The Relationship Between State Law and Compacts

“[A] state has no more power to impair an obligation into which she herself has entered than she can the contracts of individuals.” Green v. Biddle,

21 U.S. (8 Wheat.) 1 (1823).

“It requires no elaborate argument to reject the suggestion that an agreement solemnly entered into between States by those who alone have political authority to speak for a State can be unilaterally nullified or given final meaning by an organ of one of the contracting States.”West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28 (1951).

“Since the Constitution provided the compact for adjusting interstate relations, compacts may be enforced despite otherwise valid state restrictions on state action.”West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 34 (1951) (Reed, J. concurring).

“But if the compact system is to have vitality and integrity, she may not raise an issue of ultra vires, decide it, and release herself from an interstate obligation.”West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 35 (1951) (Jackson, J. concurring).

Some compacts permit amendment by legislation that is “concurred in” by the party states.

The New York View:Legislation must expressly amend the compactLegislation must take effect upon enactment by other stateThe same or similar public policy is not sufficientMalverty v. Waterfront Comm’n of New York Harbor, 524 N.E. 2d 421, 71 N.Y.2d 977 (1988).

The New Jersey View:The “corollary of the proposition that neither state may unilaterally impose its legislation on the bi-state agency is that agency may be subject to complementary and parallel legislation”Eastern Paralyzed Veterans Ass’n v. Camden, 111 N.J. 389, 545 A.2d 127 (1988).

The New Jersey View (cont’d):How similar must the states’ laws be?▪ substantially similar in nature Eastern Paralyzed Veterans Ass’n v. Camden, 111 N.J. at 400-401.

▪ somewhat similar Bunk v. Port Auth. of New York and New Jersey, 144 N.J. 176, 185, 676 A.2d 118 (1996).

“We do not need to reach the issue of whether the presence of ‘concurred in’ language would be a sufficient demonstration of intent nor whether Congress would also have to consent to any modifications.”International Union of Operating Eng’rs, Local 542 v. Delaware River Joint Toll Bridge Comm’n, 311 F.3d 273, 280 n7 (3d Cir. 2002).

Most compacts do not permit amendment by “concurred in” legislation.

“Even if the California legislature intended for the CEQA provisions to apply to TRPA, however, such application is precluded unless the Compact reserves to California the right to impose such requirements on the bi-state agency.”People v. City of South Lake Tahoe, 466 F.Supp. 527, 537 (E.D. Cal. 1978).

“[A] compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of the parties.”C.T. Hellmuth & Assoc. v. Washington Metro. Area Transit Auth.., 414 F. Supp. 408 (D. Md 1976).

“[A compact] takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke or amend one of its compacts if the compact does not so provide.”Aveline v. Penn. Bd. of Probation & Parole, 729 A.2d 1254, 1257 n10 (Pa. Commw. Ct. 1999).

“Here, given DRPA’s unique position as a bi-state agency, the Court will consider whether Pennsylvania or New Jersey law creates a legitimate claim of entitlement in receiving a public contract for which a party is the low bidder.”Allied Painting, Inc. v. Delaware River Port Authority, 2004 U.S. Dist. LEXIS 13994, at *6 (E.D. Penn. July 20, 2004).

“If there were a conflict between California and Nevada law on the question of vested rights, this case would be more difficult. We would have to decide whether to apply the law of the jurisdiction where the land is situated and the permit was granted or whether to apply some other principle to resolve the conflict.”Lakeview Development Corp. v. City of South Lake Tahoe, 915 F.2d 1290, 1295 (9th Cir. 1990).

“Nothing in the Compact or Act can be interpreted as a clearly expressed intention of the Legislature to give the Commission the authority to ignore Washington common law when interpreting a Washington State county ordinance.”Skamania County v. Woodall, 104 Wash. App. 525, 16 P.3d 701 (2001).

Drafting Suggestions

Great Lakes—St. Lawrence River Basin Water Resources CompactSection 8.4. Additional LawsNothing in this Compact shall be construed to repeal, modify or qualify the authority of any Party to enact any legislation or enforce any additional conditions and restrictions regarding the management and regulation of Waters within its jurisdiction.

Drafting Suggestions

Columbia River Gorge CompactSection 5. Columbia River Gorge CommissionApplicable law. For the purposes of providing a uniform system of laws, which, in addition to sections 544 to 544p of this title, are applicable to the Commission, the Commission shall adopt regulations relating to administrative procedure, the making of contracts, conflicts-of-interest, financial disclosure, open meetings of the Commission, advisory committees, and disclosure of information consistent with the more restrictive statutory provisions of either State.16 U.S.C. § 544c(b).

Drafting Suggestions

Interstate Compact on Adult Offender SupervisionArticle XIV Binding Effect of Compact and Other LawsSection A. Other Laws Nothing herein prevents the enforcement of any other law of a Compacting State that is not inconsistent with this Compact. All Compacting States’ laws conflicting with this Compact are superseded to the extent of the conflict.