FAIRLEIGH S. DICKINSON, JR., RAYMOND BATEMAN, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF MICHAEL BATEMAN, WAYNE DUMONT, JEREMIAH O‘CONNOR, J. HERBERT LEVERETT, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF DWAYNE HERBERT LEVERETT, MARGARET KELLER, CHARLES ROHDE, AND JOHN J. SULLIVAN, PLAINTIFFS-APPELLANTS AND CROSS-RESPONDENTS, v. THE FUND FOR THE SUPPORT OF FREE PUBLIC SCHOOLS, DONALD LAN, SECRETARY OF STATE OF THE STATE OF NEW JERSEY, ACTING AS SECRETARY OF STATE AND AS SECRETARY OF THE FUND FOR THE SUPPORT OF FREE PUBLIC SCHOOLS AND DONALD LAN AS TRUSTEE OF THE FUND FOR THE SUPPORT OF FREE PUBLIC SCHOOLS; AND THE TIDELANDS RESOURCE COUNCIL, A DIVISION OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS.
Supreme Court of New Jersey
Argued September 12, 1983—Decided December 21, 1983.
95 N.J. 65
Deborah T. Poritz, Deputy Attorney General, argued the cause for respondents and cross-appellants (Irwin I. Kimmelman, Attorney General of New Jersey, attorney; Michael R. Cole, Assistant Attorney General, of counsel; William Harla, Deputy Attorney General, on the brief).
John R. Weigel argued the cause for amicus curiae New Jersey Land Title Association (John R. Weigel and Joseph M. Clayton, Jr., attorneys).
The opinion of the Court was delivered by
SCHREIBER, J.
This case concerns the meaning and constitutionality of the November 3, 1981 amendment to the New Jersey Constitution adopted on November 3, 1981,
The ten plaintiffs, all New Jersey residents, include landowners, taxpayers, a public school teacher, two public school students, an owner of a bond issued by a New Jersey school district, and a purchaser of a riparian grant from the State. The
The trial court denied defendants’ motion for judgment on the pleadings. Upon completion of a plenary hearing, the trial court in a written opinion, 187 N.J.Super. 320 (Law Div.1982), concluded that it was unnecessary to decide the constitutional issues
Both plaintiffs and defendants appealed. The New Jersey Land Title Association was permitted to intervene as amicus curiae. The Appellate Division, in a divided decision, reversed in an opinion written by Judge Greenberg and dismissed the complaint. 187 N.J.Super. 224 (1982). It rejected the plaintiffs’ constitutional attack and upheld the validity of the Amendment. Id. at 249-53. However, the Appellate Division decided that the base photomaps did not satisfy the Amendment, id. at 242, but that only those base photomaps with a scribed overlay depicting a line where it was alleged the water had tidally flowed were sufficient (908 photomaps with overlays had been approved by the Council at the time of the Appellate Division opinion on October 22, 1982).2 The Appellate Division also held that the State had the burden of establishing that land had been tidally flowed, id. at 245, and that for the purpose of the Amendment mapping had to meet the statutory requirеments of
I
The Subject Matter of the Amendment
The historical background concerning the legal status of tidelands is described in detail in the Appellate Division opinion, 187 N.J.Super. at 227-32, and need not be repeated here. The crucial underlying historical fact is that the State owned all land below the mean high water mark on tidally flowed property. O‘Neill v. State Hwy. Dep‘t, 50 N.J. 307, 323 (1967). Upland is land “above mean high water.” City of Newark v. Natural Resource Council, 133 N.J.Super. 245, 252 (Law Div.1974), aff‘d, 148 N.J.Super. 297 (App.Div.1977). Interior land that the mean high tide did not reach was not tideland. 50 N.J. at 324. The State could not acquire interior land artificially, such as by constructing ditches that divert the tide onto lands otherwise unflowed. Nor could the riparian owner, generally speaking,4 enlarge his holdings by excluding the tide. Ibid. It was the need to unravel the artificial changes and to determine the legal
Title 13 required that the Council undertake title studies and surveys of “meadowlands” throughout the State “to determine and certify those lands which it finds are State owned lands.”
The Council is directed to publish a map “clearly indicating those lands designated ... as State-owned lands.”
