WAYNE LAND AND MINERAL GROUP, LLC v. DELAWARE RIVER BASIN COMMISSION
No. 19-2354
United States Court of Appeals for the Third Circuit
May 19, 2020
2020 Decisions 517
Honorable Robert D. Mariani, District Judge
PRECEDENTIAL. On Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. No. 3-16-cv-00897). Argued December 9, 2019. Before: RESTREPO, ROTH and FISHER, Circuit Judges.
Opinions of the United States Court of Appeals for the Third Circuit
5-19-2020
Wayne Land and Mineral Group L v. Delaware River Basin Commissio
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5-19-2020
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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No. 19-2354
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WAYNE LAND AND MINERAL GROUP, LLC v. DELAWARE RIVER BASIN COMMISSION
MAYA VAN ROSSUM, The Delaware Riverkeeper; DELAWARE RIVERKEEPER NETWORK (Intervenors in District Court)
*SENATORS JOSEPH B. SCARNATI, III; LISA BAKER; GENE YAW, Appellants
*Pursuant to Fed. R. App. P. Rule 12(a)
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On Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. No. 3-16-cv-00897)
District Judge: Honorable Robert D. Mariani
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Before: RESTREPO, ROTH and FISHER, Circuit Judges.
(Filed: May 19, 2020)
Matthew H. Haverstick, [ARGUED]
Eric J. Schreiner
Shohin H. Vance
Kleinbard
Three Logan Square
1717 Arch Street, 5th Floor
Philadelphia, PA 19103
Counsel for Appellants
Christopher R. Nestor
Overstreet & Nestor
1425 Crooked Hill Road
#62066
Harrisburg, PA 17106
Counsel for Appellee Wayne Land and Mineral Group LLC
Mark L. Greenfogel
Kenneth J. Warren [ARGUED]
Warren Environmental Counsel
975 Mill Road
Millridge Manor House Suite A
Bryn Mawr, PA 19010
Counsel for Appellee Delaware River Basin Commission
Curtin & Heefner
2005 South Easton Road, Suite 100
Doylestown, PA 18901
Counsel for Appellees Maya Van Rossum, The Delaware Riverkeeper and Delaware Riverkeeper Network
OPINION OF THE COURT
FISHER, Circuit Judge.
It is well established that a federal court has a duty to assure itself that the persons invoking its power have standing to do so under Article III of the Constitution. That principle applies even to putative intervenors of right under
In this case, the District Court ruled on the merits of a Rule 24 motion by three Pennsylvania state senators before considering fully whether the Senators need to establish Article III standing for either of their two proposed claims. Because we conclude that on each of those claims the Senators appear to be seeking relief different from that sought by the plaintiff, and that the District Court is best positioned to decide this question in the first instance, we will vacate the District Court‘s order and remand for consideration of whether the Senators must demonstrate Article III standing.
The underlying dispute in this case is not new to our Court. See Wayne Land & Mineral Grp. LLC v. Del. River Basin Comm‘n, 894 F.3d 509 (3d Cir. 2018) (Wayne I). Nevertheless, some account of that dispute is necessary for adequate disposition of the present appeal.
A
In late 1961, concurrent legislation in Congress and the states of Delaware, New Jersey, New York, and Pennsylvania adopted into law the Delaware River Basin Compact.1 That agreement was designed in part to centralize and coordinate among the states “the planning, conservation, utilization, development, management and control of the water resources of the basin.” Delaware River Basin Compact § 1.3(e) (1961), https://www.state.nj.us/drbc/library/documents/compact.pdf.2 To this end, the Compact created an interstate agency, the Delaware River Basin Commission (DRBC), and delegated to it several powers. Among those powers is the authority to review and approve any “project having a substantial effect on the water resources of the basin.” Id. § 3.8. The scope of this power in turn depends upon the definition of two terms. First, the Compact defines “project” as
any work, service or activity which is separately planned, financed, or identified by the commission, or any separate facility undertaken or to be undertaken within a specified area, for the conservation, utilization, control, development or management of water resources which can be established and utilized independently or as an addition to an existing facility, and can be considered as a separate entity for purposes of evaluation.
Id. § 1.2(g). Second, it defines “water resources” as “includ[ing] water and related natural resources in, on, under, or above the ground, including related uses of land, which are subject to beneficial use, ownership or control.” Id. § 1.2(i).
