PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 16-3592

_____________

SENECA RESOURCES CORPORATION

v.

TOWNSHIP OF HIGHLAND, 

Elk County, Pennsylvania; 

HIGHLAND TOWNSHIP BOARD OF SUPERVISORS, 

Elk County, Pennsylvania

 *CRYSTAL SPRING ECOSYSTEM; HIGHLAND 

TOWNSHIP MUNICIPAL AUTHORITY; 

 CITIZENS ADVOCATING A CLEAN HEALTHY 

ENVIRONMENT, INC., 

 Appellants 

 *(Pursuant to Rule 12(a) Fed. R. App. P.) 

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 1-15-cv-00060 

Magistrate Judge: Honorable Susan Paradise Baxter
2

Argued March 23, 2017

Before: SMITH, Chief Judge, JORDAN and ROTH, 

Circuit Judges

(Opinion Filed: July 17, 2017)

Lindsey Schromen-Wawrin [Argued]

Shearwater Law

306 West Third Street

Port Angeles, WA 98362

Counsel for Appellants

Brian J. Clark

Brian C. Wauhop

Buchanan Ingersoll & Rooney

409 North Second Street

Suite 500

Harrisburg, PA 17101

Stanley Yorsz [Argued]

Buchanan Ingersoll & Rooney

301 Grant Street

One Oxford Centre, 20th Floor

Pittsburgh, PA 15219

Counsel for Appellee Seneca Resources Corp
3

Arthur D. Martinucci [Argued]

Quinn Buseck Leemhuis Toohey & Kroto

2222 West Grandview Boulevard

Erie, PA 16506

Counsel for Appellees Township of Highland and 

Highland Township Board of Supervisors, Elk 

County, Pennsylvania

________________

OPINION

________________

SMITH, Chief Judge.

Appellants, Crystal Spring Ecosystem, Highland 

Township Municipal Authority, and Citizens Advocating 

a Clean Healthy Environment, Inc.—all represented by 

the Community Environmental Legal Defense Fund 

(“CELDF”)—sought to intervene on the side of 

Defendant-Appellee Township of Highland (the 

“Township”) in defense of the legality of the Highland 

municipal ordinance known as the “Community Bill of 

Rights.” The Community Bill of Rights, among other 

things, prohibited Plaintiff-Appellee Seneca Resources 

Corporation from using a well to store waste from 
4

fracking.1 The District Court2 denied Appellants’ motion

to intervene, holding that the Township adequately 

represented Appellants’ interests in defending the 

 

1

“[F]racking[] is a method used to stimulate production 

of a well. A specially blended liquid is pumped down the 

well and into a formation under pressure high enough to 

cause the formation to crack open, forming passages 

through which oil or gas can flow into the wellbore.” 

T.W. Philips Gas & Oil Co. v. Jedlicka, 42 A.3d 261, 264 

n.1 (Pa. 2012); see also U.S. EPA, Hydraulic Fracturing 

for Oil and Gas: Impacts from the Hydraulic Fracturing 

Water Cycle on Drinking Water Resources in the United 

States 3–4 (2016) (executive summary), 

http://ofmpub.epa.gov/eims/eimscomm.getfile?p_downlo

ad_id=530285.

2 On March 26, 2015, the parties filed consents to trial 

and jurisdiction before a magistrate judge. See Seneca 

Res. Corp. v. Highland Township, No. 15-60 Erie, 2016 

WL 1213605, at *1 n.1 (W.D. Pa. Mar. 29, 2016) (“[T]he 

parties have voluntarily consented to have a United 

States Magistrate Judge conduct proceedings in this case, 

including the entry of a final judgment.”); 28 U.S.C. 

§ 636(c). Because the Magistrate Judge has the full 

power of the District Court, we refer to the Magistrate 

Judge as the District Court where appropriate. 
5

Community Bill of Rights. Appellants moved for 

reconsideration. While the motion for reconsideration 

was pending, the Township repealed the Community Bill 

of Rights and entered into a settlement with Seneca that 

culminated in a consent decree adopted by the District 

Court. Appellants filed a motion for reconsideration of 

the Consent Decree, which the District Court denied 

along with Appellants’ motion for reconsideration of 

their motion to intervene. 

Appellants now appeal four orders: (1) the denial 

of their motion to intervene, (2) the denial of the motion 

for reconsideration of their motion to intervene, (3) the 

District Court’s adoption of the Consent Decree, and (4) 

the denial of the Appellants’ motion for reconsideration 

of the Consent Decree. Appellants’ original motion to 

intervene is now moot because there is no longer an 

ordinance to defend. In their reply brief and at oral 

argument, Appellants fell back on the argument that they 

had a right to intervene because the Consent Decree 

purportedly “establish[es] . . . the legality or illegality of 

[Appellants’] protected rights.” Appellants’ Reply Br. 8. 

But the Consent Decree does not bind any of the 

Appellants nor does it deprive them of any rights after 

the Community Bill of Rights has been repealed. 

Because Appellants cannot intervene, they are 

nonparties. Because they are nonparties, they cannot 

appeal the Consent Decree. Therefore, we will affirm the 

District Court’s order denying Appellants’ motion for 
6

reconsideration of the order denying intervention. We 

lack jurisdiction to review the remaining three orders 

because of mootness and standing issues. 

BACKGROUND

I. ACTORS

Plaintiff-Appellee Seneca Resources Corporation 

is a Pennsylvania corporation engaged in oil and natural 

gas exploration and production. Seneca sought to 

convert a natural gas well in Highland Township into a 

Class II underground injection control well in which to 

store waste from fracking. 

Defendants-Appellees are Township of Highland 

and the Highland Board of Supervisors. Highland is a 

township located in Elk County, Pennsylvania. The 

Board of Supervisors is its three-person governing body. 