The mapping statute originally provided that the studies and title surveys be completed on or before December 31, 1974. L.1968, c. 404, § 92. This was extended to December 31, 1977,
Although Title 13 required that the State examine only the meadowlands, the State decided to investigate all tidal properties in which it might have an interest. N.J. Department of Environmental Protection, Administrative Order No. 34 (July 26, 1973). O‘Neill alerted the State and property owners of lands abutting the ocean, rivers and bays of the possibility of the State‘s interest in these properties. The uncertainties of the legal status of upland properties were manifest. If the upland condition had been artifically created by an impermissible method, ownership of the land might be in the State. Borough of
The constitutional Amendment was addressed to these concerns.6 The Amendment was an attempt to ameliorate these anxieties and expedite resolution of title disputes. At the joint hearing of the Senate and General Assembly committees held pursuant to article IX, paragraph 1 of the Constitution to consider whether the Amendment should be submitted to the people, Senator Perskie, who presided and was a sponsor of the resolution, stated that the proposed Amendment
would provide, in effect, a statute of limitations within which the State would have a right to define and to assert the riparian rights..... [T]his proposed amendment is not designed and would not have the effect of depriving the State of any riparian claim to that which the Constitution entitles the State. It simply provides a time frame within which any such claim may be defined and asserted after a given piece of ground would cease to be tidal flowed. [Public Hearings before Senate Judiciary Committee and Assembly Judiciary, Law, Public Safety and Defense Committee on ACR-3037 and SCR-3023 1 (June 5, 1981)]
The Administration opposed the adoption of the resolution authorizing submission of the Amendment to the electorate. Richard McManus, Associate Counsel to the Governor, stated at the public hearing that “[t]he period provided in the amendments is much too brief a period for the State to complete its work.” Id. at 2. Judith Yaskin, First Assistant Attorney General, asserted there that though mapping of the entire statе had been proceeding for the past ten years, a year and a half would not be sufficient time to complete the mapping. Id. at 5. She claimed the Legislature had not provided sufficient money or manpower. Id. at 17. Despite the opposition, three fifths of all members of the Senate and Assembly agreed to submit the
No lands that were formerly tidal flowed, but which have not been tidal flowed at any time for a period of 40 years, shall be deemed riparian lands, or lands subject to a riparian claim, and the passage of that period shall be a good and sufficient bar to any such claim, unless during that period the State has specifically defined and asserted such a claim pursuant to law. This section shall apply to lands which have not been tidal flowed at any time during the 40 years immediately preceding adoption of this amendment with respect to any claim not specifically defined and asserted by the State within 1 year of the adoption of this amendment. [
N.J. Const. of 1947, art. VIII, § 5, para. 1 ]
It is undisputed that the lands referred to in the Amendment include meadowlands and non-meadowlands. It is аlso clear that the Amendment applies only to lands that had been tidally flowed at one time. However, the effect of the Amendment may not be the same on all tidally flowed land. Thus, the State may have no claim to upland that became tidally flowed because of avulsion7 or some artifically created condition. O‘Neill v. State Hwy. Dep‘t, 50 N.J. 307, 324 (1967).
It is also apparent that the Amendment relates only to properties that are not now tidally flowed, but had at one time been naturally tidally flowed. After such properties have not been so flowed for a 40-year period, the State‘s claim will be time-barred unless the State has “specifically defined and asserted such a claim pursuant to law” prior to the expiration of the 40-year period. The Amendment afforded the State an additional year specifically to define and assert claims when the 40-year period would have elapsed by November 3, 1981. Thus the State had one year, to November 3, 1982, to claim lands that had not been flowed by the tides since at least November 1941. Land that had become upland by natural accretion or reliction8
II
How the State May Define and Assert a Claim Under the Amendment
We are initially concerned with whether the State must satisfy the requirements of
First, Title 13 delineated a methodology that was to be used to enable the Council “to determine and certify those lands which it finds are State owned lands.”
