1

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DELAWARE RIVERKEEPER NETWORK, 

et al.,

Plaintiffs,

v.

DELAWARE RIVER BASIN COMMISSION, 

et al.,

Defendants.

 

 

Civ. No. 11-423

OPINION

THOMPSON, U.S.D.J.

This matter has come before the Court by way of a Motion to Dismiss for Lack of 

Subject Matter Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(b)(1) filed by 

Defendants Hess Corporation (“Hess”) and Newfield Appalachia PA, LLC (“Newfield”) [docket 

# 31], and joined by Delaware River Basin Commission (DRBC or “the Commission”) 

(collectively, “Defendants”) [33]. Plaintiffs, Delaware Riverkeeper Network, the Delaware 

Riverkeeper, and Damascus Citizens for Sustainability, Inc. (collectively, “Plaintiffs”) jointly 

oppose this motion [35]. The Court has reached a determination after considering the 

submissions of the parties and without oral arguments pursuant to Federal Rule of Civil 

Procedure 78(b). For the following reasons, Defendants’ Motion will be granted, and Plaintiffs’ 

Amended Complaint will be dismissed for lack of subject matter jurisdiction.

I. BACKGROUND1

This dispute arises out of administrative actions taken by the DRBC regarding certain 

wells used for natural gas exploration.

 

1 The background information supplied in this Opinion is taken almost verbatim from the Court’s previous Opinion 

of August 29, 2011, which in turn relied on Plaintiffs’ Original Complaint and matters of public record. See (Op. of 

Aug. 29, 2011, at 2–6). 

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The DRBC is a federal-interstate compact agency that was created pursuant to the 1961 

Delaware River Basin Compact (“Compact”), see Pub. L. 87-328, 75 Stat. 588 (1961); see also 

Compact, available at http://www.state.nj.us/drbc/regs/compa.pdf. The Compact was enacted by 

concurrent legislation in the United States Congress and in individual states including New York, 

New Jersey, Pennsylvania, and Delaware, in order to coordinate the management of water resources 

among private enterprise and federal, state, and local governments.

The DRBC implements the Compact’s directives through the Administrative Manual: Rules 

of Practice and Procedure (“RPP”), see 18 C.F.R. §§ 401.81–90; see also RPP, available at 

http://www.state.nj.us/drbc/regs/rules.pdf. Substantively, the Compact prohibits any project having a 

“substantial effect” on the Delaware River Basin’s water resources unless the Commission grants 

prior approval. (Compact § 3.8). Under the RPP, certain classes of projects are deemed not to have a 

“substantial effect” and therefore do not require review by the Commission except as directed by the 

Executive Director. (RPP § 2.3.5A). However, a federal or state agency may refer otherwiseexcluded projects to the Commission if the agency determines that the project may have a substantial 

effect on the Basin’s water resources. (Id. § 2.3.5C). A party may request a hearing to review a 

decision made by the Commission or Executive Director within thirty days of the decision. (Id. § 

2.6.1C). The Commission will grant a hearing if it determines that an adequate record regarding the 

decision is unavailable, the case involves a Director determination requiring further action by the 

Commission, or a hearing is necessary or desirable. (Id. § 2.6.2A). Hearings are conducted by one 

or more Commission members, by the Executive Director, or by a Hearing Officer designated by the 

Chairman. (Id. § 2.6.3A). Any determination by the Commission is ultimately subject to 

judicial review, as long as the appeal is filed within forty-five days of final Commission action. 

(Id. § 2.6.10).

The present dispute principally concerns the DRBC’s actions with respect to natural gas 

development in the Delaware River Basin. Natural gas in shale formations is extracted through a 

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process known as hydraulic fracturing (“hydrofracking”), whereby vertical wells are bored 

thousands of feet deep and millions of gallons of water mixed with chemical agents are injected 

into the well at high pressure to fracture the rock and release the natural gas. This process also 

involves horizontal drilling to maximize the shale layer. According to Plaintiffs’ Amended 

Complaint, hydrofracking—whether for exploration or production—negatively affects water 

quality, causes toxic pollution, erosion, and various other environmental harms and humanhealth risks. The Delaware River has been designated Special Protection Waters (“SPW”) and is 

therefore protected by anti-degradation regulations requiring maintenance of the existing water 

quality with “no measurable change” except towards natural conditions. 

