Seneca Resources Corp. v. Township of Highland

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3592
_____________
SENECA RESOURCES CORPORATION
v.
TOWNSHIP OF HIGHLAND,
Elk County, Pennsylvania;
HIGHLAND TOWNSHIP BOARD OF SUPERVISORS,
Elk County, Pennsylvania
*CRYSTAL SPRING ECOSYSTEM; HIGHLAND
TOWNSHIP MUNICIPAL AUTHORITY;
CITIZENS ADVOCATING A CLEAN HEALTHY
ENVIRONMENT, INC.,
Appellants
*(Pursuant to Rule 12(a) Fed. R. App. P.)
_____________
On 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
Argued March 23, 2017
Before: SMITH, Chief Judge, JORDAN and ROTH,
Circuit Judges
(Opinion Filed: July 17, 2017)
Lindsey Schromen-Wawrin [Argued]
Shearwater Law
306 West Third Street
Port Angeles, WA 98362
Counsel for Appellants
Brian J. Clark
Brian C. Wauhop
Buchanan Ingersoll & Rooney
409 North Second Street
Suite 500
Harrisburg, PA 17101
Stanley Yorsz [Argued]
Buchanan Ingersoll & Rooney
301 Grant Street
One Oxford Centre, 20th Floor
Pittsburgh, PA 15219
Counsel for Appellee Seneca Resources Corp
2
Arthur D. Martinucci [Argued]
Quinn Buseck Leemhuis Toohey & Kroto
2222 West Grandview Boulevard
Erie, PA 16506
Counsel for Appellees Township of Highland and
Highland Township Board of Supervisors, Elk
County, Pennsylvania
________________
OPINION
________________
SMITH, Chief Judge.
Appellants, 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
3
fracking.1 The District Court2 denied Appellants’ motion
to intervene, holding that the Township adequately
represented Appellants’ interests in defending the
1
“[F]racking[] is a method used to stimulate production
of a well. A specially blended liquid is pumped down the
well and into a formation under pressure high enough to
cause the formation to crack open, forming passages
through which oil or gas can flow into the wellbore.”
T.W. Philips Gas & Oil Co. v. Jedlicka, 42 A.3d 261, 264
n.1 (Pa. 2012); see also U.S. EPA, Hydraulic Fracturing
for Oil and Gas: Impacts from the Hydraulic Fracturing
Water Cycle on Drinking Water Resources in the United
States 3–4 (2016) (executive summary),
http://ofmpub.epa.gov/eims/eimscomm.getfile?p_downlo
ad_id=530285.
2
On March 26, 2015, the parties filed consents to trial
and jurisdiction before a magistrate judge. See Seneca
Res. Corp. v. Highland Township, No. 15-60 Erie, 2016
WL 1213605, at *1 n.1 (W.D. Pa. Mar. 29, 2016) (“[T]he
parties have voluntarily consented to have a United
States Magistrate Judge conduct proceedings in this case,
including the entry of a final judgment.”); 28 U.S.C.
§ 636(c). Because the Magistrate Judge has the full
power of the District Court, we refer to the Magistrate
Judge as the District Court where appropriate.
4
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.
Appellants 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
5
reconsideration of the order denying intervention. We
lack jurisdiction to review the remaining three orders
because of mootness and standing issues.
BACKGROUND
I. ACTORS
Plaintiff-Appellee 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.
Defendants-Appellees 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)).
CELDF advocates that communities pass laws that
assert community rights against corporations and others
engaged in activity disfavored by members of the
6
community.3 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.
Appellants are Crystal Spring Ecosystem,
Highland Township Municipal Authority, and Citizens
Advocating a Clean Healthy Environment, Inc.
Crystal 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) ¶ 14.4
3
See, e.g., Uma Outka, Intrastate Preemption in the
Shifting Energy Sector, 86 U. Colo. L. Rev. 927, 959–60
(2015) (referring to CELDF-sponsored antifracking
legislation in Pittsburgh, Pa., Mora, N.M., and Lafayette,
Colo.); Catherine J. Iorns Magallanes, Foreword: New
Thinking on Sustainability, 13 N.Z. J. Pub. & Int’l L. 1,
12 (2015) (“160 communities in the United States have
adopted such rules that have been drafted by the
CELDF . . . .”).
4
Appellants claim that the Ecosystem has standing under
the Community Bill of Rights. Because of the way this
appeal is terminated and because Citizens Advocating a
7
Highland Township Municipal Authority is a
municipal government agency that provides water from
Crystal Spring for unincorporated James City, a city
within Highland Township.
