                Filed 8/27/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                 2019 ND 228


Rhonda Pennington, Steven Nelson,
Donald Nelson, and Charlene Bjornson,                  Plaintiffs and Appellants

      v.

Continental Resources, Inc.,                           Defendant and Appellee


                                 No. 20190063


       Appeal from the District Court of McKenzie County, Northwest Judicial
District, the Honorable Daniel S. El-Dweek, Judge.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      Opinion of the Court by Crothers, Justice.

      Nathan A. Keever (argued), Grand Junction, CO, and Fintan L. Dooley
(appeared), Bismarck, ND, for plaintiffs and appellants.

       Spencer D. Ptacek (argued) and Lawrence Bender (on brief), Bismarck, ND,
for defendant and appellee.
                   Pennington v. Continental Resources, Inc.
                                   No. 20190063


       Crothers, Justice.
[¶1]   Rhonda Pennington, Steven Nelson, Donald Nelson, and Charlene Bjornson
(“Plaintiffs”) appeal a district court judgment ruling a “regulation and delay”
provision in their oil and gas leases with Continental Resources extended the term of
the leases. We affirm in part, reverse in part, and remand for further proceedings.
                                          I
[¶2]   On October 25, 2011, the Plaintiffs executed oil and gas leases for property in
McKenzie County. Each lease term was three years with a lessee option to extend for
an additional year. The leases were assigned to Continental in September 2014, and
it exercised the extension option. The leases included a provision that the leases
would not terminate if drilling operations were delayed by an inability to obtain
permits.
[¶3]   In May 2012, Continental applied for a drilling permit on a 2,560-acre spacing
unit that included the lands covered by the leases. The 2,560 acres included lands
inhabited by the Dakota Skipper butterfly, which is listed as threatened under the
Endangered Species Act. Continental could not begin drilling operations until
receiving federal approval. In August 2015, the U.S. Fish and Wildlife Service issued
a biological opinion relating to the impact of Continental’s proposed drilling on the
Dakota Skipper. On October 1, 2015, Continental proposed measures to minimize the
impact of its operations on the Dakota Skipper.
[¶4]   On October 21, 2015, Continental recorded an affidavit of regulation and
delay, stating it had not yet obtained federal regulatory approval to drill, and the
primary term of the leases was extended under the “regulation and delay” paragraph
of the leases. The following day, Continental applied to terminate the 2,560-acre
spacing unit and create a 1,920-acre spacing unit to remove the Dakota Skipper
habitat. In November 2015, the Industrial Commission approved the 1,920-acre

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spacing unit. In January 2016, the commission pooled all of the oil and gas interests
in the 1,920-acre spacing unit for the development and operation of the spacing unit.
Following the January 2016 order, Continental began drilling operations.
[¶5]   In August 2017, the Plaintiffs sued Continental, alleging the leases expired on
October 25, 2015, and Continental’s delay in obtaining regulatory approval to drill did
not extend the leases. Both parties moved for summary judgment. The district court
granted Continental’s motion, concluding the “regulation and delay” provision
extended the leases until regulatory approval could be obtained to begin drilling
operations.
                                           II
[¶6]   This Court’s standard of review for summary judgments is well-established:
       “Summary judgment is a procedural device for the prompt resolution
       of a controversy on the merits without a trial if there are no genuine
       issues of material fact or inferences that can reasonably be drawn from
       undisputed facts, or if the only issues to be resolved are questions of
       law. A party moving for summary judgment has the burden of showing
       there are no genuine issues of material fact and the moving party is
       entitled to judgment as a matter of law. In determining whether
       summary judgment was appropriately granted, we must view the
       evidence in the light most favorable to the party opposing the motion,
       and that party will be given the benefit of all favorable inferences
       which can reasonably be drawn from the record. On appeal, this Court
       decides whether the information available to the district court precluded
       the existence of a genuine issue of material fact and entitled the moving
       party to judgment as a matter of law. Whether the district court
       properly granted summary judgment is a question of law which we
       review de novo on the entire record.”
Horob v. Zavanna, LLC, 2016 ND 168, ¶ 8, 883 N.W.2d 855 (quoting Poppe v.
Stockert, 2015 ND 252, ¶ 4, 870 N.W.2d 187).
[¶7]   When ruling on a summary judgment motion, a district court may not weigh
the evidence, determine credibility or attempt to discern the truth of the matter.
Martin v. Marquee Pacific, LLC, 2018 ND 28, ¶ 10, 906 N.W.2d 65. Deciding an
issue on summary judgment is improper if the court must draw inferences or make
findings on disputed material facts. Id.

