Cite as: 540 U. S. 56 (2003)
Kennedy, J., dissenting
lar regulation amounts instead to an exclusion prohibited by the Compact. That the Compact forces this determination, parallel to that at issue in a case of an overburdened easement, is no reason to deny its plain language or the accepted proposition that Maryland has long had title to the River and its bed.
The next step is to consider the 1877 Black-Jenkins Award and to ask whether that Award expands Virginia's rights of River access beyond what was provided in the Compact. The Black-Jenkins Award affirms that Virginia, as much as its citizens, has riparian rights under the 1785 Compact, to the extent of the Commonwealth's own riparian ownership. See ante, at 69. The question remains, however, whether Black-Jenkins converted Virginia's right of riparian ownership under Article Seventh to a right of sovereignty in the waters. For, if it did not do so, then Virginia's right of access to the River is limited like that of any other riparian owner under Article Seventh. In relevant part, the Award states:
"Fourth. Virginia is 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, without impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five." Act of Mar. 3, 1879, ch. 196, 20 Stat. 482 (internal quotation marks omitted).
The majority suggests this language gives Virginia sovereign rights to the River because it uses the words "Virginia" and "full dominion." See ante, at 72 ("The arbitrators did not differentiate between Virginia's dominion over the soil and her right to construct improvements beyond low-water mark"). That reading cannot be right for two reasons.
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