WAYNE LAND AND MINERAL GROUP, LLC
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)
United States Court of Appeals, Third Circuit
May 19, 2020
December 9, 2019
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
L. Greenfogel Kenneth J. Warren [ARGUED] Warren Environmental
Counsel Counsel for Appellee Delaware River Basin Commission
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
Before: RESTREPO, ROTH and FISHER, Circuit Judges.
OPINION OF THE COURT
FISHER, Circuit Judge.
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).
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
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.
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)
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.
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),
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
Land and Mineral Group, LLC owns approximately 180 acres of
land in Wayne County, Pennsylvania. Nestled in...