PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NORTHERN NATURAL GAS 

COMPANY,

Plaintiff – Counter-Defendant -

 Appellee,

v.

L.D. DRILLING, INC.; BILL R. 

MILTON; CARL DUDREY; HJB, INC.; 

IVAN W. MILTON; KIM B. 

SHOEMAKER; L.D. DAVIS; LARRY E. 

KEENAN; LISA M. MILTON; NANCY 

H. SHOEMAKER; PAUL J. BEAVER; 

TAMMY MILTON; TIMOTHY R. 

KEENAN; WHITETAIL ENERGY, 

INC.,

Defendants – Counter-Claimants -

Appellants,

and

STEVEN EUGENE YOUNG,

 Counter-Claimant – Appellant.

ALLAM EXPLORATION, LLC.; 

APOLLO ENERGIES, INC.; ROBERT P. 

BAYER, II; DALE L. SMITH and MAE 

 No. 11-3024

FILED

United States Court of Appeals

Tenth Circuit

October 17, 2012

Elisabeth A. Shumaker

Clerk of Court
2

D. SMITH, Revocable Trust dated 

12/05/2007; ERIC D. STINTON, Trust 

dated 1/25/2007; DALE L. SMITH, MAE 

D. SMITH, ERIC D. STINTON, Trustees; 

JOHN P. HASTINGS; LIES 

EXPLORATION, LLC; DAVID 

MUNRO; NASH OIL & GAS, INC.; 

BRENDA M. RIFFEY; LARRY D. 

RIFFEY; VAL ENERGY, INC; VISION 

INVESTMENTS, LLC; VOSBURGH 

EXPLORATION, LLC; STEVEN 

EUGENE YOUNG,

 Defendants – Counter-Claimants. 

NORTHERN NATURAL GAS 

COMPANY,

Plaintiff – Counter-Defendant -

 Appellee,

v.

NASH OIL & GAS, INC.,

Defendant – Counter-Claimant –

Appellant,

and

ALLAM EXPLORATION, LLC.; 

APOLLO ENERGIES, INC.; ROBERT P. 

BAYER, II; PAUL J. BEAVER; DALE 

L. SMITH AND MAE D. SMITH, 

REVOCABLE TRUST DATED 

12/05/2007; ERIC D. STINTON TRUST 

 No. 11-3026
3

DATED 1/25/2007; DALE L. SMITH, 

MAE D. SMITH, ERIC D. STINTON, 

Trustees; HJB, INC.; JOHN P. 

HASTINGS; LARRY E. KEENAN; 

TIMOTHY R. KEENAN; L.D. 

DRILLING, INC.; LIES 

EXPLORATION, LLC; BILL R. 

MILTON; IVAN W. MILTON; LISA M. 

MILTON; TAMMY MILTON; DAVID 

MUNRO; BRENDA M. RIFFEY; 

LARRY D. RIFFEY; KIM B. 

SHOEMAKER; NANCY H. 

SHOEMAKER; VAL ENERGY, INC.; 

VISION INVESTMENTS, LLC; 

VOSBURGH EXPLORATION, LLC; 

WHITETAIL ENERGY, INC.,

 Defendants – Counter-Claimants. 

 _______________________________

STEVEN EUGENE YOUNG,

 Counter-Claimant.

Appeal from the United States District Court

for the District of Kansas

(D.C. Nos. 6:08-CV-01400-WEB-DWB,

6:08-CV-1405-WEB-DWB)

Jim H. Goering of Foulston Siefkin LLP, Wichita, Kansas, and Brian J. Madden, 

Wagstaff & Cartmell, LLP, Kansas City, Missouri (Adam S. Davis, Wagstaff & Cartmell, 

LLP, Kansas City, Missouri, and Timothy B. Mustaine, Foulston Siefkin LLP, Wichita 

Kansas, with them on the briefs) for Defendants-Appellants. 
4

Richard A. Olmstead, Kutak Rock LLP, Wichita, Kansas (Corey A. Neller, Mark D. 

Coldiron, and Paula M. Jantzen, Ryan Whaley Coldiron Shandy PLLC, Oklahoma City, 

Oklahoma, with him on the brief) for Plaintiff-Appellee.

Before HOLMES, EBEL, and MATHESON, Circuit Judges.

EBEL, Circuit Judge.

