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

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WAYNE LAND AND MINERAL :

GROUP, LLC :

Plaintiff, :

Vv. 3:16-CV-00897

: (JUDGE MARIANI)

DELAWARE RIVER BASIN

COMMISSION :

Defendant, and :

DELAWARE RIVERKEEPER NETWORK :

MAYA K. VAN ROSSUM, THE :

DELAWARE RIVERKEEPER

Intervenors-Defendants — :

MEMORANDUM OPINION

|. INTRODUCTION

Presently before the Court is Plaintiffs Motion to Compel. (Doc. 138.) With its

motion, Plaintiff seeks to compel production of documents withheld by Defendant Delaware

River Basin Commission (“DRBC” “Defendant’) based on DRBC’s assertion of the

deliberative process privilege. (/d.) Plaintiff maintains that even if the deliberative process

privilege is applicable it should not preclude disclosure here because, based on the

Privilege Log, the documents withheld are relevant to the central issue before this Court on

remand from the Court of Appeals for the Third Circuit, i.e., the intent of the parties to the

Compact. (Doc. 138 at 1.) Following the Court's in camera review of the documents

identified in the Privilege Log (Doc. 138-1 at 10-17), the Court will grant Plaintiff's motion in

part and deny it in part for the reasons discussed below.

ll. PROCEDURAL HISTORY

On May 17, 2016, Plaintiff Wayne Land & Mineral Group LLC (“WLMG? “Plaintiff’)

filed a Complaint against Defendant Delaware River Basin Commission (the “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.) 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. (/d.)

Intervenors-Defendants the Delaware Riverkeeper Network and Maya K. Van

Rossum, the Delaware Riverkeeper (collectively referred to as the “DRN”) filed a motion to

intervene on July 5, 2015, (Doc. 10) which the Court granted on September 12, 2016, (Doc.

1 The DRNis 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.” (/d. 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. (/d. at 3). In this

matter, the DRN “seeks to intervene to defend the validity of the DRBC’s jurisdiction and authority over

On March 23, 2017, the Court granted Defendant Delaware River Basin

Commission’s Motion to Dismiss the Complaint (Doc. 12) and closed the case. (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. (Doc. 97.)

Following remand, the Court reopened the case (Doc. 98) and, on August 27, 2018,

issued an Order establishing the pretrial schedule (Doc. 107). The schedule included the

directive that “all fact discovery shall be completed by December 19, 2018.” (Doc. 107 at 2

The Courts December 4, 2018, Order rescinded that deadline (Doc. 124 at 2 {[ 5),

and the Order of June 4, 2019, established that fact discovery “shall be completed by

September 9, 2019” (Doc. 134 at 2 6).

Plaintiff filed the motion under consideration here on August 19, 2019. (Doc. 138.)

The motion was accompanied by a supporting brief. (Doc. 139.) Defendant filed its

opposition brief (Doc. 140) on September 3, 2019, and Plaintiff filed a reply brief (Doc. 141)

on September 9, 2019. In the Privilege Log attached to Defendant's brief, Defendant

identified thirty-five (35) Reference Numbers which it withheld based on the assertion of the

deliberative process privilege. (Doc. 138-1 at 10-37.) On October 30, 2019, the Court

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.” (/d. at 2).

directed Defendant to submit the documents to the Court for in camera review (Doc. 144),

and Defendant DRBC timely produced the required documents. By correspondence of

November 21, 2019, Defendant asserted that several Reference Numbers identified in the

Privilege Log were also protected by the attorney-client privilege and requested the Court's

consideration of this privilege as well as the deliberative process privilege. (Doc. 145.)

Plaintiff responded that the Court should consider the attorney-client privilege waived as

Defendant did not initially assert the privilege despite having had the opportunity to do so.

(Doc. 146.) The Court has now conducted in camera review of the documents in question.

Ill. STATEMENT OF FACTS

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).)

At issue in this action is 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.” 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 “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 Plaintiffs Complaint .. . itis 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 confirmed that the Compact was to be “construed as a

contract under the principles of contract law.” Wayne Land and Mineral Group LLC v.

Delaware River Basin Commission, 894 F.3d 509, 527 (3d Cir. 2018). However, the Circuit

Court disagreed with this Court's determination that the proposed activities constituted a

“oroject,” 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. /d.

The Circuit Court explained that

if the text of the Compact is ambiguous, we must then “turn to other interpretive

tools to shed light on the intent of the Compact's drafters.” [Tarrant Reg’! Water

Dist. v. Herrmann, 569 U.S. 614, 620 (2013)]. One of those interpretative tools

is the background notion “that States do not easily cede their sovereign powers,

including their control over waters within their own territories[.]" /d. Other

guideposts include the treatment of similar issues in other interstate water

compacts, the parties’ course of performance under the Compact, and the

negotiation and legislative history of the Compact. Id.; Oklahoma v. New

Mexico, 501 U.S. 221, 235 n.5, 111 S.Ct. 2281, 115 L.Ed.2d 207 (1991).

894 F.3d at 527. The Circuit Court further found that these interpretive tools require factual

determinations to be made about the Compact drafters’ intent and

[t]he District Court must have the opportunity to evaluate in the first instance

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. The interpretation that should prevail is the one that

aligns best with the drafters’ intent.

Id, at 534.

IV. ANALYSIS

Turning now to the motion at issue, the Court has conducted in camera review of the

documents Defendant withheld based on privilege. The Court has considered all

documents, which are either emails or email strings (some with attachments), in the context

of the deliberative process privilege and the six documents Defendant identifies as

additionally protected by the attorney-client privilege. For the reasons discussed below, the

Court concludes that Defendant is to produce all but Reference Number 5.