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                                           III
[¶8]   Plaintiffs argue the leases expired in October 2015, and the “regulation and
delay” provision did not extend them.
[¶9]   Oil and gas leases are contracts and are interpreted to give effect to the parties’
mutual intent at the time of contracting. Horob, 2016 ND 168, ¶ 10, 883 N.W.2d 855;
see also N.D.C.C. § 9-07-03. The parties’ intent is ascertained from the writing alone
if possible. N.D.C.C. § 9-07-04. “The language of a contract is to govern its
interpretation if the language is clear and explicit and does not involve an absurdity.”
N.D.C.C. § 9-07-02. A contract is interpreted as a whole “so as to give effect to every
part if reasonably practicable.” N.D.C.C. § 9-07-06. Contract interpretation is a
question of law, fully reviewable on appeal. Horob, at ¶ 10. In construing an oil and
gas lease, “[w]e attempt to give effect to every clause, sentence, and provision in a
contract.”    Fleck v. Missouri River Royalty Corp., 2015 ND 287, ¶ 8,
872 N.W.2d 329.
[¶10] Here, the lease term is governed under Paragraph 3:
               “3. Term of Lease. This lease shall be in force for a primary
       term of three (3) years from the date hereof, and for as long thereafter
       as oil or gas or other substances covered hereby are produced in paying
       quantities from the leased premises or from lands pooled or unitized
       therewith or this lease is otherwise maintained in effect pursuant to the
       provisions hereof.”
Paragraph 17 of the leases provide the lessee an option to extend the three-year
primary term for an additional year. In October 2014, Continental exercised the
option and extended the leases.
[¶11] The district court concluded Continental’s inability to obtain drilling permits
for the subject property extended the leases. The court held the leases were extended
under Paragraph 12, which provides:
              “12. Regulation and Delay. Lessee’s obligations under this
       lease, whether express or implied, shall be subject to all applicable
       laws, rules, regulations and orders of any governmental authority
       having jurisdiction, including restrictions on the drilling and production
       of wells, and regulation of the price or transportation of oil, gas and
       other substances covered hereby. When drilling, reworking, production
                                            3
       or other operations are prevented or delayed by such laws, rules,
       regulations or orders, or by inability to obtain necessary permits, . . . or
       by fire, flood, adverse weather conditions, war, sabotage, rebellion,
       insurrection, riot, . . . this lease shall not terminate because of such
       prevention or delay, and, at Lessee’s option, the period of such
       prevention or delay shall be added to the term hereof. Lessee shall not
       be liable for breach of any provisions or implied covenants of this lease
       when drilling, production, or other operations are so prevented or
       delayed.”
[¶12] Paragraph 12 is a force majeure clause. We have defined a force majeure
clause as “[a] contractual provision allocating the risk of loss if performance becomes
impossible or impracticable, esp[ecially] as a result of an event or effect that the
parties could not have anticipated or controlled.” Entzel v. Moritz Sport and Marine,
2014 ND 12, ¶ 7, 841 N.W.2d 774 (quoting Black’s Law Dictionary
718 (9th ed. 2009)).
[¶13] The Plaintiffs argue Paragraph 12 does not apply during the primary term of
the leases. They argue Paragraph 12 only applies after there has been production to
extend the leases beyond the primary term. They also contend Paragraph 12 is subject
to a limitations clause included in Exhibit A, an exhibit attached to and made a part
of the leases. The limitations clause excludes obtaining permits as an operation
sufficient to hold the leases beyond the primary term, stating:
              “(p) Operations sufficient to hold this lease beyond the primary
       term shall not include obtaining permits, surveying a drill site, staking
       a well, building roads, hauling equipment or supplies, construction of
       a road or drill site nor any other surface work in preparation for drilling
       or reworking.”
Paragraph (p) of Exhibit A is related to Paragraph 4 of the leases, providing in
relevant part:
              “4. Operations. . . . If after the primary term this lease is not
       otherwise being maintained in force, but Lessee is then engaged in
       Operations, as defined below, then this lease shall remain in force so
       long as any one or more Operations are prosecuted with no interruption
       of more than 180 consecutive days. . . . As used herein, the term
       ‘Operations’ shall mean any activity conducted on . . . the leased
       premises, or the lands pooled or unitized therewith, that is reasonably
       calculated to obtain or restore production, including without limitation,
                                            4
       (i) drilling or any act preparatory to drilling (such as obtaining permits,
       surveying a drill site, staking a drill site, building roads, clearing a drill
       site, or hauling equipment or supplies).”
[¶14] Paragraphs 4 and (p) are related in that the struck-out language in Paragraph
4 is similar to the language of Paragraph (p). Both provisions use the phrase “after
the primary term” or “beyond the primary term,” indicating those provisions apply
during the secondary term of the leases. Therefore, those provisions only limit
Paragraph 12’s language relating to obtaining permits during the secondary term of
the leases.
[¶15] Unlike Paragraphs 4 and (p), nothing in the plain language of Paragraph 12
limits its application to the secondary term. Paragraph 3 states the leases will be in
effect for three years and as long thereafter if oil or gas is being produced. Paragraph
3 states the leases also may be “maintained in effect pursuant to the provisions
hereof.” Under Paragraph 12, the leases will not terminate if a delay occurs due to the
circumstances listed, including regulatory delay in obtaining drilling permits during
the primary term. In construing the lease as a whole, Paragraph 12 applies during the
primary and secondary terms.
[¶16] The Plaintiffs cite cases from other jurisdictions holding a force majeure clause
did not apply during the lease’s primary term. See Beardslee v. Inflection Energy,
LLC, 31 N.E.3d 80 (N.Y. 2015); Aukema v. Chesapeake Appalachia, LLC,
904 F. Supp. 2d 199 (N.D.N.Y. 2012). The language of the leases and force majeure
clauses in those cases differs from the language of the leases in this case. See
4 Patrick H. Martin & Bruce M. Kramer, Williams & Meyers Oil and Gas Law,
§ 683.1 (noting that a force majeure clause may provide for the extension of the
primary term of a lease depending on the language of the force majeure clause). Our
holding here is limited to the specific language of the leases, and the cases cited by
the Plaintiffs are not persuasive.


