On January 18, 2012 New Jersey Governor Chris Christie opened the “Today” show on NBC by reigniting a longstanding border war between New Jersey and New York over the NFL’s Giants. When Matt Lauer asked where the parade should be held if the Giants won the Super Bowl, Governor Christie responded “They play in New Jersey, they train in New Jersey, the parade should be held in New Jersey”.

Well, the same could be said for Ellis and Liberty Islands in New York Harbor. That border war has been festering for over three centuries. In 1998 the United States Supreme Court ruled that almost 90 percent of Ellis Island that was previously under New York, after three centuries, is now under New Jersey sovereignty. Like all property and boundary line disputes, it began with a poorly written description of the lands to be conveyed. In June of 1664, James the Duke of York granted the land between the Hudson River and the Delaware River to his friends John Lord Berkeley and Sir George Carteret. As they would say in the vernacular of the day, the eastern boundary was described thusly:

“…… ...... all.. all that tract of land adjacent to New England, andand lying and being to the westward of Long Island, and Manhitas Island and bounded on the east part by the main sea, and pa rt by Hudson''' s river, and hath upon the west DelawareDelaware bay or rivriver,er, and extendeth southward to the main ocean as far as Cape at the mouth of the Delaware baybaybay ………...... ””” For 170 years from 1664 to 1834 there was an ongoing dispute whether the boundary was in the middle of the Hudson River and New York Harbor or along the western shore. In the spring of 1668 James the Duke of York sought to clear up any confusion. He ordered that all the Islands that could be circumnavigated with a sailing vessel within 24 hours would belong to New York. Captain Christopher Billopp was chosen to make the trip on his ship HMS Bentley. He was an officer in the Royal Navy and was well acquainted with the waters of the area. He sailed completely around Staten Island and all the smaller Islands in New York Harbor in 23 hours. That is why Staten Island is now part of New York today, even though it was on the New Jersey side of New York Harbor.

In 1808 the United States government purchased Ellis Island from the Ellis family for $10,000 to build Fort Gibson (Figure 1 ) to help protect the ports in New York harbor from the British Navy. Bedloe’s Island (now Liberty Island) (Figure 2 ) was also purchased and Fort Wood was built on that Island.

Figure 1 Figure 2

1819 Plan of Fort Gibson on Ellis Island Fort Wood on Bedloe’s Island (Liberty Island)

On Feb. 20, 1829 New Jersey filed suit with the United States Supreme Court against New York. The purpose of the lawsuit was to settle the sovereign boundary between the States. New Jersey had conceded in her complaint that New York had acquired Ellis Island by adverse possession. New York refused to respond to New Jersey’s complaint raising reservations about the power of the U.S. Supreme Court to compel sovereign States to appear before it. At New Jersey’s request, the Court issued a subpoena ordering New York to appear, adding the threat of proceeding to judgment ex parte if no response was forthcoming. New York fearing a negative result from an ex parte judgment sought to negotiate a settlement. The negotiations produced the historic Compact of 1834.

The Compact was virtually an out of court settlement that placed the boundary down the middle of the Hudson River and New York Harbor. Even though Ellis Island and Bedloe’s Island (now Liberty Island) are totally within New Jersey, the two States agreed that New York would retain exclusive jurisdiction of both Islands as they existed at that time. The agreement was signed by commissioners from both states and approved by the U.S. Congress. In 1834, Ellis Island was about two and three-quarter acres in size. Although the agreement allowed New York to maintain its "present jurisdiction" on all non-submerged lands of the island, New Jersey had full sovereign jurisdiction over the lands under the water surrounding the island. This complicated arrangement led to the jurisdictional boundary dispute when the island was artificially expanded with landfill. The first evidence of artificial filling around the natural island occurred between 1857 and 1870.

The case involves sovereignty and jurisdiction, not ownership. The federal government actually owns Ellis Island. Sovereignty is important because it determines governmental jurisdiction as it relates to things such as sales tax receipts, police powers, etc.

Figure 3

Portion of 1857 United States Coast Survey Map and Title Block

The map in Figure 3 shows how the Islands existed in 1857. Although the map has a very large scale (1 to 50,000) it is actually very accurate down to the minutest detail because of the field methodology employed at the time. Figure 4 shown below is a typical U.S. Coast Survey field party measuring the shoreline utilizing a plane table by measuring angles with an alidad and distances via stadia from triangulated control points. The field work employed to produce the map is substantially more accurate than the map itself. Paul R. Verkuil the Special Master appointed by the U.S. Supreme Court in the 1994 case, reviewed all of the evidence and he determined that the 1857 U.S. Coast Survey map was the most reliable map and should be used to define the boundary between the two states. In 1857 Ellis Island was 2.74 acres, it is now 27.5 acres. In 1857 Bedloe’s Island was 9.90 acres, now as Liberty Island it is 14.07 acres and is no longer the teardrop shape shown on the 1857 map (Figure 2). While doing research on the Ellis Island case, specifically double checking the GPS and GIS data, I accidently stumbled on the extra 4.17 acres of artificial fill on Liberty Island. This was not addressed in the 1994 Supreme Court case. New Jersey very well has a case to be made for the extra 4.17 acres, especially since it contains the restaurant and souvenir shops with its inherent sales tax receipts.

