving New York "exclusive jurisdiction" (the same language) over all the waters and submerged lands of the bay. Exceptions of State of New York to Report of Special Master 16. This major purpose, according to New York, would be defeated if landfill additions to the islands on the New Jersey side of the bay became little enclaves of New Jersey. It is therefore not true that New York did not rest its argument upon Article Third—and not true (when one reads the Compact as a whole) that Article Second unambiguously leaves the question of landfill on Ellis Island to the background law of avulsion.
I may add that even if Article Third were totally unconnected to Articles First and Second, I do not think in a matter of this consequence we should hear only the arguments of the State of New York, and disregard those of New York City, which has a vital interest in this matter and participated actively as an amicus, in submitting evidence, examining wit-
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