On May 19, 2009, Executive Director Carol Collier issued a “Determination of the 

Executive Director Concerning Natural Gas Extraction Activities in Shale Formations Within the 

Drainage Area of Special Protection Waters” (“EDD”), stating that natural gas extraction project 

sponsors may not hydrofrack shale formations within the SPW drainage area without prior 

approval from the Commission. However, the EDD further stated that wells “intended solely for 

exploratory purposes are not covered by this Determination.” On June 14, 2010, Collier issued a 

Supplemental Determination (“SEDD”), withdrawing the EDD’s exclusion of exploratory wells. 

The SEDD, however, carved out an exemption for exploratory well projects that had already 

received Pennsylvania Department of Environmental Protection (“PADEP”) permits and that 

were invested in based upon reliance on the May 2009 EDD. Newfield is a sponsor of five of 

these exempted exploratory well projects. Collier’s rationale for the exemption was that, in addition 

to the sponsors’ investment-backed expectations, these wells were subject to state regulation and 

would “require Commission approval before they can be fractured or otherwise modified for natural 

gas production.” On July 23, Collier issued an Amendment to the Supplemental Determination 

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(“ASEDD”), extending the grandfathering exemption to two additional wells sponsored by Hess that 

would be receiving PADEP permits. 

Various interested parties, including the Plaintiffs, submitted hearing requests, which the 

DRBC consolidated and assigned to a Hearing Officer—the Honorable Edward N. Cahn, former 

Chief Judge of the Eastern District of Pennsylvania and presently Of Counsel at Blank Rome, LLP. 

At a September 2 meeting convening the interested parties, Judge Cahn entered a scheduling order 

governing production of expert reports and exhibits and scheduled the hearing for December 13, 

2010. Judge Cahn further instructed the Plaintiffs that their request for a DRBC order to halt 

construction of the grandfathered exploratory wells would need to be raised before the full 

Commission. Plaintiffs accordingly submitted to the DRBC a letter request, which the DRBC denied 

at its September 15, 2010 meeting. The drilling parties subsequently completed the drilling process 

of these grandfathered exploratory wells and thereafter asserted that the completion of these wells 

rendered the scheduled hearing moot. On December 8, 2010, the Commissioners adopted a 

Resolution (“the Resolution”) dismissing Plaintiffs’ hearing requests as moot, withdrawing the 

hearing referral to the Hearing Officer, and terminating the “Exploratory Well Hearing.” The 

Commissioner’s Resolution further required Newfield and Hess to file applications with the

Commission for approval of the five wells in question within “thirty (30) days following the 

Commission’s adoption of natural gas regulations or as directed by the Executive Director or 

Commission.” Draft natural gas regulations were issued the next day, but they have yet to be 

finalized. Neither the Executive Director nor the Commission has directed Newfield or Hess to 

file applications at this point. 

In its pending Motion to Dismiss, Defendants argue that this Court does not have subject 

matter jurisdiction over the pending suit because Plaintiffs’ Amended Complaint is not yet ripe 

for adjudication. They argue that because the Resolution requires that Hess and Newfield file 

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approval applications with the Commission to see whether they should be granted a permit, and 

because the Commission has not yet made a determination as to these applications, there has not 

been a final administrative action. 

In opposition, Plaintiffs argue that they are not challenging the Resolution but rather the 

SEDD and ASEDD. To the extent that Plaintiffs are challenging the Resolution, they contend 

that they are doing so only as to the Resolution’s dismissal of Plaintiffs’ hearing requests as 

moot, the Resolution’s withdrawing of the hearing referral, and the Resolution’s termination of

the Exploratory Well Hearing. More specifically, Plaintiffs argue that Counts One and Two of 

the Amended Complaint seek to challenge only the Commissioner’s decision in the SEDD and 

ASEDD that the grandfathered wells should be exempt from the pre-approval process. 

According to Defendants, however, even if Plaintiffs are only challenging the SEDD and 

ASEDD, these claims are moot because the exploratory wells have already been completed. 

In Defendants’ view of this case, the Resolution served only to shift the procedural 

framework for certain well approvals. As Defendants put it: “in the original situation, the five 

exploratory wells at issue could be drilled . . . without DRBC pre-approval (or any other DRBC 

approval), but there was going to be a hearing on this approach. Now, the five wells at issue 

could be (and were) drilled in the Basin without DRBC pre-approval, but Newfield and Hess are 

required to apply for after-the-fact (i.e., post-construction) approvals.” (Defs.’ Reply Br. at 5). 