Citizens 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) ¶ 11.
Clean Healthy Environment, Inc., would be a proper
intervenor were it to meet the standards under Rule 24(a)
of the Federal Rules of Civil Procedure, we do not need
to resolve whether an ecosystem can have standing or is a
proper party under Rule 17 of the Federal Rules of Civil
Procedure. Cf. Hawksbill Sea Turtle v. FEMA, 126 F.3d
461, 466 n.2 (3d Cir. 1997) (“It is not disputed that the
human plaintiffs have standing to sue under the ESA, and
therefore we need not consider the standing to sue of the
animals named as plaintiffs.”).
8
II. FACTUAL AND PROCEDURAL HISTORY
On 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).
On June 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).
Sometime 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).
Seneca 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
CELDF lawyers.
On March 24, 2015, the Township adopted the
Community Bill of Rights as an amendment to the
January 9, 2013 ordinance. The Community Bill of
9
Rights established a right to water and clean air for
persons, natural communities and ecosystems5 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
5
The Community Bill of Rights provided that:
All residents, natural communities and ecosystems
in Highland Township possess the right to
sustainably access, use, consume, and preserve
water drawn from natural water cycles that provide
water necessary to sustain life within the
Township.
. . . All residents, natural communities, and
ecosystems in Highland Township possess the
right to breathe air untainted by toxins,
carcinogens, particulates, and other substances
known to cause harm to health.
App.119 (Community Bill of Rights § 2(a)–(b)).
10
(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).
On 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
11
claims and requested the same relief as the original
complaint. See App.106–15 (Am. Compl.).
On 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 . . . .”).
On December 31, 2015, one of the three members
of the Board of Supervisors died.
On 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).
On 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
12
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.” App.345 (Response).
On May 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.
The Board of Supervisors repealed the Community
Bill of Rights on the night of August 10, 2016.
13
The 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)–
(g).6 Additionally, under the Consent Decree, the
6
The relevant portions of the stipulation and consent
decree state as follows:
a. Section 3 of the Highland Community Bill Of
Rights Ordinance, as amended (Amendment and
Revision of Ordinance No. 1-9 of 2013) constitutes
an impermissible exercise of Highland’s legislative
authority and is therefore invalid and
unenforceable;
b. Section 3 of the Highland Community Bill Of
Rights Ordinance, as amended (Amendment and
Revision of Ordinance No. 1-9 of 2013) is also
invalid and unenforceable in that it is de jure
exclusionary in seeking to prohibit entirely the
exercise of a legitimate and lawful business
activity (to-wit, the development of oil and gas
resources and the management of related waste
materials);
14
c. Section 4(b) and (c) of the Highland Community
Bill Of Rights Ordinance, as amended
(Amendment and Revision of Ordinance No. 1-9
of 2013) constitute an impermissible exercise of
Highland’s legislative authority and are therefore
invalid and unenforceable;
d. Sections 5(a) and (b) of the Highland
Community Bill Of Rights Ordinance, as amended
(Amendment and Revision of Ordinance No. 1-9
of 2013), are unenforceable as preempted by state
law;
e. Section 5(a) of the Highland Community Bill Of
Rights Ordinance is, on its face, unconstitutional
(under both the United States Constitution and the
Constitution of the Commonwealth of
Pennsylvania);
f. Section 6 of the Highland Community Bill Of
Rights Ordinance is, on its face, unconstitutional
(under both the United States Constitution and the
Constitution of the Commonwealth of
Pennsylvania);
g. Section 7 of the Highland Community Bill Of
Rights Ordinance is, on its face, unconstitutional
15
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 Seneca’s claims” the parties’ stipulations about
why specific parts of the Community Bill of Rights were
unlawful. See App.390 (Stipulation and Consent Decree)
¶ 16.
That same day, the District Court entered an order
designated as the final judgment. The order adopted
Paragraph 13(a)–(g) of the Consent Decree as the Court’s
findings and opinion. Paragraph 13(a)–(g) were the
portions of the Consent Decree that concluded that much
of the Community Bill of Rights was unenforceable.
On August 15, 2016, Appellants filed a motion for
reconsideration of final judgment arguing that the
(under both the United States Constitution and the
Constitution of the Commonwealth of
Pennsylvania); . . . .
App.388–89 (Stipulation and Consent Decree) ¶ 13(a)–
(g).
