                                                                  F I L E D
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                      JAN 2 2003
                               TENTH CIRCUIT
                                                               PATRICK FISHER
                                                                        Clerk

RUTTER & WILBANKS CORP.;
ELLIOTT A. RIGGS; WILLIAM R.
THURSTON, Trustee; GORDON
TANNER; WALTER K. ARBUCKLE
TRUST; ERIC B. WELLS; KEVIN C.                     No. 01-1565
WELLS; CHARLES R. WIGGINS;
KEN KAMON,

             Plaintiffs - Appellees,
      v.                                          (D. Colorado)
SHELL OIL COMPANY; SHELL                       (D.C. No. 00-Z-1854)
WESTERN E & P, INC.; MOBIL OIL
CORPORATION; MOBIL
PRODUCING TEXAS & NEW
MEXICO, INC.; MOBIL
EXPLORATION & PRODUCING U.S.,
INC.; EXXON MOBIL, INC.; CORTEZ
PIPELINE COMPANY, a partnership;
SHELL CO 2 COMPANY, LTD., a Texas
limited partnership; KINDER
MORGAN CO 2 COMPANY, a Texas
limited partnership,

               Defendants - Appellees,
--------------------------------------
BRIDWELL OIL COMPANY and
HARRY PTASYNSKI,

             Applicants in Intervention -
             Appellants.
 CO 2 CLAIMS COALITION, LLC,
 named as “United States Government,”
 a Colorado limited liability company,                          No. 01-1567
                Plaintiffs - Appellees,
          vs.                                               (D. Colorado)
 SHELL OIL COMPANY; SHELL                               (D.C. No. 96-Z-2451)
 WESTERN E & P, INC.; MOBIL
 PRODUCING TEXAS & NEW
 MEXICO, INC.; CORTEZ PIPELINE
 COMPANY, a partnership,

                Defendants - Appellees.
 --------------------------------------
 BRIDWELL OIL COMPANY and
 HARRY 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,


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       This order and judgment is not binding precedent, except under the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


                                           -2-
2002), in which we recently affirmed the district court’s approval of a settlement

of a group of cases arising out of litigation concerning the production of CO         2


contained within the McElmo Dome Unit in Colorado. In these appeals,

appellants Harry Ptasynski and Bridwell Oil Co. appeal the denial of their

motions to intervene in two of those actions which were the subject of the

settlement: CO 2 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 the                CO 2 Claims

Coalition lawsuit from the beginning. The               Rutter & Wilbanks lawsuit sought to

represent a class of McElmo Dome ORIOs alleging essentially the same claims

regarding the pricing of CO       2   as were alleged in the   CO 2 Claims Coalition action.

       In August, 2001, Ptasynski and Bridwell moved to intervene as plaintiffs

under Rule 23 and 24 in    Rutter & Wilbanks Corp. , and moved to intervene as

plaintiffs under Rule 24 in the         CO 2 Claims Coalition case. The district court

denied these motions on multiple grounds: the motions were untimely,

Ptasynski’s and Bridwell’s interests, to the extent they were impaired at all were

impaired “by their own actions” and, in any event, were cured by their decision to

opt out of the settlement, the Texas actions they have thus far unsuccessfully


                                                  -3-
pursued against the same defendants and alleging essentially the same claims

raise potential res judicata problems, and their allegations in support of their

claim that Plaintiffs’ attorneys cannot adequately represent them are conclusory

and nonmeritorious.

       The September 2001 settlement agreement settling the              CO 2 Claims

Coalition action and the Rutter & Wilbanks action gave Ptasynski and Bridwell

the right to opt out of the settlement. On December 4, 2001, Ptasynski and

Bridwell filed these appeals from the district court’s denial of their motions to

intervene. 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 same

defendants (Shell Oil Co. and Mobil Oil Co.) in Texas alleging essentially the

same claims concerning underpayment of royalties on CO              2   gas production on the

McElmo 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 simultaneously

affirm. See Rutter & Wilbanks Corp. v. Shell Oil Co.             , No. 02-1034 (10th Cir.

filed Dec. 24, 2002). That Texas action was filed in May 1997, proceeded to trial

in August 1999, and resulted in judgment for Shell and Mobil on all Ptasynski’s

and Gray’s claims except a claim for negligent misrepresentation. In February


                                                 -4-
2002, the Fifth Circuit reversed the trial court’s entry of judgment for Ptasynski

on the negligent misrepresentation claim and affirmed the judgment in favor of

Shell and Mobil on all other claims.