                                            IV



                                             5
[¶17] Plaintiffs argue the delay in Continental’s attempt to obtain the drilling permit
for the 2,560-acre spacing unit was unreasonable because Continental could have
obtained a permit for a smaller spacing unit during the primary term of the leases.
[¶18] “An express force majeure clause in a contract must be accompanied by proof
that the failure to perform was proximately caused by a contingency and that, in spite
of skill, diligence, and good faith on the promisor’s part, performance remains
impossible or unreasonably expensive.” Entzel, 2014 ND 12, ¶ 7, 841 N.W.2d 774
(quoting 30 Williston on Contracts § 77:31, 366 (4th ed.)). “Whether a party acted
in good faith is a question of fact.” Martin, 2018 ND 28, ¶ 23, 906 N.W.2d 65.
[¶19] The Plaintiffs allege Continental’s inability to obtain a permit for the 2,560-
acre spacing unit did not prevent Continental from drilling on a smaller parcel during
the primary term. Plaintiffs assert Continental should have requested to terminate the
2,560-acre spacing unit sooner than three days before the primary term expired.
Plaintiffs claim that had the 2,560-acre spacing unit been terminated earlier,
Continental could have obtained a permit and drilled during the primary term.
[¶20] The district court rejected the Plaintiffs’ arguments:
       “Nothing in the Leases requires that Continental abandon its planned
       drilling operations where those operations have been delayed by the
       inability to obtain permits necessary to those operations.
       ....
       “Based on the evidence presented by the parties in this case it is
       undisputed that, despite Continental’s efforts to develop the Subject
       Lands as part of the 2560 Spacing Unit, Continental was prevented
       from commencing operations within the primary term of the Leases by
       a contingency beyond its control, namely the decisions of the U.S. Fish
       and Wildlife Service and the BLM [Bureau of Land Management]. It
       is likewise undisputed that the BLM’s decision to withhold approval of
       Continental’s May 15, 2012 APD [application for a permit to drill] did
       not arise as a result of the fault or negligence of Continental; rather,
       Continental had no reason to believe it would be unable to commence
       operations on the Subject Lands until August 24, 2015, when it
       received the U.S. Fish and Wildlife Service’s Biological Opinion
       indicating that issues pertaining to protection of the Dakota skipper and
       its habitat would delay approval of the APD. Accordingly, Plaintiffs’
       arguments on this point are thus unavailing.”

                                          6
[¶21] The district court concluded the delay in obtaining drilling permits for the
2,560-acre spacing unit was beyond Continental’s control and was not because of
Continental’s fault or negligence. However, the court did not address whether
Continental acted diligently and in good faith in pursuing a permit to drill the 2,560-
acre spacing unit for more than three years.        See Entzel, 2014 ND 12, ¶ 7,
841 N.W.2d 774 (stating a party relying on an express force majeure clause in a
contract must provide proof that, despite the party’s good faith and diligence,
performance was impossible or unreasonably expensive). The Plaintiffs’ arguments
relate to Continental’s good faith and diligence in obtaining the drilling permits.
Viewing the evidence and inferences to be drawn from the evidence in a light
favorable to the Plaintiffs, a genuine issue of material fact exists as to whether
Continental acted diligently and in good faith. We reverse the court’s judgment and
remand for further proceedings on this issue.
                                          V
[¶22] The parties’ remaining arguments are without merit or not necessary to our
decision. The judgment is affirmed in part, reversed in part and remanded for further
proceedings.
[¶23] Daniel J. Crothers
      Jerod E. Tufte
      Jon J. Jensen
      Lisa Fair McEvers
      David Nelson, S.J.

[¶24] The Honorable David Nelson, S.J., sitting in place of VandeWalle, C.J.,
disqualified.




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