In these consolidated interlocutory appeals, Defendants-Appellants, natural gas 

producers with wells in south central Kansas, challenge a preliminary injunction 

enjoining them from further gas production from those wells. The district court entered 

the preliminary injunction after concluding there was a substantial likelihood that 

Plaintiff-Appellee Northern Natural Gas Co. (“Northern”) will prevail on its state-law 

claim alleging that Defendants’ natural gas production from these wells is an actionable 

nuisance because it is disrupting Northern’s nearby underground storage of natural gas. 

Having jurisdiction under 28 U.S.C. § 1292(a)(1), we AFFIRM.

I. BACKGROUND

A. Regulation of natural gas generally

Before addressing the issues presented by these appeals, we mention briefly the 

manner in which natural gas production and storage is regulated. Both state and federal 

governments regulate the natural gas industry. See Nw. Cent. Pipeline Corp. v. State 

Corp. Comm’n, 489 U.S. 493, 506 (1989). Congress, through the Natural Gas Act of 

1938 (“NGA”), 15 U.S.C. §§ 717-717z, vests the Federal Energy Regulatory 
5

Commission (“FERC”) with exclusive jurisdiction over sales of natural gas in interstate 

commerce for resale and transportation of natural gas, as well as over natural gas 

companies engaged in those activities. See 15 U.S.C. § 717(b); see also Fuel Safe 

Washington v. FERC, 389 F.3d 1313, 1317 (10th Cir. 2004). See generally Cascade 

Natural Gas Corp. v. FERC, 955 F.2d 1412, 1421 (10th Cir. 1992) (“It is settled that if 

the NGA grants jurisdiction to [FERC] over a matter, . . . its jurisdiction is exclusive.”). 

Relevant here, FERC’s exclusive jurisdiction over interstate transportation of natural gas 

also includes jurisdiction over the storage of natural gas. See Schneidewind v. ANR 

Pipeline Co., 485 U.S. 293, 295 n.1 (1988) (agreeing that “[u]nderground gas storage 

facilities are a necessary and integral part of the operation of piping gas from the area of 

production to the area of consumption”) (internal quotation marks omitted). 

“Prior to constructing or operating any natural gas pipeline and related facilities, a 

company subject to FERC’s jurisdiction must obtain from FERC ‘a certificate of public 

convenience and necessity,’ 15 U.S.C. § 717f(c)(1)(A), indicating . . . the proposed 

service ‘is or will be required by the present or future public convenience or necessity.’ 

15 U.S.C. § 717f(e).” Fuel Safe, 389 F.3d at 1317; see also Schneidewind, 485 U.S. at 

302. Once a natural gas company obtains a certificate of public convenience and 

necessity, the NGA gives the company eminent domain authority to condemn property it 

needs to provide the necessary service. See 15 U.S.C. § 717f(h). 

The NGA expressly leaves to states the regulation of retail sales, as well as purely 

intrastate wholesales and transportation of natural gas. See id. § 717(b), (c); see also
6

Gen. Motors Corp. v. Tracy, 519 U.S. 278, 292-93 (1997); Fuel Safe, 389 F.3d at 1317. 

In addition, the NGA reserves to states “the power to regulate the physical production 

and gathering of natural gas in the interests of conservation or of any other consideration 

of legitimate local concern.” Interstate Natural Gas Co. v. Fed. Power Comm’n, 331 U.S. 

682, 690 (1947); see also Panhandle E. Pipeline Co. v. Oklahoma, 83 F.3d 1219, 1225-26

(10th Cir. 1996). For NGA purposes, production and gathering of natural gas “are terms 

narrowly confined to the physical acts of drawing the gas from the earth and preparing it 

for the first stages of distribution.” N. Natural Gas Co. v. State Corp. Comm’n, 372 U.S. 

84, 90 (1963); see also Panhandle E. Pipeline, 83 F.3d at 1225-26. Kansas regulates 

natural gas production through the Kansas Corporation Commission (“KCC”). See Zinke 

& Trumbo, Ltd. v. State Corp. Comm’n, 749 P.2d 21, 24 (Kan. 1988).

B. Factual background

Turning to the facts at issue in these appeals, the district court, following an 

evidentiary hearing, made the following factual findings, which the parties do not 

challenge on appeal: In 1932, natural gas was discovered in south central Kansas, in 

what is now known as Cunningham Field (the “Field”). Natural gas was extracted there, 

from the Viola geological formation, beginning in 1934; the Field’s reserves were 

depleted by 1977. Northern then decided to use the Field as an underground storage 

facility. In order to do so, Northern obtained certificates of public convenience and 

necessity from both the KCC and the Federal Power Commission, FERC’s predecessor. 

