Del. Riverkeeper Network v. Del. River Basin Comm'n

• Decision Date: 01 December 2021
• Docket Number: 1:21-cv-01108-NLH-AMD
• Parties: DELAWARE RIVERKEEPER NETWORK and MAYA K. VAN ROSSUM, the DELAWARE RIVERKEEPER, Plaintiffs, v. DELAWARE RIVER BASIN COMMISSION and DELAWARE RIVER PARTNERS LLC, Defendants.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

DELAWARE RIVERKEEPER NETWORK and MAYA K. VAN ROSSUM, the DELAWARE RIVERKEEPER, Plaintiffs,
v.
DELAWARE RIVER BASIN COMMISSION and DELAWARE RIVER PARTNERS LLC, Defendants.

No. 1:21-cv-01108-NLH-AMD

United States District Court, D. New Jersey

December 1, 2021

KACY CUMMINGS MANAHAN DELAWARE RIVERKEEPER NETWORK 925 CANAL ST SUITE 3701 BRISTOL, PA 19007 On behalf of Plaintiffs.

KATHLEEN B. CAMPBELL MICHAEL DILLON DAVID ROBERT STRUWE MANKO GOLD KATCHER & FOX LLP 401 CITY AVENUE SUITE 901 BALA CYNWYD, PA 19004 PAUL M. HAUGE GIBBONS. PC ONE GATEWAY CENTER NEWARK, N.J. 07102-5310 On behalf of Delaware River Partners LLC.

JOHN S STAPLETON PETER A. MUHIC LEVAN MUHIC STAPLETON LLC FOUR GREENTREE CENTRE 601 RT 73 N SUITE 303 MARLTON, N.J. 08053 On behalf of the Delaware River Basin Commission.

OPINION

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NOEL L. HILLMAN, U.S.D.J.

Before the Court is Delaware Riverkeeper Network's (“DRN”) and Maya K. Van Rossum's (together, “Plaintiffs”) motion to correct the administrative record. (ECF 19). For the reasons expressed below, the motion will be denied.

BACKGROUND

The instant matter before the Court arises out of a dispute over a Delaware River Partners LLC (“DRP”) development site in Gloucester County, New Jersey. (ECF 1 at 11). The crux of the dispute is a new project at the site, the “Dock 2 Project, a new marine Terminal” whose construction would involve “mechanical dredging in the Delaware River.” (Id.) Under the rules founded in the Delaware River Basin Compact (the “Compact”)^[1], which created the Delaware River Basin Commission (the “Commission”)

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to oversee the management of the Delaware River Basin, DRP submitted an application for its project to the Commission in early 2019. (Id. at 13). The Commission allowed for a notice and comment period, during which time DRN submitted comment letters opposing the project. (Id.) The Commission approved the project on June 12, 2019 and DRN then filed a request for a hearing to review the Commission's decision which the Commission granted in September 2019. (Id. at 13-14). Prior to the hearing, which was held virtually in May 2020, the Commission allowed for another period of public comment. (Id. at 14-15). In July 2020, the hearing officer assigned to the case recommended that the project should remain as previously approved. (Id. at 15). Thereafter, the parties were allowed to submit post-hearing briefing for a period of time which concluded on August 31, 2020. (ECF 23 at 8). Thereafter, the Commissioners reviewed the administrative record and the hearing officer's recommendation and on December 9, 2020 affirmed its June 12, 2019 determination. (ECF 1 at 15).

After post-hearing briefing had concluded but before the Commission affirmed its decision, DRN and other entities submitted numerous documents to the Commission, presumably for consideration in rendering its final decision. (ECF 19-2 at 10-11). Plaintiffs appealed that decision to this Court on January 25, 2021. (ECF 1). In their joint discovery plan for this

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case, the parties acknowledged that the case would be decided solely on the administrative record and not on the basis of other discovery. (See ECF 13). The Commission then filed an administrative record that did not include those submissions. (See id.) Thereafter, Plaintiffs filed the instant motion to complete the administrative record, contending that those excluded submissions are properly considered part of the administrative record and must be included for this Court's review. Both DRN and the Commission oppose the motion (ECF 23, 24). It is against this backdrop that the Court will commence its analysis.

DISCUSSION

At the outset, the Court notes that the standard to be applied in reviewing Plaintiff's appeal as well as this instant motion to amend or correct the administrative record has not been laid out clearly in precedent. Unlike many appeals of administrative orders, appeals of decisions issued by the Delaware River Commission are not governed by the Administrative Procedure Act (the “APA”) but rather the Compact. Compact at § 15.1(m); Wayne Land & Min. Grp. LLC v. Delaware River Basin Comm'n, 894 F.3d 509, 525 (3d Cir. 2018) (“By its terms, however, the Compact is not subject to the APA.”). The Compact and the regulations surrounding it make clear, though, that a decision by the Commission is subject to review by a court.

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Compact at § 3.8 (“Any determination of the commission hereunder shall be subject to judicial review in any court of competent jurisdiction.”); 18 C.F.R. § 401.90 (“Any party participating in a hearing conducted pursuant to the provisions of this subpart may appeal any final Commission action.”)

Beyond this, though, neither the Compact nor the regulations offer guidance regarding the standards of review a court must apply with respect to the disposition of the appeal as a whole or motions such as the instant one to correct the administrative record. That said, the parties in this matter seem to all agree that the standards employed under the APA are instructive. (See ECF 19 (making arguments based on cases decided under the APA); ECF 22 (same); ECF 23 (same)). Further, though not directly confronted with the issue of...