March 23, 2017
Appeal from the United States District Court for the Western
District of Pennsylvania District Court No. 1-15-cv-00060
Magistrate Judge: Honorable Susan Paradise Baxter
Lindsey Schromen-Wawrin [Argued] Shearwater Law Counsel for
J. Clark Brian C. Wauhop Buchanan Ingersoll & Rooney
Stanley Yorsz [Argued] Buchanan Ingersoll & Rooney
Counsel for Appellee Seneca Resources Corp.
D. Martinucci [Argued] Quinn Buseck Leemhuis Toohey &
Kroto Counsel for Appellees Township of Highland and Highland
Township Board of Supervisors, Elk County, Pennsylvania.
Before: SMITH, Chief Judge, JORDAN and ROTH, Circuit Judges
Crystal Spring Ecosystem, Highland Township Municipal
Authority, and Citizens Advocating a Clean Healthy
Environment, Inc.-all represented by the Community
Environmental Legal Defense Fund ("CELDF")-sought
to intervene on the side of Defendant-Appellee Township of
Highland (the "Township") in defense of the
legality of the Highland municipal ordinance known as the
"Community Bill of Rights." The Community Bill of
Rights, among other things, prohibited Plaintiff-Appellee
Seneca Resources Corporation from using a well to store waste
from fracking. The District Court denied Appellants'
motion to intervene, holding that the Township adequately
represented Appellants' interests in defending the
Community Bill of Rights. Appellants moved for
reconsideration. While the motion for reconsideration was
pending, the Township repealed the Community Bill of Rights
and entered into a settlement with Seneca that culminated in
a consent decree adopted by the District Court. Appellants
filed a motion for reconsideration of the Consent Decree,
which the District Court denied along with Appellants'
motion for reconsideration of their motion to intervene.
now appeal four orders: (1) the denial of their motion to
intervene, (2) the denial of the motion for reconsideration
of their motion to intervene, (3) the District Court's
adoption of the Consent Decree, and (4) the denial of the
Appellants' motion for reconsideration of the Consent
Decree. Appellants' original motion to intervene is now
moot because there is no longer an ordinance to defend. In
their reply brief and at oral argument, Appellants fell back
on the argument that they had a right to intervene because
the Consent Decree purportedly "establish[es] . . . the
legality or illegality of [Appellants'] protected
rights." Appellants' Reply Br. 8. But the Consent
Decree does not bind any of the Appellants nor does it
deprive them of any rights after the Community Bill of Rights
has been repealed. Because Appellants cannot intervene, they
are nonparties. Because they are nonparties, they cannot
appeal the Consent Decree. Therefore, we will affirm the
District Court's order denying Appellants' motion for
reconsideration of the order denying intervention. We lack
jurisdiction to review the remaining three orders because of
mootness and standing issues.
Seneca Resources Corporation is a Pennsylvania corporation
engaged in oil and natural gas exploration and production.
Seneca sought to convert a natural gas well in Highland
Township into a Class II underground injection control well
in which to store waste from fracking.
are Township of Highland and the Highland Board of
Supervisors. Highland is a township located in Elk County,
Pennsylvania. The Board of Supervisors is its three-person
governing body. See 53 P.S. § 65601
("Townships shall be governed and supervised by boards
of supervisors. Boards of supervisors shall consist of three
members or, if approved by the electors under section 402(b),
five members." (footnote omitted)).
advocates that communities pass laws that assert community
rights against corporations and others engaged in activity
disfavored by members of the community. CELDF appears to
have drafted the ordinance at issue here. CELDF represented
the Township earlier in this litigation, and a different
CELDF lawyer has represented Appellants.
are Crystal Spring Ecosystem, Highland Township Municipal
Authority, and Citizens Advocating a Clean Healthy
Spring Ecosystem "encompasses [a natural] spring, as
well as the surrounding hillside and riparian forests, soils,
and bedrocks, [and] the residents of James City who drink
from Crystal Spring." Appellants' Br. 21;
accord App.197-98 (Mot. Intervene) ¶
Township Municipal Authority is a municipal government agency
that provides water from Crystal Spring for unincorporated
James City, a city within Highland Township.
Advocating a Clean Healthy Environment, Inc.
("CACHE") is a nonprofit corporation that "is,
and has been, the primary advocate" for the Community
Bill of Rights. App.197 (Mot. Intervene) ¶¶ 9-13.
Its three directors are residents of Highland Township who
"own property in James City connected to the Municipal
Authority water supply." App.197 (Mot. Intervene) ¶
FACTUAL AND PROCEDURAL HISTORY
January 9, 2013, the Township enacted a far-reaching
ordinance that, among other things, prohibited "disposal
injection wells" from existing within Highland.
App.046-50 (2013 Ordinance).
17, 2014, the EPA issued a final, ten-year permit to Seneca
to allow it to operate a Class II-D injection well. Part 1.A
of the permit says, "Issuance of this permit does not .