16
Township and the Board of Supervisors were not
considering the long-term interests in clean water, that
Appellants had rights to be parties in the case, and that
Appellants would have participated in settlement
negotiations.
On August 16, 2016, the District Court denied
Appellants’ motion for reconsideration of the denial of
their motion to intervene. Before ruling on the motion to
intervene in this case, the District Court denied
intervention in a similar case, Pennsylvania General
Energy Co., LLC v. Grant Township, No. 14-cv-
209ERIE, 2015 WL 6002163 (W.D. Pa. Oct. 14, 2015).
In Pennsylvania General Energy, we affirmed the denial
of the motion to intervene in a nonprecedential order.
Without addressing changed circumstances or
Appellants’ new arguments in this case, the District
Court explained that our affirmance in Pennsylvania
General Energy gave it confidence in its original
decision to deny intervention to Appellants. See
App.022–23 (Order).
That same day, the District Court denied
Appellants’ motion for reconsideration of the order
approving the Consent Decree because the Appellants
were not parties.
On September 12, 2016, Appellants appealed the
following: the March 29, 2016 order denying the motion
to intervene; the August 16, 2016 order denying the
17
motion to reconsider the order denying the motion to
intervene; the August 12, 2016 final order adopting the
Consent Decree; and the August 16, 2016 memorandum
opinion denying reconsideration of the adoption of the
Consent Decree.
Although litigation in the District Court relating to
the Community Bill of Rights has concluded, a second,
very similar case is now before the same District Court.
On November 8, 2016, the Township adopted a Home
Rule Charter that prevented Seneca from storing fracking
waste in Highland.7 See Compl. ¶ 1, Seneca Res. Corp.
v. Highland Township, No. 16-289 (W.D. Pa. Nov. 30,
2016), ECF No. 1; see also See Compl. Ex. A § 401, No.
16-289 (W.D. Pa. Nov. 30, 2016), ECF No. 1-1 (“It shall
be unlawful within Highland Township for any
corporation or government to engage in the depositing of
waste from oil and gas extraction.”). In response to the
7
The Home Rule Charter was apparently passed in a
popular vote, 55% to 45%, with 94 citizens turning out.
See Katie Weidenboerner, Highland Township Votes in
Home Rule Charter, Courier Express (DuBois, Pa.) (Nov.
9, 2016),
http://www.thecourierexpress.com/news/local/highland-
township-votes-in-home-rule-charter/article_833142ae-
b155-55fa-8477-5864bde37281.html.
18
Home Rule Charter, Seneca brought a separate lawsuit
against the Township and the Board of Supervisors. In
that litigation, two of the Appellants—Citizens
Advocating a Clean Healthy Environment, Inc., and the
Crystal Spring Ecosystem—have moved to intervene.
JURISDICTION
The District Court had jurisdiction under 28 U.S.C.
§§ 1331, 1343, and 1367. Appellants claim we have
appellate jurisdiction to review the District Court’s
decisions under 28 U.S.C. § 1291. As discussed below,
fatal standing or mootness problems prevent us from
taking appellate jurisdiction except to the extent that we
hold that the District Court did not abuse its discretion
when it denied Appellants’ motion for reconsideration of
the order denying intervention.
STANDARD OF REVIEW
Our “continuing obligation” to assure that we have
jurisdiction requires that we raise issues of standing and
mootness sua sponte. Ehleiter v. Grapetree Shores, Inc.,
482 F.3d 207, 211 (3d Cir. 2007); see also Chong v. Dist.
Dir., INS, 264 F.3d 378, 383 (3d Cir. 2001). We assess
our own appellate jurisdiction in the first instance. Cf.
Freedom from Religion Found., Inc. v. New Kensington
Arnold Sch. Dist., 832 F.3d 469, 475 n.4 (3d Cir. 2016)
(“We exercise de novo review over legal conclusions
concerning standing and mootness.”).
19
We review denials of motions for reconsideration
of denials of motions for intervention as of right under a
“more stringent” abuse of discretion review. Harris v.