A. Attorney-Client Privilege

As noted above, Defendant asserts that the attorney-client privilege applied to

several Reference Numbers in the previously provided Privilege Log, Reference Numbers 9,

13, 15, 30, 31, and 34. (Doc. 145 at 1-2.) Plaintiff objects to the assertion of the privilege

because Defendant did not initially assert attorney-client privilege with its objections to

Plaintiff's discovery requests and, therefore, Defendant should be deemed to have waived

the privilege. (Doc. 146 at 1.) Plaintiff further asserts that Defendant has not satisfied its

burden of proving that the privilege applies to the documents in question. (/d.)

In general, the attorney-client privilege limits the normally broad disclosure

requirements of Federal Rule of Civil Procedure 26 which provides that relevant but

privileged matters are not discoverable. See Fed. R. Civ. P. 26(b)(1). The party asserting

attorney-client privilege has the burden of proving that the privilege applies. Matter of

Grand Jury Empanelled February 14, 1978, 603 F.2d 469, 474 (3d Cir.1979) (citing United

States v. Lansdorf, 591 F.2d 36, 38 Cir.1978)). In Rhone-Poulenc Rorer Inc. v. Home

Indem. Co., 32 F.3d 851 (3d Cir. 1994), the Court of Appeals for the Third Circuit noted that

the attorney-client privilege “is worthy of maximum legal protection” because it serves the

interests of justice. /d. at 862 (citing Haines v. Liggett Group Inc., 975 F.2d 81, 90 (3d Cir.

1992)). The following requirements must be met for the privilege to attach to a

communication: “it must be ‘(1) a communication (2) made between privileged persons (3)

in confidence (4) for the purpose of obtaining or providing legal assistance for the client.” In

re Chevron Corp., 650 F.3d 276, 289 (3d Cir. 2011) (quoting /n re Teleglobe

Communications Corp., 493 F.3d 345, 359 (3d Cir. 2007) (internal quotation omitted)).

Chevron again quoted Teleglobe to explain with respect to the third requirement that “if

persons other than the client, its attorney, or their agents are present, the communication is

not made in confidence, and the privilege does not attach.” 650 F.3d at 289 (quoting 495

F.3d at 361). Teleglobe added that “[dJisclosing a communication to a third party

unquestionably waives the privilege.” /d. In the government agency context, the agency

may be considered the “client” and the agency lawyer the “attorney.” Tax Analysts v.

Internal Revenue Service, 117 F.3d 607, 618 (D.C.Cir.1997).

Plaintiff asserts that Defendant has waived the attorney-client privilege by not raising

it in its response to Plaintiffs motion to compel. (Doc. 146 at 1.) Although Plaintiff is

correct that Defendant did not assert the privilege until after it was directed to produce the

documents withheld on the basis of the deliberative process privilege for in camera review,

this fact does not conclusively establish waiver in that it is within the Court's discretion to

determine if the privilege has been properly invoked, Deitz & Watson, Inc. v. Liberty Mut.

Ins. Co., Civ. A. No. 14-4082, 2015 WL 2069280, at *4 (E.D. Pa. May 5, 2015) (listing

cases).

Here the Court concludes that the “maximum legal protection” afforded the attorney-

client privilege warrants consideration of its application to the six Reference Numbers

identified in Defendant's November 21, 2019, correspondence (Doc. 145). Having reviewed

all documents identified by Defendant, the Court finds the attorney-client privilege applicable

only to Reference Number (“Ref. No.”) 5.

Reference Number 5 is an email from Chad Pindar, Supervisor of DRBC’s Project

Review Section, to Pamela Bush, DRBC Commission Secretary/Assistant General Counsel,

which Pindar copied to four other DRBC staff members—DRBC’s Deputy Executive

Director, General Counsel, Manager of the Water Resources Management Branch, and the

Project Review Section’s Geologist and Hydrologist. Because Pindar’s email responded to

Bush’s question about revisions she had made to a draft of the “Determination of the

Executive Director Concerning Natural Gas Extraction Activities Within the Drainage Area of

Special Protection Waters,” the communication is properly considered the submission of

comments to the Commission's Assistant General Counsel for legal review. Thus, the

communication from DRBC’s Project Review Section Supervisor Pindar to Assistant

General Counsel Bush is protected by the attorney-client privilege.

The Court rejects Defendant’s remaining claims of attorney-client privilege.

Reference Number 13 is a communication between Pamela Bishop, Assistant General

Counsel for the Pennsylvania Department of Environmental Protection, DRBC’s General

Counsel, and DRBC’s Secretary/Assistant General Counsel with three others copied: two

Pennsylvania Alternate DRBC Commissioners and the Pennsylvania Associate Director of

the Office of Water Management, Water Planning of the Pennsylvania Department of

Environmental Protection. As such, this inter-agency communication goes beyond the

general application of the privilege in the government agency context, see Tax

Analysts, 117 F.3d at 618, and Defendant has not shown that the communication at issue is

between privileged persons, Chevron, 650 F.3d at 289, nor has Defendant shown that the

communication is subject to an exception to the principle that disclosure to a third-party

waives the privilege, e.g., the third-party consultant exception, see Chevron, 633 F.3d at

165, or the common-interest privilege, see Teleglobe, 493 F.3d at 361; Federal Trade

Comm. V. Abbvie, Inc., Civ. A. No.14-5151, 2015 WL 8623076, at *3 (E.D. Pa. Dec. 14,

2015).

Reference Number 15 is an email from DRBC’s Communications Director to

numerous other DRBC officials, including Warren and Bush (DRBC General Counsel and

Assistant General Counsel) in which the Communications Director asks if an advance copy

of a news release will be provided to commissioners before issuance. The involvement of

an attorney in a communication does not mean the privilege must apply—a document

merely incorporating attorney comments is an insufficient basis to deem the document

protected. Abbvie, 2015 WL 8623076, at *3 (citing SmithKline Beecham Corp. v. Apotex

Corp., 232 F.R.D. 467, 472 (E.D. Pa. 2005); In re Avandia Mktg., Sales Practices & Prods.

