                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 21 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NORTHERN OIL AND GAS, INC.;                      No.   17-36023
NORTHWEST FARM CREDIT
SERVICES, FLCA,                                  D.C. No. 1:14-cv-00090-TJC

              Plaintiffs-Appellees,
                                                 MEMORANDUM*
 v.

CONTINENTAL RESOURCES,
INCORPORATED,

              Defendant-Appellant.


                    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


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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


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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
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
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.




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