Wayne Land And Mineral Group, LLC v. Delaware River Basin Commission Maya Van Rossum, 051920 FED3, 19-2354

Docket Nº:19-2354
Opinion Judge:FISHER, Circuit Judge.
Party Name: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)
Attorney:Matthew H. Haverstick, [ARGUED] Eric J. Schreiner Shohin H. Vance Kleinbard Three Logan Square Counsel for Appellants Christopher R. Nestor Overstreet & Nestor 17106 Counsel for Appellee Wayne Land and Mineral Group LLC Mark L. Greenfogel Kenneth J. Warren [ARGUED] Warren Environmental Counsel Co...
Judge Panel:Before: RESTREPO, ROTH and FISHER, Circuit Judges.
Case Date:May 19, 2020
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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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)
No. 19-2354
United States Court of Appeals, Third Circuit
May 19, 2020
          Argued December 9, 2019           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           Matthew H. Haverstick, [ARGUED] Eric J. Schreiner Shohin H. Vance Kleinbard Three Logan Square Counsel for Appellants           Christopher R. Nestor Overstreet & Nestor 17106 Counsel for Appellee Wayne Land and Mineral Group LLC           Mark L. Greenfogel Kenneth J. Warren [ARGUED] Warren Environmental Counsel 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           Before: RESTREPO, ROTH and FISHER, Circuit Judges.           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 Federal Rule of Civil Procedure 24(a)(2), who must demonstrate constitutional standing for each claim they wish to bring if the claim would result in relief different from that which the plaintiff seeks. Town of Chester v. Laroe Estates, Inc., 137 S.Ct. 1645 (2017).          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." 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/EDD5-19-09.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/SupplementalED D6-14-10.pdf.4          B          Wayne Land and Mineral Group, LLC owns approximately 180 acres of land in Wayne County, Pennsylvania. Nestled in...

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