Pernsley, 820 F.2d 592, 597 (3d Cir. 1987); see
McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756
F.3d 240, 245 n.9 (3d Cir. 2014) (“Because an appeal
from a denial of a Motion for Reconsideration brings up
the underlying judgment for review, the standard of
review varies with the nature of the underlying
judgment.” (quoting McAlister v. Sentry Ins. Co., 958
F.2d 55, 552–53 (3d Cir. 1992))); Kleissler v. U.S. Forest
Serv., 157 F.3d 964, 969 (3d Cir. 1998) (“We will reverse
a district court’s determination on a motion to intervene
as of right if the court has abused its discretion by
applying an improper legal standard or reaching a
conclusion we are confident is incorrect.” (citing Harris,
820 F.2d at 597)).
ANALYSIS
There are two sets of rulings Appellants dispute:
(1) two rulings on motions relating to intervention and
(2) two rulings on motions relating to the Consent
Decree. The second set is linked to the first because, to
appeal rulings related to the Consent Decree, Appellants
must, among other things, be “part[ies] . . . aggrieved by
the district court’s judgment.” Armotek Indus., Inc. v.
Emp’rs Ins. of Wausau, 952 F.2d 756, 759 n.3 (3d Cir.
1991) (emphasis omitted). Appellants are not parties.
20
Appellants contend that they should have been
parties because the District Court should have granted
their motion to intervene. Their main claim to intervene
in the District Court and their only claim in their opening
brief here relates to their interest in defending the
Community Bill of Rights. Because the Community Bill
of Rights has been repealed, this argument is moot.8 In a
8
Were we to reach the merits of the issue as to whether
Appellants could intervene to defend the ordinance, we
would have serious doubts that the Township of
Highland’s decision to seek a settlement made them
inadequate representatives of the Appellants’ interests.
We have repeatedly stated that a party is entitled to settle
its lawsuit without inviting intervenors where settlement
is the only reasonable course of action. See, e.g., Brody
ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1123–24 (3d
Cir. 1992) (“The contention that the school officials have
not actively litigated this case must be rejected as a basis
for finding inadequate representation. . . . Defendants are
fully entitled to choose to negotiate a consent decree
rather than litigate the case on the merits.”);
Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir. 1976)
(“Even if the injunction had been characterized as a
consent decree, inadequate representation would not be
established ipso facto; any case, even the most vigorously
defended, may culminate in a consent decree. As the
Seventh Circuit has observed, a consent decree may be
21
simply ‘the inescapable legal consequence of application
of fundamental law to [the] facts. That [intervenors]
would have been less prone to agree to the facts and
would have taken a different view of the applicable law
does not mean that the [defendants] did not adequately
represent their interests in the litigation.’” (quoting
United States v. Bd. of Sch. Comm’rs, 466 F.2d 573, 575
(7th Cir. 1972))).
At oral argument, Appellants’ counsel essentially
conceded that the Amended Ordinance was unlawful
under existing law:
THE COURT: You would agree, wouldn’t
you, that there are some portions of the
Amended Ordinance here that clearly were
unlawful?
COUNSEL: Your Honor, those are the
issues that we’d like to litigate before the
Court but unfortunately we
[UNINTELLIGIBLE]—
THE COURT: You think that there’s an
arguable position to be taken that there was
no preemption in some of the laws here.
22
sentence in their reply brief and at length at oral
argument, Appellants argued they should be able to
intervene to challenge the District Court’s adoption of
Paragraph 13(a)–(g) of the Consent Decree. Appellants
argue that the District Court could not adopt findings and
holdings to which the parties agreed. Because the
Consent Decree does not bind Appellants or deprive
them of rights, the District Court did not abuse its
discretion in denying their motion for reconsideration of
the denial of intervention to challenge those aspects of
the Consent Decree.
COUNSEL: Your Honor, that would be like
being in 1907 and arguing against Lochner.
THE COURT: Taking away corporation’s
personhood?
COUNSEL: Again, that would be like being
in 1900, arguing against separate but equal.
So, yes, we’re challenging corporate
constitutional rights, making a good faith
claim for changing the law.
Oral Arg. at 8:20 (emphasis added).
23
Finally, because Appellants cannot intervene for
either of the two reasons they advanced for intervention,
they lack standing to challenge the Consent Decree.
I. APPELLANTS CANNOT INTERVENE
Appellants cannot intervene either to save the
ordinance or to challenge the adoption of the Consent
Decree.
A. Intervention To Defend the Ordinance Is Moot
“The doctrine of mootness requires that ‘an actual
controversy must be extant at all stages of review, not
merely at the time the complaint is filed.’” Brown v.
Phila. Hous. Auth., 350 F.3d 338, 343 (3d Cir. 2003)
(quoting N.J. Turnpike Auth. v. Jersey Cent. Power &
Light, 772 F.2d 25, 31 (3d Cir. 1985)).
