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In the Supreme Court of the United States No. 130, Original In the Supreme Court of the United States STATE OF NEW HAMPSHIRE, PLAINTIFF v. STATE OF MAINE ON MOTION TO DISMISS BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SETH P. WAXMAN Solicitor General Counsel of Record LOIS J. SCHIFFER Assistant Attorney General EDWIN S. KNEEDLER Deputy Solicitor General JEFFREY P. MINEAR Assistant to the Solicitor General PATRICIA WEISS AIMEE BEVAN Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 QUESTION PRESENTED Whether the doctrine of res judicata bars the State of New Hampshire’s claim that its boundary with the State of Maine in Portsmouth Harbor extends to the low water mark of the Maine shore. (I) TABLE OF CONTENTS Page Statement ........................................................................................ 1 Argument: The doctrine of res judicata bars New Hampshire’s claim .......................................................................................... 9 A. King George II’s 1740 order conclusively established the New Hampshire-Massachusetts colonial boundary at the “Middle of the River” ................................................................................ 10 B. This Court’s decision in New Hampshire v. Maine determined that the King’s 1740 order establishes the current boundary between those states ...................................................................... 14 Conclusion ....................................................................................... 20 Appendix ......................................................................................... 1a TABLE OF AUTHORITIES Cases: Arizona v. California, 120 S. Ct. 2304 (2000) ........ 15, 16, 17, 19 Harcourt v. Gaillard, 25 U.S. (12 Wheat.) 523 (1827) ........................................................................................ 11 Illinois v. Campbell, 329 U.S. 362 (1946) .......................... 18 New Hampshire v. Maine: 414 U.S. 810 (1973) ............................................................ 6 414 U.S. 996 (1973) ............................................................ 6 426 U.S. 363 (1976) ............................ 1, 6, 7, 8, 9, 10, 17, 18 434 U.S. 1 (1977) .............................. 1, 6, 8, 9, 10, 16, 19, 20 New Jersey v. New York, 523 U.S. 767 (1998) .................. 11 Penn v. Lord Baltimore, 27 Eng. Rep. 1132 (1750) ........................................................................................ 10 Rhode Island v. Connecticut, 3 Acts of the Privy Council, Colonial Series 10 (1727) ....................................... 11 (III) IV Cases—Continued: Page Rhode Island v. Massachusetts: 3 Acts of the Privy Council, Colonial Series 436 (1746) ............................................................................. 11 37 U.S. (12 Pet.) 657 (1838) ............................... 10, 11, 12, 13 45 U.S. (4 How.) 591 (1846) ............................................. 11 United States v. International Bldg. Co., 345 U.S. 502 (1953) ................................................................................. 16, 17 University of Tenn. v. Elliot, 478 U.S. 788 (1986) ........................................................................................ 14 Vermont v. New Hampshire, 289 U.S. 593 (1933) ........................................................................................ 10 Vermont v. New York, 417 U.S. 270 (1974) ....................... 6 Virginia v. Tennessee, 148 U.S. 503 (1893) ....................... 18 Virginia v. West Virginia, 246 U.S. 565 (1918) ................ 10 Constitution: U.S. Const.: Art. I, § 10, Cl. 3 (Compact Clause) .................................... 17 Art. III ..................................................................................... 17 Miscellaneous: Felix Frankfurter & James M. Landis, The Compact Clause of the Constitution—A Study in Interstate Adjustments, 34 Yale L.J. 685 (1925) ........................ 3, 11, 12 Henry Gannett, Boundaries of the United States (3d ed.) ..................................................................................... 3 H.R. Doc. No. 678, 58th Cong., 2d Sess. (1904) ................... 3 Michael W. Reed, Shore and Sea Boundaries (2000) ........................................................................................ 6 Michael W. Reed et al., The Reports of the Special Masters of the United States Supreme Court in the Submerged Lands Cases 1949-1987 (1991) ................. 2, 18 Restatement (Second) of Judgments (1982) ........................ 15 1 James Brown Scott, Judicial Settlement of Con- troversies Between States of the American Union (1918) ........................................................................... 