90
Kennedy, J., dissenting
low-water line and its use rights beyond that point, a distinction consistent with Article Seventh.
The majority's decision ultimately seems to rely on rights stemming from some other, additional prescription to conclude that Paragraph Fourth expands Virginia's rights. See ante, at 74. It fails to explain, however, what other rights Black-Jenkins identified other than those achieved by the prescription discussed above. Notwithstanding the majority's conclusory position, the sole right acknowledged in Black-Jenkins was that which was delimited by the operation of Article Seventh
The majority also implies, in footnote 9 of its opinion, that Virginia's right to use the River free from Maryland's regulation is equally a matter of federal common law. See ante, at 74-75, n. 9 (relying on Colorado v. New Mexico, 459 U. S. 176 (1982)). That suggestion cannot be right, however. The doctrine on which the majority relies pertains to interstate bodies of water. As explained above, the Potomac River belongs to Maryland and so is not an interstate body of water. Those cases in which we have considered the common-law rights of sovereigns who either both had title to half of a river, or who both had full title to a river but at different points in its flow, such as Colorado, are inapposite to this unique, sole-title context.
Since Black-Jenkins does not expand Virginia's right of access, Article Seventh's framework controls. The awkwardness of asking whether a regulation by Maryland amounts to exclusion is heightened here, where Virginia, as a riparian landowner, asserts its right to have access to the River for the purpose of serving needs well beyond recognized riparian use. This, in turn, raises the question whether Maryland can decide Virginia has too much population, and on that ground deny Virginia access for the purpose of meeting water demands.
This, to be sure, is a question of considerable difficulty, for it is not our law or our constitutional system to allow one
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