Liab., MDL No. 07-md-01871, 2009 WL 4807253, at *3 (E.D. Pa. Oct. 2, 2009)). Whether a

communication is made for the purpose of securing legal assistance can be difficult to

discem, particularly where in-house counsel performs a dual role. See Abbvie, 2015 WL

8623076, at *3 (citations omitted). In the corporate setting, a marketing or advertising

decision is generally not privileged—although it may be based on legal advice, the

communication is primarily a business policy. /d. In such instances, the proponent of the

privilege must clearly demonstrate its applicability. /d. Here Defendant has not attempted

to make the necessary specific showing that the communication related to a news release is

covered by the attorney-client privilege. Without such a showing, the Court cannot find that

the attorney-client privilege attaches to Reference Number 15.

10

The Court finds that Defendant has not shown that the privilege attaches to

Reference Numbers 30 and 31 for reasons similar to those related to Reference Number

13: the documents are inter-agency communications, and Defendant has not shown that the

communications at issue are between privileged persons, Chevron, 650 F.3d at 289, nor

has Defendant shown that the communications are subject to an exception to the principle

that disclosure to a third-party waives the privilege, e.g., the third-party consultant

exception, see Chevron, 633 F.3d at 165, or the common.-interest privilege, see Teleglobe,

493 F.3d at 361; Abbvie, Inc., 2015 WL 8623076, at *3.

Finally, the Court finds that Reference Number 34 is not protected from disclosure by

the attorney-client privilege in that the request for a hearing received from an attorney to the

DRBC which the DRBC Assistant General Counsel forwarded to others does not involve

any substantive DRBC attorney involvement. As stated in SmithKline, “attorney-client

privilege does not shield documents merely because they were transferred to or routed

through an attorney.” 232 F.R.D. at 478 (citation omitted).

Based on the foregoing findings, only Reference Number 5 is protected from

discovery by the attorney-client privilege. The Court will now turn to the question of whether

the documents withheld by Defendant are protected by the deliberative process privilege.

B. Deliberative Process Privilege

In support of the assertion of the deliberative process privilege, Defendant provided

the Affidavit of Delaware River Basin Commission Executive Director Steven J. Tambini

11

Asserting Deliberative Process Privilege (Doc. 138-1) in which he stated that he had

reviewed the withheld documents and believed them to be protected by the privilege

because they are pre-decisional, deliberative materials relating to the issuance of the May

19, 2009, “Determination of the Executive Director Concerning Natural Gas Extraction

Activities Within the Drainage Area of Special Protection Waters,” the June 14, 2010,

“Supplemental Determination of the Executive Director Concerning Natural Gas Extraction

Activities Within the Drainage Area of Special Protection Waters,” and the Commission's

May 5, 2010, Resolution for the Minutes effecting a “moratorium.” (Doc. 138-1 at 8 ff 8-9.)

Plaintiff requested in camera review of the documents for the Court to determine whether

the documents fall within the asserted privilege and argued that, even if the Court were to

find that the privilege applied, the privilege must yield here because the Commission's

deliberations are directly at issue in this litigation. (Doc. 139 at 4-5.) After conducting in

camera review of the documents submitted by Defendant, the Court concludes that the

privilege does not apply to a number of the documents, and, where it applies, the need for

production outweighs Defendant's interest in the privacy of its internal deliberations.

The deliberative process privilege protects “the decision making processes of

government agencies” and, in particular, “documents reflecting advisory opinions,

recommendations and deliberations comprising part of a process by which governmental

decisions and policies are formulated.” N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132,

150 (1975) (internal quotations omitted). As summarized in Paul F. Rothstein and Susan

12

W. Crump, Federal Testimonial Privileges Relating to Witnesses & Documents in Federal-

Law Case § 5:3 (2d ed. 2006), the deliberative process privilege, also known as the “Inter-

and Intra-Agency Deliberative Communication Privilege,” “protects from disclosure those

communications within the federal government, and between the government and its duly

retained outside consultants, which consist of advice, recommendations, opinions, and

other information transfers involved in the deliberative and policymaking processes of the

government agency.” The Court of Appeals for the Third Circuit described the privilege as

one which “permits the government to withhold documents containing ‘confidential

deliberations of law or policymaking, reflecting opinions, recommendations or advice.”

Redland Soccer Club, Inc. v. Dep't of Army of U.S., 55 F.3d 827, 853 (3d Cir. 1995)

(quoting In re Grand Jury, 821 F.2d 946, 959 (3d Cir. 1987)). The ultimate purpose of the

privilege “is to prevent injury to the quality of agency decisions.” NLRB, 421 U.S. at 151.

Considered in the context of the Federal Rules of Civil Procedure, Redland noted

that, in analyzing the government's assertion of privilege,

the district court should keep in mind the fact that Federal Rule of Civil

Procedure 26 authorizes broad discovery into “any matter, not privileged, which

is relevant to the subject matter involved in the pending action, [see Federal

Rule of Civil Procedure 26(b)(1)] but the deliberative process privilege, like

other executive privileges, should be narrowly construed.” See Coastal States

Gas Corp. v. Dep't of Energy, 617 F.2d 854, 868 (D.C.Cir.1980); Cooney v.

Sun Shipbuilding & Drydock Co., 288 F.Supp. 708, 716 (E.D.Pa.1968)

(collecting cases).

55 F.3d at 856.

13

Because the privilege “protects agency documents that are both predecisional and

deliberative,” Abdelfattah v. U.S. Dept. of Homeland Sec., 488 F.3d 178, 183 (3d Cir. 2007)

(quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006)), the government

must show that the document satisfies both requirements.

To satisfy the predecisional prong of the inquiry, the proponent of the privilege must

show that the document is “actually antecedent to the adoption of a policy or arrival at a

decision.” Rothstein & Crump, supra, § 5.3. However, in NLRB, the Court noted that the

agency need not have actually reached a final decision or issued a final policy to be

afforded protection of a document:

Our emphasis on the need to protect pre-decisional documents does not mean

that the existence of the privilege turns on the ability of an agency to identify a

specific decision in connection with which a memorandum is prepared.