Figure 4

In 1890, the United States Congress appropriated funds to expand Ellis Island into an immigration station. They began massive filling in of submerged lands around the island. Ellis Island doubled in size to about 7 acres in 1890. By 1899 the island was enlarged to almost 14 acres. At first, New Jersey objected to the land filling, but on November 30, 1904, the United States received a riparian grant from the State of New Jersey for 48 acres of submerged lands. The Island was expanded to over 20 acres by 1921. Much of the fill came from the excavation for the New York City subway system. By 1934 the Island expanded to a full 27.5 acres.

GIS and GPS used to determine original unaltered shoreline - A Nov. 2, 1981 referendum to the New Jersey Constitution was passed that mandated that the State had to map and stake its claim on illegally filled-in tidelands. It mandated that the State only had one year to file those claims. The State scanned historical maps and aerial photographs. They determined which map or photograph of a particular area that contained the latest unaltered shoreline before it was artificially altered. The scanned image was then rectified to a Geodetic base map using standard photogrametry techniques. The shoreline was then digitized so there was an x,y coordinate every few feet along the shoreline to the nearest hundredth of a foot (about 1/8 inch) for the entire State. This is basically the same method New Jersey used to present its Ellis Island case to the U.S. Supreme Court, except it included a number of GPS tie-ins to further strengthen the accuracy.

N.J Dept. of Transportation Surveyor Lou Marchuk and other surveyors from the Geodetic Section set up GPS units on the angle points of the exposed portions of the Fort Gibson ramparts and the corners of the existing Ellis Island. The GPS points were then imported into the GIS Geodetic base map. In this way, an accurate depiction of how the original shoreline compares to the existing shoreline was achieved. Figure 5

Excavated angle point of Fort Gibson rampart

Figure 6

Ellis Island today and original Fort Gibson in yellow The final result was a precise comparison between the original shoreline of Ellis Island circa 1834 containing 2.74 acres (shown in yellow Figure 6) and the shoreline as it exists today containing 27.5 acres. The United States Supreme Court ruled in 1998 that the 24.75 acres that was artificially filled in beyond the original 2.75 acres is now under new Jersey sovereignty. Although the U.S. Supreme Court did address Liberty Island in its 1998 ruling, while I was researching the Ellis Island case, I have discovered that 4.17 acres were artificially filled-in along the western portion of Bedloe’s (now Liberty Island). Under the precedent set by the U.S. Supreme Court in 1998, the artificially filled in portion of the 4.17 acres would normally fall under New Jersey sovereignty. Figure 7 shows the demarcation of the original Bedloe’s Island under New York sovereignty as it existed in 1857 (9.90 acres) and the portion that was artificially filled in (4.17 acres).

Figure 7

Note that Lady Liberty herself is entirely within the New York portion of Liberty Island. The restaurant and souvenir shops are exclusively within the artificially filled in (New Jersey) portion of Liberty Island. Of course this has yet to be adjudicated before the courts. On a recent visit I asked the sales clerk in the souvenir shop whether the sales tax went to New York or New Jersey and she said “New York”.

In 1987 Rep. Frank J. Guarini (D-N.J.) and Mayor Gerald McCann of Jersey City sued New York, contending that the Empire State lacks legitimate sovereignty over Liberty and Ellis islands because they are located in the New Jersey half of the Hudson River. They filed suit in the federal courts and were summarily rejected because of the 1834 Compact and rightly so, except for the 24.75 acres of artificially filled in acres of Ellis Island which was adjudicated in New Jersey’s favor by the U.S. Supreme Court in 1998. The 4.17 acres of artificially filled in portion of Liberty Island that I recently discovered has yet to be adjudicated or put before the courts. So, as Ross Perot would say in his infamous Texas twang: “Here’s the deal……….since the Supreme Court already gave us 90% of Ellis Island in 1998, we’ll take the 4.17 acres of Liberty Island still due us, along with the State sales tax receipts of the souvenir shop and restaurant encompassed therein, and the Giants. You can have the Jets, Lady Liberty herself along with the ‘wretched refuse of your teeming shore’...... Snooki and The Situation”.