exploration in exchange for their assistance rocky mountain exploration assigned the supergroup overriding welsh interest in the subject leases quote or any extensions or renewals thereof entered into within one hundred and eighty days of expiration of the apply equally and quote prior to the expiration of the subject leases respective five year primary terms three significant types of transactions occurred with respect to the interest covered there by to trace those briefly rocky mountain exploration conveyed an eighty percent net revenue interest in the subject leases to manage he called tracker and then rocky mountain later conveyed its remaining interest in the subject leases to loreal oil and gas tracker conveyed its interest in the subject leases to t r c whose interest subsequently acquired by has who ultimately acquired all the interest for its mountain exploration and rd finally beginning in two thousand and nine track paragraph right and it has no conditions at all right it just gets just the one the one paragraph sentence and then if i look at the subject least there is no duty to produce here it says the less or agrees  obligated in any way at any time to do any production at all so you have to have a fiduciary duty right for this to work you can't do it from the expressed terms of the contract well i guess yes and we would argue that you know the case law that we've presented to this court specifically recognizes the do sherry duties in a couple of different i know but you got my question you've got to show fiduciary duty right because the neck it turns don't do it well i guess my argument would company versus base an electric power cooperative that case concerned a coal lease and an overriding royalty interest in a series of coal leases where the the overriding royalty interest are complained that he'd been royalty owners an implied duty to develop will be found in mineral cases as well as oil and gas cases now the court went on to discuss north dakota's policy rationales for such an implied duty noting that less source have a property interest in oil and gas and a  developed now this court ultimately concluded that quote implying the duty to develop in favor of overriding royalty holders protects the same interests deemed worthy of protection in regard to us or now i'm not aware of north dakota case law clarifying whether this implied duty to develop is a fiduciary duty per se but the relationship from which it arises clearly falls within the definition of a confidential relationship as articulated by the kansas supreme court in how will  person in the management of his business to repose that degree of confidence in another which results in the substitutions of the others will and judgment for his own we would argue that that's the same situation that you have here in the same situation you have under the supergroup in agreeing with rocky mountain to acquire these leases for rocky mountains benefit accepted or subject itself to the discretion of rocky mountain in  i would say that you know again that's why i'm saying that i'm not aware of case law recognizing this implied duty as fiduciary duty person a however you know just because it has initially been recognized as such doesn't mean that it isn't in the nature of  but case has to be reconciled with the case law that we've discussed where north of the north coast supreme court has recognized an implied duty to develop i would argue that this implied duty to develop is in the nature of the fiduciary jan i understand north dakota is one of the few states that doesn't have a  of good faith and very nearly no extra charge for that advice back to your argument and i guess that i would point out that in light of that the lack of that sort of protection that's also why i would think the north dakota supreme court would recognize that overriding royalty owners are deserving of protection of some sort and would recognize if not a fiduciary duty per se than some sort of implied duty protecting overriding royalty interest owners as this court recognized since two thousand and two decision that i discussed earlier you know that the facts of the present case bear this out as i indicated the supergroup reached this agreement with rocky mountain and in exchange for their services were conveyed the zero override in making this agreement the supergroup placed trust in rocky mountain as dakota supreme court is likely to adopt the position that we're arguing over the but is a position that kest has has presented because the case law relied upon by has borrows from ordinary landlord tenant cases course ultimately rooted in principles derived through soon aqua trolling and williams petroleum co lillibridge and ultimately to sawyer now the mitchell paper co case just involved an ordinary landlord tenant lease as i explained it says nothing about oil and gas leases much twenty or so seconds you have left what did the district court do wrong when would only later the district court in quickly concluded that the north dakota supreme court would adopt this restrictive interpretation of extensions was we think that the more liberal or broader reading of the phrase extension and when will that we've presented in the case law is what the court would adopt in particular because of what i mentioned about recognizing implied duties or f y duty to protect overriding loyalty interest orders thank you thank you contract interpretation and the district court approached it that way correctly in the district court looked at the contract at issue and concluded that the top leases at issue in this case do not constitute quote extensions or renewals of the corresponding subject leases accordingly the overriding role the interest that appellant own in the subject leases  some of which are still held by the way they don't attach to the toppling son of the plain terms of the contracts and so accordingly has would request that this court affirmed the district court's conclusion let me ask a question you know about the th circuit terms the contract act like there's no did it develop anything right there that i mean the corresponding subject leases certainly they contain surrender clauses they they state that there's no duty to there's no duty to develop nobody could produce what we've said is no duty to produce anything they are they're paid up leases which means that they're paid up presumably of them bonuses received at the outset they're good for x number of years and then they can be held if production is case specifically says that oftentimes when courts have looked at these extension renewal issues they mix up but issues of constructive trust or fiduciary duty versus contract interpretation of the contract language it said we're going to talks about about washouts but it doesn't suggest that it implies of who do sherry duty into the contract washout situations you know a washout i don't think is it is that as a cause of action but typically a wash out situation you know if you're if there's really a true are shot it's probably going to involve causes of action such as fraud collusion that type of thing a lockout