These certifications permit Northern to store natural gas in over 26,000 acres located in 
7

both the Viola and Simpson geological strata. 

After obtaining these certificates of public convenience and necessity, Northern, in 

1979, began injecting natural gas into the Field for storage. After a several-year “fill-up” 

period during which Northern re-pressurized the Field, the Field remained “essentially 

stable” from 1985 through 1995. (Aplt. App. at 1926.) Cunningham Field is the largest 

of fifteen underground natural gas storage fields in Kansas, and one of the largest twentyfive such fields in the United States. 

Northern thought that Cunningham Field would be a good underground natural 

gas storage facility because Northern believed there were several faults surrounding the 

Field that would seal the stored gas inside the Field. But as it turned out, the fault at the 

northern end of the field did not fully seal in the natural gas. Instead, an aquifer, acting 

with the fault, had originally formed the northern boundary of the Field. 

[D]uring primary production of the field the aquifer acted as a limited water 

drive, pushing native gas out of pore spaces and allowing water to move in, 

with a corresponding reduction in pressure of the aquifer north of the fault. 

Later, during the Cunningham storage field “fill up” period, storage gas 

injected by Northern was pushed past the northern fault and into the 

aquifer, thereby increasing pressure in the aquifer north of the field. The 

field stabilized in 1985 and remained stable for about ten years thereafter.

(Id. at 1930.) Beginning in approximately 1994, however, other natural gas producers 

began extracting gas and large amounts of water just north of the Field, causing “pressure 

sinks” that destabilized the Field and resulted in the migration of Northern’s storage gas 

northward beyond the Field’s boundary. (Id.)

In 2005, FERC permitted Northern to drill two withdrawal wells near the Field’s 
8

northern boundary, in an effort to recapture the stored natural gas that was migrating

northward, and further permitted Northern to drill two observation wells at the Field’s 

northern boundary in order to determine whether Northern’s recapture efforts were 

successful. The withdrawal wells, however, were unable to stop the northward migration 

of Northern’s storage gas. 

In 2007, Northern requested that FERC permit Northern to expand the Field’s 

northern “buffer zone” by 4,800 acres. (Id. at 1927.) FERC agreed to expand the buffer 

zone, but only by 1,760 acres because Northern had failed to prove its storage gas had 

migrated further than that. FERC did not authorize Northern to inject or store any natural 

gas in this buffer zone. 

C. This litigation

Northern initiated this lawsuit in December 2008, suing three natural gas 

producers, L.D. Drilling, Inc. (L.D. Drilling”), Nash Oil & Gas, Inc. (“Nash”), and Val 

Energy, Inc. (“Val Energy”), which together have approximately twenty-five wells,

located four to seven miles north of the Field, producing natural gas from the Viola 

formation. Northern also named as defendants those individuals or entities holding nonoperating working or royalty interests in Defendants’ challenged wells.0F

1 Northern 

alleged that Defendants, through the challenged wells, were extracting Northern’s 

migrating storage gas. Moreover, Northern contended that Defendants’ use of their wells 

 1 Northern also initiated another, similar lawsuit in federal court, No. 08-cv-01400-WEBDWB, which the district court consolidated with the initial federal action underlying 

these appeals, No. 08-cv-01405-WEB-DWB. 
9

to remove natural gas, along with large amounts of water, was creating “pressure sinks” 

that caused more of Northern’s stored natural gas to migrate faster and faster out of the 

Field toward Defendants’ wells. 

Based on these theories, Northern asserted claims under Kansas law seeking title 

to the natural gas being produced by Defendants and declaratory and injunctive relief, as 

well as damages, based upon claims for conversion, unjust enrichment, nuisance and civil 

conspiracy. In response, Defendants asserted a number of counterclaims against 

Northern. The only claim at issue in these interlocutory appeals, however, is Northern’s 

nuisance claim. 