We find nothing in the legislative history of the Amendment that supports the conclusion that Title 13 sets forth the exclusive manner in which a claim could be made. This is not to say that the Legislature could not enact a statute prescribing the method to define and assert a claim. We find, however, that even in the absence of such a statute, the Council has authority to designate and describe lands that the State claims it owns. The Legislature has authorized the Council to convey and lease property. E.g.,
The State must not only delineate the former tideland, but also should alert those having an adverse interest. That warning is necessary to fulfill a major purpose of the Amendment, namely, to relieve property owners from State ownership claims that may or may not be valid. Sometimes it is difficult to determine whether land ever had been flowed by the tide, and unless the State acted affirmatively, owners would be uncertain indefinitely as to whether the State “has a claim to the land.” Gormley v. Lan, 88 N.J. 26, 35 n. 2 (1981).10 A claim made in good faith by the State notifying the property owner is all that is required.
Some of the squares on P-13 are colored. As to the land within those colored squares, the State had made a sufficient investigation and study to enable it to prepare a claim overlay showing the mean high water mark and thereby delineating the lands it claimed within those areas. By the November 2, 1982 deadline, 917 aerial photomaps with such claim overlays had been finalized and filed. These cover 1377.79 square miles. In addition a Claims Overlay Preparation Summary listing all sources investigated for a particular map was prepared.
The uncolored squares on P-13, representing lands primarily in the Delaware Tidal region, show areas for which the State had not prepared claim overlays by November 2, 1982, but for which it had only the aerial photographs. Photomaps of those uncolored squares may or may not contain any tideland claims. At best they are indicia that the State is investigating these lands.
The photomaps of these uncharted squares had been prepared by the Office of Environmental Analysis in 1977 and 1978, well before the Legislature had proposed submission of the Amend-
The Attorney General agrees that the uncharted squares do not constitute a claim satisfying the constitutional mandate. David Moore, chairman of the Tidelands Resource Council, testified at the trial that he could not in good faith assert a claim on behalf of the State to these properties. When asked why, he responded:
I think there are a number of reasons, not the least of which is that the Council feels a responsibility not to claim land that it has knowledge that the State has no interest in. We know as a result of the mapping process that‘s gone on that there are likely to be significant areas of land to which the State has no claim involved in the P-13 exhibit along the Delaware.
Mr. Moore also explained the significance of the uncharted squares:
Q. All that is is a, that really only shows areas of investigation, doesn‘t it?
A. It is a key sheet.
Q. That‘s all it is?
A. Yes.
A. That is so.
Q. You wouldn‘t be asserting a claim by that map, you‘d be just contemplating a further investigation so maybe you could assert a claim?
A. That is so.
We agree with Judge Greenberg‘s comments in his Appellate Division opinion that
it can hardly be conceived that the Legislature in proposing the amendment or the people in adopting it could have intended the State to act in bad faith. Yet it is clear that if P-13 and the photo base maps are filed without specific delineation of the State‘s claim on a property-by-property basis, the claim will not be made in good faith. It is of no assistance to a property owner to know that the claim against him is contingent only. He wants to know the actual status of his property. [187 N.J.Super. at 242-43]
The uncharted areas indicate at most areas suspected of possibly containing some tidelands. It must be kept in mind that we are not concerned with the land that is presently subject to the ebb and flow of the tides or had been within the forty-year period prior to November 1981. The Amendment implicates only those lands once flowed at mean high tide that are no longer so flowed, more of which is in the Atlantic Coastal area than in the Delaware Tidal region. Thirty-seven percent of the photomaps of the Atlantic Coast contained no formerly-flowed tidelands. Furthermore, if the State‘s experience on its claims in the Atlantic Coastal areas proves true in the Delaware Tidal region, then no more than 15% of the lands subject to investigation in the Delaware Tidal region would be subject to a claim by the State.
Deeming the base photomaps alone specifically to define claims would usurp the fundamental right exercised by the people to revise thеir Constitution. The public in granting the State an additional year to define lands it claimed as tidelands must have intended the State to do more than it had already done. Moreover, as previously observed, the Administration had opposed the Amendment precisely because it believed that the additional work necessary could not be completed within one year.
The Amendment was addressed to the issue of what constituted tidelands and the uncertainty related to the resolution of that issue. It is true, of course, that the State at various times had granted riparian rights. However, it was not necessary for the State to set forth the grants that it had made. These are known by the grantees and presumably by their successors in interest. We do not find that the Stаte was under a duty to make and impose grant overlays to be superimposed upon the base photomaps to meet the Amendment‘s standards.
