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If You Believe in Property Rights, Then This Case Matters

shale gas outrages - Tom Shepstone ReportsTom Shepstone
Shepstone Management Company, Inc.



The Wayne Land and Mineral Group case against the Delaware River Basin Commission is one that should get the support of every believer in property rights.

The Wayne Land and Mineral Group (WLMG) is a landowner in Wayne County, Northeastern Pennsylvania, in the corner of the Commonwealth, wrapped 270 degrees by New York State and part of the Delaware River basin. Notwithstanding this back forty location, though, it has struck a blow for the property rights of landowners everywhere, not to mention the sovereignty of state government.

WLMG wants to develop its natural gas resources and is prevented from doing so by a Delaware River Basin Commission (DRBC) under the thumb of wealthy special interests and politically opportunistic governors from other states. The metastasizing mission of this regional agency, originally intended for narrow purposes, combined with an element of malfeasance, has made it impossible for WLMG to move. It sued and is now in the Third Circuit Federal Court of Appeals defending not only its own property rights but those of every American landowner subject to the whims of some regional multi-state agency created by compacts among the states (often with Federal involvement as well, as is the case with the DRBC).

If you care at all about property rights, this is the time to join the cause because this case is that important. [Note, I originally typed “If you acre at all..” and an alert reader caught it and loved it. A Freudian slip, obviously.]

You can read all about the case, Wayne Land and Mineral Group, LLC vs. Delaware River Basin Commission, here, here and here. One of our well-informed readers, a lawyer by trade, boils it down to the basics and I offer his observations below, as he makes a compelling case why this case matters to believers in property rights:

A bit of background:  There is a significant shale play that runs diagonally throughout most of Pennsylvania.  In fact, it comes to the surface in Marcellus, New York and is therefore called the Marcellus Shale Play.  Properties throughout Pennsylvania that are lucky enough to have Marcellus Shale underneath have either been leased and drilled or leased for future drilling.

This shale gas industry is a boon to the Pennsylvania economy.  It has brought a tremendous amount of jobs to the state and has allowed many farmers of this state to remain in the farming business and hold on to their properties simply because of the royalties/lease payments that they have received.

The only landowners who have Marcellus Shale beneath their land and who have not had their land drilled for natural gas our the landowners nearest to the Delaware River.  The river itself, and its watershed, is subject to a federal compact by and between the states of New York, New Jersey, Pennsylvania, and Delaware.  Representing the federal government in this compact is the Army Corp of Engineers.

The Compact, and the commission set up under it, was established for the primary purpose of allocating water between the party states.  The governing body established under this Compact is the Delaware River Basin Commission.  For 56 years the Delaware River Basin Commission (“DRBC” and/or “Commission”) has, in fact, allocated water withdrawals among the party states and has limited its review of projects, as that term is defined by the Compact, to large water withdrawals, energy plants, water treatment plants, and wastewater treatment plants.

Now, due to the incredible influence of an extremist environmental group — The Delaware Riverkeeper Network, funded by the same William Penn Foundation as some DRBC activities — the Commission has taken a position that all shale drilling pad projects within the river basin footprint are subject to Commission jurisdiction and review.  Drilling pad projects are already reviewed, permitted and regulated by the Pennsylvania Department of Environmental Protection.

Notwithstanding, and without any new congressional authority, the Commission now asserts that it has jurisdiction over any and all gas well pads.  WLMG has sued the Commission and, in addition to interpreting the Compact, the issues at play are individual property rights and state sovereignty.

At its core, the case presents a fundamental question of the authority of the Commission to review and approve, and to thereby regulate, the otherwise lawful use of private property in the river basin.  The Commission derives its authority from, and is therefore limited by, the Compact that created the Commission in 1961.  The Commission’s position is that it has the authority to review and approve well pads and gas wells because they are “projects” that fall under the Commission’s jurisdiction under the Compact.

WLMG disagrees and has asked the court to declare that well pads, gas wells, and related activities are not projects under the Compact.  Our client has also asked the court to declare that the Commission does not otherwise have authority to review, approve and regulate well pads and related activities.

The Commission, effectively controlled by anti-development special interest groups (Delaware Riverkeeper and William Penn Foundation, et al) has asserted virtually unlimited power to review, approve, regulate and even outright ban the use of private property in the Delaware River Basin.

The Commission perceives that its authority displaces and is supreme to laws adopted by our elected representatives who can be held accountable at the ballot box for their actions, and has the sole power to decide whether, when and how the residents of the Basin are permitted to use their private property.

To achieve such unprecedented power, the Commission, under the guise of protecting the water resources of the Basin, had decided that any use of land, or related activity in the Basin, that somehow involves water is a “project” that it has the prerogative to review and approve — if it believes that the proposed use of land, or related activity (whether undertaken by one or by a hypothetical collection of landowners across the Basin) may have a substantial effect on water resources.