The party asserting mootness bears a heavy burden
to show the case is moot. See Burns v. PA Dep’t of
Corr., 544 F.3d 279, 284 (3d Cir. 2008) (“Such lack of
specificity, along with the fact that the Department of
Corrections urges us to refrain from vacating the
favorable decision entered by the District Court, counsels
against the conclusion that the Appellees have met the
‘“heavy,” even “formidable” burden’ that a party alleging
mootness must bear.” (quoting United States v. Gov’t of
V.I., 363 F.3d 276, 285 (3d Cir. 2004))).
24
After the party asserting mootness bears that
burden, the burden shifts to the party opposing mootness
to explain why the case is not moot. See Richardson v.
Bledsoe, 829 F.3d 273, 283 n.4 (3d Cir. 2016)
(“Richardson has not carried his burden of showing that
he fits into either the ‘capable of repetition yet evading
review’ or the ‘inherently transitory’ exceptions to
mootness.”).
On August 10, 2016, the Board repealed the
ordinance that Appellants wanted to defend. Appellants
originally stated that their purpose for seeking to
intervene was to defend the Community Bill of Rights.
Appellants have never argued that this Court could revive
the Community Bill of Rights or that Appellants had any
right to prevent the repeal. Cf. Util. Contractors Ass’n of
N.J., Inc. v. Toops, 507 F.2d 83, 86 (3d Cir. 1974) (“In
the absence of this lawsuit, had any of the municipalities
chosen voluntarily to change its building code, the
appellants’ monetary interests would not have conferred
legal standing to prevent such governmental action.”).
Therefore, Appellees have met their burden of showing
Appellants’ defense of the Community Bill of Rights
would be moot.
Appellants raise three defenses to mootness: (1)
that the intervention issue is “capable of repetition yet
evading review”; (2) that this lawsuit is a matter of
“public interest”; and (3) that we can ignore mootness
25
because “the resolution on the merits” of the intervention
issue “is clear.” Appellants’ Reply Br. 5–7. All of these
fail. Therefore, Appellants cannot carry their burden to
explain why the case is not moot.
First, the issue here does not “evade review.” An
issue evades review when the issue cannot be resolved in
time to fully contest the challenged action. See
Richardson, 829 F.3d at 283 n.4 (“Richardson has not
shown . . . that the amount of time an inmate spends in
the SMU Program is typically so brief as to evade review
by becoming moot before a District Court can rule on
class certification.”). Appellants argue that they are
unable to get a court ruling on their motions to intervene
in subsequent litigation because a case could become
moot before any ruling is issued. For instance, Appellees
could settle the Home Rule Charter litigation, Seneca
Res. Corp. v. Highland Township, No. 16-289 (W.D.
Pa.), before the District Court rules on the motion to
intervene in that case. Appellees’ argument is
speculative at best. There is enough time for the District
Court to rule on CACHE and the Ecosystem’s motion to
intervene in the Home Rule Charter litigation. See, e.g.,
County of Morris v. Nationalist Movement, 273 F.3d 527,
534 (3d Cir. 2001) (“The District Court conducted
hearings on an expedited basis and rendered an opinion
in time to guide the parties’ conduct during that event.
With respect to any dispute that might arise in connection
with future Independence Day activities, the parties, if
26
unable to resolve their differences, would have ample
opportunity to bring a new lawsuit and to develop a
record reflective of the particular circumstances attendant
on that dispute.”). Thus, the issue is not so fleeting as to
evade review.
Second, Appellants cite a dated, out-of-circuit case
for the proposition that the public interest in the
resolution of a case can be an exception to mootness. See
Alton & S. Ry. Co. v. Int’l Ass’n of Machinists, 463 F.2d
872, 880 (D.C. Cir. 1972) (“But when the particular
controversy has expired, so that there is no duty or
obligation of the court to maintain the appeal, an
application of the doctrine permitting maintenance of
appeals of recurring controversies in cases of public
interest necessarily identifies judicial latitude.”). That
case also appears to be about the “capable of repetition
yet evading review” exception. See id. at 878 (“[T]here
is a strong counter-current of doctrine under which the
court continues an appeal in existence, notwithstanding
the lapse in time of the particular decree or controversy,
when the court discerns a likelihood of recurrence of the
same issue, generally in the framework of a ‘continuing’
or ‘recurring’ controversy, and “public interest” in
maintaining the appeal.”). Were that case to stand for a
broader “public interest” principle, it would not avail
Appellants. The Third Circuit has never adopted a
standalone public interest exception to mootness. See
N.J. Turnpike Auth., 772 F.2d at 30 (“Although we
27
recognize that the substantive issues are of considerable
public interest, we believe that this alone does not impart
Article III justiciability when there is ‘no reasonable
expectation that the wrong will be repeated.’” (quoting
United States v. W.T. Grant Co., 345 U.S. 629, 633
(1953))); Campbell Soup Co. v. Martin, 202 F.2d 398,
399 (3d Cir. 1953) (“[E]ven if this were a subject of
public interest we do not think that the exception [to
mootness] could be applied in a federal court.”).