Agencies are, and properly should be, engaged in a continuing process of

examining their policies; this process will generate memoranda containing

recommendations which do not ripen into agency decisions; and the lower

courts should be wary of interfering with this process.

NLRB, 421 U.S. at 153 n.18.

To satisfy the deliberative prong of the inquiry, the document for which protection is

sought must be “actually related to the process by which the policy was formulated or

decision reached.” Rothstein & Crump, supra, § 5.3. The privilege distinguishes between

opinions, which are protected, and facts, which fall outside of the privilege: factual material

is not protected as long as it is severable from the deliberative information, even if the

14

factual information is located in an otherwise privileged document. Redland, 55 F.3d at

854; In re Grand Jury, 821 F.2d at 959.

Factors to consider in determining whether a document is predecisional and part of

the deliberative process include the following: 1) the identity and position of the author and

recipient; 2) the contents of the document; 3) the timing of the document relative to the

decision at issue; and 4) the status of the document as an opinion or recommendation.

Rothstein & Crump, supra, § 5.3.

“The deliberative process privilege is a qualified privilege and can be overcome by a

sufficient showing of need. This need determination is to be made flexibly on a case-by-

case, ad hoc basis.” /n re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997)

“[E]ach time it is asserted the district court must undertake a fresh balancing of the

competing interests.” /n re Subpoena Served Upon Comptroller of Currency, & Sec'y of Bad.

of Governors of Fed. Reserve Sys., 967 F.2d 630, 634 (D.C. Cir. 1992). As explained in

Redland,

The privilege, once determined to be applicable, is not absolute. First Eastern

Corp. [v. Mainwaring, 21 F.3d 465, 468 n.5 (D.C. Cir.1994)]: [United States v.

Farley, 11 F.3d 1385, 1389 (7 Cir. 1993)]. After the government makes a

sufficient showing of entitlement to the privilege, the district court should

balance the competing interests of the parties. The party seeking discovery

bears the burden of showing that its need for the documents outweighs the

government's interest. This Court has previously stated that “the party seeking

disclosure may overcome the claim of privilege by showing a sufficient need

for the material in the context of the facts or the nature of the case ... or by

making a prima facie showing of misconduct.” In re Grand Jury, 821 F.2d at

959 (internal citations omitted). The United States Court of Appeals for the

District of Columbia, recently determined that a district court, in balancing the

15

interests, should consider at least the following factors: “(i) the relevance of the

evidence sought to be protected; (ii) the availability of other evidence; (iii) the

‘seriousness’ of the litigation and the issues involved; (iv) the role of the

government in the litigation; [and] (v) the possibility of future timidity by

government employees who will be forced to recognize that their secrets are

violable.” First Eastern Corp., 21 F.3d at 468 n. 5.

99 F.3d at 854.

With this extensive guidance, the Court will now proceed to review the documents

withheld pursuant to the deliberative process privilege.

1. Applicability of the Privilege

Reference Numbers 1 through 4 contain comments from various agencies on a draft

of the DRBC Executive Director's Determination concerning natural gas drilling which Henry

Gruber (Chief, Basin Planning Section, U.S. Army Corps of Engineers and 3” Alternate

DRBC Commissioner) had solicited and forwarded to Pamela Bush (DRBC Commission

Secretary and Assistant General Counsel) from April 10, 2009, to April 22, 2009. The

comments were generated by the Supervisor of the Pennsylvania Field Office of the U.S.

Fish and Wildlife Service, the Director of the Water Protection Division of EPA Region Ill, an

EPA Region II official, and the Northeast Region Chief of the Conservation and Recreation

Division of the National Park Service. Similarly, Reference Numbers 6 through 13 either

seek or provide comment on proposed drafts of the Executive Director's Determination

generated between April 24, 2009, and May 12, 2009.2 The authors and recipients are

2 As discussed earlier in the text, Reference Number 5 is an internal DRBC communication

submitting changes made to a draft of the Executive Director Determination by the Supervisor of the Project

Review Section to the Commission Secretary/Assistant General Counsel for review. See supra pp. 8-9.

16

DRBC officials or officials of federal and state agency partners including those from

Delaware, New Jersey, New York, and Pennsylvania. The solicitations and comments

contained in these documents are predecisional because they related to the “Determination

of the Executive Director Concerning Natural Gas Extraction Activities Within the Drainage

Area of Special Protection Waters” which was ultimately issued on May 19, 2009. The

contents of the documents are deliberative because they express the opinions and

recommendations of the authors and the comments were sought to help formulate the final

version of the May 19, 2009, Executive Director Determination. See Wadhwa v. Sec’

United States Dep't of Veterans Affairs, 707 F. App’x 61, 63 (3d Cir. 2017) (draft reports and

communications generated as part of agency decisionmaking may be properly withheld

pursuant to the deliberative process privilege). Therefore, the Court concludes that

Reference Numbers 1-4 and 6-13 are protected by the deliberative process privilege and

disclosure of the documents will hinge on the second Stage analysis which the Court will

conduct below.3

Reference Numbers 14 through 16 relate to drafts of a planned news release

concerning the Executive Director's Determination sent by DRBC’s Communications

Though the Court has determined that the document is not discoverable because it is protected by the

attorney-client privilege, id., the Court notes that the document would also be protected by the deliberative

process privilege. Because the document is not discoverable under the attorney-client privilege, further

discussion of Reference Number 5 is not warranted.

3 The Court adopts this analytical structure because the parties address the second stage inquiry

as to all withheld documents rather than addressing the documents separately. (See Doc. 139 at 5-7; Doc.

140 at 13-21.)

