|WHILE THE COMPACT OF 1785 was mostly concerned with trade and navigation, it was the need for reliable drinking water that led the Fairfax County Water Authority to press Virginia’s legal rights in the Potomac River.|
Raphael Wins One for the Commonwealth
High Court Agrees with Argument in Virginia v. Maryland
• Jeanne Siler
When Stuart A. Raphael graduated from the Law School in 1989 and went to work for Hunton & Williams in McLean, Virginia, he hardly suspected that one of the biggest opportunities of his legal career literally lay just around a bend in the nearby Potomac River. Last October Raphael found himself in front of the U.S. Supreme Court as Special Counsel to the Commonwealth of Virginia as part of Virginia v. Maryland, No. 129, Original, arguing that Virginians have as much right to use the water in the Potomac River as their neighbors on the other side, even though the boundary is on the Virginia side, rather than in the center of the river.
While the past several decades have seen plenty of cooperation between Virginia and Maryland, their wrangling over water rights dates back to 1632 when King Charles I of England granted a charter to Maryland that included the river—shoreline to shoreline.
The average flow of the Potomac River is about seven billion gallons a day as it makes its way past the nation’s capital. While Virginia and Maryland colonists were most interested in unrestricted navigation and fishing rights, the Potomac’s importance to its neighbors today is largely as a source of clean drinking water.
Much of Raphael’s success in winning his case relied on a 1785 compact between founding fathers of the new states of Maryland and Virginia and a later arbitration called the Black-Jenkins Award of 1877.
“George Washington’s pet project was to open the Potomac River to the West for trade via the Ohio River,” said Raphael, noting how the Compact of 1785 was written at Washington’s home at Mount Vernon overlooking the Potomac.
|WHILE RAPHAEL HAD SEEN A number of cases argued before the Court and had written briefs for cases there, this was his first oral argument before the high court.|
“The legislative history of the Compact of 1785 consisted of the published papers of George Mason, James Madison, Thomas Jefferson, and George Washington,” Raphael said. He also performed original research in the British Public Record Office, unearthing instructions from five successive British monarchies, from 1685 to 1737, urging royal governors in Virginia to resist Lord Baltimore’s “pretended right to the whole River of Potomack” and to “Assert Our Rights in those parts, and to take Care that the Trade of his Subjects be not disturbed by the said pretences or any other whatsoever.” Researching the correspondence from monarchs James II, William and Mary, Anne, George I, and George II helped counter the argument Maryland was making 227 years after statehood that its ownership of the river was “well known and undisputed in colonial times.”
While the Compact of 1785 was mostly concerned with trade and navigation, it was the need for reliable drinking water that led the Fairfax County Water Authority to press Virginia’s legal rights in the Potomac River. The Water Authority supplies drinking water to 1.2 million people in Northern Virginia. Raphael’s colleague, Randolph W. Church, Jr., ’60, had served as the Water Authority’s general counsel for many years. (Raphael succeeded him as the Water Authority’s general counsel after Church took senior counsel status in 2000). In 1996, the Water Authority sought to replace a shoreline intake pipe with a longer pipe that would run under the riverbed and draw water from the channel of the river instead of the shoreline where ice and sediment can be problematic. When the Maryland Department of Environment refused to issue a permit for the construction in 1997, Raphael and Church were asked to appeal the decision through the Maryland legal system. Although a Maryland administrative law judge ruled in the Water Authority’s favor, Maryland Governor Parris Glendening and the Maryland General Assembly took various steps to kill the project.
By early 2000, Virginia Attorney General Mark Earley decided to file suit against Maryland in the Supreme Court, which has “original jurisdiction” in suits between two States. The Attorney General asked Raphael and Church to handle the case as Special Counsel to Virginia.
At the outset of the Supreme Court proceedings—“at the gate-keeping stage” when Virginia was still trying to persuade the Supreme Court to take the case—Raphael turned to his alma mater for some assistance. “Dean Jeffries was extremely helpful to us,” he said. The Supreme Court will not take an original action case if it believes there is an alternative forum in which the legal issue can be adequately addressed. “We had a pending case before the Maryland Department of Environment in which the same legal issues were being litigated,” Raphael said. “Dean Jeffries’ helped us to sharpen the argument that Virginia’s interests would not be adequately vindicated in the Maryland legal system.”
Raphael later succeeded in convincing a Maryland state court judge in Baltimore to order the Maryland Department of Environment to issue a permit for the project to move forward. However, even though the intake was completed and became operational in the summer of 2003, the Maryland court did not address Virginia’s argument that no Maryland permit was required in the first place. The Supreme Court needed to resolve that controversy.
Oral argument before the Supreme Court lasted an hour. It was the second argument on October 7, the first day of the Court’s 2003 Term. Raphael had known the date in advance since August. “I had three moot courts to get ready for it.” The practice arguments were very useful exercises, he said, helping to refine his arguments. “Thinking about the case continuously improves with such practice. As a result, I wasn’t really nervous. I’d lived this case for five years.” He felt he knew the specifics of the case as well as anyone else and said, “that gave me a lot of confidence.”
Maryland’s former solicitor general Andrew Baida spoke first, arguing that because Maryland was granted title to the entire river in 1632, the state had regulatory rights over what happened in Maryland’s own territory. Raphael countered that the boundary had been contested for years and that, in the face of that dispute, the states had agreed in 1785 and again in 1877 that each state would have equal rights of access. That access wouldn’t be altered by the fact that a binding arbitration in 1877 finally put the boundary on the Virginia side of the River.
In the end, the vote was 7-2 in Virginia’s favor. The dissenters—Justices Kennedy and Stevens—basically “bought Maryland’s argument,” said Raphael. “They agreed the boundary was everything. Fortunately, the majority agreed with our historical argument.”
While Raphael had seen a number of cases argued before the Court and had written briefs for cases there, this was his first oral argument before the high court. It was “a huge honor and privilege. I’m a young man still, but it may well be the highlight of my legal career,” Raphael said with a smile.
He especially appreciated that a number of his Law School classmates were in the courtroom that day for support, including his wife, Abby Raphael ’89, and “Janet Nolan, Marc Williams and Bo Tayloe.… Many of us in the Class of ’89 have stayed in very close touch, especially in the Washington, D.C. area. Several of our classmates live in Maryland and there’s been a running joke between us about my work on this case.”
Raphael lives in Arlington and his family often takes walks along the banks of the Potomac River. While he was preparing for this case, he would talk to his two young daughters about his work.
“It’s challenging. You want them to understand the issues but at the same time not be hostile to Marylanders.” But he says even his five-year-old Caroline could understand his argument in its simplest form: “We have to share the river.”
Copies of many of the historical documents filed in the case can be viewed online via www.vaag.com under “Cases of Interest.” The Court’s opinion and the transcript of Case No. 129, Original can be found online at www.supremecourtus.gov