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  •   From Both Sides of the Hudson River, States Present Claims for Ellis Island

    By Joan Biskupic
    Washington Post Staff Writer
    Tuesday, January 13, 1998; Page A06

    With a bravado befitting the Empire State, New York Assistant Attorney General Daniel Smirlock began his arguments at the Supreme Court yesterday with a simple declaration: "All of Ellis Island is in New York."

    In the boundary fight between New York and New Jersey over who can claim most of the island that was America's immigration gateway, Smirlock told the justices, "When people were born in a hospital on Ellis Island, they were born in New York. When they died on Ellis Island, they died in New York." Tradition, he seemed to suggest, should be an overriding consideration.

    But New Jersey Assistant Attorney General Joseph L. Yannotti insisted that when the original three-acre island was enlarged at the turn of the century with landfill, creating about 24 more acres and making room for hospitals and other buildings, that new land became New Jersey's.

    With the federal government now controlling the land and its preservation, what is mostly at stake are the boasting rights to a place at the heart of the country's historic identity. But there is also the potential for taxing the revenue generated by any future development on the island. The case of New Jersey v. New York revolves mostly around an 1834 compact that gave New York jurisdiction over what was then a three-acre island but said the surrounding submerged lands and water were New Jersey's. The question is whether New York's sovereignty is limited to the original land mass or grew as the island was expanded by the landfill.

    Shortly after the Supreme Court agreed in 1994 to hear the dispute, it appointed a special master to take evidence and make recommendations since no other court had heard the case. The master urged the justices to rule, based on the 1834 compact, that part of the island is in New York and part in New Jersey. He departed slightly from what he believed the 1834 agreement dictated, suggesting New York be allowed to claim about five acres, rather than three, for reasons of practicality and convenience. Sticking with the original pact, for example, would mean splitting now-existing buildings between the states.

    Some justices suggested yesterday they might be inclined to follow the special master's advice and side with New Jersey. Chief Justice William H. Rehnquist at one point rejected New York's argument that the master did not take account of New York's continual presence on the island, including births and deaths, noting, "We rarely second guess a master on a factual question."

    Smirlock primarily argued that because landfilling was widely practiced in the mid-1800s, officials who signed the compact envisioned that the island would grow with landfill and remain New York's. "The use of landfill on Ellis Island was not only foreseeable," Smirlock told the justices, "it already had occurred."

    Justice Ruth Bader Ginsburg (the court's only native New Yorker) questioned whether that theory would allow an island to expand to several times its original size, and Justice Antonin Scalia (the court's only New Jerseyite) observed that legal pacts generally do not anticipate that an island will grow over time.

    For New Jersey's part, Yannotti contended there was little jurisdiction for either state to exercise during the past century. And disputing New York's assertion that New Jersey gave in to New York's long-standing regulation of the island, Yannotti said, "New Jersey did not acquiesce."

    Yannotti urged the justices to reject the master's recommendation that New York get more than the original size of the island, for practical reasons. "This is a case about boundaries, not about buildings," he said, declaring that the court is only allowed to set the boundary as was required by the 1834 compact.

    An eventual resolution of the case – expected before the justices recess next summer – may not be felt by the nearly 2 million tourists who visit the Ellis Island museum each year. Justice Department lawyer Jeffrey P. Minear, who argued on behalf of the federal government, supporting New Jersey, said some modest additional tax revenue may be available in upcoming years, but the overriding interest is a place in history.

    New York now taxes concessions at the island's main attraction, the museum run by the National Park Service. New Jersey provides its utilities.

    © Copyright 1998 The Washington Post Company

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