We are satisfied that the State has “asserted” as well as “specifically defined” its riparian claims. The public has been given notice of the State‘s claims. The claimed areas are shown on P-13 and the base photomaps with the claim overlays. All have been filed with the Secretary of State and county and municipal clerks.
The plaintiffs argue that in adopting the Amendment the people never intended to surrender possible claims by the State and a possible consequential loss of funds from the possible sale or lease of those lands (after successfully establishing ownership), which would have been devoted to the public school Fund. The record belies this contention. The voters were asked to make a choice between two sharply opposing points of view. Opponents claimed the Amendment constituted a “giveaway” because the mapping could not be completed within one year and the Fund would suffer a monetary loss. Proponents argued that the Amendment would terminate within a reasonable period the uncertainty that record landowners had with respect to
whether their property was being claimed by the State. The choice was made by the people. That choice is not to be frustrated, but rather the people‘s will and wisdom is to be respected by the Court.
III
The Constitutional Issues
We agree with the Appellate Division that the Amendment is not violative of the state or federal Constitutions essentially for the reasons stated in its opinion. 187 N.J.Super. at 249-53.
The plaintiffs’ State constitutional arguments are founded on
The plaintiffs contend that under the New Jersey Constitution this legislative and constitutional vesting is unimpeachable and that the State‘s interest in riparian lands cannot be cut off. The short answer to this contention is that the people have a right to amend their Constitution.
The federal constitutional arguments stand on a different footing. The plaintiffs contend that the Equal Protection Clause of the Fourteenth Amendment is violated since some property owners had acquired land that was once tidally flowed by purchase from the State and others will have acquired similar property without consideration because of the State‘s inability to define and assert its claim within the one-year time constraint. We perceive no merit in this contention. Judicial review calls for us to decide whether a conceivable legitimate basis exists for the classification and whether that classification is rationally related to that objective.13 State v. Senno, 79 N.J. 216, 227 (1979).
The plaintiffs argue that the Amendment deprives the Fund of its interest in some tidelands without adequate compensation in violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. The plaintiffs reason that the Fund is a trust to which the State by statute has irrevocably transferred its interest in the tidelands and that the Amendment divests the Fund of those tidelands without compensation. Plaintiffs analogize this situation to that of a private trust. But the Fund is a creature of the New Jersey Constitution, subject to the will of the people to modify its terms, including elimination of the Fund‘s existence. Cf. Becker v. Adams, 37 N.J. 337, 340 (1962) (the Legislature‘s control over municipalities is “almost unlimited“); Graham v. Edison Tp., 35 N.J. 537, 551-54 (1961) (lands held by a public educational trust, with a public grantor, are “to be treated no differently ... from municipal property acquired for public use by any other means“); Newark v. Stockton, 44 N.J.Eq. 179 (E. & A. 1888) (where a municipality is a trustee of public lands that have been settled by the public and not by an individual, the
The plaintiffs also contend that the Amendment violates the Contract Clause of the federal Constitution, which provides that no state shall pass any “Law impairing the Obligation of Contracts.”
It is important to recognize that this contract claim relates only to bonds issued between July 16, 1980, the effective date of the Bond Reserve Act, and November 2, 1981, the effective date of the Amendment. Buyers of bonds issued before the Bond Reserve Act have no contractual rights to the reserve. Buyers of bonds after the Amendment became effective would be aware of the possible loss to the Fund of some proceeds from the sale of State tidelands. Their contracts would impliedly contain this reservation and accordingly they could not contend that any provision in the terms of the bonds had been violated. As of June 30, 1981 there were $1,144,802,781 principal amount of bonds issued in this period, which are entitled to a reserve of $17,172,042. Of 34 school districts whose bond ratings were upgraded by Standard and Poor‘s after the Bond Reserve Act was passed, 11 issued bonds by May 1982 whose maturity date was after 1995. The amount in the school Fund as of June 30, 1981 was $38,420,320.14
The bonds in question carried the following legend:
“Payment of this obligation is secured under the provisions of the ‘New Jersey School Bond Reserve Act’ in accordance with which an amount equal to 1 1/2% of the aggregate outstanding bonded indebtedness (but not to exceed the moneys available in the fund), of New Jersey counties, municipalities and school districts for school purposes as of September 15 of each year, is held within the State Fund for the Support of Free Public Schools as a school bond reserve pledged by law to secure payments of principal and interest due on such bonds in the event of the inability of the issuer to make payment.” [
N.J.S.A. 18A:56-20 ]
At best, the Amendment‘s financial impact on the bonds is speculative. What moneys, if any, will be received from riparian lands depends on the discretion exercised by the Tidelands Resource Council, the Commissioner of Environmental Protection and the Governor.