is not just any situation in which of these leases they did it late you know it allowed them to you know they played out over the ordinary course of their life and actually the record shows that some of these original leases were held by his own drawing enough for i mean and the lead to get back to you know it in terms of development that the only evidence in the record is that has actually did develop some of these leases rd parties rd party operators also develop some of these leases and some of the subject leases were held either in part or by production at the end of their primary terms but as to those tracks that weren't held by production the subject leases expired in the ordinary course according to their own terms or two and a lot i write in what i'm reading declined invitations to imply a covenant of good face and fair dealing in non insurance contracts so consistently in fact that district of north dakota has recognized a couple of occasions that federal courts sitting in diversity are not imply a covenant of good faith and fair dealing did you cite those cases yes your honor thank you and they did just to throw a case out there the w f and d case out of the north dakota supreme court i think is one covenant and that's the case here there's there's no you know in north dakota law insofar as something like that would exist it it would be an independent cause of action that wasn't played here in north dakota supreme court and that's also the case cited in the brief also says th plain meaning of the terms extensions and renewals and i think opponents here you know they stood up and rightly admitted at oral argument that the only way that they win is if the court implies some sort of fiduciary duty or heightened duty  otherwise they just can't get there on the face of the contract judge government you know being very familiar with north code a lot took that into account interpreted these contracts on their face cording to the plain meaning and and then you  properly compared to the subject leases versus top leases found that there were material differences top leases or not renewals or extensions of the subject leases because renewals and extensions there are concepts closely allied to one another the the differences in terms that keep these top leases from being able to qualify extensions so now there's a myriad of different terms and they're there laid out in detail in the brief i think one of the most important is an increase in the landowners royalty there's different primary term lengths there are differences in land use restrictions some of those leases contain different ind of the groups of leases contains different royalty valuation terms and you know it goes on and on in the auto shop have the same secondary car like i get a kick out of secondary term as long as oil is being produced and that yes and i guess that true at all of the pretty that's pretty much every oil and gasoline see you ever see has you know it's you're going to hold back production because that's an incentive of course for these oil companies to invest a huge amount of capital into drawing a well you know controlled by how long the oil company wants to continue producing it's not how long they want but how long they do continue producing i think want it says no duty to produce you or sure sure they were talking past each other they could give up  or in any event the you know getting back to your honor's question about differences and there's a number of those different terms laid out in the briefs there's also a difference in ownership really because these top leases when they were taken provided an opportunity for the lessee to increase its ownership interest because t r s the at the time that it took these top leases they only owned eighty percent of the subject leases and if the  vest what if you would give them one hundred percent ownership they own one hundred percent of the of the top lease and so in that sense the ownership is different as well in addition there was a new bonus consideration given for the top leases that's been pointed to as an additional factor so you know to distinguish it weighs in favor of considering a top lease in a new lease as opposed to an extension of renewal for instance you know that's just in the little bridge case  court of a court such as low would have interpreted extensions or renewals as unambiguous clear have interpreted as a matter of law but that you know that the parents have tried to import extrinsic evidence nevertheless extrinsic evidence in north dakota evidence under north dakota law that can't be brought in to prove what the parties meant by extensions or renewals so the the opponents you know planning to other agreements of the parties entered into you know is simply it doesn't bear on interpret ing the intent of extensions or renewals in this context moreover has pointed out competing extrinsic evidence even if you know even if the court were to find the contracting ambiguous then the the party's intent i think would become a question  similar in terms or in circumstances i want to touch just briefly on me turn it of argument that we raised regarding one hundred and eighty day limitation when we reason raised that as an alternative basis for  majority of the leases if the court were to determine that any of those top leases did constitute extensions or renewals no reason to reach that if the court simply affirms the district court but that the extensions renewals clause days of means any time during the period beginning on one hundred and eighty dollars days before and terminating one hundred and eighty dollars days after expiration we you know we started a th circuit case of says that that is the ordinary mean of the t expiration that's what you're arguing right you that you can take the top least one hundred and eighty one days before expiration but then the subject lease is allowed to play out and that's what happened here and as a matter of fact leases were talking about and it's i think it's perfectly reasonable for the parties to negotiate a term like that understanding that a lessee may take top leases a long ways out as a risk mitigation issue not be not in order to perform some sort of intentional washout what you wrote concerned about are those may please the court my name is brandon hoskins i'm here on behalf of the alone remaining opponent to wait to waive i think i'd like to start by going back to an initial question by judge smith  what did the district court do wrong here i think the district court ignored admittedly scant bit of i guess reliable information from north dakota supreme court and that's the goal here is to do what the north dakota supreme court would do and that one case would be standing and sandvik goes on to use other resources i think that the court should also rely on because north interest and that's why all these cape these states like kansas which no dakotas and relied on at least in dicta complied with the new sherry was mr forster accurate in his description of differences between the i see my time's up unless there's another question that will rest on our brief