Northern Oil and Gas, Inc.; Northwest Farm Credit Services, Flca v. Continental Resources, Incorporated

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHERN OIL AND GAS, INC.;
NORTHWEST FARM CREDIT
SERVICES, FLCA,
Plaintiffs-Appellees,
v.
CONTINENTAL RESOURCES,
INCORPORATED,
Defendant-Appellant.
No. 17-36023
D.C. No. 1:14-cv-00090-TJC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Timothy J. Cavan, Magistrate Judge, Presiding
Argued and Submitted December 4, 2018
Seattle, Washington
Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.
Continental Resources, Inc. (“Continental”), Northwest Farm Credit
Services, FLCA (“NWFCS”), and Northern Oil & Gas, Inc. (“Northern”) dispute
whether Northern or Continental holds the valid lease to property in Richland
FILED
DEC 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

-- 1 of 5 --

County, Montana. On March 24, 2015, Northern filed a complaint against
Continental seeking quiet title to the western half of Section 10 and money
damages for lost oil and production revenues. The parties filed cross-motions for
summary judgment and the district court granted Northern’s, holding that Northern
held the valid lease because Continental did not begin drilling on the leased
premises before its lease expired. Continental then filed a motion for a declaration
of law that Northern must participate in the costs of the well. The district court
denied Continental’s motion, holding Northern could elect whether to participate in
the costs of drilling the well. Continental appealed both decisions.
We have jurisdiction under 28 U.S.C. § 1291. The district court had
diversity jurisdiction under 28 U.S.C. § 1332(a), and thus we apply Montana law.
In re Cty. of Orange, 784 F.3d 520, 523–24 (9th Cir. 2015). We review a district
court’s decision on cross-motions for summary judgment de novo. Guatay
Christian Fellowship v. Cty. of San Diego, 670 F.3d 957, 970 (9th Cir. 2011).
1. Paragraph 16(b) of the Continental Lease stated that the lease would be
extended if “during the primary term a portion or portions of the land covered by
this lease are pooled . . . by a creation of a unit as defined in Paragraph 3(e).”
Paragraph 3(e) defined a “unit” as “a bounded area formed for the purpose of
producing oil and gas” and stated that the area could be “described” as a “spacing
2

-- 2 of 5 --

unit.” On appeal, Continental alleges that the land was pooled because the
temporary spacing unit the Board created in 2003 met the definition of a “unit”
under Paragraph 3(e). Therefore, it argues, because it began drilling on the eastern
half of Section 10, which was pooled with the western half, it extended the lease
past its primary term, and the Northern Lease was not valid.
“The interpretation and construction of a contract is a question of law.”
Krajacich v. Great Falls Clinic, LLP, 276 P.3d 922, 926 (Mont. 2012). When
interpreting oil and gas leases, “the protection of the interests of the lessor is
considered of paramount importance”; therefore, Montana courts “construe oil and
gas leases liberally in favor of the lessor and strictly against the lessee.” Moerman
v. Prairie Rose Res., Inc., 308 P.3d 75, 79 (Mont. 2013) (citations omitted).
Regardless whether the temporary spacing unit was a “unit” under Paragraph 3(e),
it was not created “during the primary term” of the lease, as required by Paragraph
16(b). Thus the land was not pooled, and Continental did not extend the lease by
drilling on the leased premises during the primary term. Therefore, the district
court properly held that the Northern Lease was valid.
2. Continental argues, alternatively, that the 2014 pooling order should be
applied retroactively, pointing to two decisions from other states, Texaco Inc. v.
Industrial Commission of North Dakota, 448 N.W.2d 621 (N.D. 1989), and
3

-- 3 of 5 --

Application of Farmers Irrigation District, 194 N.W.2d 788 (Neb. 1972). Both
North Dakota and Nebraska have pooling statutes nearly identical to Montana’s, all
of which state that a pooling order must “be made upon terms and conditions that
are just and reasonable.” Compare Mont. Code Ann. § 82-11-202(1)(b) with Neb.
Rev. Stat. Ann. § 57-909(1) and N.D. Cent. Code Ann. § 38-08-08(1). In Texaco,
the Supreme Court of North Dakota determined whether retroactive pooling was
just and reasonable by “balanc[ing] the competing interests of the mineral owners
and operators.” 448 N.W.2d at 624; see also Farmers Irrigation Dist., 194
N.W.2d at 791–92 (weighing the risks and benefits of retroactive pooling to both
parties). Even assuming that Montana would follow these decisions, in balancing
the interests of the parties here, retroactive pooling would upset the justified
expectations of Northern and NWFCS who, at the time they signed their lease, had
no reason to think that a future event could render it invalid. Thus, applying the
pooling order retroactively would not accomplish a “just and reasonable” result.
3. Lastly, Continental argues that if the Northern Lease is valid, Northern
should be judicially estopped from electing a nonconsent position—and therefore
be compelled to participate in the costs of the well. We review a district court’s
decision of whether to apply judicial estoppel for an abuse of discretion. Milton H.
Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 992–93 (9th Cir.
4

-- 4 of 5 --

2012). Northern did not expressly or impliedly indicate consent to participate in
the well and thus should not be judicially estopped from electing a nonconsent
position. See Ranola Oil Co. v. Corp. Comm’n of Okla., 752 P.2d 1116, 1119
(Okla. 1988) (“It is not fair or just to alter the positions of the interest owners after
the initial well is drilled.” (citation omitted)). The district court did not abuse its
discretion.
AFFIRMED.
5

-- 5 of 5 --