Wayne Land & Mineral Grp., LLC v. Del. River Basin Comm'n

• Decision Date: 14 February 2020
• Docket Number: 3:16-CV-00897
• Parties: WAYNE LAND AND MINERAL GROUP, LLC Plaintiff, v. DELAWARE RIVER BASIN COMMISSION Defendant, and DELAWARE RIVERKEEPER NETWORK MAYA K. VAN ROSSUM, THE DELAWARE RIVERKEEPER Intervenors-Defendants
• Court: U.S. District Court — Middle District of Pennsylvania

WAYNE LAND AND MINERAL GROUP, LLC Plaintiff, v. DELAWARE RIVER BASIN COMMISSION Defendant,andDELAWARE RIVERKEEPER NETWORK MAYA K. VAN ROSSUM,THE DELAWARE RIVERKEEPER Intervenors-Defendants

3:16-CV-00897

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

February 14, 2020

(JUDGE MARIANI)

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is Plaintiff's Motion to Compel. (Doc. 152.) With its motion, Plaintiff seeks to compel production of documents withheld by Defendant Delaware River Basin Commission ("DRBC" "Defendant") based on DRBC's assertion of the deliberative process privilege and the attorney-client privilege. (Id.) Plaintiff raises several issues regarding Defendant's assertion of privilege and seeks in camera review of the documents withheld to determine if the documents fall within the asserted privilege. (Id. at 10-11.) Following the Court's in camera review of the documents identified in the Privilege Log (Doc. 152-1 at 16-31), the Court will grant Plaintiff's motion in part and deny it in part for the reasons discussed below.

II. PROCEDURAL HISTORY

On May 17, 2016, Plaintiff Wayne Land & Mineral Group LLC ("WLMG" "Plaintiff") filed a Complaint against Defendant Delaware River Basin Commission (the "DRBC"). (Doc. 1.) In the Complaint, Plaintiff asks the Court to enter a declaratory judgment holding that DRBC "does not have jurisdiction over, or the authority to review and approve, or to require WLMG to seek prior approval from the [DRBC] for, or to otherwise preclude the development of, WLMG's proposed well pad, appurtenant facilities or the related activities to be carried out on the Property." (Doc. 1 at 18.) WLMG owns approximately 180 acres of land, including the natural gas and minerals present on the land, in Wayne County, Pennsylvania. (Doc. 1 ¶ 12.) Approximately 75 acres of the land owned by WLMG is located in the Delaware River Basin. (Id.)

Intervenors-Defendants the Delaware Riverkeeper Network and Maya K. Van Rossum, the Delaware Riverkeeper (collectively referred to as the "DRN") filed a motion to intervene on July 5, 2015, (Doc. 10) which the Court granted on September 12, 2016, (Doc. 26).¹

On March 23, 2017, the Court granted Defendant Delaware River Basin Commission's Motion to Dismiss the Complaint (Doc. 12) and closed the case. (Doc. 93.) Plaintiff appealed the Court's dismissal to the United States Court of Appeals for the Third Circuit. (Doc. 94.) The Circuit Court entered Judgment on July 3, 2018, ordering that the District Court's Order entered on March 23, 2017, be vacated and the case be remanded to this Court for further proceedings. (Doc. 97.)

Following remand, the Court reopened the case (Doc. 98) and, on August 27, 2018, issued an Order establishing the pretrial schedule (Doc. 107). The schedule included the directive that "all fact discovery shall be completed by December 19, 2018." (Doc. 107 at 2 ¶ 3.) The Court's December 4, 2018, Order rescinded that deadline (Doc. 124 at 2 ¶ 5), and the Order of June 4, 2019, established that fact discovery "shall be completed by September 9, 2019" (Doc. 134 at 2 ¶ 6).

The Court recently decided Plaintiff's Motion to Compel (Doc. 138) filed on August 19, 2019. (See Docs. 163, 164.) Following in camera review of the documents at issue, the Court granted Plaintiff's motion in part and denied it in part, concluding that only one document was protected from disclosure by the attorney-client privilege and the documents protected by the deliberative process privilege were to be disclosed because Plaintiff's need for the documents outweighed Defendant's interest in nondisclosure. (Doc. 163 at 33-34.)

Plaintiff filed the motion under consideration here on December 11, 2019. (Doc. 152.) The motion was accompanied by a supporting brief. (Doc. 153.) Defendant filed itsopposition brief (Doc. 157) on December 26, 2019, and Plaintiff filed a reply brief (Doc. 158) on January 9, 2020. In the Privilege Log submitted, Defendant identified forty-five (45) Document Numbers which it withheld in whole or in part based on the assertion of the deliberative process privilege, the attorney-client privilege, or both. (Doc. 152-1 at 16-31.) On January 17, 2020, the Court directed Defendant to submit the documents to the Court for in camera review (Doc. 160), and Defendant timely produced the required documents.