While this federal litigation was pending, Northern applied to FERC for 

permission to expand Cunningham Field’s buffer zone to include the area where most of 

Defendants’ challenged wells are located. Defendants intervened in that agency action 

and objected to this expansion of the Field’s buffer zone. Nevertheless, in June 2010, 

FERC issued Northern a certificate of public convenience and necessity permitting 

Northern to add more than 12,000 additional acres (the “expansion area”) to the Field’s 

northern buffer zone, in the Viola and Simpson geological formations. FERC granted 

this new certificate after Northern presented evidence showing that its natural gas stored 

in Cunningham Field was migrating northward out of the Field. FERC found in 

particular that “Northern had shown that there is a two-mile wide primary gas migration 

pathway from the storage field into the expansion area.” (Id. at 1929.) In issuing the 

certificate of public convenience and necessity, FERC considered but rejected arguments 
10

made by objectors that the Field “should be abandoned because the lack of migration 

barriers in the expansion area made the field unsuitable for storage.” (Id. at 1930.) 

Instead, FERC agreed generally to a four-step plan Northern proposed to contain the 

stored gas and stop its northward migration. That plan required Northern to do the 

following: 1) to “shut in all third party production north of the northern fault”; 2) to 

monitor pressures to see if stopping third-party production to the north returned pressures 

along the Field’s northern boundary to pre-1995 levels; 3) if this pressure did not return 

to pre-1995 levels, to inject water at the north end of the Field in order to raise pressure 

there; and 4) possibly “bring[] shut-in wells into production or install[] offset wells to 

counter any third-party production adjacent to the expansion area.” (Id.) In approving at 

least the first three steps of this proposed four-step plan, FERC ordered Northern to 

develop a more specific migration control plan within six months of FERC’s issuing 

Northern the certificate of public convenience and necessity. Defendants did not appeal 

FERC’s ruling and that administrative decision is now final. 

After obtaining from FERC the certificate of public convenience and necessity for 

the expansion area, Northern initiated a second lawsuit in federal court in the District of 

Kansas, seeking to exercise the eminent domain authority granted Northern by the NGA 

to condemn the needed property located within the expansion area, N. Natural Gas Co. v. 

Tract No. 106710, No. 6:10-cv-1232-MLB-DWB (D. Kan.). That litigation remains 
11

ongoing.1 F

2

 

Following FERC’s issuance to Northern of a certificate for the expansion area, 

Northern, in this litigation, sought a preliminary injunction enjoining Defendants from 

producing natural gas or water from their challenged wells located in the expansion area. 

The district court granted that injunction. In these consolidated interlocutory appeals, 

L.D. Drilling and Nash challenge the preliminary injunction.2 F

3

II. STANDARD OF REVIEW

We review the district court’s decision to grant a preliminary injunction for an 

abuse of discretion. See Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012). “An 

abuse of discretion occurs only when the trial court bases its decision on an erroneous 

conclusion of law or where there is no rational basis in the evidence for the ruling.” Id.

(internal quotation marks omitted). 

“In order to secure a preliminary injunction, the moving party,” here Northern, 

“must establish the following elements: (1) a substantial likelihood of success on the 

merits; (2) irreparable injury will result if the injunction does not issue; (3) the threatened 

injury to the movant outweighs any damage the injunction may cause the opposing party; 

 2 During oral argument, Northern’s attorney assured this court that Northern intended to 

proceed with the condemnation action. Currently, discovery remains ongoing in the 

eminent domain case, with a status conference set for October 2012. The district court 

previously entered a preliminary injunction in that case permitting Northern to take 

immediate possession of certain affected properties, subject to a later determination of 

just compensation to be paid for those properties. 

3 Both the district court and this court denied Defendants’ motions to stay operation of the 

preliminary injunction while these appeals remain pending. 
12

and (4) issuance of the injunction would not be adverse to the public interest.” Kan. 

Judicial Watch v. Stout, 653 F.3d 1230, 1233 n.2 (10th Cir. 2011). Although 

“[g]enerally, where the three latter harm factors weigh in favor of the movant, the 

probability of success factor is relaxed,” that is not the case here, where the requested 

injunction is one that alters the status quo and therefore is disfavored. Flood v. ClearOne 

Commc’ns, Inc., 618 F.3d 1110, 1117 n.1 (10th Cir. 2010). Instead, Northern had to 

make a “strong showing” of both the likelihood of success on the merits of its nuisance 

claim and that the balance of the harms favored issuing the requested injunction. Id.

(internal quotation marks omitted). The district court applied this more stringent standard 

in granting Northern the preliminary injunction at issue here. 

