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
No. 19-2354
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 19, 2020
Argued December 9, 2019
PRECEDENTIAL
Before: RESTREPO, ROTH and FISHER, Circuit Judges.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 19-2354
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
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
Argued December 9, 2019
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
Jordan B. Yeager [ARGUED]
Curtin & Heefner
2005 South Easton Road, Suite 100
Doylestown, PA 18901
Counsel for Appellees Maya Van Rossum, The
Delaware Riverkeeper and Delaware Riverkeeper Network
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.
I
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.”
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.
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
09.pdf.3 A “project” was in turn said to “encompass[] 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.” Id. Collier later extended this regulation to “projects intended solely for exploratory purposes.” Del. River Basin Comm‘n, Supplemental Determination of the Executive Director Concerning Natural Gas Extraction Activities in Shale Formations Within the Drainage Area of Special Protection Waters 1 (June 14, 2010) (2010 Determination) (emphasis omitted), https://www.nj.gov/drbc/library/documents/SupplementalEDD6-14-10.pdf.4
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-
rock formations that have come to characterize this region. However, because some of the land also lies within the Basin, Wayne‘s intended fracking activities are subject to the DRBC‘s claimed authority under the 2009 and 2010 Determinations.
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
Several outside parties immediately sought to intervene in the action under
Both the DRBC and the Riverkeeper opposed the Senators’ motion. Among other arguments, the Riverkeeper contended that the Senators lacked standing to intervene because they could not meet any of the three elements established in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The District Court denied the Senators’ motion without discussing the Riverkeeper‘s standing argument. Rather, it held on the merits that the Senators had failed to establish all the conditions necessary for intervention of right under
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
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
its further enforcement,” JA424, arguing that it “violates the terms of the Compact because it exceeds the scope of authority ceded to the [DRBC] under the Compact,” JA421. Alternatively, in Count II, the Senators requested an order that the DRBC “provide just compensation for the deprivation of the economic value of the property in question.” JA424. According to the Senators, even if the Determinations are a valid exercise of the DRBC‘s authority, they nevertheless constitute “a regulatory taking without just compensation” under the
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
U.S. at 560. As a result, federal courts “have an obligation to assure [them]selves of litigants’ standing under Article III.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006) (citation and internal quotation marks omitted). Indeed, as we have put it, “[o]ur continuing obligation to assure that we have jurisdiction requires that we raise [the] issue[] of standing . . . sua sponte.” Seneca Res. Corp. v. Township of Highland, 863 F.3d 245, 252 (3d Cir. 2017) (citation and internal quotation marks omitted). We must “assess our own appellate jurisdiction in the first instance.” Id.
These principles apply even when an individual seeks to intervene under
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
their [Proposed] Complaint presents.” JA36 (brackets in original). The District Court distinguished between the two counts of the Senators’ complaint. “It may be true,” the District Court wrote, “that the relief sought in [Wayne‘s] Complaint is sufficiently similar to the relief sought in Count I of the [Senators‘] [Proposed] Complaint that the Senators need not meet the standing criteria for that claim.” JA36 (third brackets in original) (citations omitted). But as to Count II, “it is clear that the Senators seek relief that is broader than” that requested by Wayne. JA37 (alteration and internal quotation marks omitted). As a result, the District Court, citing Town of Chester, concluded that the Senators had failed to show “that they are not required to satisfy standing criteria to support their claim for intervention as of right.” JA37.
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.
A
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
reply brief: “As it relates to Count I, the redress or benefit the Senators seek is a declaration that, under the Compact, the [DRBC] lacks authority to
There are two aspects of the request worth noting. First, it appears to challenge the DRBC‘s authority under not simply
jurisdiction on the Commission to implement or otherwise enforce the moratorium.“). Second, the request challenges the DRBC‘s authority to institute a moratorium on fracking activities within the Basin. The Senators therefore seem to want a declaration not simply that the DRBC may not review Wayne‘s proposed fracking activities, but that it may not review any firm‘s fracking activities.
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
specifically concerned with the 2009 and 2010 Determinations, and therefore with the DRBC‘s project-review authority under
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
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
declaration that the Compact cannot be interpreted as conferring the broad power claimed by the [DRBC] because the exercise of such authority would violate the United States Constitution, rendering the entire contract illegal.” Appellants’ Reply Br. at 5. Yet this neglects the very point at issue—the nature of the relief sought. In their proposed complaint, the Senators specifically request an order “directing the [DRBC] to afford just compensation for the diminution of the economic value of the property it has appropriated.” JA423. Wayne, by contrast, has sought only declaratory relief. The Senators must therefore establish Article III standing as to Count II of their proposed complaint.
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
We think the District Court is best positioned to resolve these questions, and any others that might appear, in the first instance. Having overseen the litigation from the beginning, it is most familiar with the unique circumstances of the case and how they inform the nature of the relief sought. With the standing issue squarely before it, the District Court should have the opportunity to “offer the first word.” Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 717 (2019); see also Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019) (per curiam) (vacating and remanding for the lower courts to resolve “the standing question . . . in the first instance“); Cudjoe ex rel. Cudjoe v. Dep‘t of Veterans Affairs, 426 F.3d 241, 250 (3d Cir. 2005) (remanding for the district court “to address the standing issues in the first instance,” where standing was briefed by the parties on appeal but not addressed by the district court).
V
For the foregoing reasons, we will vacate the District Court‘s order and remand