III. STATEMENT OF FACTS

As the Court has previously explained,

the Delaware River Basin Compact (the "Compact") is an interstate compact dated November 2, 1961, by and among the Commonwealth of Pennsylvania, New York State, New Jersey, Delaware, and the United States. The purpose of the Compact is the conservation, utilization, development, management and control of the water and related resources of the Delaware River Basin. The Compact created the Defendant DRBC, which is tasked with the adoption and promotion of uniform and coordinated policies for water conservation, control, use and management in the Delaware River Basin.

(Doc. 67 at 2-3 (internal citations omitted).)

At issue in this action is Section 3.8 of the Compact which provides for DRBC's review of a "project having a substantial effect on the water resources of the basin." In considering Defendant Delaware River Basin Commission's Motion to Dismiss the Complaint (Doc. 12), the Court determined that the issue presented the need to interpret terms of the contract, specifically the meaning of "project" under Section 1.2(g) as informed by the meaning of "water resources" under Section 1.2(i). (Doc. 92 at 40.) The Court granted the motion to dismiss based on the following findings:

On the face of Plaintiff's Complaint . . . it is apparent that its 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. Accordingly, the Compact requires Plaintiff to submit an application to the Commission for a determination as to whether its proposed "project" has a "substantial effect on the water resources of the Basin" and, if so, whether the Commission shall approve or disapprove such project based on its determination that the project would or would not substantially impair or conflict with the Commission's comprehensive plan. Compact at § 3.8.

(Doc. 92 at 43.) The Circuit Court confirmed that the Compact was to be "construed as a contract under the principles of contract law." Wayne Land and Mineral Group LLC v. Delaware River Basin Commission, 894 F.3d 509, 527 (3d Cir. 2018). However, the Circuit Court disagreed with this Court's determination that the proposed activities constituted a "project," concluding that "the meaning of the word 'project' as used in the compact is ambiguous" and, therefore, the district court's decision on the merits was premature. Id. The Circuit Court explained that

if the text of the Compact is ambiguous, we must then "turn to other interpretive tools to shed light on the intent of the Compact's drafters." [Tarrant Reg'l Water Dist. v. Herrmann, 569 U.S. 614, 620 (2013)]. One of those interpretative tools is the background notion "that States do not easily cede their sovereign powers, including their control over waters within their own territories[.]" Id. Other guideposts include the treatment of similar issues in other interstate water compacts, the parties' course of performance under the Compact, and the negotiation and legislative history of the Compact. Id.; Oklahoma v. New Mexico, 501 U.S. 221, 235 n.5, 111 S.Ct. 2281, 115 L.Ed.2d 207 (1991).

894 F.3d at 527. The Circuit Court further found that these interpretive tools require factual determinations to be made about the Compact drafters' intent and

[t]he District Court must have the opportunity to evaluate in the first instance how other interstate compacts, the parties' course of performance, and thenegotiation and legislative history of the Compact, among other evidence, bear on the question of intent. The interpretation that should prevail is the one that aligns best with the drafters' intent.

Id. at 534.

IV. ANALYSIS

Turning now to the motion at issue, the Court has conducted in camera review of the documents Defendant withheld based on privilege. Mindful of the general principle that evidentiary privileges are to be strictly construed, see University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189 (1990), the Court has considered all documents in the context of the deliberative process privilege and/or the attorney-client privilege.² Because the attorney-client privilege provides absolute protection, see, e.g., United States v. Nobles, 422 U.S. 225, 239 (1975), and the deliberative process privilege is qualified, see, e.g., In reSealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997), the Court will first review the documents for which Defendant asserts the attorney-client privilege.

A. Attorney-Client Privilege

Defendant asserts that the attorney-client privilege applies to Document Numbers 24 through 45. (Doc. 152-1 at 28-31.) Plaintiff objects to the assertion of the privilege regarding the documents at issue, which it characterizes as "historical documents from the 1960s" held in public project files before being withheld. (Doc. 153 at 7.) Defendant responds that project review files are not public and the passage of time does not erode the attorney-client privilege. (Doc. 157 at 2, 3, 13 n.7.) For the reasons that follow, the Court concludes that Defendant properly asserts the attorney-client privilege as to many but not all of the documents withheld.

In general, the attorney-client privilege limits the normally broad disclosure requirements of Federal Rule of Civil Procedure 26 which provides that relevant but privileged matters are not discoverable. See Fed. R. Civ. P. 26(b)(1). The party asserting attorney-client privilege has the burden of proving that the privilege applies. Matter of Grand Jury Empanelled February 14, 1978, 603 F.2d 469, 474 (3d Cir.1979) (citing United States v. Lansd...