On appeal, Defendants challenge only the district court’s determination that there 

is a substantial likelihood Northern will prevail on its nuisance claim. We consider only 

that issue here. Our review is further circumscribed by the fact that the question of who 

has title to the gas that has already migrated out of the Field is not determinative of

Northern’s nuisance theory. Northern’s theory, instead, is that Defendants’ continued 

production from their wells located in the expansion area would draw out the gas 

Northern is currently storing in the Field. Therefore, in determining here whether the 

district court abused its discretion in concluding that there was a substantial likelihood 

that Northern would prevail on its nuisance claim, we do not address the question of who 

has title to the natural gas that has already migrated out of the Field.
13

III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN 

DETERMINING THERE WAS A SUBSTANTIAL LIKELIHOOD NORTHERN 

WILL PREVAIL ON ITS NUISANCE CLAIM

Under Kansas law, “[a] private nuisance is a tort related to an unlawful 

interference with a person’s use or enjoyment of his land.” Smith v. Kan. Gas Serv. Co., 

169 P.3d 1052, 1061 (Kan. 2007) (internal quotation marks omitted). As just mentioned, 

Northern’s theory underlying its nuisance claim is that Defendants’ continued production 

of natural gas and water through their wells located in the expansion area is lowering the 

pressure in that area, causing more and more of the natural gas Northern is storing in 

Cunningham Field to migrate at a faster pace northward out of the Field and into the 

expansion area. Specifically, Northern alleged the following: Defendants’ production 

through their expansion area wells was interfering with Northern’s use and enjoyment of 

Cunningham Field as an underground storage facility for natural gas by creating 

“‘pressure sinks’ that have drawn, and continue to draw, Northern’s storage gas from the 

Cunningham Storage Field through a two-mile wide geologic pathway.” (Aplt. App. at 

246 ¶ 135.) This pathway has now become saturated with gas, which “causes the volume 

of storage gas migrating along such pathways to increase.” (Id. at 247 ¶ 136.) This 

increased migration interferes with Northern’s “natural gas storage operations authorized 

by [FERC] and the KCC, and impede[s] Northern’s ability to maintain the storage 

integrity of the Cunningham Storage Field.” (Id.) 

The parties agree that, to succeed on this nuisance claim, Northern must establish 

the following four elements: 
14

(1) [T]he defendant acted with the intent of interfering with the use and 

enjoyment of the land by those entitled to that use; (2) there was some 

interference with the use and enjoyment of the land of the kind intended, 

although the amount and extent of that interference may not have been 

anticipated or intended; (3) the interference that resulted and the physical 

harm, if any, from that interference proved to be substantial; and (4) the 

interference was of such a nature, duration, or amount as to constitute 

unreasonable interference with the use and enjoyment of the land.

Pagel v. Burlington N. Santa Fe Ry. Co., 316 F. Supp. 2d 984, 989 (D. Kan. 2004) (citing 

Williams v. Amoco Prod. Co., 734 P.2d 1113, 1124-25 (Kan. 1987), which applied 

Prosser and Keeton on Torts, § 87, pp. 622-23 (5th ed. 1984)). 

A. No one disputes that there has been interference with Northern’s use and 

enjoyment of the Field and that the interference has been substantial

Regarding Defendants’ interference with Northern’s use of the Field for storing 

natural gas, the district court found the following:

There is strong and clear evidence that storage gas from the previouslycertified areas of the field (i.e. from the pre-2010 borders) is migrating out 

to the expansion area and has been doing so for some time, with wells even 

in the northern portion of the expansion area producing primarily storage 

gas, even though some of those wells are more than 6 miles from the 

underground fault. The defendants’ production of substantial amounts of 

storage gas and water will likely continue to draw storage gas beyond the 

underground fault and out of the storage field as long as such production 

continues, threatening the continued viability of the storage facility.

(Aplt. App. at 1950.) Thus, the district court found that Defendants’ production from 

their expansion area wells was interfering with Northern’s use of the Field as a storage 

facility, and the court went on to find that this interference was substantial. On appeal, 

Defendants do not dispute these findings. And there is evidence in the record to support 
15

them.3 F

4

B. There is a substantial likelihood Northern will be able to establish that 

Defendants acted with the intent to interfere with Northern’s use and enjoyment of 

Cunningham Field

To succeed on its nuisance claim, Northern must also establish that Defendants 

acted with the intent to interfere with Northern’s use of the Field to store natural gas. See

Pagel, 316 F. Supp. 2d at 989. Regarding such intent, the district court found the 

following: 

[A]fter the June 2, 2010 FERC order [granting Northern a certificate of 

public convenience and necessity for the expansion area] – which the 

defendants chose not to appeal – the defendants were clearly on notice that 

their wells were producing primarily if not entirely storage gas, and that 

 4 Briefly summarized here, the evidence Northern presented to the district court at the 

evidentiary hearing indicated the following: During the time Northern was extracting 

native natural gas from the Field, from 1934 to 1977, none of the wells drilled north of 

the Field produced any natural gas. It was not until the mid-1990s, after Northern had 

been using the Field as an underground storage facility for approximately fifteen years, 

that wells in the expansion area began producing significant amounts of natural gas. 