See 53 P.S. § 65601 (“Townships shall be governed and 

supervised by boards of supervisors. Boards of 

supervisors shall consist of three members or, if approved

by the electors under section 402(b), five members.” 

(footnote omitted)).

CELDF advocates that communities pass laws that 

assert community rights against corporations and others 

engaged in activity disfavored by members of the 
7

community.3 CELDF appears to have drafted the 

ordinance at issue here. CELDF represented the 

Township earlier in this litigation, and a different CELDF 

lawyer has represented Appellants. 

Appellants are Crystal Spring Ecosystem, 

Highland Township Municipal Authority, and Citizens 

Advocating a Clean Healthy Environment, Inc.

Crystal Spring Ecosystem “encompasses [a 

natural] spring, as well as the surrounding hillside and 

riparian forests, soils, and bedrocks, [and] the residents of 

James City who drink from Crystal Spring.” Appellants’ 

Br. 21; accord App.197–98 (Mot. Intervene) ¶ 14.4

 

3 See, e.g., Uma Outka, Intrastate Preemption in the 

Shifting Energy Sector, 86 U. Colo. L. Rev. 927, 959–60 

(2015) (referring to CELDF-sponsored antifracking 

legislation in Pittsburgh, Pa., Mora, N.M., and Lafayette, 

Colo.); Catherine J. Iorns Magallanes, Foreword: New 

Thinking on Sustainability, 13 N.Z. J. Pub. & Int’l L. 1, 

12 (2015) (“160 communities in the United States have 

adopted such rules that have been drafted by the 

CELDF . . . .”).

4 Appellants claim that the Ecosystem has standing under 

the Community Bill of Rights. Because of the way this 

appeal is terminated and because Citizens Advocating a 
8

Highland Township Municipal Authority is a 

municipal government agency that provides water from 

Crystal Spring for unincorporated James City, a city 

within Highland Township. 

Citizens Advocating a Clean Healthy 

Environment, Inc. (“CACHE”) is a nonprofit corporation 

that “is, and has been, the primary advocate” for the 

Community Bill of Rights. App.197 (Mot. Intervene)

¶¶ 9–13. Its three directors are residents of Highland 

Township who “own property in James City connected to 

the Municipal Authority water supply.” App.197 (Mot. 

Intervene) ¶ 11. 

 

Clean Healthy Environment, Inc., would be a proper 

intervenor were it to meet the standards under Rule 24(a) 

of the Federal Rules of Civil Procedure, we do not need 

to resolve whether an ecosystem can have standing or is a 

proper party under Rule 17 of the Federal Rules of Civil 

Procedure. Cf. Hawksbill Sea Turtle v. FEMA, 126 F.3d 

461, 466 n.2 (3d Cir. 1997) (“It is not disputed that the 

human plaintiffs have standing to sue under the ESA, and 

therefore we need not consider the standing to sue of the 

animals named as plaintiffs.”).
9

II. FACTUAL AND PROCEDURAL HISTORY

On January 9, 2013, the Township enacted a farreaching ordinance that, among other things, prohibited 

“disposal injection wells” from existing within Highland. 

App.046–50 (2013 Ordinance). 

On June 17, 2014, the EPA issued a final, ten-year 

permit to Seneca to allow it to operate a Class II-D 

injection well. Part 1.A of the permit says, “Issuance of 

this permit does not . . . authorize . . . any infringement of 

State or local law or regulations.” App.082 (Permit). 

Sometime between November 3, 2014, and 

January 8, 2015, the Highland Township Board of 

Supervisors wrote to the EPA, stating that the EPA 

permit was invalid under the Township’s ordinance. See

App.095–96 (Letter).

Seneca sued the Township and the Board of 

Supervisors on February 18, 2015, alleging that the 

ordinance was invalid. Seneca sought damages, 

attorneys’ fees, and an injunction prohibiting the 

Township from enforcing the ordinance. The Township 

and the Board of Supervisors were represented by 

CELDF lawyers.

On March 24, 2015, the Township adopted the 

Community Bill of Rights as an amendment to the 

January 9, 2013 ordinance. The Community Bill of 
10

Rights established a right to water and clean air for 

persons, natural communities and ecosystems5and stated 

that any resident could enforce an ecosystem’s rights “to 

exist and flourish.” App.119 (Community Bill of 

Rights). Section 3 of the Community Bill of Rights made 

it illegal for any corporation or government to deposit 

waste from “oil and gas extraction” “within Highland 

Township” and further claimed to invalidate any “permit, 

license, privilege, charter, or other authority” that 

violated the Community Bill of Rights. App.120

 

5 The Community Bill of Rights provided that:

All residents, natural communities and ecosystems 

in Highland Township possess the right to 

sustainably access, use, consume, and preserve 

water drawn from natural water cycles that provide 

water necessary to sustain life within the 

Township.

. . . All residents, natural communities, and 

ecosystems in Highland Township possess the 

right to breathe air untainted by toxins, 

carcinogens, particulates, and other substances 

known to cause harm to health.

App.119 (Community Bill of Rights § 2(a)–(b)).
11

(Community Bill of Rights). Section 4(b) of the 

Community Bill of Rights stated that any resident could 

enforce the rights of the Township. App.120

(Community Bill of Rights). Section 4(c) of the 

Community Bill of Rights stated that any resident of 

Highland Township could “enforce or defend the rights 

of ecosystems.” App.120 (Community Bill of Rights). 

Section 5(a) of the Community Bill of Rights stated that 

“[c]orporations that violate this Ordinance, or that seek to 

violate this Ordinance, shall not be deemed to be 

‘persons’” and that those corporations did not have the 

“power to assert state or federal preemptive laws in an 

attempt to overturn” the Community Bill of Rights. 