IV
Conclusion
We hold that the base photomaps supplemented by the claim overlays constitute a sufficient delineation of the State‘s claims to satisfy the constitutional Amendment and that the base photomaps without such overlays are not sufficient. We also hold that the filing of the maps and overlays with the Secretary of State and county and municipal authorities are notice to the public and the property owners of the land depicted in the maps. Lastly, we hold that the Amendment is valid under the New Jersey and federal Constitutions.
The judgment is reversed in part and affirmed in part.
HANDLER, J., dissenting in part.
In this case the Court grapples with yet another series of important and controversial issues concerning the State‘s tidelands. This latest round of litigation has been generated by the amendment to the New Jersey Constitution, adopted on November 3, 1981.
The Court now decides that the State was not authorizеd under the constitutional amendment to claim as tidal flowed those properties that were depicted on an existing map which had been developed in conjunction with the State‘s ongoing investigation of its tide flowed lands. The flat rejection of this map (referred to as P-13) as evidencing the State‘s riparian claims is tantamount to a forfeiture of State lands. Further, it deprives the public of the proceeds from the State‘s disposition of such lands, proceeds otherwise applied to public education through the constitutional and statutory fund created for that purpose.
It is beyond argument that the language of the constitutional amendment does not expressly or plainly prohibit the State from utilizing its existing tidelands map as a basis for its riparian claims. The constitutional amendment requires only that the State take prompt affirmative action with respect to its tide-
The amendment provides essentially that if lands have not been “tidal flowed” for at least 40 years, the State shall be barred from asserting a claim to such lands as “riparian lands.” This bar, however, can be lifted under two conditions. The first condition is if the State has previously—within the last 40 years—“specifically defined and asserted” a riparian claim to such lands, it can continue, presumably, to maintain such a claim. The second condition that would overcome the bar is if a claim is made by the State to such lands within one year following the adoption of the constitutional amendment.
Riparian claims under the amendment must be made “pursuant to law.” The Appellate Division majority concluded that the “law” subsumed by this phraseology meant the meticulous mapping, notice and filing procedures specified for meadowlands under L.1968, c. 404;
On this point the Court correctly rejects the conclusion of the Appellate Division majority. The Court in effect endorses the dissenting views of Judge Michels. Ante at 75. I concur. Judge Michels explained that the detailed statutory mapping scheme of
The critical inquiry therefore is to ascertain the proper meaning to be ascribed to the added constitutional language of the amendment that a State riparian claim be “specifically defined and asserted.” The majority concludes that it would be somehow “incongruous” for the Legislature to have proposed in 1981 a constitutional amendment that required, as the State‘s riparian claims, the distribution of a photomap that had been available to the public since June 1979, ante at 81 (emphasis added). The Court apparently considered the proposition to be anomalous because the people “must have intended the State to do more than it had already done.” Ante at 83. This perceived incongruity leads the Court to reject any use of the existing tidelands map, P-13, as the basis for the State‘s riparian claims under the amendment.