Therefore, Defendants argue that at this procedural posture Plaintiffs cannot challenge the 

exclusion of the wells from the pre-approval process because pre-approval is now impossible due 

to the fact that drilling is complete. Furthermore, Defendants additionally contend that Plaintiffs 

cannot yet challenge whether the Hess and Newfield should be granted permits retroactively (i.e.,

post-construction) because the DRBC has not yet made a determination on this issue. The Court 

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agrees with the Defendants’ position, and accordingly the Court will dismiss Plaintiffs’ 

Amended Complaint. 

II. RIPENESS

This Court has an independent duty to determine its own subject matter jurisdiction when 

it is “fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009) (citing Arbaugh v. Y & H 

Corp., 546 U.S. 500, 514 (2006)); see also Peachlum v. City of York, 333 F.3d 429, 433 (3d Cir. 

2003) (citations omitted). Ripeness, one of several justiciability doctrines, “determines ‘whether 

a party has brought an action prematurely, and counsels abstention until such time as a dispute is 

sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine.’” 

Pittsburgh Mack Sales & Serv., Inc. v. Int’l Union of Operating Eng’rs, 580 F.3d 185, 190 (3d 

Cir. 2009) (quoting Peachlum, 333 F.3d at 433). “A claim is not ripe for adjudication if it rests 

on some contingent future event.” Porter-Bey v. Bledsoe, No. 11-1322, 2012 U.S. App. LEXIS 

84, at *5 (3d Cir. Jan. 4, 2012) (citing Texas v. United States, 523 U.S. 296, 300 (1998)). 

However, “[r]ipeness is a matter of degree whose threshold is notoriously hard to pinpoint.” NE 

Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 (3d Cir. 2001). 

“Where a dispute arises under circumstances that permit administrative review . . . final 

administrative determination is favored under the ripeness doctrine.” Peachlum, 333 F.3d at 

434. This “prevents the courts, ‘through avoidance of premature adjudication, from entangling 

themselves in abstract disagreements’ over administrative problems, and enable[s] the agency to 

proceed without judicial interruption until an administrative determination has been formalized.” 

Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). Moreover, “[i]n postenforcement circumstances, there may be little need to hasten administrative resolution because 

the claim is already in the process of being resolved.” Id. at 436.

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The doctrine of ripeness “is best seen in a twofold aspect, requiring us to evaluate both 

the fitness of the issues for judicial decision and the hardship to the parties of withholding court 

consideration.” Abbott Labs., 387 U.S. at 149. Determining whether a question is fit for judicial 

review requires the Court to consider “whether the agency action is final; whether the issue 

presented for decision is one of law which requires no additional factual development; and 

whether further administrative action is needed to clarify the agency’s position . . . .” Felmeister 

v. Office of Attorney Ethics, 856 F.2d 529, 535–36 (3d Cir. 1988) (internal quotation marks 

omitted) (quoting Action Alliance of Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 931, 

940 (D.C. Cir. 1986)). 

III. ANALYSIS

By its own terms, the Resolution at issue in this case is not a final administrative action 

capable of judicial review. In particular, the Resolution provides in pertinent part:

Newfield and Hess shall file applications with the Commission for approval of the 

five natural gas wells spudded to date. Such applications shall be filed on the 

earlier of thirty (30) days following the Commission’s adoption of natural gas 

regulations or as directed by the Executive Director or Commission. Nothing in 

this Resolution shall limit the authority of the Executive Director or Commission 

to take appropriate action to address past or future actions, if any, that may pose a 

risk to water resourced of the Basin whether through any approvals issued in 

response to the applications or otherwise.

(Am. Compl. ¶ 92 (quoting the Resolution)). Thus, the Resolution itself pre-supposes that 

further administrative action will be taken—i.e., approval or disapproval of Newfield and Hess’s 

applications.

An agency action that “itself is a determination only that adjudicatory proceedings will 

commence” within that administrative body, “is different in kind and legal effect from the 

burdens attending what heretofore has been considered to be final agency action.” FTC v. Std. 