App.120 (Community Bill of Rights). The Community 

Bill of Rights called for “amendment of the Pennsylvania 

Constitution and the federal Constitution to recognize a 

right to local self-government free from governmental 

preemption and or nullification by corporate ‘rights.’” 

App.121 (Community Bill of Rights). 

On April 6, 2015, Seneca filed an amended 

complaint. The Amended Complaint took note of the 

Community Bill of Rights and further alleged that the 

Township told the Pennsylvania Department of 

Environmental Protection that the original ordinance 

would preclude the DEP from issuing a state permit. 

Seneca claimed that the Township’s communication with 

the DEP was causing the DEP to delay issuance of the 

state permit. The Amended Complaint alleged the same 
12

claims and requested the same relief as the original 

complaint. See App.106–15 (Am. Compl.). 

On August 11, 2015, Appellants, represented by a 

different CELDF lawyer than the lawyer who represented 

the Township and the Board of Supervisors, filed their 

motion to intervene pursuant to Rule 24(a)(2) of the 

Federal Rules of Civil Procedure in order to defend the 

legality of the ordinance. See Oral Arg. at 7:04 

(“[Appellants] tried to come into this case on the side of 

the Government with the interests of defending the 

ordinance . . . .”). 

On December 31, 2015, one of the three members 

of the Board of Supervisors died.

On March 29, 2016, the District Court denied the 

Appellants’ motion to intervene because Appellants

failed to show that the Township and the Board of 

Supervisors did not adequately represent Appellants’ 

interests. See Seneca Res. Corp. v. Highland Township, 

No. 15-60 Erie, 2016 WL 1213605, at *2–3 (W.D. Pa. 

Mar. 29, 2016).

On April 26, 2016, Appellants moved for 

reconsideration of the March 29, 2016 order denying 

their motion to intervene. Appellants alleged there had 

been “a material change in the relevant facts” because 

“the composition of the Highland Township Board of 

Supervisors changed.” App.317 (Mot. Reconsideration 
13

Denial Mot. Intervene). According to Appellants, the 

new replacement supervisor expressed the view that the 

Community Bill of Rights was likely invalid and 

therefore the Board majority was opposed to continuing 

to defend the Community Bill of Rights. Under these 

new circumstances, Appellants argued, the Township 

would no longer adequately represent Appellants’ 

interests. App.318–19 (Mot. Reconsideration Denial 

Mot. Intervene). On May 13, 2016, a CELDF lawyer 

filed a response to the motion for reconsideration on 

behalf of the Township and the Board of Supervisors. In 

the response, the Township and the Board said that they 

supported the motion for reconsideration because “it is 

unlikely that the Township’s aggressive defense of the 

Ordinance will continue.” App.345 (Response).

On May 30, 2016, CELDF moved to withdraw as 

counsel of record for the Township and its Board of 

Supervisors. CELDF claimed that Defendants “have 

ceased to communicate with their counsel, despite 

multiple attempts by counsel to contact the clients,” 

which apparently included the period during which 

Defendants filed their “response” supporting Appellants’ 

motion for reconsideration. App.348–50 (Mot. 

Withdrawal). On June 2, 2016, CELDF informed the 

court that Defendants said they were hiring new counsel. 

The Board of Supervisors repealed the Community 

Bill of Rights on the night of August 10, 2016.
14

The following day, Seneca and Defendants filed a 

stipulation and consent decree under which the Township 

stipulated that much of the Community Bill of Rights 

was “an impermissible exercise of Highland’s legislative 

authority,” “unconstitutional,” or “unenforceable.” 

App.388–89 (Stipulation and Consent Decree) ¶ 13(a)–

(g).

6

 Additionally, under the Consent Decree, the 

 

6 The relevant portions of the stipulation and consent 

decree state as follows: 

a. Section 3 of the Highland Community Bill Of 

Rights Ordinance, as amended (Amendment and 

Revision of Ordinance No. 1-9 of 2013) constitutes 

an impermissible exercise of Highland’s legislative 

authority and is therefore invalid and 

unenforceable;

b. Section 3 of the Highland Community Bill Of 

Rights Ordinance, as amended (Amendment and 

Revision of Ordinance No. 1-9 of 2013) is also

invalid and unenforceable in that it is de jure 

exclusionary in seeking to prohibit entirely the 

exercise of a legitimate and lawful business 

activity (to-wit, the development of oil and gas 

resources and the management of related waste 

materials);
15

 

c. Section 4(b) and (c) of the Highland Community 

Bill Of Rights Ordinance, as amended 

(Amendment and Revision of Ordinance No. 1-9 

of 2013) constitute an impermissible exercise of 

Highland’s legislative authority and are therefore 

invalid and unenforceable;

d. Sections 5(a) and (b) of the Highland 

Community Bill Of Rights Ordinance, as amended 

(Amendment and Revision of Ordinance No. 1-9 

of 2013), are unenforceable as preempted by state 

law;

e. Section 5(a) of the Highland Community Bill Of 

Rights Ordinance is, on its face, unconstitutional 

(under both the United States Constitution and the

Constitution of the Commonwealth of 

Pennsylvania);

f. Section 6 of the Highland Community Bill Of 

Rights Ordinance is, on its face, unconstitutional 

(under both the United States Constitution and the

Constitution of the Commonwealth of 

Pennsylvania);

g. Section 7 of the Highland Community Bill Of 

Rights Ordinance is, on its face, unconstitutional 
16

Township and the Board of Supervisors withdrew their 

objection to Seneca’s DEP permit applications and 

withdrew their counterclaims, and Seneca withdrew its 

counterclaims against the Township and the Board of 

Supervisors. App.389–90 (Stipulation and Consent 

Decree) ¶ 13(i)–(l). The parties also requested that the 

Court “adopt . . . as its findings and opinion regarding the 

merits of Seneca’s claims” the parties’ stipulations about 

why specific parts of the Community Bill of Rights were 

unlawful. See App.390 (Stipulation and Consent Decree) 

¶ 16.

