Wayne Land and Mineral Group, LLC v. Delaware River Basin Commission

Filing 133

MEMORANDUM OPINION (Order to follow as separate docket entry) re 116 MOTION to Compel Discovery MOTION for Extension of Time to Complete Discovery filed by Delaware River Basin Commission. Signed by Honorable Robert D. Mariani on 6/4/19. (jam)

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WAYNE LAND AND MINERAL
GROUP, LLC,
Plaintiff,
.

3: 16-CV-00897
(JUDGE MARIANI)

v.
DELAWARE RIVER BASIN
COMMISSION,
Defendant, and
DELAWARE RIVERKEEPER NETWORK :
MAYA K. VAN ROSSUM, THE
DELAWARE RIVERKEEPER,
lntervenors-Defendants.

MEMORANDUM OPINION
Presently before the Court are Defendants' motions to compel discovery: Delaware
River Basin Commission's Motion to Compel Discovery Responses from Wayne Land and
Mineral Group, LLC and to Extend the Fact Discovery Deadline (Doc. 116) 1 and Delaware
Riverkeeper Network and Maya K. Van Rossum, the Delaware Riverkeeper's Motion to
Compel Discovery from Wayne Land and Mineral Group, LLC (Doc. 126). For the reasons
discussed below, the Court will grant Defendants' motions in part and deny them in part.

1 Defendant

Delaware River Basin Commission acknowledges that its request for an extension of the
discovery deadline is moot based on the Court's December 4, 2018, Order in which case management
deadlines were rescinded (Doc. 124). (Doc. 129 at 2 n.1.)

'

r

I.

INTRODUCTION AND PROCEDURAL HISTORY

On May 17, 2016, Plaintiff Wayne Land & Mineral Group LLC ("WLMG" "Wayne"
"Plaintiff') filed a Complaint against Defendant Delaware River Basin Commission
("DRBC"). (Doc. 1.) In the Complaint, Plaintiff asks the Court to enter a declaratory
judgment holding that the 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, Wherefore Clause
~

1.) 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.)
lntervenors-Defendants the Delaware Riverkeeper Network and Maya K. Van
Rossum, the Delaware Riverkeeper (collectively "ORN") filed a motion to intervene on July
5, 2015, (Doc. 10) which the Court granted on September 12, 2016, (Doc. 26). 2

DRN is a not-for-profit organization established in 1988 whose purpose is "to protect, preserve,
and enhance the Delaware River, all of its tributary streams, and the habitats and communities of the
Basin." (Doc. 10 at 2-3). It has over 15,000 members and works on issues, actions, regulations,
legislation, policies, programs, and decisions that impact the health of the Delaware River Basin. (Id. at 3).
In this matter, DRN sought to intervene "to defend the validity of the DRBC's jurisdiction and authority over
activities that may affect the water resources of the Basin and to protect and preserve the interests of DRN
and its members in the Basin." (Id. at 2).
2

2

On March 23, 2017, the Court granted Defendant Delaware River Basin
Commission's Motion to Dismiss the Complaint (Doc. 12) and closed the case.3 (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. 4 (Doc. 97.)
Following remand, the Court reopened the case. (Doc. 98.) On August 27, 2018,
the Court issued an Order establishing the pretrial schedule. (Doc. 107.) DRBC filed the
motion under consideration here and supporting brief on November 21, 2018. (Docs. 116,
117.) After conducting a conference call with the parties, the Court issued an Order on
December 4, 2018, which directed ORN to file its intended motion to compel, allowed
Plaintiff to file a consolidated brief in opposition to the motions, and rescinded the previously
set case management deadlines. (Doc. 124.) On December 12, 2018, ORN filed its motion
to compel and supporting brief. (Docs. 126, 127.) Plaintiff timely filed its opposition brief on
January 2, 2019. (Doc. 128.) With the filing of Defendants' reply briefs (Docs. 129, 130) on
January 16, 2019, the pending motions became ripe for disposition.

See Wayne Land and Mineral Group LLC v. Delaware River Basin Commission, 247 F. Supp. 3d 477
(M.D. Pa. 2017).

3

4

See Wayne Land and Mineral Group LLC v. Delaware River Basin Commission, 894 F.3d 509 (3d Cir.
2018).
3

II.

STATEMENT OF FACTS

In the declaratory judgment action filed on May 17, 2016, WLMG asked the Court
"to declare that the Delaware River Basin Commission ('Commission') lacks authority under
the Delaware River Basin Compact ('Compact') to review and approve a natural gas well
pad, a gas well and related facilities and associated activities on WLMG's property in the
Delaware River Basin ('Basin)." (Doc. 1 at 1.)
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).)
Plaintiffs Complaint contains one Count for Declaratory Judgment. (Doc. 1. at 1617.) The Complaint includes the following averments:
22. WLMG will proceed in phases, beginning with the construction of an access
road and well pad on the Property.
23. WLMG has identified a location for the access road and well pad on the
Property, taking into account siting requirements.
24. After the access road and well pad are constructed, WLMG will drill an
exploratory well to locate productive zones of natural gas located in shale
formations on the Property. The next phase of development will include the
drilling of one or more lateral wells followed by hydraulic fracturing and,
ultimately, the production of natural gas.
4

26. The well pad and appurtenant facilities to be constructed on the Property,
as well as related activities to be carried out on the Property, will be designed,
constructed and carried out in accordance with all applicable statutory and
regulatory requirements including those implemented by PaDEP.
27. The well pad and the appurtenant facilities to be constructed on the
Property, as well as all related activities to be carried out on the Property, will
be designed, built, operated and carried out for the exploration, extraction and
development of natural gas and not for the conservation, utilization, control,
development or management of water resources.
28. WLMG does not propose to develop, construct or operate a water
withdrawal, dam, impoundment or reservoir, or to construct or operate a
wastewater treatment or discharge facility in connection with the development
on the Property.
29. All water used in connection with the planned Well Pad on the Property will
be obtained from properly licensed and approved sources owned and operated
by persons or entities other than WLMG, will be managed and delivered to the
Well Pad in accordance with all applicable laws and regulations and any
applicable fees will be paid.
30. All wastewater generated in connection with the Well Pad on the Property
will be managed by properly licensed and/or permitted entities other than
WLMG in accordance with all applicable laws and regulations.

46. The Commission's "project" approval jurisdiction does not extend to all
human undertakings that may have a substantial effect on the water resources
of the Basin.
47. The Commission's project approval jurisdiction under Section 3.8 of the
Compact is limited to "projects" that have a substantial effect on the water
resources of the Basin
48. The Well Pad as proposed by WLMG does not constitute a "project" under
Section 3.8 of the Compact.

5

49. Because WLMG's proposed Well Pad does not constitute a "project," the
Commission lacks authority under Section 3.8 of the Compact to require WLMG
to obtain Commission approval for the Well Pad.
50. Because WLMG's proposed Well Pad does not constitute a "project," it is
irrelevant whether or not the Commission believes that the proposed Well Pad
may have a substantial effect on water resources in the Basin.
51. The Commission otherwise lacks authority to require WLMG to submit for
its review, and to obtain its prior approval for, the proposed Well Pad.
52. The Commission, in asserting jurisdiction over WLMG's proposed Well Pad,
is misconstruing and unlawfully exceeding its authority under the Compact.
53. The Commission, in asserting jurisdiction over, and by precluding the
development of WLMG's proposed Well Pad, has and will continue to deprive
WLMG of constitutionally protected rights.
(Doc. 1 at 8-10, 16-17.) In the Wherefore clause, Plaintiff specifically asks that the Court
Declare that the Commission does not have jurisdiction over, or the authority
to review and approve, or to require WLMG to seek prior approval from the
Commission 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.
(Id. at 18, Wherefore Clause ~ 1.)

