Resolved: where Maine begins and N.H. ends

If it is true that sometimes good fences make good neighbors, then the US Supreme Court has just helped bring an extra measure of civility to New England by settling a long-standing border dispute between New Hampshire and Maine.

In a unanimous ruling, the nation's highest court in effect agreed with Maine that the border between the two states extends up through the middle of Portsmouth Harbor.

Tuesday's decision means that the prime piece of real estate sought by both states - the Portsmouth Naval Shipyard - is in Maine. It also means that workers at the shipyard who live in New Hampshire must pay Maine state income tax.

The precise location of the border has been in dispute since Colonial times and a much-debated 1740 decree by King George II. The king set the boundary at the "middle of the river," but his decree did not end the debate about the border's precise location.

New Hampshire had argued that research over the past decade uncovered new information suggesting that the king had actually placed the border on the north shore of Portsmouth Harbor. Maine countered that the border extends down the middle of the main channel of navigation.

Rather than agreeing to a detailed examination of the new information, the court ruled that an earlier effort by both states in 1976 and 1977 to determine the location of the Maine-New Hampshire border applies to the entire length of the river and through the harbor. The 1977 border agreement was endorsed by the Supreme Court, and is thus a final judicial decision on the issue, the court ruled.

"Having convinced this court to accept one interpretation of 'middle of the river,' and having benefited from that interpretation, New Hampshire now urges an inconsistent interpretation to gain an additional advantage at Maine's expense," writes Justice Ruth Bader Ginsburg in the court's decision. "We cannot interpret 'middle of the river' in the 1740 decree to mean two different things along the same boundary line without undermining the integrity of the judicial process."

Justice Ginsburg writes, "What has changed between 1976 and today is New Hampshire's interpretation of the historical evidence concerning the King's 1740 decree."

She adds, "We are unable to discern any broad interest of public policy that gives New Hampshire the prerogative to construe 'middle of the river' differently today than it did 25 years ago."

Justice David Souter took no part in the 8-to-0 decision. He recused himself because of his earlier involvement in the dispute as an assistant state attorney general and later attorney general for New Hampshire in the mid-1970s.

The dispute arose in part because of Maine's decision to require New Hampshire residents working at the shipyard to pay Maine income taxes.

Some New Hampshire residents had challenged the tax on grounds that the island on which the shipyard is situated is not actually in Maine.

They argued that confusion and sloppy title work dating back to Colonial times placed the island in Maine, but that a detailed examination of the historical record would reveal that all of Portsmouth Harbor - including the shipyard - belongs to New Hampshire.

(c) Copyright 2001. The Christian Science Monitor