That same day, the District Court entered an order 

designated as the final judgment. The order adopted

Paragraph 13(a)–(g) of the Consent Decree as the Court’s 

findings and opinion. Paragraph 13(a)–(g) were the 

portions of the Consent Decree that concluded that much 

of the Community Bill of Rights was unenforceable.

On August 15, 2016, Appellants filed a motion for 

reconsideration of final judgment arguing that the 

 

(under both the United States Constitution and the 

Constitution of the Commonwealth of 

Pennsylvania); . . . .

App.388–89 (Stipulation and Consent Decree) ¶ 13(a)–

(g).
17

Township and the Board of Supervisors were not 

considering the long-term interests in clean water, that 

Appellants had rights to be parties in the case, and that 

Appellants would have participated in settlement 

negotiations.

On August 16, 2016, the District Court denied 

Appellants’ motion for reconsideration of the denial of 

their motion to intervene. Before ruling on the motion to 

intervene in this case, the District Court denied 

intervention in a similar case, Pennsylvania General 

Energy Co., LLC v. Grant Township, No. 14-cv209ERIE, 2015 WL 6002163 (W.D. Pa. Oct. 14, 2015). 

In Pennsylvania General Energy, we affirmed the denial 

of the motion to intervene in a nonprecedential order. 

Without addressing changed circumstances or 

Appellants’ new arguments in this case, the District 

Court explained that our affirmance in Pennsylvania 

General Energy gave it confidence in its original 

decision to deny intervention to Appellants. See

App.022–23 (Order). 

That same day, the District Court denied 

Appellants’ motion for reconsideration of the order 

approving the Consent Decree because the Appellants

were not parties.

On September 12, 2016, Appellants appealed the 

following: the March 29, 2016 order denying the motion 

to intervene; the August 16, 2016 order denying the 
18

motion to reconsider the order denying the motion to 

intervene; the August 12, 2016 final order adopting the 

Consent Decree; and the August 16, 2016 memorandum 

opinion denying reconsideration of the adoption of the 

Consent Decree.

Although litigation in the District Court relating to 

the Community Bill of Rights has concluded, a second, 

very similar case is now before the same District Court. 

On November 8, 2016, the Township adopted a Home 

Rule Charter that prevented Seneca from storing fracking 

waste in Highland.

7

 See Compl. ¶ 1, Seneca Res. Corp. 

v. Highland Township, No. 16-289 (W.D. Pa. Nov. 30, 

2016), ECF No. 1; see also See Compl. Ex. A § 401, No. 

16-289 (W.D. Pa. Nov. 30, 2016), ECF No. 1-1 (“It shall 

be unlawful within Highland Township for any 

corporation or government to engage in the depositing of 

waste from oil and gas extraction.”). In response to the 

 

7 The Home Rule Charter was apparently passed in a 

popular vote, 55% to 45%, with 94 citizens turning out. 

See Katie Weidenboerner, Highland Township Votes in 

Home Rule Charter, Courier Express (DuBois, Pa.) (Nov. 

9, 2016), 

http://www.thecourierexpress.com/news/local/highlandtownship-votes-in-home-rule-charter/article_833142aeb155-55fa-8477-5864bde37281.html.
19

Home Rule Charter, Seneca brought a separate lawsuit 

against the Township and the Board of Supervisors. In 

that litigation, two of the Appellants—Citizens 

Advocating a Clean Healthy Environment, Inc., and the 

Crystal Spring Ecosystem—have moved to intervene.

JURISDICTION

The District Court had jurisdiction under 28 U.S.C. 

§§ 1331, 1343, and 1367. Appellants claim we have 

appellate jurisdiction to review the District Court’s 

decisions under 28 U.S.C. § 1291. As discussed below, 

fatal standing or mootness problems prevent us from 

taking appellate jurisdiction except to the extent that we 

hold that the District Court did not abuse its discretion 

when it denied Appellants’ motion for reconsideration of 

the order denying intervention. 

STANDARD OF REVIEW

Our “continuing obligation” to assure that we have 

jurisdiction requires that we raise issues of standing and 

mootness sua sponte. Ehleiter v. Grapetree Shores, Inc.,

482 F.3d 207, 211 (3d Cir. 2007); see also Chong v. Dist. 

Dir., INS, 264 F.3d 378, 383 (3d Cir. 2001). We assess 

our own appellate jurisdiction in the first instance. Cf. 

Freedom from Religion Found., Inc. v. New Kensington 

Arnold Sch. Dist., 832 F.3d 469, 475 n.4 (3d Cir. 2016)

(“We exercise de novo review over legal conclusions 

concerning standing and mootness.”).
20

We review denials of motions for reconsideration

of denials of motions for intervention as of right under a 

“more stringent” abuse of discretion review. Harris v. 

Pernsley, 820 F.2d 592, 597 (3d Cir. 1987); see 

McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 

F.3d 240, 245 n.9 (3d Cir. 2014) (“Because an appeal 

from a denial of a Motion for Reconsideration brings up 

the underlying judgment for review, the standard of 

review varies with the nature of the underlying 

judgment.” (quoting McAlister v. Sentry Ins. Co., 958 

F.2d 55, 552–53 (3d Cir. 1992))); Kleissler v. U.S. Forest 

Serv., 157 F.3d 964, 969 (3d Cir. 1998) (“We will reverse 

a district court’s determination on a motion to intervene 

as of right if the court has abused its discretion by 

applying an improper legal standard or reaching a 

conclusion we are confident is incorrect.” (citing Harris, 

820 F.2d at 597)).

ANALYSIS

There are two sets of rulings Appellants dispute: 

(1) two rulings on motions relating to intervention and 

(2) two rulings on motions relating to the Consent 

Decree. The second set is linked to the first because, to 

appeal rulings related to the Consent Decree, Appellants

must, among other things, be “part[ies] . . . aggrieved by 

the district court’s judgment.” Armotek Indus., Inc. v. 