Third, Appellants argue that we can ignore
mootness when “the resolution on the merits is clear.”
Appellants’ Reply Br. 6 (quoting Pickus v. U.S. Bd. of
Parole, 543 F.2d 240, 242 (D.C. Cir. 1976) (internal
quotation mark omitted)). But “[u]nder Article III of the
Constitution, this Court has no authority to give opinions
upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the
matter in issue in the case before it.” Whiting v.
Krassner, 391 F.3d 540, 544 (3d Cir. 2004) (quoting
Church of Scientology v. United States, 506 U.S. 9, 12
(1992)) (internal quotation marks omitted); see also
Elliott v. Archdiocese of N.Y., 682 F.3d 213, 219 (3d Cir.
2012) (explaining that we cannot opine on a case over
which we have no jurisdiction). Thus, even were the
resolution of Appellants’ original intervention motion
glaringly obvious, we cannot rule on it because it is
moot.
28
B. The District Court Did Not Abuse Its Discretion in
Denying the Appellants’ Motion To Intervene To
Challenge the Consent Decree
Perhaps recognizing that they could no longer rely
on their interests in defending the Community Bill of
Rights, Appellants now focus heavily on the District
Court’s adoption of part of Paragraph 13 of the Consent
Decree as the basis for their right to intervene.9 The
District Court “adopt[ed] as its findings, and as the
opinion and order of this Court, those matters stipulated
to in ¶¶13(a)-(g) of the Stipulation and Consent Decree.”
App.021 (Order, Seneca Res. Corp. v. Highland
Township, No. 1:15-cv-60-SPB (W.D. Pa. Aug. 12,
9
Appellants raised the issue that they should have been
allowed to intervene because the District Court lacked
power to adopt the Consent Decree for the first time
before us in their reply brief. See Appellants’ Reply Br.
8. As such, we need not consider it. See, e.g., Issa v.
Sch. Dist. of Lancaster, 847 F.3d 121, 139 n.8 (3d Cir.
2017) (explaining that we could ignore an argument
raised fleetingly in the district court and for the first time
before us in a reply brief). We do so because Appellants’
interest in the Consent Decree is an issue of law and their
concerns about ultra vires district court action are
important.
29
2016), ECF No. 84). In turn, Paragraph 13(a)–(g) stated
that the parties “stipulate and agree” that various sections
of the Community Bill of Rights were invalid for various
reasons. App.388–89 (Stipulation and Consent Decree)
¶ 13(a)–(g).
Appellants now claim that they must be allowed to
intervene because the portion of the District Court’s
order that adopted Paragraph 13(a)–(g) “establish[es] . . .
the legality or illegality of [Appellants’] protected
rights.” Appellants’ Reply Br. 8. More specifically,
Appellants argue that the District Court lacked the power
to enter that order because the parties were no longer
adverse to each other when the Consent Decree was
adopted.
We cannot reach that argument because the
District Court did not abuse its discretion in denying
Appellants’ motion to reconsider the order denying their
motion to intervene. Appellants do not have a legally
protectable interest in the purportedly substantive
elements of the Consent Decree sufficient to allow them
to intervene to argue that the case was moot when the
Consent Decree was adopted.
“To justify intervention as of right, the applicant
must have an interest ‘relating to the property or
transaction which is the subject of the action’ that is
‘significantly protectable.’” Kleissler v. U.S. Forest
Serv., 157 F.3d 964, 969 (3d Cir. 1998) (quoting
30
Donaldson v. United States, 417 U.S. 517, 531 (1971),
superseded on other grounds by 26 U.S.C. § 7609 as
stated in Tiffany Fine Arts, Inc. v. United States, 469 U.S.
310, 316 (1985)); accord Fed. R. Civ. P. 24(a)(2). “It is
not sufficient that the claim be incidentally affected;
rather, there must be ‘a tangible threat’ to the applicant’s
legal interest. . . . [T]his factor may be satisfied if, for
example, a determination of the action in the [proposed
intervenors’] absence will have a significant stare decisis
effect on their claims, or if the [proposed intervenors’]
rights may be affected by a proposed remedy.” Brody ex
rel. Sugzdinis v. Spang, 957 F.2d 1108, 1123 (3d Cir.
