Supreme Court decision stands on Portsmouth shipyard appeal

New Hampshire’s bid for Portsmouth Naval Shipyard ended for good Monday.

Without comment, the U.S. Supreme Court refused to reconsider its May decision that the shipyard is in Maine, not New Hampshire.

The court rarely reconsiders rulings, so the decision was expected.

The shipyard is on an island in the Piscataqua River, which divides the states.

At issue is $5 million in income taxes that New Hampshire residents who work at the yard pay to Maine each year.

New Hampshire had argued that the border was the Maine shore of the river. The court rejected that argument, saying the border was decided in a 1977 consent decree that ended a dispute over lobstering grounds.

Maine had argued all along that a decree signed by King George II in 1740 clearly established the boundary as the middle of the river. It said the 1970s decree settled the issue.

New Hampshire argued that the 1740 decree was relevant only if considered along with historical evidence that New Hampshire operated, regulated and controlled the river. New Hampshire also argued that the 1977 decree involved a separate issue and did not preclude a subsequent challenge to the boundary. The court disagreed.

Justice Ruth Bader Ginsberg wrote the decision in May. She acknowledged there were two interpretations of the precise meaning of “middle of the river” in the 1970s case. But, she said, “both constructions located the ‘middle of the river’ somewhere other than the Maine shore.”

Justice David Souter did not participate in the decision. Souter was New Hampshire’s attorney general in the mid-1970s and endorsed the 1977 settlement.

The issue was of little more than academic interest before Maine enacted its income tax in 1969.

The tax is especially galling to New Hampshire residents who work at the yard because they pay higher taxes if their spouses work, even if the spouse does not work in Maine. That is because Maine’s graduated income tax is based on family income.

“We’re pleased and not surprised,” said Charles Dow, spokesman for Maine’s attorney general.

In defeat, New Hampshire officials continued to claim the high ground legally.

“The state deeply regrets that the Supreme Court chose to decide this dispute procedurally rather than to consider the massive and persuasive historical research assembled by New Hampshire concerning ownership of the Piscataqua River islands,” Attorney General Philip McLaughlin said in a statement.

Pamela Walsh, spokeswoman for New Hampshire Gov. Jeanne Shaheen, voiced similar sentiments.

“Unfortunately, the Supreme Court never considered the full merits of this case, including the abundance of historical and modern-day evidence that Portsmouth Harbor and its islands, including the island containing the shipyard, have been part of New Hampshire for centuries,” Walsh said.