I strongly disagree with the premise that is implicit in the Court‘s reasoning. The question to be dealt with is not whether the Legislature required the distribution of the existing tidelands map, P-13, as the method by which the State could present its riparian claims under the amendment. Rather the question is whether the Legislature permitted P-13 to be used by the State to satisfy its responsibility under the amendment. I find nothing persuasive in the background and circumstances surrounding the passage of the amendment that militates
In reaching a contrary result, the majority in my view has misapplied and misused the statements attributed to various individuals in the course of the enactment and adoption of the amendment. Ante at 83, 84-85. Most of these individuals were concerned that the amendment, if adopted, might be construed as mandating the use of the meadowlands mapping act,
This partisan position based upon one possible interpretation of the amendment does not define either the purpose of the constitutional amendment or the intent of the people in adopting it.2 As conceded by the Court, there is no empirical basis for
We are therefore remitted to an interpretation of the constitutional amendment that will impute to the people who adopted this organic change an intention that serves to effectuate fully and fairly its overriding purpose. Vreeland v. Byrne, 72 N.J. 292, 302 (1977). Our task is to find the true and sensible meaning of the constitutional provision. Lloyd v. Vermeulen, 22 N.J. 200, 206 (1956). We must be mindful that “[t]he Constitution was made to serve and protect the people of the State and all of its language must be sensibly construed with that uppermost in mind.” Kervick v. Bontempo, 29 N.J. 469, 480 (1959).
The key to our interpretive mission is to identify and define the purpose of the constitutional amendment. That purpose is accurately recapitulated by the Court:
The State must not only delineate the former tideland, but also should alert those having an adverse interest. That warning is necessary to fulfill a major purpose of the Amendment, namely to relieve property owners from State ownership claims that may or may not be valid. Sometimes it is difficult to determine whether land ever had been flowed by the tide and, unless the State acted affirmatively, owners would be uncertain indefinitely if the State “has a claim to the land.” Gormley v. Lan, 88 N.J. 26, 35 n. 2 (1981). A claim made in good faith by the State notifying the property owner is all that is required. [Ante at 80 (footnote omitted).]
I believe the presentation of riparian claims under the aegis of P-13 clearly and reasonably fulfills the constitutional purpose of the amendment. As stated aptly and concisely by Judge Michels:
At best, the result of the State‘s asserting its claim [under any map adopted, including P-13] will be notice of potential claim to those whose lands are claimed, and repose to those whose lands are passed over. Uncertainties of title will not be resolved, and owners will not be relieved of competing claims, until the State‘s title is actually litigated and judicially determined. Thus, the most the people could have intended the amendment accomplish is fair notice to landowners that their land might, subject to judicial determination, be subject to State claim and ownership. * * * [T]he people of New Jersey did not intend arbitrarily to cut off an efficient mapping program, near to completion, and give up their claim to thousands of acres of land devoted to their public schools. Rather, the legislative history suggests that the amendment was intended to give relief to the landowner who is uncertain of the status of his land and must either “sue the state and attempt to acquire the title or ... purchase a grant from the state.” [187 N.J.Super. at 261 (citation omitted).]
Thus, the good faith application of P-13 as the initial assertion of riparian claims contemplated by the amendment provides both fair notice and repose to impacted property owners and clearly sets the stage for the definitive, ultimate determination of tidelands ownership.3
What is perplexing about the majority‘s decision is that it embraces untoward consequences that can be avoided without subverting the constitutional purpose or doing violence to the language of the amendment. As earlier notеd, one such consequence is the forfeiture of State lands. Another derivative consequence is the permanent loss of public educational funds that would be generated from the proceeds of the disposition of
When the State establishes ownership of tidal flowed land, any proceeds from the sale of the land are deposited in a fund devoted to public education. [Gormley v. Lan, 88 N.J. at 35, n. 2.]
These consequences—the immediate forfeiture of State tidelands and the permanent loss of public school funds—are not dictated by either the purpose or the language of the constitutional amendment and do not reflect a reasonable intent of the voters.
It is a “golden rule” of interpretation, fully applicable to constitutional as well as statutory documents, that the unreasonableness of a particular result arising from the selection of one among several possible alternative interpretations strongly militates in favor of the adoption of an interpretation that embraces a reasonable result. 2A Sutherland, Statutory Construction § 45.12 at 37 (4 ed. Sands 1973); Clifton v. Passaic Cty. Bd. of Taxation, 28 N.J. 411, 421 (1958) (“A construction ‘calling for unreasonable results will be avoided where reasonable results consistent with the indicated purpose of the act as a whole are equally possible,‘” quoting Elizabeth Federal Savings & Loan Ass‘n v. Howell, 24 N.J. 488, 508 (1957)); see Kervick v. Bontempo, supra, 29 N.J. 469.