17

Manager to DRBC officials. The emails are dated May 18, 2009, and May 19, 2009. Three

drafts are identified and comments/approval are sought, but no substantive comments are

contained in the documents. As recently discussed at length in Heffernan v. Azar, No. CV

15-2194, 2019 WL 5215546, at *9-11 (D.D.C. Oct. 16, 2019), the application of the

deliberative process privilege to draft press releases and related documents is far from

straight-forward. Itis a very fact-intensive inquiry with the proponent of the privilege bearing

the burden of showing that the documents at issue are properly considered predecisional

and deliberative. /d. Here Defendants have not addressed factors relevant to the

determination such as the similarity of the drafts to the final release, and whether the

documents can be construed to contain discussions regarding the advisability/need for a

release or how to present the decision to the public. Jd. (citations omitted). On this record,

the Court concludes that Defendant has not satisfied its burden of showing that the

documents related to draft press releases are covered by the deliberative process privilege.

Therefore, Reference Numbers 14, 15, and 16 must be disclosed.

Reference Number 17 contains an email string with messages dated February 25,

2010, and February 26, 2010, related to the March 3, 2010, DRBC meeting materials. The

only substantive aspect of the string is a request from Fred Sickels, 4 Alternate DRBC

Commissioner and Assistant Director of the New Jersey Department of Environmental

Protection's Office of Water Supply Permitting, to have certain items discussed at the

upcoming meeting. Defendant does not identify what decision is related to Reference

18

Number 17 or otherwise indicate how this document is predecisional and deliberative. As

with Reference Numbers 14-16, on this record, the Court concludes that Defendant has not

Satisfied its burden of showing that the documents referencing meeting topics for discussion

are covered by the deliberative process privilege. Therefore, Reference Number 17 must

be disclosed.

Reference Number 18 is an email from DRBC’s Executive Director to other DRBC

Officials dated April 26, 2010, in which she simply makes statements about receipt of

numerous emails and asks the email recipients to let her know if anyone wants to see them.

While deliberations about public relations issues and press inquiries may be covered by the

deliberative process privilege, Sierra Club v. U.S. Dep't of Interior, 384 F. Supp. 2d 1, 22

(D.D.C. 2004); Judicial Watch, Inc. v. Reno, Civ. Action No. 00-0723 (JR), 2001 WL

1902811, at *3 (D.D.C. Mar. 30, 2001), Reference Number 18 contains no deliberation and

references no decision. Therefore, Defendant has not satisfied its burden of showing that

the document is protected by the deliberative process privilege, and the document must be

produced.

Reference Number 19 is a May 3, 2010, email from DRBC’s Executive Director to

the Director of the Division of Water Resources of Delaware’s Department of Natural

Resources and Environmental Control who is also □□□ Alternate DRBC Commissioner.

Though not on its face related to a specific decision, the email includes references to the

need for decisionmaking on the issue of exploratory test wells which was the subject of the

19

June 14, 2010, “Supplemental Determination of the Executive Director Concerning Natural

Gas Extraction Activities Within the Drainage Area of Special Protection Waters.”

Therefore, Reference Number 19 is properly protected by the deliberative process privilege.

Reference Number 20 is a related email from the recipient of Reference Number 19

on the subject of test/exploratory wells which is predecisional as to the June 14, 2010,

Supplemental Determination and is deliberative as to identifying next-steps, including public

relations issues. See Sierra Club, 384 F. Supp. 2d at 22; Judicial Watch, 2001 WL

1902811, at *3. Therefore, the Court concludes Reference Number 20 is covered by the

deliberative process privilege.

Reference Numbers 21 through 23 relate to a draft of the June 14, 2010,

Supplemental Determination in that they contain the DRBC’s Executive Director's

solicitation and receipt of comments on the draft. As discussed with Reference Numbers 1-

4 and 6-13, these documents are predecisional and deliberative. Therefore, Reference

Numbers 21-23 are covered by the deliberative process privilege.

Reference Number 24 is a request from DRBC’s Commission Secretary/Assistant

General Counsel dated June 9, 2010, to Pennsylvania officials seeking to confirm the

accuracy of factual data identified in the email in anticipation of post-Supplemental

Determination issuance. Because facts, which fall outside of the privilege, Redland, 55 F.3d

at 854; In re Grand Jury, 821 F.2d at 959, are the focus of this email, the Court does not find

20

that it is covered by the deliberative process privilege. Therefore, Reference Number 24

must be produced.

Reference Numbers 25 through 33 dated June 9, 2010, and June 10, 2010, relate to

the Supplemental Determination and comments/clarifications by Pennsylvania and DRBC

Officials regarding the language contained in the circulated draft. For reasons similar to

those discussed regarding Reference Numbers 1-4 and 6-13, see supra pp. 16-18, these

documents are predecisional and deliberative, and, therefore, they are protected by the

deliberative process privilege.

Reference Number 34 is a July 2, 2010, email from the Commission

Secretary/Assistant General Counsel to other DRBC officials attaching a request for a

hearing seeking review of the June 14, 2010, “Supplemental Determination of the Executive

Director Concerning Natural Gas Extraction Activities Within the Drainage Area of Special

Protection Waters.” The request, directed to the attention of the Secretary of the

Commission, is made by an attorney as a member, and on behalf of, an informal

association of Wayne County, Pennsylvania, land owners. The Commission

Secretary/Assistant General Counsel references the enclosure but does not discuss the

correspondence or any related matter. Therefore, Reference Number 34 is neither

predecisional nor deliberative and must be disclosed.

Reference Number 35 is an email dated July 6, 2010, from DRBC’s Executive

Director to other DRBC officials which discusses Wayne County landowner and industry

21

concerns, ways to deal with them, and potential modifications to the Supplemental

Determination. As such, though not associated with a specific decision, pursuant to NLRB

guidance, 421 U.S. at 153 n.18, the document is predecisional. The document is

deliberative because it expresses the opinions and recommendations of the Executive

Director regarding modification of the Supplemental Determination and public relations

strategy. Therefore, Reference Number 35 is protected by the deliberative process

privilege.