Emp’rs Ins. of Wausau, 952 F.2d 756, 759 n.3 (3d Cir. 

1991) (emphasis omitted). Appellants are not parties. 
21

Appellants contend that they should have been 

parties because the District Court should have granted 

their motion to intervene. Their main claim to intervene 

in the District Court and their only claim in their opening 

brief here relates to their interest in defending the 

Community Bill of Rights. Because the Community Bill 

of Rights has been repealed, this argument is moot.8 In a 

 

8 Were we to reach the merits of the issue as to whether 

Appellants could intervene to defend the ordinance, we 

would have serious doubts that the Township of 

Highland’s decision to seek a settlement made them 

inadequate representatives of the Appellants’ interests. 

We have repeatedly stated that a party is entitled to settle 

its lawsuit without inviting intervenors where settlement 

is the only reasonable course of action. See, e.g., Brody 

ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1123–24 (3d 

Cir. 1992) (“The contention that the school officials have 

not actively litigated this case must be rejected as a basis 

for finding inadequate representation. . . . Defendants are 

fully entitled to choose to negotiate a consent decree 

rather than litigate the case on the merits.”); 

Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir. 1976) 

(“Even if the injunction had been characterized as a 

consent decree, inadequate representation would not be 

established ipso facto; any case, even the most vigorously 

defended, may culminate in a consent decree. As the 

Seventh Circuit has observed, a consent decree may be 
22

 

simply ‘the inescapable legal consequence of application 

of fundamental law to [the] facts. That [intervenors]

would have been less prone to agree to the facts and 

would have taken a different view of the applicable law 

does not mean that the [defendants] did not adequately 

represent their interests in the litigation.’” (quoting 

United States v. Bd. of Sch. Comm’rs, 466 F.2d 573, 575 

(7th Cir. 1972))).

At oral argument, Appellants’ counsel essentially 

conceded that the Amended Ordinance was unlawful

under existing law:

THE COURT: You would agree, wouldn’t 

you, that there are some portions of the 

Amended Ordinance here that clearly were 

unlawful?

COUNSEL: Your Honor, those are the 

issues that we’d like to litigate before the 

Court but unfortunately we 

[UNINTELLIGIBLE]—

THE COURT: You think that there’s an 

arguable position to be taken that there was 

no preemption in some of the laws here.
23

sentence in their reply brief and at length at oral 

argument, Appellants argued they should be able to 

intervene to challenge the District Court’s adoption of 

Paragraph 13(a)–(g) of the Consent Decree. Appellants 

argue that the District Court could not adopt findings and 

holdings to which the parties agreed. Because the 

Consent Decree does not bind Appellants or deprive 

them of rights, the District Court did not abuse its 

discretion in denying their motion for reconsideration of 

the denial of intervention to challenge those aspects of 

the Consent Decree. 

 

COUNSEL: Your Honor, that would be like 

being in 1907 and arguing against Lochner.

THE COURT: Taking away corporation’s 

personhood? 

COUNSEL: Again, that would be like being 

in 1900, arguing against separate but equal. 

So, yes, we’re challenging corporate 

constitutional rights, making a good faith 

claim for changing the law.

Oral Arg. at 8:20 (emphasis added). 
24

Finally, because Appellants cannot intervene for 

either of the two reasons they advanced for intervention, 

they lack standing to challenge the Consent Decree. 

I. APPELLANTS CANNOT INTERVENE

Appellants cannot intervene either to save the 

ordinance or to challenge the adoption of the Consent 

Decree.

A. Intervention To Defend the Ordinance Is Moot

“The doctrine of mootness requires that ‘an actual 

controversy must be extant at all stages of review, not 

merely at the time the complaint is filed.’” Brown v. 

Phila. Hous. Auth., 350 F.3d 338, 343 (3d Cir. 2003) 

(quoting N.J. Turnpike Auth. v. Jersey Cent. Power & 

Light, 772 F.2d 25, 31 (3d Cir. 1985)). 

The party asserting mootness bears a heavy burden 

to show the case is moot. See Burns v. PA Dep’t of 

Corr., 544 F.3d 279, 284 (3d Cir. 2008) (“Such lack of 

specificity, along with the fact that the Department of 

Corrections urges us to refrain from vacating the 

favorable decision entered by the District Court, counsels 

against the conclusion that the Appellees have met the 

‘“heavy,” even “formidable” burden’ that a party alleging 

mootness must bear.” (quoting United States v. Gov’t of 

V.I., 363 F.3d 276, 285 (3d Cir. 2004))).
25

After the party asserting mootness bears that 

burden, the burden shifts to the party opposing mootness 

to explain why the case is not moot. See Richardson v. 

Bledsoe, 829 F.3d 273, 283 n.4 (3d Cir. 2016) 

(“Richardson has not carried his burden of showing that 

he fits into either the ‘capable of repetition yet evading 

review’ or the ‘inherently transitory’ exceptions to 

mootness.”). 

On August 10, 2016, the Board repealed the 

ordinance that Appellants wanted to defend. Appellants

originally stated that their purpose for seeking to 

intervene was to defend the Community Bill of Rights. 

Appellants have never argued that this Court could revive

the Community Bill of Rights or that Appellants had any

right to prevent the repeal. Cf. Util. Contractors Ass’n of 

N.J., Inc. v. Toops, 507 F.2d 83, 86 (3d Cir. 1974) (“In 

the absence of this lawsuit, had any of the municipalities 

chosen voluntarily to change its building code, the 

appellants’ monetary interests would not have conferred 

legal standing to prevent such governmental action.”). 