      Bridwell has similarly been involved in extensive litigation in various

Texas courts, most of which has resulted in rulings adverse to it and in favor of

Shell and Mobil. On August 29, 2002, the Texas Supreme Court held that an

action involving Bridwell, which had been transferred to the probate court of

Denton County, Texas, had been improperly transferred. Gerald O. Bailey has

been a co-defendant and co-plaintiff with Bridwell in a number of these Texas

actions. We have simultaneously affirmed the denial of Bailey’s motion to

intervene in Rutter & Wilbanks along with Gray’s.           See id.

      Defendants and Plaintiffs in this case argue that Ptasynski and Bridwell

lack standing: “Appellants seek to intervene in the         Coalition and Rutter &

Wilbanks lawsuits in order to pursue their claims for allegedly underpaid

overriding royalties for McElmo Dome CO          2   . Because those cases have been

settled and Appellants have elected to opt out of the settlement, however, these

appeals must be dismissed for lack of standing.” Defendants-Appellees’ Answer

Br. at 7. Alternatively, assuming appellants have standing, Plaintiffs and

Defendants argue the trial court correctly denied their motions to intervene




                                           -5-
because they satisfy none of the requirements for intervention under Fed. R. Civ.

P. 24.

         We first consider Plaintiffs’ and Defendants’ argument that Ptasynski and

Bridwell lack standing at this point to pursue this appeal. Plaintiffs and

Defendants argue that, having opted out of the settlement of the cases with

respect to which Ptasynski and Bridwell sought intervention, they thereby lost

their standing.

         It is well settled that, in order to show standing necessary to invoke
         federal court jurisdiction, a party must demonstrate three things:
                (1) “injury in fact,” by which we mean an invasion of a
                legally protected interest that is “(a) concrete and
                particularized, and (b) actual or imminent, not
                conjectural or hypothetical”; (2) a causal relationship
                between the injury and the challenged conduct, by which
                we mean that the injury “fairly can be traced to the
                challenged action of the defendant,” and has not resulted
                “from the independent action of some third party not
                before the court”; and (3) a likelihood that the injury
                will be redressed by a favorable decision, by which we
                mean that the “prospect of obtaining relief from the
                injury as a result of a favorable ruling” is not “too
                speculative.”

In re Integra Realty Res., Inc.   , 262 F.3d 1089, 1101 (10th Cir. 2001) (quoting

Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of

Jacksonville , 508 U.S. 656, 663-64 (1993)). In     In re Integra , we held that parties

who had opted out of a settlement lacked standing to challenge the settlement

because they “lack[ed] any legally protected interest that could support the ‘injury


                                            -6-
in fact’ element necessary to demonstrate standing.”         Id. at 1102; see also In re:

Vitamins Antitrust Class Actions      , 215 F.3d 26 (D.C. Cir. 2000) (holding that

presumptive class members who had opted out of a settlement had no standing to

challenge a specific clause in the settlement). We, and other courts, have

recognized a narrow exception to this where nonsettling parties can demonstrate

that they will suffer “‘plain legal prejudice,’ as when ‘the settlement strips the

party 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)) (further

quotation omitted).

       We have also held that “a plaintiff must maintain standing at all times

throughout the litigation for a court to retain jurisdiction.”     Powder River Basin

Res. Council v. Babbitt , 54 F.3d 1477, 1485 (10th Cir. 1995). Other courts have

suggested that the issue is more properly framed as one of mootness: “while it is

true that a plaintiff must have a personal interest at stake throughout the litigation

of a case, such interest is to be assessed under the rubric of standing at the

commencement of the case, and under the rubric of mootness thereafter.”             Becker

v. Fed. Election Comm’n , 230 F.3d 381, 386 n.3 (1st Cir. 2000);         see also Steger

v. Franco, Inc. , 228 F.3d 889, 893 (8th Cir. 2000).

       Whether framed as an issue of standing or mootness, we agree with

Plaintiffs and Defendants that Ptasynski and Bridwell no longer have the requisite


                                               -7-
personal interest in this action. They seek intervention in two cases which have

now settled, and the validity of that settlement has been affirmed on appeal.

During the pendency of these appeals from the denial of their motions to

intervene, they opted out of that settlement and are, in fact, pursuing their

individual claims in Texas courts. They therefore lack any personal stake or

interest in the settlement and, more particularly, in the cases which were the

object of that settlement.

      Alternatively, were they able to identify some interest sufficient to avoid a

conclusion 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 the

district court’s written orders denying those motions.

      AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                          -8-
