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. 01-1565 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) BRIDWELL OIL COMPANY andHARRY PTASYNSKI,

Applicants in Intervention -

Appellants.

CO2 CLAIMS COALITION, LLC,named as "United States Government," aColorado limited liability company,No. 01-1567 Plaintiffs - Appellees, vs.(D. Colorado)SHELL OIL COMPANY; SHELLWESTERN E & P, INC.; MOBILPRODUCING TEXAS & NEWMEXICO, INC.; CORTEZ PIPELINECOMPANY, a partnership, Defendants - Appellees.

(D.C. No. 96-Z-2451)BRIDWELL OIL COMPANY andHARRY PTASYNSKI,

Applicants in Intervention -

Appellants.

ORDER AND JUDGMENT(*)

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

These consolidated appeals are 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 we recently affirmed the district court's approval of a settlementof a group of cases arising out of litigation concerning the production of CO2contained within the McElmo Dome Unit in Colorado. In these appeals,appellants Harry Ptasynski and Bridwell Oil Co. appeal the denial of theirmotions to intervene in two of those actions which were the subject of thesettlement: CO2 Claims Coalition, LLC v. Shell Oil Co., No.96-Z-2451 (D. Colo.filed Oct. 22, 1996) and Rutter & Wilbanks Corp. v. Shell Oil Co., No. 00-Z-1854(D. Colo. filed Sept. 22, 2000). We affirm.

Ptasynski and Bridwell were owners of overriding royalty interests("ORIOs") in the McElmo Dome Unit and, as such, were part of theCO2 ClaimsCoalition lawsuit from the beginning. The Rutter & Wilbanks lawsuit soughttorepresent a class of McElmo Dome ORIOs alleging essentially the same claimsregarding the pricing of CO2 as were alleged in the CO2Claims Coalition action.

In August, 2001, Ptasynski and Bridwell moved to intervene as plaintiffsunder Rule 23 and 24 in Rutter & Wilbanks Corp., and moved to intervene asplaintiffs under Rule 24 in the CO2 Claims Coalition case. Thedistrict courtdenied these motions on multiple grounds: the motions were untimely,Ptasynski's and Bridwell's interests, to the extent they were impaired at all wereimpaired "by their own actions" and, in any event, were cured by their decision toopt out of the settlement, the Texas actions they have thus far unsuccessfullypursued against the same defendants and alleging essentially the same claimsraise potential res judicata problems, and their allegations in support of theirclaim that Plaintiffs' attorneys cannot adequately represent them are conclusoryand nonmeritorious.

The September 2001 settlement agreement settling the CO2ClaimsCoalition action and the Rutter & Wilbanks action gave Ptasynski andBridwellthe right to opt out of the settlement. On December 4, 2001, Ptasynski andBridwell filed these appeals from the district court's denial of their motions tointervene. In January 2002, they exercised their right to opt out of the settlement,and specifically reserved all of their claims. See Defendants-Appellees' Supp.App. at 2-3.

As indicated, Ptasynski has also been pursuing an action against the samedefendants (Shell Oil Co. and Mobil Oil Co.) in Texas alleging essentially thesame claims concerning underpayment of royalties on CO2 gas production on theMcElmo Dome Unit. His co-plaintiff in that case is the W.L. Gray Co. ("Gray"),the denial of whose motion to intervene in Rutter & Wilbanks we simultaneouslyaffirm. See Rutter & Wilbanks Corp. v. Shell Oil Co., No. 02-1034 (10thCir.filed Dec. 24, 2002). That Texas action was filed in May 1997, proceeded to trialin August 1999, and resulted in judgment for Shell and Mobil on all Ptasynski'sand Gray's claims except a claim for negligent misrepresentation. In February2002, the Fifth Circuit reversed the trial court's entry of judgment for Ptasynskion the negligent misrepresentation claim and affirmed the judgment in favor ofShell and Mobil on all other claims.

Bridwell has similarly been involved in extensive litigation in variousTexas courts, most of which has resulted in rulings adverse to it and in favor ofShell and Mobil. On August 29, 2002, the Texas Supreme Court held that anaction involving Bridwell, which had been transferred to the probate court ofDenton County, Texas, had been improperly transferred. Gerald O. Bailey hasbeen a co-defendant and co-plaintiff with Bridwell in a number of these Texasactions. We have simultaneously affirmed the denial of Bailey's motion tointervene in Rutter & Wilbanks along with Gray's. See id.

Defendants and Plaintiffs in this case argue that Ptasynski and Bridwelllack standing: "Appellants seek to intervene in the Coalition and Rutter &Wilbanks lawsuits in order to pursue their claims for allegedly underpaidoverriding royalties for McElmo Dome CO2. Because those cases have beensettled and Appellants have elected to opt out of the settlement, however, theseappeals must be dismissed for lack of standing." Defendants-Appellees' AnswerBr. at 7. Alternatively, assuming appellants have standing, Plaintiffs andDefendants argue the trial court correctly denied their motions to intervenebecause they satisfy none of the requirements for intervention under Fed. R. Civ.P. 24.

We first consider Plaintiffs' and Defendants' argument that Ptasynski andBridwell lack standing at this point to pursue this appeal. Plaintiffs andDefendants argue that, having opted out of the settlement of the cases withrespect to which Ptasynski and Bridwell sought intervention, they thereby losttheir standing.

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).

We have also held that "a plaintiff must maintain standing at all timesthroughout the litigation for a court to retain jurisdiction." Powder River BasinRes. Council v. Babbitt, 54 F.3d 1477, 1485 (10th Cir. 1995). Other courts havesuggested that the issue is more properly framed as one of mootness: "while it istrue that a plaintiff must have a personal interest at stake throughout the litigationof a case, such interest is to be assessed under the rubric of standing at thecommencement of the case, and under the rubric of mootness thereafter." Beckerv. Fed. Election Comm'n, 230 F.3d 381, 386 n.3 (1st Cir. 2000); see also Stegerv. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000).

Whether framed as an issue of standing or mootness, we agree withPlaintiffs and Defendants that Ptasynski and Bridwell no longer have the requisitepersonal interest in this action. They seek intervention in two cases which havenow settled, and the validity of that settlement has been affirmed on appeal. During the pendency of these appeals from the denial of their motions tointervene, they opted out of that settlement and are, in fact, pursuing theirindividual claims in Texas courts. They therefore lack any personal stake orinterest in the settlement and, more particularly, in the cases which were theobject of that settlement.

Alternatively, were they able to identify some interest sufficient to avoid aconclusion of mootness or lack of standing, we would affirm the district court's denials of their motions to intervene, for substantially the reasons set forth in thedistrict court's written orders denying those motions.

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.