92
Kennedy, J., dissenting
the Court must confront the problem, not ignore it and send Maryland and its rights away by fiat. This is particularly true in light of the fact that Virginia's right to access and Maryland's right to regulate have coexisted in actual application for nearly 50 years. See ante, at 63. History shows the framework can be workable.
If Maryland's attempted regulation of Virginia contradicts Virginia's place in the federal system, that matter can be explored from case to case. Here, however, the Commonwealth did not ask the Special Master, as it should have, to consider whether, given the nature of the riparian rights at issue, see ante, at 81-82 (Stevens, J., dissenting), the effect of the proposed use on the River, and the attempted regulation at issue, Maryland has in effect excluded Virginia from its rightful riparian use, as distinct from enacting reasonable regulations of that use. Virginia is not due the broad relief it instead now receives: the majority's declaration that Virginia is the sovereign of whatever Maryland territory appurtenant to Virginia's shoreline Virginia now chooses to claim. In agreement with Justice Stevens, I would sustain Maryland's objections to the Report of the Special Master and enter judgment dismissing Virginia's complaint. For these reasons, with respect, I dissent.
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