UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

RUTTER & WILBANKS CORP.;ELLIOTT A. RIGGS; WILLIAM R.THURSTON, Trustee; GORDONTANNER; WALTER K. ARBUCKLETRUST; ERIC B. WELLS; KEVIN C.WELLS; CHARLES R. WIGGINS;KEN KAMON,

Plaintiffs - Appellees,No. 02-1034 v.(D. Colorado)SHELL OIL COMPANY; SHELLWESTERN E & P, INC.; MOBIL OILCORPORATION; MOBILPRODUCING TEXAS & NEWMEXICO, INC.; MOBILEXPLORATION & PRODUCING U.S.,INC.; EXXON MOBIL, INC.; CORTEZPIPELINE COMPANY, a partnership;SHELL CO2 COMPANY, LTD., a Texaslimited partnership; KINDERMORGAN CO2 COMPANY, a Texaslimited partnership,

Defendants - Appellees,

(D.C. No. 00-Z-1854) GERALD O. BAILEY and W. L.GRAY& CO.,

Applicants in Intervention -

Appellants.

ORDER AND JUDGMENT(*)

Before TACHA, Chief Judge, ANDERSON, and EBEL,Circuit Judges.

This appeal is generally related to the appeal in Rutter & Wilbanks Corp. v.Shell Oil Co., Nos. 02-1220, 02-1221 (10th Cir. filed Dec. 24, 2002), in which werecently affirmed the district court's approval of a settlement of a group of casesarising out of litigation concerning the production of CO2 contained within theMcElmo Dome Unit in Colorado. In this appeal, appellants Gerald O. Bailey andthe W. L. Gray Co. ("Gray") appeal the denial of their motions to intervene in oneof the actions which was settled: Rutter & Wilbanks Corp. v. Shell Oil Co., No.00-Z-1854 (D. Colo. filed Sept. 22, 2000). We affirm.

Bailey and Gray were owners of overriding royalty interests ("ORIO"s) inthe McElmo Dome Unit. The September 2001 settlement agreement settlingRutter & Wilbanks and three related cases gave them the right to opt out of thesettlement. On January 5 and January 7 of 2002, Gray and Bailey, respectively,opted out of the settlement. On January 10, 2002, they filed motions to intervenein Rutter & Wilbanks, which the district court denied essentially on the groundthat they were untimely: "[g]iven the length of time this litigation, as an entirematter, has endured thus far, and the late date at which the applicants move forintervention, the Court will deny the motion." Order at 2, Appellants' App. at 22.

Additionally, Gray and Bailey are also involved in litigation in Texasinvolving the same defendants and claims involving CO2 production on theMcElmo Dome Unit. In fact, Gray is a co-plaintiff in one proceeding with HarryPtasynski, whose appeal of the denial of virtually identical motions to intervenewe simultaneously affirm. See Rutter & Willbanks Corp. v. Shell Oil Co.,Nos.01-1565, 01-1567 (10th Cir. filed Dec. 24, 2002). Bailey is a co-plaintiff and co-defendant invarious Texas proceedings with Bridwell Oil Co., whose appeal ofthe denial of its motions to intervene we affirmed along with Ptasynski's. Seeid.

Plaintiffs and Defendants argue that Bailey and Gray lack standing, havingopted out of the settlement before they filed their motions to intervene.

It is well settled that, in order to show standing necessary to invokefederal court jurisdiction, a party must demonstrate three things:

(1) "injury in fact," by which we mean an invasion of alegally protected interest that is "(a) concrete andparticularized, and (b) actual or imminent, notconjectural or hypothetical"; (2) a causal relationshipbetween the injury and the challenged conduct, by whichwe mean that the injury "fairly can be traced to thechallenged action of the defendant," and has not resulted"from the independent action of some third party notbefore the court"; and (3) a likelihood that the injurywill be redressed by a favorable decision, by which wemean that the "prospect of obtaining relief from theinjury as a result of a favorable ruling" is not "toospeculative."

In re Integra Realty Res., Inc., 262 F.3d 1089, 1101 (10th Cir. 2001) (quotingNortheastern Fla. Chapter of the Associated Gen. Contractors v. City ofJacksonville, 508 U.S. 656, 663-64 (1993)). In In re Integra, we held that partieswho had opted out of a settlement lacked standing to challenge the settlementbecause they "lack[ed] any legally protected interest that could support the 'injuryin fact' element necessary to demonstrate standing." Id. at 1102; see also Inre: Vitamins Antitrust Class Actions, 215 F.3d 26 (D.C. Cir. 2000) (holding thatpresumptive class members who had opted out of a settlement had no standing tochallenge a specific clause in the settlement). We, and other courts, haverecognized a narrow exception to this where nonsettling parties can demonstratethat they will suffer "'plain legal prejudice,' as when 'the settlement strips theparty of a legal claim or cause of action.'" In re Integra, 262 F.3d at 1102(quoting Mayfield v. Barr, 985 F.2d 1090, 1093 (D.C. Cir. 1993)) (furtherquotation omitted).

Bailey and Gray assert that they "have not sought 'limited' intervention tochallenge the proposed settlement" but rather ask only that "they be allowed tointervene as parties in the case so that they may litigate theirclaims and protecttheir interests." Appellants' Reply Br. at 5. We agree with the Plaintiffs andDefendants in this case that, once they opted out of the settlement, Bailey andGray lost any legally cognizable interest in the proceedings into which they wishto intervene. Further, they do not argue that they have suffered plain legalprejudice in that they have been stripped by the settlement of any legal claim orcause of action; indeed, they have been actively pursuing claims againstDefendants in Texas.

Alternatively, were they able to identify some interest sufficient to conferstanding, we would hold that the district court did not abuse its discretion infinding their motions to intervene untimely. See Utah Ass'n of Counties v.Clinton, 255 F.3d 1246, 1249 (10th Cir. 2001) ("We generally review a districtcourt's ruling on the timeliness of a motion to intervene under an abuse ofdiscretion standard.").

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

FOOTNOTES

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*.This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.