A central issue in this action is whether 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" properly includes Plaintiff's proposed "well pad, appurtenant facilities and related
activities" (Doc. 1 at 18, Wherefore Clause~ 1). 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
6

"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 disagreed, 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. Wayne Land and Mineral Group LLC v. Delaware River Basin
Commission, 894 F.3d 509, 515, 527 (3d Cir. 2018). The Circuit Court directed that, upon

remand, further fact-finding would be required to discover the Compact drafters' intent and
the interpretation of ambiguous terms which prevails should be "the one that aligns best with
the drafters' intent." Id. at 534.
Ill.

STANDARD OF REVIEW

The scope and conduct of discovery are within the sound discretion of the trial
court. In re Cendant Corp. Sec. Litig., 343 F.3d 658, 661-62 (3d Cir. 2003);
Stockton v. Wetzel, Civ. A. No.1:16-CV-0613, 2018 WL 3453461, at *1 (M.D. Pa. July 17,

2018). Generally, courts afford considerable latitude in discovery to ensure that litigation
7

proceeds with "the fullest possible knowledge of the issues and facts before trial." Hickman

v. Taylor, 349 U.S. 495, 501 (1947). Federal Rule of Civil Procedure 26(b) defines the
scope and limits of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties' relative access to relevant information, the
parties' resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not be admissible in
evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
Limitations on the frequency or extent of discovery otherwise allowed is addressed in
Rule 26(b )(2) which provides the following in relevant part:
On motion or on its own, the court must limit the frequency or extent of
discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome,
or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

Fed. R. Civ. P. 26(b)(2)(C).
Pursuant to Federal Rule of Civil Procedure 37, a party seeking discovery may move
for an order compelling the discovery sought, including answers to interrogatories and
production of documents, if a party fails to respond to discovery requests. Fed. R. Civ. P.
8

37(a)(1), (3). For purposes of Rule 37(a), "an evasive or incomplete disclosure, answer, or
response must be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P.
37(a)(4).
A party seeking discovery bears the initial burden of demonstrating the
requested discovery is relevant to its claim or defense .... Once that
initial burden is met, the party resisting the discovery has the burden to
establish the lack of relevance by demonstrating that the requested discovery
(1) does not come within the broad scope of relevance as defined under Fed.
R. Civ. P. 26(b) (1), or (2) is of such marginal relevance that the potential harm
occasioned by discovery would outweigh the ordinary presumption in favor of
broad disclosure.

Stockton, 2018 WL 3453461, at *2 (internal quotations and citations omitted).

IV.

DISCUSSION

DRBC requests that the Court grant the Motion and compel Plaintiff to answer
Interrogatories 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, to produce documents requested by
Requests for Production of Documents 1, 2, 3, 4, 5, 6, 7, 8, 11, 13, 14, 15, 17, 18, 19, 20,
and 21, s and to provide a description of information withheld as privileged in accordance
with Federal Rule of Civil Procedure 26(b)(5)(A). (Doc. 116 at 13.) DRBC maintains that

s DRBC notes that
WLMG misnumbered its responses to DRBC's Requests for Production by numbering
Request 18 as Request 17 on page 14 of its Answer to the Request for Production. WLMG
repeats this error in each subsequent response, i.e. the number stated in WLMG's response
is one less than the number stated in DRBC's Request for Production. For purposes of this
Motion, when referring to Requests For Production or responses thereto, the Commission
refers to each request as numbered in its Request For Production
(Doc. 116 at 6 n.1.) WLMG properly numbered its responses in Plaintiff's Supplemental Responses to
Defendant's First Set of Requests for Production of Documents. (Doc. 128-1 at 28-29.) To the extent a
discrepancy arises, the Court will refer to requests and responses using DRBC's numbers.

9

Plaintiff "responded to the Discovery Requests with boilerplate general objections,
supplemented by additional objections to almost every Discovery Request. Virtually no
information was provided concerning WLMG's tracking plans or the identity of individuals
with knowledge of those plans."6 (Doc. 117 at 7.) DRBC generally asserts that its discovery
requests are relevant to the claims and defenses asserted in the pleadings and allowed by
discovery rules. (Doc. 117 at 12-18.) DRBC notes that the majority of requests to which
Plaintiff objects request information about Plaintiff's planned activities and facilities. (Id. at
12.) In support of its assertion that Plaintiff's specific plans are relevant, DRBC provides the
following:
WLMG asks this Court to declare that WLMG's activities and facilities do not
constitute a "project" subject to DRBC review. Yet the Complaint contains only
general averments about the activity WLMG intends to undertake and any
related infrastructure it intends to construct and utilize. See, e.g., Complaint,~
26 ("appurtenant facilities"); id. at~ 7 ("related facilities"); id. at initial paragraph
("related facilities and associated activities"). Indeed, the Complaint avers that
WLMG will drill an unspecified number of wells, id. at~ 24, use an unspecified
quantity of water, id. at ~ 29, and generate an unspecified amount of
wastewater, id. at~ 30.
In addition to alleging certain facts generally, the Complaint omits other
facts entirely. It contains no information on the reasons WLMG deliberately
chose to utilize and manage water as part of its plans, or why WLMG
s Defendant DRBC noted that Plaintiff
produced a single file containing 1,908 pages, nearly all of which are either reproductions of
the Commission's own documents, exhibits admitted as evidence during the Court's January
24, 2017 plenary hearing, or parts of the addendum to WLMG's brief to the Third Circuit.
Neither information concerning WLMG's planned utilization of water resources nor the
identities of persons with such knowledge was disclosed.
(Id. at 7 n.1.)

10

deliberately chose certain facilities to store and transmit such water. It does not
aver the quantity of water WLMG intends to inject into shale formations,
whether its well boring will penetrate drinking water aquifers, the amount of
water that will be consumptively used, the amount of wastewater returning up
the borehole and how it will be managed, or the types and sizes of water and
wastewater storage tanks or other "appurtenant facilities" to be placed on or
near its well pad. All of these activities and facilities, which may impair or conflict
with DRBC's Comprehensive Plan, are useful for evaluating whether WLMG's
activities are for the utilization or management of water resources, i.e. a
"project."
(Doc. 117at12-13.)
ORN seeks an order compelling Plaintiff to produce documents in response to DRN's
First Request for Production of Documents 1 through 11 and DRN's First Set of
Interrogatories to Plaintiff 2 and 3. (Doc. 126 at 4-5.) ORN states that Plaintiff denied
requests which specifically sought information concerning Plaintiff's "plans to construct and
track a natural gas well, individuals who had knowledge of such plans, and any information
that WLMG had gathered concerning how their proposed activities and facilities could affect
the water resources and other natural resources on the Property." (Doc. 127 at 3-4.) DRN
contends it is entitled to the requested information because
there is no question that WLMG's proposed use of the land is vital to the
determination of this case. The crux of WLMG's argument is that this Court
should find that WLMG's proposed gas well pad and related facilities and
associated activities do not constitute a "project" subject to DRBC review.
There is no logical way to assess this claim without a full exploration of the
nature and scope of those proposed activities. Furthermore, the Third
Circuit, in remanding the case for further fact-finding, stated that information
concerning WLMG's proposed activities on the land is needed to determine
if hydraulic fracturing projects fall within the scope of the DRBC's regulatory
powers under the Compact. See Wayne II, 894 F.3d at 528 ("we also review

11

de novo whether WLMG's proposed activities on the face of the complaint
fall within the scope of the Compact's text.").
(Doc. 127 at 6.)
In its consolidated opposition brief, Plaintiff responds to Defendants' requests and
the bases on which they are asserted with general averments built on the proposition that its
tracking plans are not relevant to the resolution of the case because the Third Circuit
remanded the case only for this Court to consider the intent of the drafting parties regarding
the term "project" and not for fact-finding regarding Plaintiff's plans. (Doc. 128 at 2-10.)
Plaintiff further avers that, to the extent its tracking plans are at all relevant, it has provided
supplemental discovery responses which "make it clear that it intends to operate what can
best be described as a typical unconventional gas well." 7 (Id. at 3.)
In its reply brief, DRBC states that, for numerous reasons, WLMG's "supplemental
production, consisting of a few documents describing a 'typical' tracking operation, is helpful
but insufficient. "B (Doc. 129 at 8.)
Given these divergent positions, the Court will first address the proper scope of
discovery in this case generally and then apply related findings to Defendants' specific
requests.

7

In the instances where Plaintiff provides more narrowly focused argument relevant to certain
interrogatories and requests for production, the Court will address them later in the text when considering
specific discovery requests.
8 ORN

relies upon the arguments made in DRBC's reply. (Doc. 130 at 2 (citing Doc. 129).)
12

A.

Scope of Discovery
As set out above, WLMG seeks to limit discovery to what it asserts to be the Third

Circuit's directive to this Court on remand, i.e,, the Court is to determine the meaning of the
term "project" by evaluating "'how other interstate compacts, the parties' course of
performance, and the negotiation and legislative history of the Compact, among other
evidence, bear on the question of intent." (Doc. 128 at 7 (quoting 894 F.3d at 534).)
Relying on this language, Plaintiff argues that "[t]he Commission's discovery requests have
nothing at all to do with these 'other interpretive tools' identified by the Third Circuit and
cannot possibly assist the Court in resolving the ambiguity as to the meaning of the word
"project" in the Compact." (Id.) Beyond positing that the discovery sought is relevant to the
claims and defenses asserted in the pleadings, Defendants maintain that Plaintiff misreads
the Third Circuit's opinion which in reality supports the propriety of the discovery sought.
For the reasons discussed below, the Court concludes that Plaintiff improperly seeks to
narrow the scope of discovery, disregarding issues raised and relief sought in its Complaint
and ignoring important aspects of the Circuit Court's decision.
Because the scope of the litigation is the basis for determining relevance for
discovery purposes, Fed. R. Civ. P. 26(b)(1), the Court will consider, as a threshold matter,
the scope of the case as filed and whether the Third Circuit Court of Appeals' remand has
affected that scope.

13

As set out above, Plaintiff's Complaint contains many averments about what it
intends to do and not do on its property within the Basin. See supra pp. 4-6. The
Wherefore Clause of Plaintiff's Complaint specifically requests that the Court
Declare that the Commission does not have jurisdiction over, or the authority
to review and approve, or to require WLMG to seek prior approval from the
Commission 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, Wherefore Clause~ 1.) In its brief opposing the pending motions, WLMG
emphatically states that it does not intend to limit the scope of relief sought in the Complaint.
(See Doc. 128 at 10.)
Averments contained in the Complaint and the Wherefore Clause clearly indicate
that WLMG asks this Court to make a determination about its specific project. Yet, in
resisting the discovery requested, WLMG does not consider issues raised in the Complaint
to be relevant to the resolution of this case. WLMG does not address the dissonance
between a request for the Court to make a determination about "WLMG's proposed well
pad, appurtenant facilities or the related activities" (Doc. 1 at 18, Wherefore Clause~ 1
(emphasis added)) and its current position that fact-finding related to its specific project is
irrelevant (Doc. 128 at 4-7).
WLMG relies on the Circuit Court's opinion to narrow the scope of discovery. (Id.)
However, several aspects of the opinion support a scope of discovery far broader than that

14

propounded by Plaintiff and directly support the relevance of information concerning
Plaintiff's proposed tracking activity.
In explaining its standard of review, the Circuit Court stated that, if it found the term
"project" unambiguous, it would "review de novo whether Wayne's proposed activities on
the face of the complaint fall within the scope of the Compact." 894 F.3d at 528. Though
the Circuit Court did not reach this issue because it found the term "project" ambiguous, the
statement is indicative of the relevance of WLMG-specific activities in the ultimate resolution
of the case. Further, while the Circuit Court stated that it interpreted the Compact with
respect to only the facts stated on the face of the complaint, 894 F.3d at 528-29, the
statement, which reflects the standard applicable to a motion to dismiss, see, e.g., Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), does not limit the scope of discovery
now at issue because the case has moved beyond the motion to dismiss stage of the
proceedings.
At the outset of its analysis, the Circuit Court stated that "the first step is to clearly
define the issue in dispute." 894 F.3d at 528.
Wayne asked in its complaint for a declaration "that the Commission does not
have jurisdiction over, or the authority to review and approve, or to require
[Wayne] to seek prior approval from the Commission for, or to otherwise
preclude the development of, [Wayne's] proposed well pad, appurtenant
facilities or the related activities to be carried out on the [p]roperty." In other
words, Wayne framed the issue as whether the Compact's definition of
"project" encompasses its proposed well pad and related activities.

15

894 F.3d at 528 (quoting Plaintiff's Wherefore Clause~ 1, Doc. 1at18) (alterations in
Circuit Court opinion). In conjunction with the reiteration of Plaintiff's request for relief, the
Circuit Court noted that Plaintiff's "complaint defines 'Well Pads' as 'natural gas well pads,
all appurtenant facilities, and related activities carried out in connection with gas wells
targeting shale formations in the Basin,"' 894 F.3d at 528 n.14.
The Court finds the Circuit Court's paraphrase of the issue framed by WLMG
instructive: the use of the possessive "its," 894 F.3d at 528 (emphasis added), shows that
the Circuit Court considered Plaintiff's specific well pad to be at issue. Further, the Circuit
Court's reference to the definition of "well pad" found in the Complaint and the inclusion of
"related activities" in the restatement of the issue shows that WLMG's attempt to disregard
averments related to the ''well pad" are unavailing given WLMG's own definition of the term.
In the section of the opinion titled "The Need for Further Fact-Finding," the Court more
emphatically highlighted the relevance of Plaintiff's plans when it stated that
Wayne's interpretation [of the term "project"] fails to explain how, at the very
least, its proposed water storage tanks are not subject to the Commission's
project review authority given that it agrees that "there can be components of
an undertaking that can be a project." (Oral Arg. Tr., Nov. 7, 2017, at 8:23-24.)
Wayne is bound by the allegations in its complaint, and those allegations
include that water "will be managed and delivered to the [w]ell [p]ad" site and
presumably stored until used, but, oddly, that none of "the appurtenant facilities
to be constructed" will be for the "control ... or management of water resources."
[(Doc. 1 ~ 29.)]

16

894 F.3d at 533. In conjunction with this aspect of the need for further fact-finding, the
Circuit Court noted that the issue raised on appeal was arguably narrower than the
language in the Complaint and its decision did not limit that language:
We note ... that in its briefing before us, Wayne characterizes the issue on
appeal as "whether land cleared to accommodate a natural gas well, known as
a 'well pad,' and the natural gas well drilled on the pad, separately, or
considered together, constitute a 'project' subject to review by the Commission
under Section 3.8 of the Compact." (Opening Br. at 14.) An argument can be
made that that restatement of the issue is narrower than the language in the
complaint and that Wayne is essentially trying to characterize what it seeks as
a less-aggressive limiting of the scope of the Commission's "project" review
authority. Nothing in our opinion should be interpreted on remand as limiting
the broad language of the complaint-which defines the dispute before the
Court-or the District Court's discretion to manage the process of presenting
and deciding any narrower questions which may prove particularly important to
bringing this case to a final resolution (and perhaps to crafting a final remedy).
Of course, that process of clarifying the issues to be litigated may include
appropriate alterations to Wayne's complaint, which may be amended in the
Court's discretion. See Fed. R. Civ. P. 15(a)(2).
894 F.3d at 533 n.22.
The Circuit Court also recognized the importance of the quantity of water used in
tracking a well:
we question the assertion that tracking clearly constitutes a project subject to
the Commission's authority, because it is not at all clear on this record how
the five million gallons of water used in tracking a well compares with the
quantity of water used to perform other activities that few if any people would
say the Commission was intended to control.
894 F.3d at 530. This question shows that the Circuit Court considered the amount of water
used in tracking a well relevant to the question of intent now before this Court. In
questioning the water usage of a well compared to what "the Commission was intended to
17

control," the Circuit Court also recognized that, because tracking did not exist when the
Compact was formed, the question of the drafter's intent will entail comparative analysis, in
part extrapolating whether the drafters would have considered all or some tracking related
activities a "project" from considerations expressed relevant to the drafting and adoption of
the Compact. It follows that if proposed tracking related activities on a property include
multiple wells, the multiplier effect relative to water usage cannot be ignored when
comparing the activity to other activities the drafters intended the Commission to control.
Thus, the Circuit Court inherently acknowledged that the number of wells proposed for a
specific property could have a bearing on whether the activity constitutes a project for
purposes of§ 3.8.
Importantly, in response to DRBC's argument that the total amount of water used in
tracking needed to be considered, the Circuit Court recognized that the amount of water
used in tracking on a broad scale is an important issue. DRBC asserted that "even if one
well only uses a relatively minor amount of water, the collective quantity of water used by all
the tracking wells that could be drilled in the Basin is so large that it cannot be allowed to
escape the Commission's reach." Wayne Land, 894 F.3d at 530. Although the Court did
not find that the argument resolved the ambiguity question, the Court stated it was a
"serious argument[]" which deserved "careful attention." Id.
The foregoing review of the Circuit Court's opinion shows that Plaintiff is mistaken
that the Circuit Court remanded the case only to determine the intent of the contracting
18

parties with respect to the term "project" using specifically identified tools and without
reference to Plaintiff's plans for its property within the Basin (see Doc. 128 at 5). The Circuit
Court clearly rejected WLMG's attempt to frame the issues raised in narrow generic terms
because the Court did not confine the issue as suggested by WLMG at oral argument where
WLMG stated "we think when you look at that record, which we presented to you, the only
question we need to answer is are well pads and wells, without more, ... projects." (Oral
Arg. Tr. Nov. 20, 2017, at 67:15-18.)9 The excerpts from the Circuit Court's opinion
reviewed above indicate that no determination can be made whether a well pad is a project
without inquiring into in the operations that are essential to the enterprise of which it is a
part. To conclude otherwise would ignore the fundamental reality of the tracking process
undertaken at a well pad--to find that information about the utilization of water is not relevant
to the question of whether a well pad is a project ignores the fact that there can be no
tracking without water use.10
Further, questions posed and matters discussed at Oral Argument are consistent
with the Court's interpretation of fact-finding references found in the Circuit Court's opinion.
At the beginning of Oral Argument, the Circuit Court recognized that the usage of water, as

WLMG added "[a]nd, then, if and when we have to come back about a storage tank or an impoundment
or a pipe line -- if and when they make that assertion, we'll address it then." (Oral Arg. Tr. Nov. 20, 2017, at
67:19-22.)

9

10 In discussing the use of water in tracking a well, the Circuit Court noted that "[a] tracking well,
theoretically, could have some liquid other than water. It's the resource that's at hand to use, and it's been
used effectively." (Oral Arg. Tr., Nov. 7, 2017, at 20:16-19.) Neither the Circuit Court nor a party to this
litigation has suggested that any other liquid has been used in tracking to date.

19

it related to Plaintiff's plans, was integral to the resolution of this case. Early on the first day
of Oral Argument, the Court initiated the following discussion:
THE COURT: ... Even if we were to agree with you that the construction of
the well pad and the tracking is for something other than the utilization, et
cetera, of water resources, how do you deal with the fact that, under
Pennsylvania law, you're required to -- you're not required. But you've said
you're not going to discharge water. That's in your pleading, correct?
MR. OVERSTREET: Correct, we're not going to operate a water treatment in
this direct facility. That's correct.
THE COURT: Okay. And then if you're not going to do that, though, under
Pennsylvania law, you have to have storage tanks on site.
MR. OVERSTREET: Correct.
THE COURT: I don't recall you pleading that. Did you?
MR. OVERSTREET: We pied that we would develop a well pad and all the
ancillary facilities. So certainly, there may be some storage tanks on the
property, correct.
THE COURT: All right, all right. Well, how do you say that a storage tank is not
for the utilization of water?
MR. OVERSTREET: Well, -THE COURT: Seems sort of absurd to say that.
MR. OVERSTREET: ... [W]e don't argue that.

THE COURT: ... Then maybe -- then maybe that's the answer to this case,
that part of your -- part of your enterprise is a project under the compact, namely
the storage -- the water storage tanks. And the other part is not a project under
the compact.

20

MR. OVERSTREET: No, no, absolutely not.

THE COURT: Does that mean it's an all or nothing proposition? It either is a
project in its entirety, or it's not a project at all.
MR. OVERSTREET: Well, that's correct.
(Oral Arg. Tr., Nov. 7, 2017, at 5:21-6:24, 7:5-12, 7:25-8:3.)
Following further discussion, Plaintiff's counsel stated "there can be components of
an undertaking that can be a project." (Oral Arg. Tr., Nov. 7, 2017, at 8:23-24.) The
statement prompted the following exchange:
THE COURT: Right, so that gets me back to what I was challenging you on
before. So maybe this commission has no jurisdiction over the well pad and the
drilling, but they do have jurisdiction over the storage tanks.
MR. OVERSTREET: No, absolutely not, not as projects. Because the project
is the global undertaking.
(Oral Arg. Tr., Nov. 7, 2017, at 9:10-17.)
The finding in the Circuit Court's opinion that WLMG agreed at Oral Argument that
components of an undertaking can be a project, 894 F.3d at 533 (citing Oral Arg. Tr., Nov.
7, 2017, at 8:23-24), indicates that the Court rejected WLMG's insistence at Oral Argument
that dividing an undertaking into parts was unacceptable (Oral Arg. Tr., Nov. 7, 2017, at
7:25-8:3). The discussion also shows that the Circuit Court recognized that components of
a tracking operation involving water could be a "project" under the Compact.

21

Additional indications that the Circuit Court considered Plaintiff's plans for water
usage proper subjects of inquiry include the following dialogue:
THE COURT: Where is the water to be
sourced from, and where would it be disposed of or discharged?
MR. OVERSTREET: Right, it would be THE COURT: If at all.
MR. OVERSTREET: The water is likely to be sourced from a licensed and
approved water resources project within the basin, which they would then go
to and acquire the water from an unapproved1 1 project. And it would be
disposed of and managed through approved, permitted projects disposal
facilities outside of this well pad.
THE COURT: All of which would be regulated by the commission?
MR. OVERSTREET: All of which the commission has asserted jurisdiction over
to the extent they're operating in the basin.
(Oral Arg. Tr., Nov. 7, 2017, at 13:18-14:9.)
Picking up on WLMG's assertion that it was taking an "all or nothing position"
concerning DRBC's authority regarding a "project," at the second Oral Argument, the Court
asked "[w]hy isn't it the case that the storage facility on - storage water - storage tank could
be a project and, yet, your well pad wouldn't be?" (Oral Arg. Tr., Nov. 20, 2017, at 9:11-17.)
WLMG responded that "the question actually before the Court ... is simply whether ...
well pads and gas wells, no details, categorically are projects." (Oral Arg. Tr., Nov. 20,
2017, at 8:11-13.) WLMG further attempted to explain its position, stating that "this Court

11

The Court assumes "unapproved" is a typographical error and the intended word was "approved."

22

doesn't need to get into that fine parsing. We don't need advisory opinions as to whether
storage tanks are projects because the only thing the Commission has asserted here, the
only question we need relief on is whether well pads and wells, that's it, are categorically
projects." (Oral Arg. Tr., Nov. 20, 2017, at 10:2-7.) The Court then sought to clarify
Plaintiff's position:
THE COURT: All right. So, if we say that the well pad is not a project and you
build the well pad and, then, you build a storage tank as required by PA Code
78a.57(a) and the purpose of that tank is to collect the brine and other fluids
produced during the operation of the well, the Commission has a right to
regulate that tank at that time; does it not?
MR. OVERSTREET: I would say we don't have to answer that question
because if and when the Commission makes that assertion, we'll address it.
And this Court can get into it THE COURT: How can you -- how can you ask us to split that that way? I mean,
it -- you say, only think about well pad, only, only think about well pad. But in
the -- but in the real world, there's no such thing, is there, as a well pad without
some facility to handle the waste water associated with the tracking. How can
it be the case that in looking at this question, we could ignore what it sounds
like is conceded must be a piece of any well pad project? There's got to be
some way to deal with the waste water.
MR. OVERSTREET: Because that question is not before the Court. It THE COURT: We -- we're not communicating.
MR. OVERSTREET: Yeah.
THE COURT: How can it not be before us if it's impossible for you to actually,
or anybody to actually, have a functioning well pad? Are you saying that we
should -- talk about advisory opinion, are you looking for an opinion that says,
you can build something that's of no use to anybody. Go ahead. But if you
actually want it to do something meaningful, that is, have a functioning well,
then you would be regulable.
23

MR. OVERSTREET: I think we have to deal with what the Commission has
actually asserted and what we need relief from.
(Oral Arg. Tr., Nov. 20, 2017, at 10:9--11:24.)
In an attempt to dissuade the Court from considering details of its plan, WLMG
stated "[w]e could spend a decade parsing hypotheticals." (Oral Arg. Tr., Nov. 20, 2017, at
13:14-15.) The Court then questioned whether water-related concerns raised were
hypothetical:
THE COURT 2: 12 I -- here's what I -- I don't understand about your claim it's a
hypothetical and -- and correct me if I'm misunderstanding this. It's my
understanding that under Pennsylvania law, you have to do something with the
water after the tracking occurs, correct?
MR. OVERSTREET: That's absolutely correct, Your Honor.
THE COURT 2: And -- and that something that's something that has to be done
with the water is you either have to get a discharge permit or put up storage
tanks. Your complaint, as I read it, specifically disclaimed any intent to
discharge the water. So, by process of elimination, you are now required to put
up storage tanks. Is that not correct?
MR. OVERSTREET: Well, maybe.
(Oral Arg. Tr. Nov. 20, 2017, at 14:1-18.) Later in the discussion, WLMG stated that
Judge Hardiman is exactly right. We will need to store water. We will need to
manage it somehow. It may be tanks. It may be a pipeline. It may be an
impoundment. But those are possibilities that are just not before this Court.
And -- and we don't need to get into that to get the relief that we need. I -granted, we sought broader relief in the complaint than we may get. And I -- I
understand that. People do that all the time.
12

Judge Hardiman, who participated remotely, is "Court 2." (Oral Arg. Tr., Nov. 20, 2017, at 7:24-8:1,
13:22-24.)
24

(Oral Arg. Tr., Nov. 20, 2017, at 19:9-18.)
This statement shows that WLMG agrees that the Complaint, the document which
forms the basis for determining the scope of discovery, alleges a set of activities that it
intends to perform on the site. Considered in context, the statement reinforces the Court's
conclusion that Plaintiff does not attempt to explain the dissonance between issues raised
and relief sought in the Complaint and its current posture regarding discovery. See supra p.
14.
The Oral Argument discussions, like the Circuit Court's subsequent opinion, indicate
that the Circuit Court was not persuaded by WLMG's attempts to narrowly define the issues;
rather, the Court consistently recognized the importance of knowing details about many
aspects of a proposed tracking operation. Clearly the Circuit Court considered water
consumption, waste water management, and waste water discharge integral to the
proposed activity on WLMG's property. (See, e.g., Oral Arg. Tr., Nov. 7, 2017, at 13:18-20,
Oral Arg. Tr., Nov. 20, 2017, at 10:9--11 :24.) The Court also unequivocally found that, in
identifying its proposed activities, WLMG's Complaint raised water usage issues. (See,
e.g., Oral Arg. Tr., Nov. 7, 2017, at 13:18-14:15). Further, Judge Hardiman's assessment

that "an argument can be constructed that a storage tank [which] is constructed appurtenant
to a tracking well is for the storage and utilization of water" (Oral Arg. Tr., Nov. 20, 2017, at
19:9-18), presents a clear example of the relevance of Plaintiff's specific plans to its prayer
for relief.
25

In sum, the Circuit Court's remand included, but was not limited to, the directive that
the issue of intent was to be addressed by this Court employing identified tools and other
evidence. 894 F.3d at 534. In no way did the Circuit Court circumscribe this Court's
discretion to clarify the issues to be litigated and manage discovery considered in the scope
presented by the Complaint. See, e.g., 894 F.3d at 533 n.22. The foregoing review of the
Circuit Court's opinion and concerns expressed at Oral Argument demonstrates that
Plaintiff's attempt to limit discovery to the specific tools identified by the Circuit Court related
to the drafter's intent is unavailing.
Beyond its unfounded insistence that the Circuit Court opinion renders its tracking
plans irrelevant, Plaintiff's attempt to limit discovery fails because it equates with an
assertion that Plaintiff is exempt from discovery. Aside from Circuit Court considerations,
such a proposition fails for at least three reasons.
First, the Federal Rules of Civil Procedure generally provide for a broad scope of
discovery, including the directive that information within the scope of discovery need not be
admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). WLMG appears to
misapprehend the standard for the scope of discovery in that Plaintiff lodged general
objections to DRBN's and DRN's requests, stating that
WLMG objects to responding to any discovery request that seeks information
which is not relevant to the subject matter of the pending action, which will not
be admissible or as to which testimony will not be admissible at trial, and or
which is not reasonably calculated to lead to the discovery of relevant
admissible evidence.
26

(See, e.g., Doc. 116-3 at 35, Doc. 126 at 37.) Contrary to the applicable Federal Rule of
Civil Procedure, Plaintiffs articulation of the standard limits relevance to information that will
be admissible. See Fed. R. Civ. P. 26(b)(1).
Second, Plaintiffs pleading contains specific averments about what it intends to do
and not do on the property about which it seeks a declaration as to its own proposed
development. (Doc. 1 at 9-10, 16-18.) Because the case has proceeded beyond the
motion to dismiss stage, averments contained in the Complaint no longer need to be taken
as true. Therefore, independent of anything stated in the Third Circuit opinion, Defendants
are entitled to request discovery which seeks to clarify and verify averments contained in
the Complaint. As explained by DRBC, WLMG's attempt to narrowly focus discovery is
inappropriate given the relief sought in the Complaint and WLMG's concession at oral
argument that all or portions of an overall plan can be separately evaluated to determine
whether they are projects:
At oral argument before the Third Circuit, WLMG conceded that portions of its
overall plans can be separately evaluated to determine whether they are
projects. Hr'g Tr. 8:23-24 (Nov. 7, 2017).
Discovery may show that facilities and activities planned by WLMG are
independently or collectively one or more projects. For example, it is important
to examine whether WLMG plans to install tanks designed to hold water or
wastewater, conduct activities to manage wastewater, design and operate
pipes, pumps and well casings to transport millions of gallons of water into the
shale formation and to recover wastewater from those formations, or design a
well pad to hold water or wastewater tanks and chemicals and to capture spills
of wastewater and chemicals. Depending on WLMG's plans and designs, any
or all of these activities and facilities could be a project. In addition, WLMG's
planned uses of land related to water and natural resources may comprise a
27

"project" and are proper subjects of discovery. See Compact, Section 1.2(i)
(definition of "water resources").
Likewise, it is important to learn whether WLMG plans to penetrate
underground aquifers, locate facilities or activities in floodplains or wetlands, or
make any groundwater withdrawals or discharges. DRBC has existing
regulations that require these activities to be reviewed under certain
circumstances.13
(Doc. 129 at 5-6.)
Third, the Court concludes that no determination can be made whether the well pad
intended to be built on the property is a project without inquiring into the operations that are
integral to it, and no determination can be made whether the DRBC can review and
approve, "or 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,
Wherefore Clause ~ 1) unless the Court knows with specificity what WLMG plans to do.
B.

Construction and Operation of Typical Well
WLMG maintains that, to the extent its plans are at all relevant, its supplemental

discovery responses make it clear that Plaintiff "intends to construct and operate what can
best be described as a typical unconventional gas well." (Doc. 128 at 3.) Plaintiff adds that
it cannot produce detailed tracking plans because they do not yet exist. (Id.)

13

Defendant DRBC identifies the following review authority: DRBC Rules of Practice and Procedure, 18
C.F.R. §§ 401.35(b)(2), (6), (13), and (16); Delaware River Basin Water Code,§ 2.20.6. (Doc. 129 at 6
n.5.)
28

DRBC responds that WLMG's supplemental production (see Doc. 128-1) describing
a "typical" tracking operation is "helpful but insufficient":
These documents reveal that numerous aspects of natural gas exploration and
production involve the deliberate, planned utilization of water resources.
Examples include water withdrawal, penetration of underground aquifers,
storage of water, injection of water and chemicals under pressure through pipes
designed for that purpose, consumptive use of water, recovery, management
and eventual disposal of wastewater, and related uses of land. Natural gas
wells are often tracked multiple times. To avoid later disputes, WLMG should
expressly state which of these activities and facilities are part of its plans and
what, if any, additional activities and facilities it intends to employ. Otherwise,
WLMG could spring surprises at trial simply by denying that its plans include a
particular activity or facility, or denying that the activity or facility is "typical."
In addition, WLMG's supplemental production of documents regarding
a "typical" tracking operation do not reveal site-specific ways in which its
activities and facilities may utilize or manage water resources.
(Doc. 129 at 7-8.) Defendant notes that WLMG's plans "could constitute a project for a
variety of other reasons, including, among others, utilization of site-specific water
resources." (Id. at 8 n.7.) Defendant concludes that these considerations warrant
production of site-specific information because "information on whether and how WLMG
intends to utilize site-specific water resources such as wetlands, flood plains, local aquifers
and other water resources [are] not discernable from a third-party energy company's
description of its "typical" operation. (Id. at 8-9.) The Court agrees.
Plaintiff's assertions that it "intends" or "expects" that its tracking activities will be
"typical" (Doc. 128 at 3; Doc. 128-1 at 6), without more, is not a sufficient response when
resisting the discovery sought by Defendants given the broad declaratory relief requested in
29

the Complaint and the many considerations addressed in the preceding section of this
Memorandum Opinion. Plaintiff's reliance on generic plans and operation would not allow
the Court to ascertain Plaintiff's entitlement to the relief sought.
In its Supplemental Answers to Interrogatories, WLMG points to a video produced by
Range Resources, a natural gas company, for information about a typical Marcellus Shale
well pad and states "[a]t this time, WLMG has no reason to believe that its well will be drilled
and completed in an atypical manner." 14 (Doc. 128-1 at 6.) The explanatory video states
that there are "several wells from a single site typically three to five acres in size." (You
Tube video at 1:05-1 :12.) By way of example of what a "typical" well pad could mean
applied to Plaintiff's property, the Court would have to consider the total number of wells
which could be drilled on Plaintiff's 75 acres within the Basin (see Doc. 11f 12). Seen from
another perspective, to answer the Circuit Court's question of "how an activity using five
million gallons of water compares with the quantity of water used to perform other activities
that few if any people would say the Commission was intended to control," 894 F.3d at 530,
this Court would have to consider the multiplier effect of numerous wells on the property.
Similarly, WLMG's supplemental response provides information about what it does
not propose to do and what other sources involved in the tracking process related to its
property will do or not do in broad terms. (Doc. 128-1 at 6-7.) If WLMG does not have the

14 See

https://www.youtube.com/watch?v=COoAmnyVcl8&feature=youtube.

30

requested information and cannot definitively say what its tracking activity will entail with
sufficient specificity to provide a basis for assessment of relevant issues, WLMG opens the
door to the Court needing to make broad assumptions to resolve this case, relying on
industry standards and practices with an expansive view of what constitutes a tracking
operation. In other words, the Court cannot declare that the Commission "does not have
jurisdiction over, or the authority to review and approve, or to require WLMG to seek prior
approval from the Commission 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, Wherefore Clause ~ 1) unless the Court knows what activities will
be carried out on the property and how they will be carried out or assumes that any and/or

all possible activities/methodologies will be involved in Plaintiffs plans for its property.
With the scope of the litigation determined to the extent necessary to decide the
pending motions, the Court finds that, with the exceptions identified below, Defendants have
shown the relevance of the discovery sought. Further, based on the Court's rejection of
Plaintiffs general assertions that its tracking plans are not relevant to this litigation and the
deficiencies discussed regarding WLMG's typicality and broad-brush averments, the Court
finds that Plaintiff has not established a lack of relevance by "demonstrating that the
requested discovery (1) does not come within the broad scope of relevance as defined
under Fed. R. Civ. P. 26(b) (1), or (2) is of such marginal relevance that the potential harm
occasioned by discovery would outweigh the ordinary presumption in favor of broad
31

disclosure." Stockton, 2018 WL 3453461, at *2. The Court will now review Defendants'
specific discovery requests in the context of the foregoing findings.
C.

DRBC's Requested Discovery

1.

Discovery Related to Site-Specific Plans

With Interrogatories 1 through 6 and Requests for Production of Documents ("RFPs")
1 through 8 and 21, DRBC seeks information about WLMG's plans for the property located
within the Basin. In general, the information sought with these Interrogatories and RFPs is
discoverable to the extent it falls within the scope of relevancy discussed above and Plaintiff
does not establish that information is withheld on an acceptable basis under the Federal
Rules of Civil Procedure.
Plaintiff does not claim privilege regarding Interrogatories 1 through 6 and RFPs 1
through 5, 7, 8, and 21. The Court finds that all information sought with these
Interrogatories and RFPs is relevant within the parameters discussed above. Therefore,
DRBC's motion is granted as to these Interrogatories and RFPs and Plaintiff is directed to
fully answer the Interrogatories and produce the documents requested.
RFP 6 requests the following:
Any and all documents describing the activities comprising your Fracking
Plans, including without limitation your plans to drill an exploratory well, drill
one or more lateral wells and to perform hydraulic fracturing as alleged in
paragraph 24 of the Complaint and plans to "proceed in phases" as alleged in
paragraph 22 of the Complaint.

32

(Doc. 116-3 at 27 .) In addition to its general objection, Plaintiff's response to this RFP
includes the following statement: "WLMG objects to this request to the extent that it seeks
information which is protected by the attorney-client privilege or work-product doctrine."
(Doc.128-1 at22.)
Plaintiff does not state whether it has withheld information on a basis asserted. If
WLMG has withheld information based on either the attorney-client privilege or workproduct doctrine, it must comply with Federal Rule of Civil Procedure 26(b)(5)(A) which
provides the following:
(5) Claiming Privilege or Protecting Trial-Preparation Materials.

(A) Information Withheld. When a party withholds information otherwise
discoverable by claiming that the information is privileged or subject to
protection as trial-preparation material, the party must:

(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible
things not produced or disclosed--and do so in a manner that, without
revealing information itself privileged or protected, will enable other
parties to assess the claim.
Fed. R. Civ. P. 26(b)(5)(A).
Because the Court concludes DRBC is entitled to the production sought with this
RFP to the extent the discovery sought is nonprivileged and Plaintiff has not provided any
basis to withhold information sought, DRBC's motion is granted as to this RFP and Plaintiff
is directed to produce the documents requested. If documents are withheld on a recognized
basis, Plaintiff must comply with Federal Rule of Civil Procedure 26(b)(5)(A).
33

2.

Specification of Relief Sought
With Interrogatory 7, DRBC seeks clarification of the relief sought. (Doc. 116-3 at

13.) Plaintiff objects to the request with a reference to attorney-client privilege and workproduct product doctrine as well as asserting its entitlement to pleading alternative forms of
relief. (Doc. 128 at 10; Doc. 128-1 at 10.) The Court concludes DRBC's motion is properly
granted as to this Interrogatory.
Interrogatory 7 specifically asks the following:
Is the relief that you are seeking in the above-captioned case limited to a
declaration that your Fracking Plans do not constitute one or more "projects"
and therefore the Commission lacks jurisdiction under Section 3.8 of the
Compact over your Fracking Plans? Unless your answer to this interrogatory is
an unqualified affirmative, a. state what additional or other relief you are
seeking, and b. state the basis on which you contend you are entitled to such
relief.
(Doc. 116-3at13.) In its Supplemental Answers, WLMG responded as follows:
Objection. WLMG objects to this interrogatory to the extent that it seeks
information which is protected by the attorney-client privilege or work-product
doctrine. Subject to the foregoing objections, and without waiving them, WLMG
seeks relief within the scope of its complaint in this matter. The basis on which
WLMG contends that it is entitled to such relief has been set forth in WLMG's
prior briefs submitted to the Court and Third Circuit. By way of further answer,
see Wayne Land & Mineral Group, LLC v. Del. River Basin Commission, 894
F.3d 509 (3d Cir. 2018).
(Doc. 128-1 at 10.)
In its brief opposing the pending motion, Plaintiff maintains that "[t]here is no basis in the rules of procedure or in precedent - for a suggestion that, during discovery, a party
must affirmatively abandon one or more alternative requests for relief. Until the merits of this
34

case are joined, WLMG is entitled to develop and explore the viability of such alternative
forms of relief as may be appropriate under the circumstances." (Doc. 128 at 10.)
DRBC justifies its interrogatory with the assertion that Plaintiffs prayer for relief, on
its face, requests a declaration that "is not limited to 'project' review jurisdiction under
Section 3.8 and would encompass, among other things, a challenge to draft natural gas
regulations." (Doc. 129 at 10.) DRBC compares this with Plaintiffs characterization of its
claim at the motion to dismiss stage and before the Third Circuit:
in responding to DRBC's Motion to Dismiss in this case, WLMG characterized
its claim as only challenging whether its activities are a "project," not whether
they are otherwise subject to regulation under provisions of the Compact that
do not use the term "project." Plaintiffs Brief in Opposition to Defendant's
Motion to Dismiss, at 35 (Doc. 22). And similarly, before the Third Circuit,
WLMG sought only a ruling that its planned well pad and well are not "projects."
(Doc. 129 at 10.) Citing Wayne Land and Mineral Grp. v. Del. Riv. Basin Comm'n, 894 F.3d
509, 530 n.17 (3d Cir. 2018), DRBC avers that the request to the Circuit Court "not only
disavowed and deferred a challenge to DRBC's regulatory authority, it inexplicably
attempted to limit the activities and facilities at issue to just the natural gas well pad and
well." (Doc. 129at10 (citing Brief for Appellant at 14 (June 19, 2017)).) DRBC also notes
that, during oral argument, Judge Jordan commented that "a well pad and well with nothing
more would be 'of no use to anybody."' (Doc. 129at10-11 (quoting Oral Arg. Tr., Nov. 20,
2017, at 11:17-18).) Finally, DRBC states that the averments of the Complaint do not
support the broad scope of relief requested in the prayer for relief in the Complaint. (Doc.
129 at 11.) DRBC then explains why Plaintiffs answer to the interrogatory was inadequate:
35

In response to DRBC's interrogatory seeking to clarify the relief sought, WLMG
gave an unintelligible answer by referencing all of the conflicting statements it
has made. Motion, Ex. 3 at 8-9. In its brief in response to the Motion, it does
not purport to defend that answer, but rather states that it is entitled to pursue
alternative forms of relief. WLMG Br. at 10. This response is beside the point.
The interrogatory seeks clarification of what relief is sought, be it in the
alternative or not. The scope of discovery, and the need for dispositive motions,
depend on this clarification.
(Doc. 129 at 11.)
As discussed above, Plaintiff's prayer for relief is broad and Plaintiff has regularly
attempted to narrow the scope of that relief without seeking to amend its Complaint. As
became apparent in considering the proper scope of discovery, WLMG's framing of the
issue or issues in this case has not been clear or consistent. From the averments and
prayer for relief found in the Complaint, WLMG clearly challenges the Commission's Section
3.8 jurisdiction based on its assertion that its proposed well pad is not a "project" as the term
is defined in the Compact. (See Doc. 1 ml 46-50, Wherefore

Clause~

1.) However, the

Court cannot discern from the Complaint itself, Oral Argument testimony, and/or Plaintiff's
current filings what forms the basis for WLMG's averment that "[t]he Commission otherwise
lacks authority to require WLMG to submit for its review, and to obtain its prior approval for,
the proposed Well Pad." (Doc. 1 ~ 51 (emphasis added).) Similarly, with its prayer for relief,
WLMG seeks an all-encompassing declaration that its plans are off-limits for the
Commission without providing a foundation for the request beyond its Section 3.8
averments.

36

As our Circuit Court has noted, clarity is undermined by a "kitchen-sink" or "shotgun"
approach to pleading. Washington v. Warden SCI-Greene, 606 F.App'x 49, 51 (3d Cir.
2015); Greene v. Virgin Islands Water &Power Authority, 557 F. App'x 189, 191 (3d Cir.
2014). The Circuit Court has also advised that a "[a] District Court enjoys substantial
discretion in managing complex disputes, particularly when . . . the claims become
unwieldy". OF/ Asset Management v. Cooper Tire & Rubber, 843 F.3d 481, 491 (3d Cir.
2016) (citing In re Westinghouse Sec. Litig., 90 F.3d 696, 703 (3d Cir. 1996)).
Here Plaintiff's "otherwise" averment and broad prayer for relief equate with the
discouraged "kitchen sink" or "shotgun" pleading style. Certainly, the "otherwise" aspect of
Plaintiff's averment and prayer for relief present an undefined and potentially unwieldy
claim. While the Court has been able to ascertain the starting point for relevance in
determining the appropriate scope of discovery for purposes of the pending motions, its
outer bounds are far from clear on the current record. Without the clarification sought by
DRBC, the scope of discovery implicated by Plaintiff's averment that "[t]he Commission
otherwise lacks authority to require WLMG to submit for its review, and to obtain its prior
approval for, the proposed Well Pad" (Doc.

1~51)

and the Wherefore Clause may well

impede the orderly progress of this litigation. Because DRBC is asking WLMG to clarify
rather than limit the relief sought, for the reasons discussed above, DRBC's motion is
properly granted as to this Interrogatory and Plaintiff is directed to fully answer it.

37

Further, Plaintiff's reference to privilege and work-product does not provide a basis
to limit the discovery sought for the reasons discussed regarding RFP 6 above. Should
Plaintiff withhold information on a recognized basis, Plaintiff must comply with Federal Rule
of Civil Procedure 26(b)(5)(A).
3.

Identification of Witnesses

DRBC asserts that Interrogatories 8 and 9, and RFPs 18 and 19 "are designed to
identify witnesses with knowledge of WLMG's plans." (Doc. 117 at 20.) WLMG asserts that
DRBC has not carried its burden of showing that the requested information is relevant. For
the reasons discussed below, the Court concludes DRBC's motion is properly granted as to
these Interrogatories and RFPs.
Plaintiff argues that DRBC
attempts to justify its miscellaneous requests by suggesting it needs to look
behind the ownership of WLMG in order to develop a better understanding of
WLMG's "tracking plans." The problem with this suggestion is that it proceeds
from the false premise that it is entitled to take additional discovery regarding
WLMG's tracking plans. This premise is refuted above. In addition, even if
information about WLMG's tracking plans is relevant, the Commission does not
explain how having information about the ownership of WLMG and related
issues will provide a better understanding of those plans. More fundamentally,
however, the Commission does not even attempt to connect its discovery
requests with open factual issues identified by the Third Circuit.
(Doc. 117 at 21 ). DRBC responds as follows:
WLMG asserts that identifying such individuals will not provide a better
understanding of its plans, WLMG Br. at 9, even though WLMG may very well
call them to testify at trial. Surely DRBC is entitled to explore that assertion by
deposing those individuals who prepared or have direct knowledge of WLMG's
plans before they are called to the witness stand. WLMG's concealment of the
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identities of its principals also prevents DRBC from exploring whether they were
executives or members of the Northern Wayne Property Owners Alliance
("NWPOA") at the time NWPOA resolved its administrative appeal of the
Executive Director's 2010 determinations. DRBC interposed an affirmative
defense that as a result of its Resolution and Order terminating the appeal with
the consent of NWPOA, members of NWPOA agreed to raise any challenges
to DRBC's jurisdiction over natural gas development projects in the context of
an application, or at least a request for a jurisdictional determination. DRBC is
entitled to obtain facts from WLMG supportive of this defense.
(Doc. 129 at 9.)
WLMG's attempt to undermine the relevance of individuals involved in the plans for
the subject property is unavailing because the Court has rejected the arguments'
foundational bases. First, it is not a "false premise" that DRBC is entitled to take additional
discovery regarding WLMG's tracking plans in that the Court has specifically found
otherwise in rejecting WLMG's attempts to limit discovery. Second, WLMG's assertion that
the fundamental problem with the discovery requests is that DRBC does not connect them
''with open factual issues identified by the Third Circuit" is unfounded because, as
recognized by the Circuit, nothing in the opinion "should be interpreted on remand as
limiting the broad language of the complaint-which defines the dispute before the Courtor the District Court's discretion to manage the process of presenting and deciding any
narrower questions which may prove particularly important to bringing this case to a final
resolution," 809 F.3d at 533 n.22.
For the reasons identified by DRBC, the requested information relates to matters
relevant to WLMG's claims or DRBC's defenses. Defendants are entitled to verify, clarify,
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and explore averments made in the Complaint which include plans for the tracking-related
activities on the property, from the intent of the purchasers (Doc. 1 ~ 21) to the intended
phased development going forward

(id.~~

22-31). DRBC's Seventh Defense directly

relates to individuals involved in both WLMG and Northern Wayne Property Owners
Alliance, LLC. (See Doc. 105 at 20-21.) Therefore, the identity of these individuals and
related documents are relevant to matters before the Court and WLMG is directed to fully
respond to the requested discovery.

4.

Location of Property
Interrogatory 10 asks the following: "With respect to paragraph 13 of the Complaint,

state the basis for your belief, if any, that the Property overlays natural gas reserves in shale
formations that would be economically profitable to extract." (Doc. 116-3at16.) Paragraph
13 of the Complaint states that "[t]he Property is located in a part of the Basin that overlays
natural gas reserves in shale formations." Because Plaintiff's averment does not relate to
the economic profitability of the gas reserves, the interrogatory as posed is not relevant to
the paragraph to which DRBC states it is related. Therefore, DRBC's motion is denied as to
Interrogatory 10.

5.

Withholding of Information
DRBC asserts that responses to RFPs 11, 13-15, 17, and 20 are confusing and

incomplete.
WLMG in each instance interposed objections and then stated it "will produce
non-privileged documents currently in its possession that are responsive to this
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request and that relate to the claims and defenses in this case." Because
WLMG improperly organized its document production without reference to the
specific requests, it is unclear whether documents are responsive to one or
more of these requests. But more importantly, WLMG does not disclose
whether it has withheld any non-privileged documents responsive to these
requests as Fed. R. Civ. P. 34(b)(2)(C) expressly requires. DRBC requests that
the Court order WLMG to so state, and to produce any non-privileged
documents withheld.
(Doc. 117 at 24.) As stated originally (Doc. 116-3 at 58-61) and in its supplemental
responses to RFPs 11, 13-15, and 17, WLMG asserts that "WLMG objects to this request to
the extent that it seeks information which is protected by the attorney-client privilege or
work-product doctrine" (Doc. 128-1 at 24-28). However, in its supplemental responses,
rather than stating that it "will produce non-privileged documents" as it did originally with
regard to RFPs 11, 13-15, 17, and 20 (Doc.116-3 at 58-62, 64 (emphasis added)), WLMG
states that "WLMG has produced all non-privileged documents currently in its possession
that are responsive to this request and that relate to the claims and defenses in this case"
(Doc. 128-1 at 25-30 (emphasis added)).
As to each of these RFPs, WLMG is directed to adhere to the Federal Rules
regarding the withholding of privileged documents and provide clarifying responses which
are to include the information required pursuant to Federal Rule of Civil Procedure
26(b)(5)(A).
D.

DRN's Requested Discovery

As set out above, ORN seeks an order compelling Plaintiff to produce documents in
response to DRN's First Request for Production of Documents 1 through 11 and DRN's
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First Set of Interrogatories to Plaintiff 2 and 3. (Doc. 126 at 4-5.) ORN states that Plaintiff
denied requests which specifically sought information concerning Plaintiff's "plans to
construct and track a natural gas well, individuals who had knowledge of such plans, and
any information that WLMG had gathered concerning how their proposed activities and
facilities could affect the water resources and other natural resources on the Property."
(Doc. 127 at 3-4.)
Interrogatories 2 and 3 seek discovery related to site-specific plans. For the reasons
discussed above, see supra pp. 31-33, ORN is entitled to the information sought. Further,
because WLMG states in response to these Interrogatories that it "objects to this discovery
request to the extent that it seeks information which is protected by the attorney-client
privilege or work-product doctrine" (Doc. 128-1 at 37-38), WLMG is again directed to follow
the Federal Rules of Civil Procedure regarding the withholding of information on the basis of
privilege or work-product.
For reasons similar to those discussed in relation to DRBC's motion, DRN's motion
regarding RFPs 1-3 and 5-11 is properly granted. The motion will be denied as to RFP 4
because the Court concludes that DRN's request for "[a]ll documents that refer or relate to
the existing features of the Property" (Doc. 126 at 21) is overly broad.
V.

CONCLUSION

For the reasons discussed above, Delaware River Basin Commission's Motion to
Compel Discovery Responses from Wayne Land and Mineral Group, LLC and to Extend the
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Fact Discovery Deadline (Doc. 116)will be GRANTED IN PART and DENIED IN PART and
Delaware Riverkeeper Network and Maya K. Van Rossum, the Delaware Riverkeeper's
Motion to Compel Discovery from Wayne Land and Mineral Group, LLC (Doc. 126) will be
GRANTED IN PART and DENIED IN PART. Delaware River Basin Commission's Motion to
Compel Discovery Responses from Wayne Land and Mineral Group, LLC and to Extend the
Fact Discovery Deadline (Doc. 116) is DENIED as to Interrogatory 10, and GRANTED as to
lnterrogatories1-9 and RFPs 1-8, 11, 13-15, and 17-21. Delaware Riverkeeper Network
and Maya K. Van Rossum, the Delaware Riverkeeper's Motion to Compel Discovery from
Wayne Land and Mineral Group, LLC (Doc. 126) is DENIED as to RFP 4 and GRANTED as
to Interrogatories 2 and 3 and RFPs 1-3 and 5-11. An appropriate Order will be filed
simultaneously with this Memorandum Opinion.

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