To summarize, Reference Numbers 1-13, 19-23, 25-33, and 35 are protected by the

deliberative process privilege, and Reference Numbers 14-18, 24, and 34 are not covered

by the privilege. Thus, Reference Numbers 14-18, 24, and 34 must be disclosed.

Reference Number 5 is protected from disclosure by the attorney-client privilege and is not

subject to further inquiry under the balancing prong of the deliberative process privilege.

Reference Numbers 1-4, 6-13, 19-23, 25-33, and 35 must be further considered in the

context of Plaintiffs claim of need for the documents. Redland, 55 F.3d at 584. The Court

will now turn to the requisite second step in determining whether the documents must be

produced.

2. Need for Disclosure and Balancing of Interests

Having determined that numerous documents are protected by the qualified

deliberative process privilege, the Court must now review Plaintiff's asserted need for the

22

documents and proceed with balancing the competing interests of the parties.

Plaintiff contends that the privilege must yield here where

the Commission's deliberations themselves —i.e., its ‘course of performance’—

are directly at issue in this litigation. See Wayne Land & Mineral Group, LLC,

894 F.3d at 534. There is, thus, a demonstrable need for the withheld material

in the context of the facts and nature of this case, the nondisclosure of which

would unfairly impede WLMG’s ability to fully prosecute its claims. See Johnson

[v. Wetzel,] 2016 U.S. Dist. LEXIS 103074, *14 [(M.D. Pa. Aug. 5, 2016)]

(concluding that needed for disputed evidence overcame arguably applicable

deliberative process privilege).

The Commission cannot claim its interpretation of the Compact should

prevail while shielding from disclosure materials that may bear directly on the

question of intent. See Wayne Land & Mineral Group, LLC, 894 F.3d at 534;

Johnson, 2016 U.S. Dist. LEXIS 103074, at *14.

The withheld documents, as the Commission has by its admission of

relevance acknowledges, fall into one the categories of evidence specifically

identified by the Court of Appeals. The most likely category here - the

contracting parties’ postcontracting course of performance. This category of

evidence, as the Court of Appeals recognized, “bear[s] on the question of

intent.” Wayne Land & Mineral Group, LLC, 894 F.3d 534.

Specifically, the withheld documents are likely to bear on the question

of the intent of the contracting parties. They are the type of documents that are

likely to evidence, or point the way to other documents or testimony that will

evidence, course of performance or an intentional departure therefrom. Among

other things, the documents may help to establish that, when confronted by

natural gas development and under pressure from anti-fossil fuel groups, the

Commission decided to dramatically reinterpret the Compact in an effort to

expand its “project” review jurisdiction by effectively asserting, for the first time

ever, that every, planned human activity that uses water is a “project.”

Documents that evidence or explain such an unprecedented extension

of the Commission’s asserted “project” review jurisdiction, or the reasoning the

[sic] went into such a sweeping assertion of jurisdiction, should not be withheld

from the Court or the parties. Moreover, if the Commission wants to attempt to

justify its assertion of “project” review jurisdiction over gas wells and pads as

23

consistent with its course of performance since 1961, then all related evidence

— including evidence that the Commission knew it was departing from

precedent — should be considered. As such, the deliberative process privilege

should not apply and the Commission should be compelled to produce the

withheld documents to WLMG.

(Doc. 139 at 5-6.)

The Court concludes that Plaintiff has made a sufficient showing of need for the

Court to engage in the balancing of interests required under Redland, 55 F.3d at 854. See

also In re Grand Jury, 821 F.2d at 959. In so doing, the Court will consider Defendant's

arguments against disclosure which, in some instances, correspond to the factors identified

in Redland (see Doc. 140 at 13-21), which are

[1] the relevance of the evidence sought to be protected; [2] the availability of

other evidence; [3] the “seriousness” of the litigation and the issues involved;

[4] the role of the government in the litigation; and [5] the possibility of future

timidity by government employees who will be forced to recognize that their

secrets are violable.

55 F.3d at 854.

a. Relevance

Defendant maintains that the privileged documents are not relevant to Plaintiff's case

because the issue before this Court is “whether WLMG’s planned activities and facilities

constitute a ‘project’ when viewed under the prism of the intent of the Compact drafters”

(Doc. 140 at 14) and the “predecisional communications and deliberations of the

24

Commission have no bearing on whether WLMG’s fracking activities are a project” (id.).4

The Court disagrees.

To reiterate key language in the Third Circuit's opinion, this Court is to evaluate how

recognized interpretive tools shed light on the drafters’ intent. Wayne Land, 894 F.3d at

934. The Court is to be mindful of “the background notion that States do not easily cede

their sovereign powers, including their control over waters within their own territories.” /d. at

527 (internal quotation and citation omitted). The Court is to look at “the treatment of similar

issues in other interstate water compacts, the parties' course of performance under the

Compact, and the negotiation and legislative history of the Compact.” /d. (internal citation

omitted).

Contrary to Defendant’s narrow view of relevance, the documents at issue need not

address the meaning of the term “project” to be relevant. First, insofar as communications

from State personnel may be indicative of their understanding of the ceding of control over

waters and related activities within their own territories under the Compact, such documents

may be relevant. Tarrant Regional Water Dist. v. Hermann, 599 U.S. 614, 631 (2013);

Wayne Land, 569 F. 3d at 527. In other words, how the parties historically interpret the

scope of the Commission's authority sheds light on the parties’ views, as state actors, of

what was ceded to the Commission upon entering into the Compact. While the analysis of

4 At this second stage of the inquiry, the parties do not independently address the documents

withheld but rather provide the same rationale as to all documents. (Doc. 139 at 5-7; Doc. 140 at 13-21;

Doc. 141 at 4-6.) Therefore, the Court will collectively balance the interests of the parties as to all

documents withheld.