3 V Miscellaneous—Continued: Page Joseph Smith, Appeals to the Privy Council from the American Plantations (1965) ............................................. 3, 4, 5 Joseph Story, Commentaries on the Constitution of the United States (Rotunda & Nowak eds. 1987) ............ 10-11 Hannis Taylor, Jurisdiction and Procedure of the Supreme Court of the United States (1905) ...................... 3 In the Supreme Court of the United States NO. 130, ORIGINAL STATE OF NEW HAMPSHIRE, PLAINTIFF v. STATE OF MAINE ON MOTION TO DISMISS BRIEF FOR THE UNITED STATES AS AMICUS CURIAE This brief is filed in response to the order of this Court inviting the Solicitor General to express the views of the United States. STATEMENT The State of New Hampshire brought this original action against the State of Maine to obtain a determination of the boundary between the two States in the inner portion of Portsmouth Harbor. See N.H. Br. in Support of Mot. for Leave to File Compl. 1. New Hampshire asserts that its boundary in that vicinity, at the mouth of the Piscataqua River, extends to the low water mark of the Maine shore. Ibid.; see id. at 33-34 (Compl. ¶¶ 1-3). Maine contends, based on a 1740 colonial decision of the King in Council and this Court’s decision and decree in New Hampshire v. Maine, 426 U.S. 363 (1976), 434 U.S. 1 (1977), that the boundary has already been definitively set at the middle of the Piscataqua River, rather than at the Maine shore. See Me. Br. in Opp. 16, 20-26. The Court has granted New Hampshire leave to (1) 2 file its complaint and Maine leave to file a motion to dismiss on res judicata grounds.1 1. New Hampshire’s claim implicates historical events from the colonial era that, although complex in their details, are generally familiar. In 1620, King James I issued the “Great Patent of New England” to an English merchant company styled as the Council of New England. In 1622, the Council of New England granted lands between the Merri- mac and Kennebec Rivers to Sir Ferdinando Gorges and Captain John Mason. See Report of Special Master Clark in New Hampshire v. Maine, No. 64, Original, at 8-15 (1975) [hereinafter Clark Report].2 In 1629, Gorges and Mason divided the grant between themselves at the Piscataqua River. Gorges’ northeastern portion became known as the Province of Maine, while Mason’s southwestern portion became part of the Province of New Hampshire. Over time, the rapidly expanding Prov- ince of Massachusetts Bay attempted to assume control over both areas. By the end of the seventeenth century, the Province of Massachusetts Bay had received a new royal charter that subsumed the Province of Maine. New Hamp- 1 New Hampshire’s claim has practical importance because it encompasses the islands that constitute the Portsmouth Naval Shipyard, a United States Navy facility that is located on a number of small islands that have been connected by fill. The site is generally known as Seavey’s Island, the name of the largest of the connected islands. The United States Department of the Navy has no preference with regard to whether Seavey’s Island is in New Hampshire or Maine. 2 This Court’s decision in New Hampshire v. Maine involved a dispute over the States’ lateral marine boundary in the vicinity of interest here. See pp. 6-9, infra. Special Master Clark’s Report in that case—which Maine has reproduced in its separately bound two-volume supplemental appendix, Me. Mot. to Dismiss App. 347a-407a—collects relevant historical sources and describes the pertinent events in rich detail. See also Michael W. Reed et al., The Reports of the Special Masters of the United States Supreme Court in the Submerged Lands Cases 1949-1987, at 983-1047 (1991) (reprinting report). 3 shire, however, had established tenuous autonomy as a separate royal province. See Clark Report 15-22; see also Henry Gannett, Boundaries of the United States 40-41, 47-48 (3d ed. 1904) (Gannett) (H.R. Doc. No. 678, 58th Cong., 2d Sess. (1904)). In the early 1700s, the Province of New Hampshire dis- puted the location of its boundaries with the Province of Massachusetts Bay, including both New Hampshire’s south- ern boundary along the Merrimac River and the northern boundary separating New Hampshire from Maine. When the provinces were unable to reach agreement, New Hampshire presented the dispute to King George II for resolution by the “King in Council.” See Joseph Smith, Appeals to the Privy Council from the American Plantations 442-449 (1965) (Smith).3 The King ultimately referred the matter, through his Privy Council, to the Board of Trade, which recommended that commissioners be drawn from the 3 In theory, the King himself resolved conflicts arising from royal charters and grants as a matter of sovereign prerogative upon the advice of ministers comprising his Privy Council. See, e.g., Hannis Taylor, Jurisdiction
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