Therefore, Appellees have met their burden of showing 

Appellants’ defense of the Community Bill of Rights

would be moot.

Appellants raise three defenses to mootness: (1) 

that the intervention issue is “capable of repetition yet 

evading review”; (2) that this lawsuit is a matter of 

“public interest”; and (3) that we can ignore mootness 
26

because “the resolution on the merits” of the intervention 

issue “is clear.” Appellants’ Reply Br. 5–7. All of these 

fail. Therefore, Appellants cannot carry their burden to 

explain why the case is not moot. 

First, the issue here does not “evade review.” An 

issue evades review when the issue cannot be resolved in 

time to fully contest the challenged action. See 

Richardson, 829 F.3d at 283 n.4 (“Richardson has not 

shown . . . that the amount of time an inmate spends in 

the SMU Program is typically so brief as to evade review 

by becoming moot before a District Court can rule on 

class certification.”). Appellants argue that they are 

unable to get a court ruling on their motions to intervene

in subsequent litigation because a case could become 

moot before any ruling is issued. For instance, Appellees 

could settle the Home Rule Charter litigation, Seneca 

Res. Corp. v. Highland Township, No. 16-289 (W.D. 

Pa.), before the District Court rules on the motion to 

intervene in that case. Appellees’ argument is 

speculative at best. There is enough time for the District 

Court to rule on CACHE and the Ecosystem’s motion to 

intervene in the Home Rule Charter litigation. See, e.g.,

County of Morris v. Nationalist Movement, 273 F.3d 527, 

534 (3d Cir. 2001) (“The District Court conducted 

hearings on an expedited basis and rendered an opinion 

in time to guide the parties’ conduct during that event. 

With respect to any dispute that might arise in connection 

with future Independence Day activities, the parties, if 
27

unable to resolve their differences, would have ample 

opportunity to bring a new lawsuit and to develop a 

record reflective of the particular circumstances attendant 

on that dispute.”). Thus, the issue is not so fleeting as to 

evade review. 

Second, Appellants cite a dated, out-of-circuit case 

for the proposition that the public interest in the 

resolution of a case can be an exception to mootness. See 

Alton & S. Ry. Co. v. Int’l Ass’n of Machinists, 463 F.2d 

872, 880 (D.C. Cir. 1972) (“But when the particular 

controversy has expired, so that there is no duty or 

obligation of the court to maintain the appeal, an 

application of the doctrine permitting maintenance of 

appeals of recurring controversies in cases of public 

interest necessarily identifies judicial latitude.”). That 

case also appears to be about the “capable of repetition 

yet evading review” exception. See id. at 878 (“[T]here 

is a strong counter-current of doctrine under which the 

court continues an appeal in existence, notwithstanding 

the lapse in time of the particular decree or controversy, 

when the court discerns a likelihood of recurrence of the 

same issue, generally in the framework of a ‘continuing’

or ‘recurring’ controversy, and “public interest” in 

maintaining the appeal.”). Were that case to stand for a 

broader “public interest” principle, it would not avail 

Appellants. The Third Circuit has never adopted a 

standalone public interest exception to mootness. See 

N.J. Turnpike Auth., 772 F.2d at 30 (“Although we 
28

recognize that the substantive issues are of considerable 

public interest, we believe that this alone does not impart 

Article III justiciability when there is ‘no reasonable 

expectation that the wrong will be repeated.’” (quoting 

United States v. W.T. Grant Co., 345 U.S. 629, 633 

(1953))); Campbell Soup Co. v. Martin, 202 F.2d 398, 

399 (3d Cir. 1953) (“[E]ven if this were a subject of 

public interest we do not think that the exception [to 

mootness] could be applied in a federal court.”). 

Third, Appellants argue that we can ignore

mootness when “the resolution on the merits is clear.” 

Appellants’ Reply Br. 6 (quoting Pickus v. U.S. Bd. of 

Parole, 543 F.2d 240, 242 (D.C. Cir. 1976) (internal 

quotation mark omitted)). But “[u]nder Article III of the 

Constitution, this Court has no authority to give opinions 

upon moot questions or abstract propositions, or to 

declare principles or rules of law which cannot affect the 

matter in issue in the case before it.” Whiting v. 

Krassner, 391 F.3d 540, 544 (3d Cir. 2004) (quoting 

Church of Scientology v. United States, 506 U.S. 9, 12 

(1992)) (internal quotation marks omitted); see also 

Elliott v. Archdiocese of N.Y., 682 F.3d 213, 219 (3d Cir. 

2012) (explaining that we cannot opine on a case over 

which we have no jurisdiction). Thus, even were the

resolution of Appellants’ original intervention motion 

glaringly obvious, we cannot rule on it because it is 

moot. 
29

B. The District Court Did Not Abuse Its Discretion in 

Denying the Appellants’ Motion To Intervene To 

Challenge the Consent Decree

Perhaps recognizing that they could no longer rely 

on their interests in defending the Community Bill of 

Rights, Appellants now focus heavily on the District 

Court’s adoption of part of Paragraph 13 of the Consent 

Decree as the basis for their right to intervene.

9

 The 

District Court “adopt[ed] as its findings, and as the 

opinion and order of this Court, those matters stipulated 

to in ¶¶13(a)-(g) of the Stipulation and Consent Decree.” 

App.021 (Order, Seneca Res. Corp. v. Highland 

Township, No. 1:15-cv-60-SPB (W.D. Pa. Aug. 12, 

 

9 Appellants raised the issue that they should have been 

allowed to intervene because the District Court lacked 

power to adopt the Consent Decree for the first time 

before us in their reply brief. See Appellants’ Reply Br. 