25

principles relating to the ceding of sovereignty is multi-faceted, see Tarrant, 599 U.S. at

631-33, that analysis is for another day. At this juncture, the Court looks broadly at what is

relevant to resolving the issues presented with this litigation. Fed. R. Civ. P. 26(b). Under

this standard, the parties’ ongoing understanding of the powers retained and the powers

ceded is certainly within the scope of the inquiry directed by the Circuit Court, 894 F.3d at

927, 534. Therefore, documents related to DRBC’s planned exertion of authority over

activities in the Delaware River Basin, i.e., documents withheld based on the deliberative

process privilege, are relevant to issues presented with this litigation.

Second, the importance of “the parties’ course of performance under the Compact’ is

not limited to what the DRBC has historically officially determined to be a project. In

Alabama v. North Carolina, 560 U.S. 330 (2010), the Court stated that the parties’ course of

performance under the interstate compact at issue was “highly significant.” /d. at 346 (citing

New Jersey v. New York, 523 U.S. 767, 830-831 (1998) (Scalia, J., dissenting);

Restatement (Second) of Contracts §§ 202(4), 203 (1979)). In New Jersey v. New York,

Justice Scalia provided valuable guidance on what “course of performance” means in the

context of a compact:

It is hornbook contracts law that the practical construction of an ambiguous

agreement revealed by later conduct of the parties is good indication of its

meaning. See, e.g.,17A Am.Jur.2d, Contracts § 357 (1991); Restatement

(Second) of Contracts §§ 202(4), 203 (1979); Uniform Commercial Code § 2-

208(1), 1 U.L.A. 407 (1989). We have applied that principle before to treaty

cases (the Compact here is of course a treaty). See, e.g., Air France v.

Saks, 470 U.S. 392, 396... (1985) (“[T]o ascertain [the] meaning [of treaties]

we may look beyond the written words to ... the practical construction adopted

26

by the parties”) (quoting Choctaw Nation v. United States, 318 U.S. 423, 431-

432 ...(1943)). We have also applied similar reasoning to the precise area of

interstate boundary disputes. See Vermont v. New Hampshire, 289 U.S. 593,

619... (1933) (“[T]he practical construction of the boundary by the acts of the

two states and of their inhabitants tends to support our interpretation of the

Order-in-Council of 1764”).

New Jersey v. New York, 523 U.S. at 830-31. The Restatement (Second) of Contracts §

202 states that “[w]here an agreement involves repeated occasions for performance by

either party with knowledge of the nature of the performance and opportunity for objection to

it by the other, any course of performance accepted or acquiesced in without objection is

given great weight in the interpretation of the agreement.” Restatement (Second) of

Contracts § 202(4).

This guidance indicates that the course of performance by the parties to the

Compact at issue here includes the “later conduct” of the parties and situations where a

party had an opportunity to object to actions taken or proposed by the Commission but did

not. It follows that activities beyond the Commission’s official decisions are relevant--what

happened behind the scenes can shed light on what the parties believe to be within the

purview of the Compact. See Tarrant, 569 U.S. at 636-37. The broad construction of the

“course of performance” concept in the interstate compact context is particularly significant

in a situation where, as here, the interpretive task seeks to discern how the drafters would

have considered activities that did not exist and could not have been anticipated at the time

the compact was drafted and ratified. Thus, the importance of the parties’ course of

performance renders the documents withheld relevant.

27

Third, the reference in certain documents to the Susquehanna River Basin

Commission (“SRBC”), see, €.g., Ref. Nos. 1, 8, is relevant to the inquiry of “the treatment

of similar issues in other interstate water compacts,” 894 F.3d at 527, in that the 1972

Susquehanna River Basin Compact is an interstate compact involving Pennsylvania,

Maryland, and New York. In these documents, state actors refer to steps taken by the

SRBC related to project review of natural gas development in the SRBC watershed. As

stated in Tarrant, “[llooking to the customary practices employed in other interstate

compacts also helps us to ascertain the intent of the parties to this Compact.” 569 U.S. at

633 (citing Alabama v. North Carolina, 560 U.S. 330 (2010); Restatement (Second) of

Contracts § 203(b) (explaining that “usage of trade” may be relevant in interpreting a

contract)). Thus, the practices of the SRBC in interpreting its authority under the Compact

related to natural gas development is relevant to issues before this Court.

Finally, Defendant's narrow view of relevance is not consistent with the Third

Circuit's opinion which did not view the drafters’ intent in static terms. The Circuit Court

directed this Court to use all tools identified to discern the drafters’ intent which includes a

retrospective consideration of the interactions among the parties to the Compact in the

intervening years. Because the documents at issue demonstrate the parties’ interactions on

the issue of control over activities related to water within the basin, they are relevant to this

case.

28

b. Availability of Other Evidence

Defendant asserts that “course of performance is shown by the actions it has taken,

not the predecisional exchange of ideas among its Commissioners and staff’ (Doc. 140 at

16) and it has produced voluminous evidence that shows DRBC’s course of performance

(id.). The Court concludes that the production of voluminous evidence does not preclude

the production of additional relevant evidence in the circumstances presented here.

First, for the reasons discussed above, the Court disagrees with Defendant's

assertion that “course of performance” in the current context does not require production of

documents related to predecisional deliberations.

Second, on the current record, the Court cannot definitively determine whether the

“voluminous” documents produced obviate the need for the documents withheld. DRBC

has properly produced its project review files and other non-privileged information in

response to Plaintiff's request for “documents related to the Compact parties’ course of

performance that bear on the intent of the Compact’s drafters as it pertains to the meaning

of the word ‘project’ as used in the Compact’ (id.). However, just as legislative history may

be informative of intent, predecisional deliberations, i.e., the negotiating history of a

decision, may be indicative of the parties’ interpretations of the drafters’ intent. See, e.g.,

Oklahoma v. New Mexico, 501 U.S. 221, 234-37 & n.5 (1991). Notably, the relevant inquiry

includes consideration of the purpose of the compact at issue, id. at 237, and the purpose of

the Delaware River Basin Compact is referenced in many documents withheld. See, e.9.,

29

Reference Numbers 4, 8. Further, as discussed above, predecisional deliberations may

also shed light on the parties’ views on the Commission's course of performance under the

Compact, similar interstate commissions’ course of performance, and the ceding of member

states’ control to the Commission, information that may not be included in the documents

which Defendant has produced but is relevant to this action. In sum, because the

documents withheld contain information which is within the purview of that deemed relevant

by the Circuit Court, this factor weighs in favor of production.