Despite these definitions, the extent of the DRBC‘s review-and-approval authority remains uncertain, and that uncertainty lies at the heart of the underlying dispute in this case. In 2009, the then-Executive Director of the DRBC, Carol R. Collier, invoked § 3.8 to regulate horizontal drilling and hydraulic fracturing, or fracking, in the Basin. Concerned that these activities “if not properly performed may cause adverse environmental effects, including on water resources,” Collier issued a “Determination” giving “notice to natural gas extraction project sponsors that they may not commence any natural gas extraction project located in shale formations within the drainage area of Special Protection Waters without first applying for and obtaining [DRBC] approval.” Del. River Basin Comm‘n, Determination of the Executive Director Concerning Natural Gas Extraction Activities in Shale Formations Within the Drainage Area of Special Protection Waters 2 (May 19, 2009) (2009 Determination), https://www.nj.gov/drbc/library/documents/EDD5-19-
B
Wayne Land and Mineral Group, LLC owns approximately 180 acres of land in Wayne County, Pennsylvania. Nestled in the northeastern part of the state, the county shares with New York a border shaped by the serpentine course of the upper Delaware River and its western branch. Wayne purchased the property to access, via fracking, valuable natural-gas reserves within the underground shale
In May 2016, Wayne sued the DRBC in federal court, challenging the agency‘s authority to regulate the company‘s proposed fracking activities. In particular, Wayne sought a declaration that “the [DRBC] does not have jurisdiction over, or the authority to review and approve, . . . [Wayne‘s] proposed well pad, appurtenant facilities or the related activities to be carried out” on its property. JA99. Wayne argued that its proposed well pad “does not constitute a ‘project’ under Section 3.8 of the Compact,” and that, as a result, it was not subject to the DRBC‘s claimed project-review authority. JA97.
Several outside parties immediately sought to intervene in the action under Rule 24. The Delaware Riverkeeper Network and its leader, Maya K. van Rossum (collectively, the Riverkeeper), were permitted to do so in September 2016 on behalf of the DRBC. About a month later, Pennsylvania State Senators Joseph B. Scarnati III, Gene Yaw, and Lisa Baker also sought to intervene, but on the side of Wayne. Acting in their official capacities, the Senators asserted that the “DRBC is nullifying the General Assembly‘s lawmaking power by effectively countermanding the directives of duly enacted laws that permit” various fracking-related activities. JA107. The Senators sought “to protect the authority and legislative prerogative of the Pennsylvania Senate and the Pennsylvania General Assembly to regulate commercial activities in Pennsylvania.” JA108. They did not specify the relief they sought, however, saying only that “they intend to adopt in whole [Wayne‘s] complaint,” and attaching a copy of it to their motion. JA113.
A few months later, the District Court granted the DRBC‘s motion to dismiss. It rejected the agency‘s arguments regarding ripeness, standing, final agency action, and exhaustion, but nevertheless dismissed the action sua sponte, declaring it “apparent that [Wayne‘s] proposed activities within the Delaware River Basin constitute a ‘project’ within the meaning of that term as defined in Sections 1.2(g) and 1.2(i) of the Compact.” JA296.
Wayne appealed. Our Court upheld the District Court‘s decision regarding the DRBC‘s arguments, but concluded that “the District Court erred when it decided that the Commission‘s project review authority under the terms of the Compact unambiguously includes Wayne‘s proposed activities.” Wayne I, 894 F.3d at 533. We remanded for further fact-finding as to the Compact drafters’ intent, cautioning that our opinion should not be read as “adopting or endorsing either Wayne‘s interpretation or the [DRBC]‘s, or anyone else‘s.” Id.
On remand, the Senators again sought to intervene. This time, they presented a unique proposed complaint, articulating two grounds for relief. In Count I, they requested that the District Court “invalidate the de facto moratorium and enjoin
The DRBC and the Riverkeeper again opposed the Senators’ attempt to intervene. This time, however, neither party contended that the Senators lack standing, resting their arguments chiefly on the merits of the Senators’ motion. The District Court agreed, denying the motion because the Senators had not shown a “significantly protectable interest in th[e] litigation.” JA41. The Senators timely appealed.
II5
The Supreme Court has repeatedly described the question of Article III standing as a “threshold” issue. See, e.g., Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019); Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018); Horne v. Flores, 557 U.S. 433, 445 (2009); Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 102 (1998). It is an “irreducible constitutional minimum,” without which a court would not have jurisdiction to pass on the merits of the action. Lujan, 504
These principles apply even when an individual seeks to intervene under Rule 24(a)(2). In this context, as in any other, standing is a “threshold issue.” Town of Chester, 137 S. Ct. at 1648. “[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Id. at 1650 (quoting Davis v. Fed. Election Comm‘n, 554 U.S. 724, 734 (2008)). As a result, if a putative intervenor of right “seeks additional relief beyond that which the plaintiff requests,” then the intervenor “must demonstrate Article III standing.” Id. at 1651. “Absent such a showing, exercise of its power by a federal court would be gratuitous and thus inconsistent with the Art. III limitation.” Id. at 1650 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976)). The District Court in the present case therefore had a duty, before passing on the merits of the Senators’ motion to intervene, to determine whether the Senators must demonstrate Article III standing—whether, that is, they seek relief “different from that which” Wayne requests. Id. at 1651.
To be sure, in its denial of the Senators’ second motion to intervene, the District Court did briefly confront this issue, though not as a threshold inquiry but rather as part of its ruling on the merits of the motion. The Senators, it noted, failed to “address the broadened scope of the current litigation which
III
Our review of the record indicates that, on both counts of their proposed complaint, the Senators appear to be seeking relief different from6 that sought by Wayne. We will discuss each count in turn.
As to the relief requested in Count I, the Senators emphasize the District Court‘s observation regarding its similarity to the relief sought by Wayne. But they offer no further reasoning as to why this observation is correct, considering it “plain[]” that standing is “not at issue with regard to the first count.” Appellants’ Reply Br. at 4.
