Tom Shepstone
Shepstone Management Company, Inc.
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The DRBC lawsuit proceeds and the following offers a quick update and a plea to support the fight for all our mineral rights.
A number of you have asked for an update on the status of the DRBC lawsuit brought by the Wayne Land and Mineral Group, LLC. Rest assured it is very much alive, Speaking personally, I am also reasonably (caution is not typically part of my vocabulary, much to the chagrin of many friends) optimistic.
Where do we stand? Well, symbolically at attention in the courtroom waiting for the judge to come back out. Readers may recall the Third Circuit Court of Appeals out of Philadelphia, in 2018, found the definition of “project” in the Delaware River Basin Compact to be ambiguous. Ambiguous is a term in land use law, where I often operate, that redounds to the favor of landowners. It stems from the fact land use regulations are considered a derogation of the common law, such that anything unclear must be interpreted in the favor of parties affected by the ambiguity.
It’s not simple in this case, unfortunately. Nonetheless, in remanding the case to the trial court in Scranton, the Third Circuit specifically instructed that the trial court should, in addition to the plain language of the Compact (which is very plain, indeed), consider “other interpretive tools to shed light on the intent of the Compact’s drafters.” That’s upper court judge talk for “You didn’t research this enough or consider the impacts on the rights of those affected by the DRBC interpretation.”
This isn’t a swipe at Judge Mariani, though, who clearly understood the issues and knew this one was obviously going up to the Third Circuit anyway. He arguably helped land and mineral rights owners get to the end game more quickly, which is a profoundly good thing, although “quickly” isn’t part of Federal court procedure as a general rule. Snails slide around the Federal courts, in fact.
The Third Circuit, providing the critical instruction, directed the trial court in this instance, to evaluate history of the Compact, how it was negotiated, the parties’ track record of performance under the Compact and the nature and experience of other interstate compacts with a view to how all this bears on the question of intent.
Following remand to the trail court, the parties conducted fairly extensive discovery (checking out what each had under the hood, so to speak), which was quite revealing. Subsequently, the DRBC and its intervenor, the Delaware PovertyKeeper a/k/a Riverkeeper, moved for summary judgment on April 6, 2020. Wayne Land and Mineral Group, LLC responded to these summary judgment filings and the briefing process concluded five months ago on June 24, 2020. The parties are still awaiting the Court’s decision.
Such is the indeterminable nature and glacial pace of life and death in the Federal courts of the United States. Depending on how the Court rules, the case will be headed for trial on the merits or an appeal to the Third Circuit. That probably isn’t the answer those who have written to me seeking an update want, but it is real and, once again, let me add I’m optimistic.
Funding this effort is enormously expensive, of course. Fortunately, numerous landowners have pitched in with cash or assignments of 4% of their mineral rights to our angel supporter, but we could use a lot more of you. I did a video to explain:
Consider supporting the DRBC lawsuit and contact me if you have questions. We need you, so don’t depend on someone else doing it for you.
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