Middle means middle

It would be uncharitable to gloat about yesterday’s Supreme Court opinion confirming that the Portsmouth Naval Shipyard is indeed in Maine and not, as New Hampshire has insisted for what seems like decades, one state over. But if gloating is out, it might be fair to point out that Maine has been badly used by New Hampshire politicians who mistook parochialism for legal argument and caused a lot of time and money to be wasted.

How thin was New Hampshire’s argument? Justice Ruth Bader Ginsburg, writing for the court, observed that, “None of the historical evidence cited by New Hampshire remotely suggested that the Piscataqua River boundary runs along the Maine shore.” And, “New Hampshire’s claim that the Piscataqua River boundary runs along the Maine shore is clearly inconsistent with its interpretation of the words ‘Middle of the River’ during the 1970s litigation.” The court properly dismissed New Hampshire’s complaint.

The litigation from 1977 settled, for a while anyway, a dispute between the states over what a 1740 document meant by “middle of the river.” In order to raise this question again, New Hampshire had to have some compelling reason for ignoring an agreement now. Its lawyers tried, saying the ’77 definition was just an administrative convenience, that it was agreed to without a thorough search and that, after all, New Hampshire was just trying to be a good neighbor by going along with the definition 24 years ago. Justice Ginsburg, fortunately, would have none of it, ruling that all the information available today was available then and both parties had plenty of opportunity to speak up at the time.

But if New Hampshire lacked a case, it did have a campaign issue, employed most extensively by Sen. Bob Smith but also by others. Maine requires out-of-state workers to pay state income taxes. Shipyard workers from New Hampshire don’t like it (who would?), but failing a method for changing the law in another state, they instead pretended the historic record said something it did not. Any politician who could hold up documents that purportedly proved their point was bound to be popular.

None of this would matter much if the issue stayed in New Hampshire, but by going to court, New Hampshire there misled residents into thinking there was a serious case to be made and provided an expensive and time-consuming problem for Maine. The court’s action yesterday should put an end to the issue – at least until a New Hampshire political candidate starts casting about for an issue to run on.