Judge Simpson in the trial of this case noted that the State‘s “[c]laims have to date been fully delineated [on P-13] as to areas covered by 767 photomaps,” and he stressed that “all remaining claims will have been specifically defined and asserted pursuant to law by November 2, 1982 and fully delineated by December 31, 1985 ....” 187 N.J.Super. at 340 (emphasis added). Consequently, he incorporated this mapping schedule as a condition for the State‘s use of P-13 as the basis for the State riparian claims. Id. at 340-41. Judge Michels endorsed, as would I, the
Furthermore, the discretionary use of the existing tidelands map, P-13, as a method for presenting the State‘s riparian claims does not render the constitutional amendment meaningless. It does not signify that the State would not be doing “more than it had already done,” as suggested by the Court. Ante at 83. The majority fails to stress the point we underscored in Gormley v. Lan, 88 N.J. 26 (1981) that the amendment imposes a forty year time bar to State claims to land previously perpetually vulnerable to such claims.
The amendment sought to bar all State claims to land not flowed by the tide for the past 40 years. The prior law, by contrast, subjected lands to the State‘s claim no matter how ancient the tidal flow over that parcel may have been, or put differently, no matter how long the land had been dry. [Id. at 30.]
The amendment forces the State‘s hand; it mandates that the State go forward and affirmatively assert its riparian claims. The use of P-13 accomplishes this purpose, as it serves to identify properties that would otherwise be indefinitely exposed to ownership claims by the State. It also effectively identifies properties that are eliminated from any possible State claims of ownership.
The trial court‘s adjudication of the issues and the relief it granted constitute a valid and responsible exercise of judicial power. This disposition represents injunctive relief in the nature of mandamus—relief that is required to compel the exercise of governmental discretion where there is a duty to act, but the court is confronted with inaction borne of official confusion, indifference or intransigence. See Switz v. Middletown Tp., 23 N.J. 580, 587-91 (1957). Ordinarily, the Court will not determine the manner in which discretionary authority shall be exercised. Gallena v. Scott, 11 N.J. 231, 238 (1953). It may do so, however, when governmental inertia imperils interests of significant constitutional magnitude. There must be an appropriate and effective judicial response when a constitutional imperative is to be addressed, a constitutional objective attained, or a constitutional calamity averted. Id.; South Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., 92 N.J. 158 (1983); Robinson v. Cahill, 69 N.J. 133 (1975), cert. den., 423 U.S. 913 (1975), vacated on other grounds, 69 N.J. 449 (1976).
Here, the court was faced with governmental inaction attributable to official confusion or misunderstanding as to the dictates imposed by the constitutional amendment. Sufferance of such a governmental refusal to act would mean the abnegation of the will of the people. The Court would be derelict if it were to tolerate this constitutionаl nullification. The injunctive application of the existing tidelands map, P-13, under the constitutional amendment, subject to the strict acceleration of the final mapping procedures, is a modest, reasonable, and circumspect exercise of the Court‘s remedial powers, wholly justified by the overriding constitutional goals that it preserves.
For reversal in part; affirmance in part—Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, POLLOCK, O‘HERN and GARIBALDI—6.
Dissenting in part—Justice HANDLER—1.
Notes
The primary purpose of this amendment is to relieve owners of land from certain competing claims of ownership by the State. These claims arise from the fact that the State may own any land that ever had the ordinary high tide (“mean” high tide) flow over it, regardless of who the record owner may be or how long he has occupied the land. Sometimes it is difficult to determine that fact and owners may be uncertain for years if the State has a claim to the land.
When the State establishes ownership of tidal flowed land, any proceeds from the sale of the land are deposited in a fund devoted to public education.
This amendment provides that if the State does not, within one year, present all claims on lands that have been “dry” for at least 40 years, those claims are barred. The State may have claims for such land that would succeed under present law but that may be extinguished by virtue of this amendment, if for any reason the State does not assert such claims within that one year. [Reprinted in Gormley v. Lan, 88 N.J. 26, 35 n. 2 (1981).]