86
Kennedy, J., dissenting
Maryland, as the territory's sovereign, once could have excluded Virginia landowners from the River, but Article Seventh abrogates Maryland's right of sovereignty to this extent. By its clear language, Article Seventh creates a right for citizen landowners to have some access to the River territory by, for example, the construction of improvements appurtenant to the shore.
Article Seventh, however, does not abrogate Maryland's sovereign right to exercise its police power, and the regulatory authority that implies, over its River territory; and the majority does not contend otherwise. The citizen landowner rights created by Article Seventh, as a consequence, remain subject to Maryland's sovereign powers insofar as that consists with Virginia's guaranteed access. That the landowners' rights are so limited is well illustrated by the very different language the parties used when they wanted to abrogate one another's police power over citizens or the other State. For example, as the majority agrees, Articles Fourth, Eighth, and Ninth of the Compact all contain express and particular police power abrogations. See ante, at 66-67. So does Article Tenth. Article Seventh, however, stands in clear contrast to these provisions. It does not contemplate the transfer or abrogation of Maryland's police power. It cannot be the basis for concluding that Virginia's citizens now have not just a right of access to the River, but the additional right of access free of Maryland's regulatory police power. See Massachusetts v. New York, 271 U. S. 65, 89 (1926) ("[D]ominion 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").
As a result, Article Seventh sets up an awkward situation, forcing this Court to reconcile a landowner right not to be excluded with Maryland's sovereign regulatory authority. In effect, it forces the Court to inquire whether any particu-
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