. . authorize . . . any infringement of State or local law or
regulations." App.082 (Permit).
between November 3, 2014, and January 8, 2015, the Highland
Township Board of Supervisors wrote to the EPA, stating that
the EPA permit was invalid under the Township's
ordinance. See App.095-96 (Letter).
sued the Township and the Board of Supervisors on February
18, 2015, alleging that the ordinance was invalid. Seneca
sought damages, attorneys' fees, and an injunction
prohibiting the Township from enforcing the ordinance. The
Township and the Board of Supervisors were represented by
March 24, 2015, the Township adopted the Community Bill of
Rights as an amendment to the January 9, 2013 ordinance. The
Community Bill of Rights established a right to water and
clean air for persons, natural communities and
ecosystems and stated that any resident could enforce
an ecosystem's rights "to exist and flourish."
App.119 (Community Bill of Rights). Section 3 of the
Community Bill of Rights made it illegal for any corporation
or government to deposit waste from "oil and gas
extraction" "within Highland Township" and
further claimed to invalidate any "permit, license,
privilege, charter, or other authority" that violated
the Community Bill of Rights. App.120 (Community Bill of
Rights). Section 4(b) of the Community Bill of Rights stated
that any resident could enforce the rights of the Township.
App.120 (Community Bill of Rights). Section 4(c) of the
Community Bill of Rights stated that any resident of Highland
Township could "enforce or defend the rights of
ecosystems." App.120 (Community Bill of Rights). Section
5(a) of the Community Bill of Rights stated that
"[c]orporations that violate this Ordinance, or that
seek to violate this Ordinance, shall not be deemed to be
'persons'" and that those corporations did not
have the "power to assert state or federal preemptive
laws in an attempt to overturn" the Community Bill of
Rights. App.120 (Community Bill of Rights). The Community
Bill of Rights called for "amendment of the Pennsylvania
Constitution and the federal Constitution to recognize a
right to local self-government free from governmental
preemption and or nullification by corporate
'rights.'" App.121 (Community Bill of Rights).
April 6, 2015, Seneca filed an amended complaint. The Amended
Complaint took note of the Community Bill of Rights and
further alleged that the Township told the Pennsylvania
Department of Environmental Protection that the original
ordinance would preclude the DEP from issuing a state permit.
Seneca claimed that the Township's communication with the
DEP was causing the DEP to delay issuance of the state
permit. The Amended Complaint alleged the same claims and
requested the same relief as the original complaint.
See App.106-15 (Am. Compl.).
August 11, 2015, Appellants, represented by a different CELDF
lawyer than the lawyer who represented the Township and the
Board of Supervisors, filed their motion to intervene
pursuant to Rule 24(a)(2) of the Federal Rules of Civil
Procedure in order to defend the legality of the ordinance.
See Oral Arg. At 7:04 ("[Appellants] tried to
come into this case on the side of the Government with the
interests of defending the ordinance . . . .").
December 31, 2015, one of the three members of the Board of
March 29, 2016, the District Court denied the Appellants'
motion to intervene because Appellants failed to show that
the Township and the Board of Supervisors did not adequately
represent Appellants' interests. See Seneca Res.
Corp. v. Highland Township, No. 15-60 Erie, 2016 WL
1213605, at *2-3 (W.D. Pa. Mar. 29, 2016).
April 26, 2016, Appellants moved for reconsideration of the
March 29, 2016 order denying their motion to intervene.
Appellants alleged there had been "a material change in
the relevant facts" because "the composition of the
Highland Township Board of Supervisors changed." App.317
(Mot. Reconsideration Denial Mot. Intervene). According to
Appellants, the new replacement supervisor expressed the view
that the Community Bill of Rights was likely invalid and
therefore the Board majority was opposed to continuing to
defend the Community Bill of Rights. Under these new
circumstances, Appellants argued, the Township would no
longer adequately represent Appellants' interests.
App.318-19 (Mot. Reconsideration Denial Mot. Intervene). On
May 13, 2016, a CELDF lawyer filed a response to the motion
for reconsideration on behalf of the Township and the Board
of Supervisors. In the response, the Township and the Board
said that they supported the motion for reconsideration
because "it is unlikely that the Township's
aggressive defense of the Ordinance will continue."
30, 2016, CELDF moved to withdraw as counsel of record for
the Township and its Board of Supervisors. CELDF claimed that
Defendants "have ceased to communicate with their
counsel, despite multiple attempts by counsel to contact the
clients, " which apparently included the period during
which Defendants filed their "response" supporting
Appellants' motion for reconsideration. App.348-50 (Mot.
Withdrawal). On June 2, 2016, CELDF informed the court that
Defendants said they were hiring new counsel.
Board of Supervisors repealed the Community Bill of Rights on
the night of August 10, 2016.
following day, Seneca and Defendants filed a stipulation and
consent decree under which the Township stipulated that much
of the Community Bill of Rights was "an impermissible
exercise of Highland's legislative authority, "
"unconstitutional, " or "unenforceable."
App.388-89 (Stipulation and Consent Decree) ¶ 13(a)-
Additionally, under the Consent Decree, the Township and the
Board of Supervisors withdrew their objection to Seneca's
DEP permit applications and withdrew their counterclaims, and
Seneca withdrew its counterclaims against the Township and
the Board of Supervisors. App.389-90 (Stipulation and Consent
Decree) ¶ 13(i)-(l). The parties also requested
that the Court "adopt . . . as its findings and opinion
regarding the merits of ...