1992) (citation omitted) (quoting Harris v. Pernsley, 820
F.2d 592, 601 (3d Cir. 1987)); see also Liberty Mut. Ins.
Co. v. Treesdale, Inc., 419 F.3d 216, 226–27 (3d Cir.
2005).
The Consent Decree does not establish Appellants’
legal rights. Were Appellants to find themselves in a
position to argue the merits of the Community Bill of
Rights (or a law like the Community Bill of Rights),
Appellants would not be barred by (1) estoppel, (2) stare
decisis, (3) judicial consequences of the Consent Decree,
or (4) any contractual consequences largely because
Appellants were not parties to the Consent Decree.
Because the Consent Decree does not—and cannot—
affect Appellants’ rights, the District Court did not abuse
it discretion in denying Appellants’ motion for
reconsideration of the denial of the motion to intervene.
31
First, there are no estoppel consequences to
Appellants here because Appellants were not parties to
this case and have not had a full and fair opportunity to
litigate any issue regarding the merits of the case. See,
e.g., Peloro v. United States, 488 F.3d 163, 175 (3d Cir.
2007) (“For defensive collateral estoppel—a form of
non-mutual issue preclusion—to apply, the party to be
precluded must have had a ‘full and fair’ opportunity to
litigate the issue in the first action.” (quoting Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 328, 332 (1979));
Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d
47, 50–51 (Pa. 2005) (requiring “the party against whom
the plea is asserted was a party or in privity with a party
in the prior case” and “the party or person privy to the
party against whom the doctrine is asserted had a full and
fair opportunity to litigate the issue in the prior
proceeding”). Therefore, the District Court’s declaration
does not estop any party from defending the Ordinance
except potentially the Township and the Board of
Supervisors.
Second, stare decisis does not affect Appellants
here because “[a] decision of a federal district court judge
is not binding precedent in either a different judicial
district, the same judicial district, or even upon the same
judge in a different case.” Camreta v. Greene, 563 U.S.
692, 709 n.7 (2011) (quoting 18 James W. Moore et al.,
Moore’s Federal Practice § 134.02[1][d] (3d ed. 2011));
accord Daubert v. NRA Grp., LLC, --- F.3d ---, 2017 WL
32
2836808, at *8 (3d Cir. July 3, 2017); see also Threadgill
v. Armstrong World Indus., Inc., 928 F.2d 1366, 1371 (3d
Cir. 1991) (“[I]t is clear that there is no such thing as ‘the
law of the district.’”); Ashley v. City of Jackson, 464 U.S.
900, 902 (1983) (Rehnquist, J., dissenting from denial of
certiorari) (“The decree may be scrutinized by the judge
for fairness prior to his approval, but there is no contest
or decision on the merits of the issues underlying the
lawsuit. Such a decree binds the signatories, but cannot
be used as a shield against all future suits by nonparties
seeking to challenge conduct that may or may not be
governed by the decree.”).
Third, there are no judicial consequences to
Appellants flowing from the Consent Decree. That is,
Appellants could not be held in contempt for violating
the Consent Decree because, on its face, “the consent
decree here does not bind [Appellants] to do or not to do
anything, nor does it impose any legal obligations on
[Appellants].” Johnson v. Lodge #93 of the Fraternal
Order of Police, 393 F.3d 1096, 1107 (10th Cir. 2004).10
10
For this reason, even if Appellants were parties, they
would lack standing to challenge the consent decree.
“The general rule is that a nonsettling party has no
standing to appeal a consent decree which does not bind
him and interferes with no legal relationship between the
33
Fourth, there are no contractual consequences of
the Consent Decree for Appellants. “[U]nder
Pennsylvania law, a consent decree is an agreement only
between parties and does not bind or preclude the claims
nonsettling party and the settling parties, even though the
nonsettling party may have sustained some economic loss
as a result of the consent decree.” Milonas v. Williams,
691 F.2d 931, 944 (10th Cir. 1982) (citing Util.
Contractors Ass’n of N.J., Inc. v. Toops, 507 F.2d 83 (3d
Cir. 1974)); see also In re Sch. Asbestos Litig., 921 F.2d
1330, 1332 (3d Cir. 1990) (“To establish standing to
appeal a settlement, a non-settling defendant may not
merely claim an interest in the lawsuit but must show
some cognizable prejudice to a legal relationship between
it and the settling parties.”).