Oil Co., 449 U.S. 232, 241–42 (1980) (citations omitted). At this point it is not clear that the 

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DRBC will grant the applications that Newfield and Hess will be required to submit in the near 

future. Even assuming that DRBC improperly excluded the disputed wells from the pre-approval 

process, the DRBC will be presented with a new opportunity to determine whether these wells 

should ever have been drilled in the first place by either granting or denying Hess and Newfield’s

post-construction applications. In such a situation, “[j]udicial intervention into the agency 

process denies the agency an opportunity to correct its own mistakes and to apply its expertise.” 

Id. at 242 (Weinberger v. Salfi, 422 U.S. 749, 765 (1975)). Thus, intervention here may “lead[] 

to piecemeal review which at the least is inefficient and[,] upon completion of the agency 

process[,] might prove to have been unnecessary” as well. Id. (citing McGee v. United States, 

402 U.S. 479, 484 (1971); McKart v. United States, 395 U.S. 185, 195 (1969)).

Defendants attempt to analogize this situation to cases involving “after-the-fact” 

discharge permits authorized under the Clean Water Act. After-the-fact discharge permits 

authorize discharge of dredge or fill materials into waters retroactively after the discharge has 

already taken place. See 33 C.F.R. 326.3(e). In one illustrative case, a plaintiff submitted an 

after-the-fact permit application to the U.S. Army Corps of Engineers, but while this application 

was pending, the plaintiff also brought suit against the Corps’ assertion of jurisdiction over his 

property. See Route 26 Land Dev. Assoc. v. United States, 753 F. Supp. 532, 534 (D. Del. 1990), 

aff’d, 961 F.2d 1568 (3d Cir. 1992). The court refused to exercise jurisdiction over the plaintiff’s 

case, however, because it was not yet ripe for adjudication since final agency action had not yet 

occurred. See id. at 540; see also Howell v. Army Corps of Eng’rs, 794 F. Supp. 1072 (D.N.M. 

1992). Although the Court does not believe that these cases are completely analogous, the Court 

nevertheless finds the reasoning on which they are premised persuasive. 

In order to avoid the fact that the Resolution is not a final administrative action, Plaintiffs 

contend that they are not directly challenging the Resolution but rather the SEDD and the 

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ASEDD. This argument, however, is unavailing. The only relevant legal effect of the SEDD 

and the ASEDD at issue in this case was that they both excluded from pre-approval review the 

grandfathered exploratory wells at issue. In order to have standing to bring a claim, the alleged 

injury must be capable of being redressed by a favorable decision. See Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560–61 (1992). It would obviously be impossible for this Court to 

mandate a pre-approval permitting procedure for a well that has already been sited and drilled. 

Therefore, to the extent Plaintiffs seek this as a remedy, they do not have standing to assert such 

a claim. 

Plaintiffs next argue that even if the Court can no longer mandate a review process prior 

to the start of a now-completed project, the Court could nevertheless grant declaratory relief. 

This argument, however, also fails. “Declaratory judgment is inappropriate solely to adjudicate 

past conduct.” Corliss v. O’Brien, 200 F. App’x 80, 84 (3d Cir. 2006) (citing Gruntal & Co., 

Inc. v. Steinberg, 837 F. Supp. 85, 89 (D.N.J. 1993)). This is because such a decision would 

amount to a prohibited advisory opinion. See id.

On the other hand, Plaintiffs also seek to have the exploratory wells fully removed by 

way of an injunctive order. But, this claim is not yet ripe. The harm allegedly caused by the 

exclusion of the challenged exploratory wells from the pre-approval permitting process is that 

the wells themselves were actually sited and drilled. This alleged harm, however, presupposes 

that these wells would not have been drilled had Hess and Newfield gone through with preapproval permitting. But, as explained above, this issue is not yet ripe because the application 

process—even though it is now occurring post-construction—has not yet been completed. If the 

DRBC later determines that it is appropriate to reject Newfield and/or Hess’s applications, the 

particular well would have to, for all practical purposes, be removed. Thus, this suit may 

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ultimately prove unnecessary and judicial restraint therefore counsels against exercising 

jurisdiction at this time.

IV. CONCLUSION

For all of the reasons discussed above, Defendants’ Motion to Dismiss will be granted 

and Plaintiffs’ Amended Complaint will be dismissed. An appropriate Order will follow.

/s/ Anne E. Thompson

ANNE E. THOMPSON, U.S.D.J.

Date: August 20, 2012

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