The issue is not as clear as the Senators suggest.7 Their proposed complaint provides differing formulations of the relief they seek. For example, in their prayer for relief, the Senators “respectfully request that this Court invalidate the de facto moratorium and enjoin its further enforcement.” JA424; see also JA423. Elsewhere, though, they suggest that they want only declaratory relief under Count I. See, e.g., JA415, 422. Perhaps recognizing the problematic nature of their prayer for relief,8 the Senators emphasize this latter formulation in their
There are two aspects of the request worth noting. First, it appears to challenge the DRBC‘s authority under not simply § 3.8 of the Compact—the invoked basis for the 2009 and 2010 Determinations—but any provision of the Compact. See also, e.g., JA415 (“The Senators seek a declaration [from] this Court that the Delaware River Basin Compact . . . does not confer concerning final agency action. The DRBC argued there that the suit should be dismissed because the agency had not reached a final decision on whether to block Wayne‘s proposed activities. After noting that the doctrine of final agency action usually applies only under the Administrative Procedure Act, we observed that “the question Wayne poses is not really one of administrative law at all.” 894 F.3d at 525. “Wayne is not asking for a review of an agency‘s action. Wayne‘s complaint does not seek to invalidate [the Determinations].” Id. Instead, we pointed out, Wayne is seeking a declaratory judgment on a question of law: whether the term “project” under the Compact covers its proposed activities. Id. at 525-26. According to the Senators’ prayer for relief, however, invalidation of the Determinations is precisely what they seek. Therefore, to the extent the Senators wish to reframe the relief Wayne requests, they are changing the nature of this action—rendering it one of administrative law rather than of contract interpretation. If that is the case, then the Senators need to establish Article III standing because they would in effect be pressing a distinct claim, seeking different relief.
With these points in mind, we must now consider more specifically Wayne‘s requested relief. In its broadest formulation, this relief would be a declaration:
that the [DRBC] does not have jurisdiction over, or the authority to review and approve, or to require [Wayne] to seek prior approval from the [DRBC] for, or to otherwise preclude the development of, [Wayne‘s] proposed well pad, appurtenant facilities or the related activities to be carried out on the Property.
JA99. At first glance, this request could encompass more than a challenge to the DRBC‘s claimed authority in the 2009 and 2010 Determinations, bringing it, in that respect, in line with the Senators’ requested relief. Nevertheless, there are two ways in which it seems different from the relief the Senators seek.
First, the language tracks that of the 2009 Determination. In claiming review authority over “any natural gas extraction project,” Executive Director Collier added that “[f]or this purpose a project encompasses the drilling pad upon which a well intended for eventual production is located, all appurtenant facilities and activities related thereto and all locations of water withdrawals used or to be used to supply water to the project.” 2009 Determination at 2. The suggestion (in a sense confirmed by the subsequent course of the litigation) is that in mirroring Collier‘s wording, Wayne is
Second, Wayne‘s requested relief refers specifically to Wayne, rather than to any fracking firm. At the very least, this raises factual issues regarding the precise nature of Wayne‘s proposed activities, the aspects of those activities that (should Wayne prevail) fall outside the scope of the DRBC‘s regulatory authority, and whether a declaration as to those aspects would in effect constitute a declaration that the DRBC lacks the authority to review the proposed fracking activities of any other firm. The Senators, as noted, are not concerned with just Wayne‘s problems: they appear to be looking to bar the DRBC from interfering with the fracking activities of any firm in the Basin. If so, and if Wayne‘s requested relief is specific to it, then the Senators must indeed establish Article III standing as to Count I.
B
As the District Court acknowledged, Count II of the Senators’ proposed complaint clearly demands different relief. On appeal, the Senators make an interesting argument that in effect Count II resolves into Count I under the canon of constitutional avoidance. “Count II,” we are told, “seeks a
IV
Although this conclusion might recommend that we next consider whether the Senators in fact have standing at least as to Count II, we nevertheless think it appropriate to remand the entire case to the District Court. The Senators’ arguments regarding that Count imply that the real goal of their intervention lies with Count I. In Town of Chester, the Supreme Court vacated and remanded because of an “ambiguous record and the lack of a reasoned conclusion on [the standing] question from” the lower court. 137 S. Ct. at 1652 n.4; see also Laroe Estates, Inc. v. Town of Chester, 693 F. App‘x 69, 70 (2d Cir. 2017) (“[R]esolving the ambiguity identified by the Supreme Court is likely to require a factual inquiry that this Court lacks the institutional capacity to perform.“). The same two grounds apply here. The Senators insist that Count I seeks only a declaration that the DRBC lacks the authority under any provision of the Compact to regulate or bar fracking activities in the Basin. Wayne might also be seeking such relief, but it is at the very least unclear if a ruling for Wayne would apply to the entire Compact rather than just § 3.8, and if it would necessarily apply to the activities of other firms.
V
For the foregoing reasons, we will vacate the District Court‘s order and remand for proceedings consistent with this opinion.