We have held that intervenors do not need to show
Article III standing where a party on the same side has
Article III standing, see King v. Governor of N.J., 767
F.3d 216, 245–46 (3d Cir. 2014), cert. denied sub nom.
King v. Christie, 135 S. Ct. 2048 (2015), but “an
intervenor’s right to continue a suit in the absence of the
party on whose side intervention was permitted is
contingent upon a showing by the intervenor that he
fulfills the requirements of Art. III,” Diamond v. Charles,
476 U.S. 54, 68 (1986).
34
of non-parties.” Sullivan v. City of Pittsburgh, 811 F.2d
171, 181 (3d Cir. 1984) (citing Sabatine v.
Commonwealth, 442 A.2d 210 (Pa. 1981)).11 Appellants
are nonparties.
Because the Consent Decree does not impair
Appellants’ ability to protect any interest they may have
in defending laws like the Community Bill of Rights, the
District Court did not abuse its discretion in denying the
11
Therefore, if the consent decree did encroach on
Appellants’ rights, they could bring a collateral attack.
See Martin v. Wilks, 490 U.S. 755, 763–65 (1989)
(holding that allowing collateral attacks by nonparties on
consent decrees was a “principle” that was
“incorporat[ed]” into the Federal Rules of Civil
Procedure), superseded by statute for Title VII purposes
as recognized in United States v. City of Detroit, 712
F.3d 925, 933 (6th Cir. 2013); see also United States v.
City of New York, 198 F.3d 360, 366 (2d Cir. 1999)
(“Those who are not parties to a consent decree are free
to challenge the decree and actions taken under it.”
(citing Martin, 490 U.S. at 762); Interfaith Cmty. Org.
Inc. v. PPG Indus., Inc., 702 F. Supp. 2d 296, 313 n.22
(D.N.J. 2010) (“It appears the general principle
underlying Wilks remains . . . .”).
35
motion for reconsideration of the denial of the motion to
intervene.
II. APPELLANTS LACK STANDING TO
CHALLENGE THE CONSENT DECREE
Because Appellants were not permitted to
intervene, they did not become parties to this lawsuit.
Because Appellants are not parties to this lawsuit, they
may not challenge the Consent Decree. See, e.g., Brody
ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1113 (3d Cir.
1992) (noting that the Third Circuit dismissed the appeal
of a consent decree by attempted intervenors for lack of
appellate jurisdiction and citing Pennsylvania v. Rizzo,
530 F.2d 501, 508 (3d Cir. 1976), for the proposition that
an “appellant must have been granted permission to
intervene in order to appeal merits of case”); cf. Diamond
v. Charles, 476 U.S. 54, 63–64 (1986) (“By not
appealing the judgment below, the State indicated its
acceptance of that decision, and its lack of interest in
defending its own statute. The State’s general interest
may be adverse to the interests of appellees, but its
failure to invoke our jurisdiction leaves the Court without
a ‘case’ or ‘controversy’ between [intervenor-]appellees
and the State of Illinois.” (footnote omitted)); Halle v. W.
Penn Allegheny Health Sys. Inc., 842 F.3d 215, 229 (3d
Cir. 2016) (“We conclude that, for purposes of appeal,
Appellants were no longer ‘parties’ to the case after they
were dismissed without prejudice from Halle’s
36
proceeding. Appellants therefore cannot pursue an
appeal from Steven Halle’s individual judgment.”
(citation omitted)).
Appellants focus on the fact that we have held that
we lacked jurisdiction over an appeal on the merits when
an appellant is “properly denied the status of intervenor.”
Pennsylvania v. Rizzo, 530 F.2d 501, 508 (3d Cir. 1976)
(emphasis added). They argued that because they were
improperly denied the right to intervene, these holdings
do not apply to them. Because, as we held above,
Appellants were not improperly denied the right to
intervene, Appellants’ argument fails. We have no
appellate jurisdiction to review the Consent Decree.
CONCLUSION
Appellants’ motion to intervene is moot. The
District Court’s denial of the motion for reconsideration
of the order denying Appellants’ motion to intervene was
not an abuse of discretion. Therefore, Appellants are
nonparties and lack standing to challenge the Consent
Decree. Accordingly, we will affirm the judgment of the
District Court relating to the denial of the motion for
reconsideration of the denial of intervention and dismiss
the remainder of this appeal for lack of jurisdiction.
37