C. Seriousness of Litigation and Issues Involved

Defendant does not address the “seriousness” factor of the relevant inquiry.

Although Defendant pointed to the limited scope of the litigation in discussing the relevance

factor (Doc. 140 at 13-14), “whether WLMG’s planned activities and facilities constitute a

‘project’ when viewed under the prism of the intent of the Compact drafters” (id. at 14) is a

serious question with potentially broad implications for natural gas development and water

utilization within the Delaware River Basin.

d. Role of the Government

Defendant argues that its participation in this litigation is not sufficient to find a

substantial need for the documents withheld. (Doc. 140 at 19.) In support of the argument,

Defendant states that “[w]hat is lacking in this case is any rational connection between the

government's involvement in the litigation and the requested documents. Contrary to

WLMG’s position, the Privileged Documents have no bearing on the intent of the drafters or

30

any other issue relevant to the litigation.” (/d. at 19-20.) As discussed in consideration of

the relevance factor, the Court disagrees—the documents withheld may shed light on

several interpretive tools identified by the Third Circuit. See supra pp. 24-29.

Recognizing that the government's role as party is considered under this factor,

Defendant posits that its role in this litigation provides no basis on which to require

disclosure. (Doc. 140 at 10.) The assertion is based on a case from the Eastern District of

Pennsylvania where the court stated that “[w]hen the government seeks affirmative relief, it

is fundamentally unfair to allow it to evade discovery of materials that a private plaintiff

would have to turn over.” (/d. (quoting E.E.0.C. v. Airborne Express, No. CIV. A. 98-1471,

1999 WL 124380 (E.D. Pa. 1999) (citing E.E.0.C v. Citizens Bank & Trust Co., 117 F.R.D.

365, 366 (D. Md. 1987)). Defendant concludes that, because it seeks no affirmative relief,

its role as a party in this litigation does not provide a basis for disclosure. DRBC’s history

and course of performance are central to this litigation pursuant to the Third Circuit's

decision and Supreme Court guidance on the issue of interstate compact interpretation.

See supra pp. 25-28. Thus, to allow Defendant to evade discovery of relevant material

would be contrary to the evaluation of intent with which this Court is tasked. See Wayne

Land, 894 F.3d at 534.

31

@, Effect of Disclosure on Future Deliberations

In support of its argument that it would be harmed by disclosure of the privileged

documents, Defendant quotes Executive Director Tambini’s statement on the issue. (Doc.

140 at 21. In his Affidavit, Tambini stated the following:

Disclosing pre-decisional, deliberative communications between the

Commission’s former Executive Director and members of Commission staff on

the one hand and our Commissioners and their key staff and personnel on the

other would greatly inhibit the frank intergovernmental policy deliberations and

coordinated action that DRBC was created to encourage and thus would be

contrary to [our policy] and to the public interest.

(Doc. 138-1 at 8-9 (Tambini Aff. 9).) DRBC’s policy states that

[t]he Commission will make the fullest possible disclosure of records to the

public, consistent with the rights of individuals to privacy, the property rights of

persons in trade secrets and confidential commercial or financial information,

and the need for the Commission to promote frank internal policy deliberations

and to pursue its regulatory activities without disruption.

18 C.F.R. § 401.101.

The Court does not find Defendant's position persuasive. Here there are no rights to

privacy implicated in the documents at issue: emails seeking and providing comment on

proposed draft determinations and other matters contained in the documents withheld,

many of which were sent to numerous individuals without overtly expressed need for

secrecy, were communicated to and from individuals in their professional capacities. The

documents do not implicate property rights in trade secrets, confidential commercial

information, or confidential financial information. Although Tambini and Defendant aver that

disclosure would inhibit frank intergovernmental policy deliberations, the contents of the

32

communications at issue are not indicative of “the possibility of future timidity by government

employees who will be forced to recognize that their secrets are violable,” Redland, 55 F.3d

at 854. As noted above, the wide dissemination and subject matter of many documents

belie general characterization of the documents as secretive. On careful in camera review,

the Court finds nothing in the documents covered under the deliberative process privilege

which would suggest that release of the documents would chill the frank exchange of ideas.

For the foregoing reasons, each of the five factors identified in Redland weighs in

favor of disclosure. The difficult task of interpreting the intent of the drafters of a compact

which was adopted over fifty years ago and the limited interpretive tools available to conduct

the evaluation mandated by the Circuit Court, 894 F.3d at 534, indicate that the need for

relevant information outweighs DRBC’s interest in nondisclosure. Therefore, documents

protected only by the deliberative process privilege must be disclosed.

V. CONCLUSION

For the reasons set out above, the Court has made the following determinations: 1)

Reference Number 5 is protected by the attorney-client privilege and is not discoverable; 2)

Reference Numbers 14-18, 24, and 34 are not covered by the deliberative process privilege

and are thus discoverable; 3) Reference Numbers 1-4, 6-13, 19-23, 25-33, and 35 are

~_8.As discussed in the context of the attorney-client privilege, Reference Number 5 is protected from

disclosure based on that privilege. See supra pp. 8-9. Therefore, although it is also protected by the

deliberative process privilege, it is not discoverable. See supra pp. 16-17 n.2.

33

covered by the deliberative process privilege, but the need for disclosure outweighs

Defendant's interest in nondisclosure, and, therefore, the documents are discoverable.

With this determination, Plaintiff's Motion to Compel (Doc. 138) will be granted in part and

denied in part. An appropriate Order will be filed simultaneously with this Memorandum

Opinion. -

FP? Visalia, dpe

RoberND. Mariani

United States District Judge

34