8. As such, we need not consider it. See, e.g., Issa v. 

Sch. Dist. of Lancaster, 847 F.3d 121, 139 n.8 (3d Cir. 

2017) (explaining that we could ignore an argument 

raised fleetingly in the district court and for the first time 

before us in a reply brief). We do so because Appellants’ 

interest in the Consent Decree is an issue of law and their 

concerns about ultra vires district court action are 

important. 
30

2016), ECF No. 84). In turn, Paragraph 13(a)–(g) stated 

that the parties “stipulate and agree” that various sections 

of the Community Bill of Rights were invalid for various 

reasons. App.388–89 (Stipulation and Consent Decree)

¶ 13(a)–(g).

Appellants now claim that they must be allowed to 

intervene because the portion of the District Court’s 

order that adopted Paragraph 13(a)–(g) “establish[es] . . . 

the legality or illegality of [Appellants’] protected 

rights.” Appellants’ Reply Br. 8. More specifically, 

Appellants argue that the District Court lacked the power 

to enter that order because the parties were no longer 

adverse to each other when the Consent Decree was 

adopted. 

We cannot reach that argument because the 

District Court did not abuse its discretion in denying 

Appellants’ motion to reconsider the order denying their 

motion to intervene. Appellants do not have a legally 

protectable interest in the purportedly substantive 

elements of the Consent Decree sufficient to allow them 

to intervene to argue that the case was moot when the 

Consent Decree was adopted. 

“To justify intervention as of right, the applicant 

must have an interest ‘relating to the property or 

transaction which is the subject of the action’ that is 

‘significantly protectable.’” Kleissler v. U.S. Forest 

Serv., 157 F.3d 964, 969 (3d Cir. 1998) (quoting 
31

Donaldson v. United States, 417 U.S. 517, 531 (1971), 

superseded on other grounds by 26 U.S.C. § 7609 as 

stated in Tiffany Fine Arts, Inc. v. United States, 469 U.S. 

310, 316 (1985)); accord Fed. R. Civ. P. 24(a)(2). “It is 

not sufficient that the claim be incidentally affected; 

rather, there must be ‘a tangible threat’ to the applicant’s 

legal interest. . . . [T]his factor may be satisfied if, for 

example, a determination of the action in the [proposed 

intervenors’] absence will have a significant stare decisis 

effect on their claims, or if the [proposed intervenors’] 

rights may be affected by a proposed remedy.” Brody ex 

rel. Sugzdinis v. Spang, 957 F.2d 1108, 1123 (3d Cir. 

1992) (citation omitted) (quoting Harris v. Pernsley, 820 

F.2d 592, 601 (3d Cir. 1987)); see also Liberty Mut. Ins. 

Co. v. Treesdale, Inc., 419 F.3d 216, 226–27 (3d Cir. 

2005).

The Consent Decree does not establish Appellants’ 

legal rights. Were Appellants to find themselves in a 

position to argue the merits of the Community Bill of 

Rights (or a law like the Community Bill of Rights), 

Appellants would not be barred by (1) estoppel, (2) stare 

decisis, (3) judicial consequences of the Consent Decree, 

or (4) any contractual consequences largely because 

Appellants were not parties to the Consent Decree. 

Because the Consent Decree does not—and cannot—

affect Appellants’ rights, the District Court did not abuse 

it discretion in denying Appellants’ motion for 

reconsideration of the denial of the motion to intervene.
32

First, there are no estoppel consequences to 

Appellants here because Appellants were not parties to 

this case and have not had a full and fair opportunity to 

litigate any issue regarding the merits of the case. See, 

e.g., Peloro v. United States, 488 F.3d 163, 175 (3d Cir. 

2007) (“For defensive collateral estoppel—a form of 

non-mutual issue preclusion—to apply, the party to be 

precluded must have had a ‘full and fair’ opportunity to 

litigate the issue in the first action.” (quoting Parklane 

Hosiery Co. v. Shore, 439 U.S. 322, 328, 332 (1979));

Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 

47, 50–51 (Pa. 2005) (requiring “the party against whom 

the plea is asserted was a party or in privity with a party 

in the prior case” and “the party or person privy to the 

party against whom the doctrine is asserted had a full and 

fair opportunity to litigate the issue in the prior 

proceeding”). Therefore, the District Court’s declaration 

does not estop any party from defending the Ordinance 

except potentially the Township and the Board of 

Supervisors. 

Second, stare decisis does not affect Appellants 

here because “[a] decision of a federal district court judge 

is not binding precedent in either a different judicial 

district, the same judicial district, or even upon the same 

judge in a different case.” Camreta v. Greene, 563 U.S. 

692, 709 n.7 (2011) (quoting 18 James W. Moore et al., 

Moore’s Federal Practice § 134.02[1][d] (3d ed. 2011)); 

accord Daubert v. NRA Grp., LLC, --- F.3d ---, 2017 WL 
33

2836808, at *8 (3d Cir. July 3, 2017); see also Threadgill 

v. Armstrong World Indus., Inc., 928 F.2d 1366, 1371 (3d 

Cir. 1991) (“[I]t is clear that there is no such thing as ‘the 

law of the district.’”); Ashley v. City of Jackson, 464 U.S. 

900, 902 (1983) (Rehnquist, J., dissenting from denial of 

certiorari) (“The decree may be scrutinized by the judge 

for fairness prior to his approval, but there is no contest 

or decision on the merits of the issues underlying the 

lawsuit. Such a decree binds the signatories, but cannot 

be used as a shield against all future suits by nonparties 

seeking to challenge conduct that may or may not be 

governed by the decree.”).

