N.J. move to rub out mob watchdog gets big win as Supreme Court won’t hear Waterfront Commission appeal

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The Waterfront Commission, which has jurisdiction over the region's ports and marine terminals, would shut down unless New York goes to court.

The U.S. Supreme Court will not intervene in New Jersey’s efforts to kill the Waterfront Commission of New York Harbor — a bi-state agency created more than 65 years ago to police the region’s ports — ending for now a years-long legal fight over the policing of the ports of New York and New Jersey.

The decision Monday means the high court declined to hear the commission’s appeal in a lawsuit arguing that New Jersey could not unilaterally walk away from the federally approved interstate compact that established the agency.

The state plans to withdraw from the commission and turn over its policing role to the New Jersey State Police.

But while the high court’s action ends the commission’s efforts to stop New Jersey, that may not be the end of the battle.

The justices only ruled on whether it would hear the commission’s arguments to strike down the action by the governor and the Legislature in New Jersey. It remains to be seen whether New York — the other side of the long-standing waterfront partnership — will stand by and allow a unilateral withdrawal. If not, that would open the door to an ongoing fight should New York go to court to seek an injunction.

The court’s decision Monday was not unexpected. Last month, the Office of the Solicitor General in its own brief concluded the commission did not have the authority to file a petition seeking to overturn efforts by the New Jersey Legislature to withdraw from its interstate agreement.

Others, though, say an even higher stakes battle might be at hand. The two states also are joined together through the Port Authority of New York and New Jersey, a far larger agency that serves as a massive economic engine, operates the airports, bridges, tunnels and seaports spanning the metropolitan area. If either state were to unilaterally withdraw from that agreement, the consequences would be far reaching.

Acting Solicitor General Brian H. Fletcher, whose office argues the government’s position for the Justice Department in cases before the Supreme Court, acknowledged in his brief last month that New York could still sue New Jersey state officials in federal court over the Waterfront Commission and seek an injunction.

“If New York believes that New Jersey has violated the agreement between the two states, it could seek leave to file an original action against New Jersey in this court,” he said.

New York has yet to take a position in the matter. The Waterfront Commission declined comment on Monday.

The commission — which includes one member from each state appointed by its governor — has wide jurisdiction over the region’s piers and terminals, including the ports in Newark, Elizabeth, Bayonne, Staten Island and Brooklyn. It certifies that those hired on the waterfront are not tied to organized crime and are otherwise fit to work in the shipping trade.

But its enforcement efforts in recent years led to mounting political pressure in Trenton, with the New York Shipping Association and International Longshoremen’s Association arguing that the commission had long overstepped its authority. Industry officials also maintained that the commission overstated the problem of crime on the docks.

Legislators voted to shut down the Waterfront Commission in 2018, charging that it was “over-regulating business” at the port in an effort to justify its existence, and hurting the state’s economic interests. The bill was approved by Gov.Chris Christie in his final week in office, even though he had once vetoed it as unconstitutional.

The commission immediately went to federal court seeking an injunction against the state and Gov. Phil Murphy. It argued that New Jersey could not simply decide for itself that it no longer wanted to honor its obligations under a bilateral compact ratified by Congress.

After a federal judge struck down the New Jersey law — ruling that the governor and the state Legislature could not simply walk away from its agreement with New York — the United States Court of Appeals for the Third Circuit reversed the ruling. It agreed with the state and found that the commission’s lawsuit “impinges on the State of New Jersey’s sovereignty.”

In a final appeal, lawyers for the Waterfront Commission went to the U.S. Supreme Court, arguing that if the decision were to stand, “it will signal to states that they can destroy compact commissions they find irksome simply by appropriating the commission’s functions for themselves.”

But New Jersey, in its own filings before the court, argued that the reasons for the commission no longer exist, adding that cargo is now moved in shipping containers, handled by far fewer longshoremen, and that most of the port’s operations have shifted to New Jersey.

“In light of the complete transformation of the harbor since the 1950s, the New Jersey Legislature determined that there was no longer a continuing need for bi-state regulation of the overwhelmingly New Jersey-centered port activity, and that New Jersey should resume state regulation of its docks,” the state Attorney General’s office wrote.

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Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL.