SENECA RESOURCES CORPORATION v. HIGHLAND TOWNSHIP, ELK COUNTY, PENNSYLVANIA et al

Filing 40

MEMORANDUM OPINION re 34 MOTION to Intervene filed by Highland Township Municipal Authority. An appropriate Order follows. Signed by Magistrate Judge Susan Paradise Baxter on 9/20/17. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SENECA RESOURCES
CORPORATION,

)
)
)
)
)
)
)

Plaintiff
v.
HIGHLAND TOWNSHIP, et al.,
Defendants.

C.A. No. 16-cv-289 Erie

Magistrate Judge Susan Baxter

MEMORANDUM OPINION1
On Municipal Authority’s Motion to Intervene

Introduction
Plaintiff Seneca Resources Corporation (“Seneca Resources”) brought this action to
challenge the constitutionality, enforceability, and validity of the Home Rule Charter (the
“Charter”) in Highland Township. Named as Defendants to this action are: Highland Township
and the Township’s Board of Supervisors.
Pending before the Court is a motion to intervene filed by Proposed Intervenor, the
Highland Township Municipal Authority (“Municipal Authority”). ECF No. 34. For the
following reasons, the Municipal Authority’s motion to intervene will be denied.

Relevant Procedural History
Seneca Resources, a corporation engaged in oil and gas exploration and production,
initiated this action on November 30, 2016, challenging the Home Rule Charter2 which bans
1

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a United States Magistrate Judge conduct proceedings in this case, including
the entry of a final judgment.
1

Seneca Resources’ ability to create and operate an injection well within the Township. ECF No.
1, page 1. Seneca Resources has requested that the Court strike the entire Home Rule Charter and
temporarily and permanently enjoin Highland Township and the Board of Supervisors (the
“Board”) from enforcing the Charter. Id.
The Municipal Authority seeks to intervene, pursuant to Fed.R.Civ.P. Rule24(a), and
alternatively, Fed.R.Civ.P. 24(b), in order to defend the Charter and bring counterclaims3 against
Seneca Resources. Both Plaintiff and Defendants oppose this motion to intervene.

Intervention under Federal Rule 24
Rule 24 provides for intervention as a matter of right and permissive intervention.
Fed.R.Civ.P.24 (a) and (b).4 To qualify for intervention as a matter of right under Rule 24(a)(2),
four requirements must be met: 1) the application must be timely, 2) the applicant must have
sufficient interest in the lawsuit, 3) the interest must be affected or impaired by the disposition of
the lawsuit, and 4) the interest must not be adequately represented by an existing party. United
States v. Territory of the Virgin Islands, 748 F.3d 514, 519 (3d Cir. 2014). Additionally, it is
2

Seneca alleges that the Home Rule Charter is preempted by the federal Safe Drinking Water
Act and the state Oil and Gas Act, is an impermissible exercise of police power and legislative
authority, and is violative of the Supremacy Clause, the First Amendment, and both substantive
and procedural due process.
In its proposed counterclaims, the Municipal Authority alleges that “through its underlying
action, Seneca seeks to invalidate the Charter” thereby violating the people’s “right of local
community self-government,” “right to clean air, water, and soil,” “right to public control of
municipal water supplies,” and rights under Pennsylvania’s Environmental Rights Amendment.
3

4

The Proposed Intervenors opine that the Home Rule Charter recognizes their rights to intervene
and to enforce the Charter. Such an opinion does not make Rule 24(a)(1) available to the
Proposed Intervenors here as that provision applies only where there is “an unconditional right to
intervene” granted “by federal statute.” Id. The Home Rule Charter is not the equivalent of a
federal statute and therefore intervention as of right under Rule 24(a)(1) need not be considered
by this Court.
2

required that each of the four elements be met separately to intervene as of right. Id. It is the
burden of the party seeking intervention to satisfy all four requirements. Liberty Mut. Ins. Co. v.
Treesdale, Inc., 419 F.3d 216, 220 (3d Cir. 2005).
In contrast, permissive intervention relies upon the discretion of the Court when an
applicant “has a claim or defense that shares with the main action a common question of law or
fact.” Fed.R.Civ.P. 24(b)(1)(B). Important considerations for the Court in making this
determination are whether intervention would prejudice a party by delay or otherwise, and
whether intervention is necessary to protect rights that are not identical to an existing party.
Virgin Islands, 748 F.3d at 524. “The court may consider the same facts and circumstances used
to determine whether intervention was appropriate under Rule 24(a) to determine whether the
court should use its discretion to permit intervention under Rule 24(b). Community Vocational
Schools of Pittsburgh, Inc. v. Mildon Bus Lines, Inc., 2017 WL 1376298, at *8 (W.D. Pa. Apr.
17, 2017) (internal citations omitted).

The Previous Litigation
This case and the current motion closely track a previous action involving Seneca
Resources and the Defendants. See Seneca Resources Corp. v. Highland Township, C.A. No.
1:15-cv-00060. There, the Municipal Authority, along with two other proposed intervenors,
attempted to intervene in an effort to defend the Township’s Community Bill of Rights
Ordinance (the “Ordinance”). Unlike the Home Rule Charter at issue in the present case, the
disputed Ordinance was passed by the former Board of Supervisors in 2013-2014. The
Ordinance prohibited the operation of underground injection control wells to dispose of waste
water from oil and gas extraction within the Township.
3

This Court denied the motion to intervene on the grounds that the proposed intervenors
failed to provide clear and convincing evidence to show that the Township and Board did not
adequately represent their interests. Later, the Board of Supervisors rescinded the Community
Bill of Rights Ordinance and reached a settlement that resulted in the entry of a Stipulation and
Consent Decree (“Consent Decree”). The Consent Decree entered into between Seneca
Resources and Highland Township and its Board of Supervisors specifically provided that
portions of the Community Bill of Rights Ordinance were unconstitutional, unenforceable and
invalid. Seneca Resources Corp. v. Highland Township, C.A. No. 1:15-cv-00060: ECF No. 82.
In response, the proposed intervenors appealed the denial of the motion to intervene, the
adoption of the Consent Decree, as well as motions for reconsideration of each. The Court of
Appeals for the Third Circuit held: 1) the motion to intervene to defend the Ordinance was
rendered moot by the Ordinance’s repeal; 2) district court did not abuse its discretion in denying
the proposed intervenors’ motion to reconsider the order denying their motion to intervene to
challenge the consent decree; and 3) the proposed intervenors lacked standing to challenge the
consent decree. Seneca Resources Corp. v. Township of Highland, 863 F.3d 245 (3d Cir. Jul.17,
2017).
On November 8, 2016, by popular vote, the citizens of Highland Township, adopted the
challenged Home Rule Charter pursuant to Pennsylvania’s Home Rule Charter and Optional
Plans Law, 53 Pa. C.S.A. §290. ECF No. 1-1, page 3. The Charter functions as a local
constitution and promises to guarantee and protect a range of rights, including “community and
ecosystem rights above the claimed rights of corporations and to prohibit frack wastewater
injection wells.” ECF No. 34-1, page 1. Additionally, the Home Rule Charter purports to provide

4

the right to self-government in the local community free from interference by the state or federal
government. ECF No. 1-1, page 5.

The Parties and the Proposed Intervenor
It is essential to understand the structure and powers of the Proposed Intervenor the
Municipal Authority as they relate to those of the Defendant Board of Supervisors. The Board of
Supervisors consists of three representatives elected by the citizens of Highland Township and
acts as the governing body of the Home Rule municipality. ECF No. 1-1, page 3. As stated in the
Defendants’ Answer, the Board had no part in the adoption of the Home Rule Charter nor does it
have the authority to repeal or amend the Charter. ECF No. 15, pages 2-3. Further, the Board
acknowledged arguing against the initial adoption of the Home Rule Charter and acknowledges
that several portions “appear to be void and unenforceable under current state or federal law.”
Id.5 Further, the Board admits to a significant portion of the allegations but further maintains that
the Board of Supervisors has no applicable authority to authorize any changes to the Home Rule
Charter. Id. Only the Township’s citizens have authority to make changes to the Charter.
Proposed Intervenor, the Municipal Authority, is a Pennsylvania municipal authority
formed by and operating under the Pennsylvania Municipal Authorities Act, 53 Pa. Cons. Stat.
§5601 and is classified as a quasi-governmental body. ECF No. 34-1, pages 11, 20. It is a
5

In their Answer, Defendants admitted: the [Charter] was the result of a referendum on a ballot
measure placed before the electorate of Highland Township pursuant to 53 Pa. C.S.A. §2901, et
seq.; the ballot measure was adopted, and a Government Study Commission (the “Commission”)
was formed by individuals selected by ballot in May 2016; that Commission, which was advised
by the Community Environmental Legal Defense Fund (“CELDF”) – the same group responsible
for drafting the [Charter], returned with a recommendation that Highland Township be changed
from a Township of the Second-Class to a Home Rule form of government, and that the
[Charter] be adopted; and that question was placed on the November 2016 general election
ballot, and was adopted by a majority of the voters in Highland Township.
Id.
5

separate entity of the local government, within Highland Township, and is an independent
agency of the Commonwealth. Under the Pennsylvania Municipal Authorities Act, municipal
authorities generally have the purpose of “acquiring, holding, constructing, financing, improving,
maintaining and operating, owning or leasing, either in the capacity of lessor or lessee, projects”
including “waterworks, water supply works, [and] water distribution systems.” 53 Pa. Cons. Stat.
§5607(a). Although the Board of Supervisors is allowed to appoint members to the Municipal
Authority, the Municipal Authority argues that its mission is separate from the Board and argues
that its functions are mandated by the public: “the public approves of the Municipal Authority’s
operations…[and entrusts it] to care for the Crystal Spring, and to administer distribution of its
water to the people of James City.” ECF No. 34, page 15. The Municipal Authority provides
water to approximately 120 customers in James City, located within Highland Township. Id.
However, unlike the Board which services the entirety of the Township, the Municipal Authority
only services customers located in James City.

Standing
At a Case Management Conference held February 17, 2017, this Court specifically
instructed the proposed intervenors to supplement the briefing to address standing and
jurisdiction. The proposed Intervenors have ignored this Court’s specific instruction to their own
peril.
Until recently, the Circuit Courts of Appeal were divided on whether an intervenor of
right must meet the requirements of Article III standing, with the Third Circuit following the
majority of its sister courts holding in the negative. King v. Governor of State of New Jersey,
767 F.3d 216, 245-46 (3d Cir. 2014) (explaining split of authority, compiling cases, and holding
6

that intervenors “need not demonstrate Article III standing in order to intervene”). In June, the
Supreme Court resolved this split of authority by adopting the minority view and requiring a
litigant to possess Article III standing in order to intervene as of right under Rule 24(a)(2). Town
of Chester, New York v. Laroe Estates, Inc., ___ U.S. ___, 137 S.Ct. 1645 (June 5, 2017).
Because the briefs in this case were filed before the Supreme Court decision in Town of Chester,
the parties have not fully addressed the standing issue.6
Because standing is a question of subject matter jurisdiction, if the proposed intervenors
do not have standing, the Court does not have jurisdiction and accordingly a motion to intervene
fails. See Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007) (“standing is a
jurisdictional matter.”); Public Interest Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc.,
123 F.3d 111, 117 (3d Cir.1997) (Article III standing is a “threshold jurisdictional requirement”
for any case in federal court).
Standing “is a doctrine rooted in the traditional understanding of case or controversy. The
doctrine developed in our case law to ensure that federal courts do not exceed their authority.”
Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547 (2016) quoting Raines v. Byrd, 521
U.S. 811, 818 (1997). A prospective intervenor has standing when it has:
1) suffered an “injury in fact;”
2) that is fairly traceable to the challenged action of the [opposing
party]…; and
3) that is likely to be redressed by a favorable judicial decision.

6

Unfortunately, none of the litigants have supplemented their filings since the Town of Chester
decision.
7

Id. quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The party invoking
federal jurisdiction bears the burden of establishing all of the elements of Article III standing.
Spokeo, 136 S.Ct. at 1547.
In the majority of standing inquiries, the question focuses on the plaintiff and “whether
the person whose standing is challenged is a proper party to request an adjudication of a
particular issue…the emphasis in standing problems is on whether the party invoking federal
court jurisdiction has ‘a personal stake in the outcome of the controversy,’” and whether the
dispute touches upon “‘the legal relations of parties having adverse legal interests.’” Flast v.
Cohen, 392 U.S. 83, 99-101 (1968) quoting Baker v. Carr, 369 U.S. 1986, 204 (1962) and Aetna
Life Insurance Co. v. Haworth, 300 U.S. 27, 240 (1937). However, the requirement that the
defendant have standing is relevant, especially in public interest matters.7 See Wittman v.
Personhuballah, ___ U.S. ___, 136 S.Ct. 1732 (May 23, 2016) (Article III standing required for
proposed defendant intervenor to appeal); Hollingsworth v. Perry, ___ U.S. ___, 133 S. Ct. 2652,
2655 (2013)(“Although most standing cases consider whether a plaintiff has satisfied the
requirement when filing suit, Article III demands that an ‘actual controversy’ persist throughout
all stages of litigation.”); McConnell v. FEC, 540 U.S. 93, 233 (2003) overruled on other
grounds by Citizens United v. FEC, 558 U.S. 310 (2010); Diamond v. Charles, 476 U.S. 54, 68
(1986) (holding that an intervenor-defendant-appellant could not maintain a suit on his own for
lack of standing: “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 Article III.”).

7

Matthew I. Hall, Standing of Intervenor-Defendants in Public Law Litigation, 80 Fordham L.
Rev. 1539 (2012).
8

While the question of standing in relation to a defendant is relatively uncommon, it
appears that the question most commonly occurs in cases such as Hollingsworth and the present
case before the Court – when the original defendant declines or refuses to defend a challenged
law and a certain interested party wishes to intervene on behalf of the defendant. Here, the
Township and Board have admitted to the majority of the allegations raised by Seneca
Resources, including various allegations that numerous sections of the Charter are
unconstitutional, invalid and unenforceable. ECF No. 15, pages 1-3. Further, the Township and
Board contend that neither had a say in the adoption of the disputed Charter. Id. These original
named Defendants do not show any interest in defending the Charter or continuing forward with
the case against them. This unwillingness to defend the litigation and seek the enforcement of the
Home Rule Charter is readily apparent.8

In Defendants’ Answer and New Matter, Defendants “…acknowledge that §109-110, 401 and
404-11 of the [Charter] are invalid and unenforceable…and that §501 of the [Charter] is
unconstitutional,” and by the Defendants’ affirmative defenses, claiming that both Defendants
are improper and, as such, are not properly subject to suit. ECF No. 15, pages 15-16.
Additionally, in Defendants’ Response and Opposition to Plaintiff’s Motion for Judgment on
the Pleadings, Defendants concede that they
“are constrained to acknowledge that § § 109-110, 401, and 404-411 of the Home Rule
Charter are invalid and unenforceable as an impermissible exercise of The Township’s
legislative authority and or police powers; that § 501 of the Home Rule Charter is
unconstitutional; and that § § 103-106 of the Home Rule Charter are unconstitutional,
invalid, and unenforceable because they are inextricably intertwined with § § 109-110,
401, 404-400, and 501 of the Home Rule Charter. The Defendants further agree that
Seneca Resources Corporation is entitled to relief that is declaratory in nature and with
specific regard to those portions of the Home Rule Charter (identified above) that are
properly subject to invalidation on the basis of (where appropriate) preemption by state or
federal law; and improper exercise of municipal policy or legislative authority or
unconstitutional.”
ECF No. 32, pages 6-7. See also Transcript , February 17, 2017.
8

9

A “generalized grievance, no matter how sincere, is insufficient to confer standing.”
Hollingsworth, 133 S.Ct. at 2662. In order to demonstrate a sufficient injury-in-fact9 to support
standing, a litigant must “claim ‘the invasion of a concrete and particularized legally protected
interest’ resulting in harm ‘that is actual or imminent, not conjectural or hypothetical.’” Prince v.
U.S. Government, ___ F.App’x ___, 2017 WL 3867814, at *1 (3d Cir. Sept.5, 2017) quoting
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 278 (3d Cir. 2014). Concreteness and
particularity are separate requirements. Spokeo, 136 S.Ct. at 1548. (“Concreteness, therefore, is
quite different from particularization.”). For an injury to be particular, “it must affect the
[litigant] in a personal and individual way.” Id. Meanwhile, a concrete injury “must be ‘de facto’;
that is it must actually exist.” Id. citing Black’s Law Dictionary 479 (9th ed. 2009).
Where, as here, the alleged injury is heightened risk of future harm, the allegations must
“entail a degree of risk sufficient to meet the concreteness requirement.” Kamal v. J. Crew Grp.,
Inc., 2016 WL 6133827, at *2 (D.N.J. Oct. 20, 2016) quoting Spokeo, 136 S. Ct. at 1550 and
citing Clapper v. Amnesty Int'l USA, ___ U.S. ___, 133 S. Ct. 1138 (2013). See also Alfa
International Seafood v. Ross, ___ F.R.D. ___, 2017 WL 1377914, at *2 (D.C.D.C. April 17,
2017) (“[W]here standing is premised on future injury, the party must demonstrate a realistic
danger of sustaining a direct injury.”). In its brief in support of its motion to intervene, the
Municipal Authority contends that allowing Seneca Resources to operate an UIC well and
dispose of waste water in the area close to Crystal Spring “threatens [the] water quality and
existence of Crystal Spring….” ECF No. 34-1, page 13 (italics added). Further, the Municipal
Authority argues that “Seneca’s proposed injection well threatens the very purpose for which the

9

The injury-in-fact inquiry is often determinative. See Toll Bros., Inc. v. Twp. of Readington,
555 F.3d 131, 138 (3d Cir. 2009).
10

Authority exists.” Id. (italics added). The alleged injuries are merely speculative and no facts
have been offered as to how the Plaintiff’s actions cause concrete and particularized injury to the
Municipal Authority.
In its separate brief in support of jurisdiction, the Municipal Authority only summarizes
its interest broadly: it is the water provider for 120 homes and businesses using Crystal Spring as
its water source and that “[t]his water supply is threatened by Seneca’s proposed injection well,
which the Charter prohibits.” ECF No. 35, page 12 (italics added). Despite this Court’s express
instruction to brief the issue of standing, this proposed intervenor has not specifically addressed
the injury-in-fact element.10
The only evidence produced by the Municipal Authority in support of its motion to
intervene generally (and not on the issue of standing11) is the sworn Declaration of Susan
Swanson, long-time resident of Highland Township and secretary/treasurer of the Municipal
Authority ECF No. 34-4. The Declaration provided by Ms. Swanson fails to demonstrate that
the Municipal Authority has suffered “the invasion of a concrete and particularized legally
protected interest’ resulting in harm that is actual or imminent” (Blunt, 767 F.3d at 278) by not
being able to defend the Home Rule Charter in this case.
In support of the application for intervention, Ms. Swanson declares:
10. The majority of Highland Township’s population is in James City. Crystal
Spring is the best and only good source of water for James City. […] all we have

10

Indeed, in its Reply Brief, the Municipal Authority argues that Seneca’s invocation of an
“actual harm” standard is “legally incorrect and impossibly high.” ECF No. 39, page 6.
The “sufficient interest” contemplated in Rule 24 is not equivalent to the injury-in-fact element
of standing. See generally, In Re Grand Jury, 111 F.3d 1066, 1071 n.8 (3d Cir. 1997) (In a preTown of Chester decision, recognizing that parties have been deemed to meet the standard for
intervention under Rule 24(a)(2) though they do not necessarily possess the requisite Article III
standing, and declining to clarify the relationship between the two inquiries).
11

11

is the Crystal Spring. If something happens to that spring we’re done-for as a
town because we won’t have a clean water supply.
11. The Crystal Spring water has been very clean. We’ve tested it regularly. It is
really good water, so to take the chance of ruining such a plentiful source of good
water is criminal to me.
14. Municipal Authority members attended Township meetings, where we
expressed concerns about needing to protect our water. We went to township
meetings to try to figure out a way to prevent the installation of injection wells.
18. […] the Municipal Authority believes there are good grounds to defend the
people’s right to home rule, and good reasons to protect the community and water
supply from unwanted harmful activities, like injection wells.
19. When news of the injection well came out, I read a lot about fracking
fluids polluting the water in other towns; the Municipal Authority has
good reason to be concerned about the same thing happening here. I
regularly shared the information that I read with other members of the
Municipal Authority. I read about the history of fracking and water
pollution, agency reports on water contamination, and earthquakes. I also
read about previous violations that Seneca has had at other wells, even
within Highland Township.
20. Out of everything that I have learned, the main impression that still
stays with me today is that fracking fluids contain harmful chemicals, and
it is not in the best interests of James City residents to have fracking fluids
near our water system. Any chance of fracking fluids ruining Crystal
Spring is reason to say they are not allowed.
21. I learned from old timers that used to live here (now deceased) that
there are abandoned water wells that were used by the glass plant that was
here in the early 1920-30’s. The wells were abandoned when the plant
went out of business during the depression. Back then, they didn’t plug
wells like they do now. We can’t find any record of those wells or where
they are. I was told there were eighteen water wells the plant used. The
point is that there have been wells drilled in this area that we have no
records for, and I believe that makes it impossible to predict where fluids
in the earth could travel.
22. We want to protect our water. We should have the right to protect our
water, and the right to have a say in deciding about a technology that
could contaminate our water.

12

23. If we lost Crystal Spring as a water source, our town, our homes,
wouldn’t be worth anything. Even the thought of an injection well may
make people hesitant to move here, because of the risk.
24. If we lose our water, it will destroy our community as we know it.
The Municipal Authority has the purpose of improving and protecting our
water supply and to keep that from happening.
ECF No. 34-4, page 3.12
While Ms. Swanson may have “a main impression that…fracking fluids contain harmful
chemicals, and it is not in the best interests of James City residents to have fracking fluids near
[the] water system [id.],” there has been no evidence provided that suggests that the Municipal
Authority will suffer a concrete and particularized injury-in-fact so as to have standing here. The
alleged injury is speculative, at best, and because it involves a heightened risk of future harm, the
allegations are required to “entail a degree of risk sufficient to meet the concreteness
requirement.” Kamal, 2016 WL 6133827, at *2.
The Municipal Authority’s interests in this case are based solely on its desire to defend
the Home Rule Charter which, regardless if it is upheld or struck down, does not directly affect
its ability to carry out its statutory or regulatory duties. No evidence has been produced to
demonstrate that any claimed future injury is directly traceable to repealing or affirming the
Home Rule Charter. Accordingly, CACHE and the Ecosystem have failed to meet their burden to
demonstrate standing for purposes of intervention as of right.
Finally, and alternatively, the Municipal Authority has requested that this Court grant it
permissive intervention. Because the Municipal Authority has not established standing, this
Court will deny its request for permissive intervention.

Ms. Swanson’s declaration provides no indication where she obtained the information, gives
no authority for the information provided or her understanding of it, and fails to give any
indication of who or what expert, if any, originally reported the information.
12

13

An appropriate Order follows.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

14