It is difficult, if not impossible to, to identify a use of land or related activity that does not involve water in some manner and, thus, it is equally difficult, if not impossible, to identify a limit on the Commission’s claimed authority over the lives and property of those residing in the Basin.

Yes, for those of us who believe in freedom, individual rights, self-government and Constitutional Law, this case matters. It ought to attract the support of every property rights group, legal foundation and believer in liberty. Those groups who wish to join in this litigation can do so by filing a friend of the court brief. Documents associated with the case can be found on-line or by contacting me for more information, as I have been following the case closely.

The detailed captions for the case for those of you researching it are as follows:

Wayne Land and Mineral Group, LLC vs. Delaware River Basin Commission, No. 3:16-cv-00897-RDM, United States District Court for the Middle District of Pennsylvania


Wayne Land and Mineral Group, LLC, Appellant, vs. Delaware River Basin Commission, et al., Appellees, No. 17-1800, United States Court of Appeals for the Third Circuit

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13 thoughts on “If You Believe in Property Rights, Then This Case Matters

  1. How ironic that the above quote by James Madison is being used to back the idea that the property rights of those wishing to use land for fracking supersedes the property rights of those wishing to keep THEIR property for residential use and/or to preserve the quality of water on those properties.

    It smacks of “some are more equal than others” which is a quote from Animal Farm, “an allegorical novella by George Orwell, first published in England on 17 August 1945. According to Orwell, the book reflects events leading up to the Russian Revolution of 1917 and then on into the Stalinist era of the Soviet Union.”

  2. “Government is instituted to protect property of every sort…”

    And sometimes the rights of various property owners come into conflict.

    Landowners/farmers who do not lease, and city dwellers who rely on the Delaware for their drinking water, have a right to have their property and interests protected from the negative environmental impacts of industrial activities performed on adjacent lands that have the potential to diminish and even destroy other’s property values and the use of water for drinking and bathing.

    • That said, it seems that argument being brought to bear in this case revolves around statutory and not constitutional authority. Depending how the right to life liberty and the pursuit of happiness is brought to bear in this discussion, it would seem that the latter trumps the former, even if no statutory authority is found here.

      • Well it would seem that if one were part of a group like damascus citizens for sustainability for example and an architect with a second property in a certain part of Pennsylvania then I guess this case will be interesting eh? So is Joe Levine following closely? Maybe Carl Arnold isn’t as he was more interested in fracking in NY right? Where does he live mostly? Park slope Brooklyn?

        Hey here is a blast from the past! A little antifracking movement history if you will.


        • You will not find me defending Joe Levine’s lifestyle. Town and Country living leaves an enormous carbon footprint.

          That is one of the reasons I gave up my farmhouse.

          • I’m not asking you to defend or condemn Joe Levine’s lifestyle. I’m saying his movement is full of crap. Aren’t some founders of Damascus Citizens for Sustainability credited as consultants on Gasland as well?

    • True to a point but far too simplistic. Legal authority does matter and no agency can simply grant it to itself. Moreover, the principles of common law provide that property rights may not be derogated on a whim. The property owner is assumed to have rights and they can only be restricted to the minimum necessary to protect others’ rights, which means there must be a balancing of interests by a party legally entitled to do so according to rules established legislatively or Constitutionally. The DRBC lacks any authority to get involved in regulating land use and is trying to do so by a combination of illegal back door maneuvers financed not other landowners or water consumers but, rather, by wealthy elitists who want to make a wilderness of where my friends and family have to make a living.

      • Tom, using terms like “simplistic” only and transparently appeal to your ego and set the stage for your subsequent obfuscations. That said, I am happy to see you continuing to wage your class war. We need to start calling you Karl Shepstone.

        I personally thought that I was simplY, and efficiently, expressing a quick point that required no further elucidation out of recognition that the courts will decide it one way or the other, and as you and I know, there’s no telling what any judge will do in any given day, regardless of what the law is.

        At the end of the day, it is in the court of public opinion that the battle must be won. And to date, the anti-fractivists have prevailed in NY. Not much, but we will take it.

  3. https://theintercept.com/2017/06/03/standing-rock-documents-expose-inner-workings-of-surveillance-industrial-complex/

    If you believe in truth or facts or that the public needs access to information in order to govern themselves wisely, then you should do everything in your power to see that the truth about the antifracking pipeline resistance movement is told. And to do that you must also acknowledge the gigantic failures that are happening still in the field of reporting. The intercept is just one place failing.

  4. In language that even sanctimonious sign-waving hypocrite clowns can understand- you want your frack free utopia? Fine. PAY US FOR IT!

    Cuomo and the DRBC have perpetrated an industrial scale Taking on NY and northeast PA landowners, entirely without compensation. It is brazenly criminal.

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