Third, there are no judicial consequences to 

Appellants flowing from the Consent Decree. That is, 

Appellants could not be held in contempt for violating 

the Consent Decree because, on its face, “the consent 

decree here does not bind [Appellants] to do or not to do 

anything, nor does it impose any legal obligations on 

[Appellants].” Johnson v. Lodge #93 of the Fraternal 

Order of Police, 393 F.3d 1096, 1107 (10th Cir. 2004).10 

 

10 For this reason, even if Appellants were parties, they 

would lack standing to challenge the consent decree. 

“The general rule is that a nonsettling party has no 

standing to appeal a consent decree which does not bind 

him and interferes with no legal relationship between the 
34

Fourth, there are no contractual consequences of 

the Consent Decree for Appellants. “[U]nder 

Pennsylvania law, a consent decree is an agreement only 

between parties and does not bind or preclude the claims 

 

nonsettling party and the settling parties, even though the 

nonsettling party may have sustained some economic loss 

as a result of the consent decree.” Milonas v. Williams, 

691 F.2d 931, 944 (10th Cir. 1982) (citing Util.

Contractors Ass’n of N.J., Inc. v. Toops, 507 F.2d 83 (3d 

Cir. 1974)); see also In re Sch. Asbestos Litig., 921 F.2d 

1330, 1332 (3d Cir. 1990) (“To establish standing to 

appeal a settlement, a non-settling defendant may not 

merely claim an interest in the lawsuit but must show 

some cognizable prejudice to a legal relationship between 

it and the settling parties.”).

We have held that intervenors do not need to show 

Article III standing where a party on the same side has 

Article III standing, see King v. Governor of N.J., 767

F.3d 216, 245–46 (3d Cir. 2014), cert. denied sub nom. 

King v. Christie, 135 S. Ct. 2048 (2015), but “an 

intervenor’s right to continue a suit in the absence of the 

party on whose side intervention was permitted is 

contingent upon a showing by the intervenor that he 

fulfills the requirements of Art. III,” Diamond v. Charles, 

476 U.S. 54, 68 (1986).
35

of non-parties.” Sullivan v. City of Pittsburgh, 811 F.2d 

171, 181 (3d Cir. 1984) (citing Sabatine v. 

Commonwealth, 442 A.2d 210 (Pa. 1981)).

11

 Appellants 

are nonparties.

Because the Consent Decree does not impair 

Appellants’ ability to protect any interest they may have 

in defending laws like the Community Bill of Rights, the 

District Court did not abuse its discretion in denying the 

 

11 Therefore, if the consent decree did encroach on 

Appellants’ rights, they could bring a collateral attack. 

See Martin v. Wilks, 490 U.S. 755, 763–65 (1989) 

(holding that allowing collateral attacks by nonparties on 

consent decrees was a “principle” that was 

“incorporat[ed]” into the Federal Rules of Civil 

Procedure), superseded by statute for Title VII purposes 

as recognized in United States v. City of Detroit, 712 

F.3d 925, 933 (6th Cir. 2013); see also United States v. 

City of New York, 198 F.3d 360, 366 (2d Cir. 1999) 

(“Those who are not parties to a consent decree are free 

to challenge the decree and actions taken under it.” 

(citing Martin, 490 U.S. at 762); Interfaith Cmty. Org. 

Inc. v. PPG Indus., Inc., 702 F. Supp. 2d 296, 313 n.22 

(D.N.J. 2010) (“It appears the general principle 

underlying Wilks remains . . . .”).
36

motion for reconsideration of the denial of the motion to 

intervene.

II. APPELLANTS LACK STANDING TO 

CHALLENGE THE CONSENT DECREE

Because Appellants were not permitted to 

intervene, they did not become parties to this lawsuit. 

Because Appellants are not parties to this lawsuit, they 

may not challenge the Consent Decree. See, e.g., Brody 

ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1113 (3d Cir. 

1992) (noting that the Third Circuit dismissed the appeal 

of a consent decree by attempted intervenors for lack of 

appellate jurisdiction and citing Pennsylvania v. Rizzo, 

530 F.2d 501, 508 (3d Cir. 1976), for the proposition that 

an “appellant must have been granted permission to 

intervene in order to appeal merits of case”); cf. Diamond 

v. Charles, 476 U.S. 54, 63–64 (1986) (“By not 

appealing the judgment below, the State indicated its 

acceptance of that decision, and its lack of interest in 

defending its own statute. The State’s general interest 

may be adverse to the interests of appellees, but its 

failure to invoke our jurisdiction leaves the Court without 

a ‘case’ or ‘controversy’ between [intervenor-]appellees 

and the State of Illinois.” (footnote omitted)); Halle v. W. 

Penn Allegheny Health Sys. Inc., 842 F.3d 215, 229 (3d 

Cir. 2016) (“We conclude that, for purposes of appeal, 

Appellants were no longer ‘parties’ to the case after they 

were dismissed without prejudice from Halle’s 
37

proceeding. Appellants therefore cannot pursue an 

appeal from Steven Halle’s individual judgment.”

(citation omitted)).

Appellants focus on the fact that we have held that 

we lacked jurisdiction over an appeal on the merits when 

an appellant is “properly denied the status of intervenor.” 

Pennsylvania v. Rizzo, 530 F.2d 501, 508 (3d Cir. 1976) 

(emphasis added). They argued that because they were 

improperly denied the right to intervene, these holdings 

do not apply to them. Because, as we held above,

Appellants were not improperly denied the right to 

intervene, Appellants’ argument fails. We have no 

appellate jurisdiction to review the Consent Decree. 

CONCLUSION

Appellants’ motion to intervene is moot. The 

District Court’s denial of the motion for reconsideration 

of the order denying Appellants’ motion to intervene was 

not an abuse of discretion. Therefore, Appellants are 

nonparties and lack standing to challenge the Consent 

Decree. Accordingly, we will affirm the judgment of the 

District Court relating to the denial of the motion for 

reconsideration of the denial of intervention and dismiss 

the remainder of this appeal for lack of jurisdiction.