Further, the pattern of discovery of these productive wells in the expansion area was 

unlike the discovery pattern that would be expected when drilling for native gas. In 

addition, these “wells are not experiencing a normal decline in production as would be 

expected from production of native gas.” (Aplt. App. at 1951.) And the chemical 

composition of the natural gas being produced from these wells matches the chemical 

composition of Northern’s stored natural gas, but does not match native natural gas 

recovered in that area. In addition to this evidence suggesting that the natural gas 

Defendants’ challenged wells are extracting is Northern’s storage gas, Northern also 

presented expert testimony explaining why Northern was originally fooled by the 

imperfect seal provided by the fault at the northern edge of the Field, why that seal 

eventually failed, and why the natural gas has been migrating toward the north, beyond 

the Field’s original boundary. These experts further explained that Defendants’ 

continued extraction of gas and large amounts of water north of the Field creates 

“pressure sinks” that cause Northern’s stored gas to migrate at a faster pace northward, 

beyond the Field’s boundary and toward Defendants’ wells. 
16

their production of significant amounts of water was likely influencing the 

migration of storage gas from the Cunningham field. Whatever the 

defendants’ intentions up to the point of the FERC order, their continued 

production thereafter with knowledge that they were causing storage gas to 

migrate can now be viewed as an intentional and substantial interference 

with Northern’s use of the Cunningham Storage Field.

(Aplt. App. at 1952 (emphasis added).) 

The district court did not abuse its discretion in reaching this determination. 

Northern presented evidence to the district court that Defendants’ production of natural 

gas and water from their expansion area wells was siphoning off gas Northern was 

storing in the Field. Northern had previously presented that evidence to FERC, in order 

to obtain the certificate of public convenience and necessity for the expansion area. And 

Defendants participated in those FERC proceedings. Thus, by at least the time FERC 

issued Northern the certificate for the expansion area, in June 2010, Defendants knew 

that continued production from their expansion area wells was causing natural gas to 

migrate at a faster rate out of the Field and toward Defendants’ wells. Yet Defendants 

persisted in producing gas and water from those wells. That evidence was sufficient for 

the district court to determine that there was a reasonable likelihood that Northern will be 

able to prove that, at least by June 2010, Defendants were intentionally causing the 

migration of more natural gas out of Northern’s storage field. 

On appeal, Defendants argue that the district court’s determination - that 

Defendants intentionally interfered with Northern’s use of its Field to store natural gas by 

continuing to produce natural gas from their expansion area wells, knowing that 
17

production would draw more of Northern’s stored natural gas out of the storage field and 

into the expansion area - was insufficient to establish that Defendants acted with the “bad 

intent” to harm Northern needed to support Northern’s nuisance claim. (Aplt. Br. at 34.) 

But, for purposes of a nuisance claim, Kansas case law does not require proof that a

defendant acted with malice or bad intent. 

Occasionally, the defendant may act from a malicious desire to so harm for 

its own sake; but more often the situation involving a private nuisance is 

one where the invasion is intentional merely in the sense that the defendant 

has created or continued the condition causing the interference with full 

knowledge that the harm to the plaintiff’s interests are occurring or are 

substantially certain to follow.

St. David’s Episcopal Church v. Westboro Baptist Church, Inc., 921 P.2d 821, 828 (Kan. 

Ct. App. 1996) (quoting Prosser and Keeton on Torts § 87, pp. 624-25 (5th ed. 1984)); 

see also Sandifer Motors, Inc. v. City of Roeland Park, 628 P.2d 239, 246 (Kan. Ct. App. 

1981). Thus, it is enough under Kansas law for Northern to show that Defendants

“act[ed] with the purpose of causing the nuisance, or kn[e]w that it [wa]s resulting or 

substantially certain to result from his or her conduct.” United Proteins, Inc. v. Farmland 

Indus., Inc., 915 P.2d 80, 85 (Kan. 1996) (citing Restatement (Second) of Torts § 825(a) 

and (b) (1965)). 

C. The nature, duration, or amount of Defendants’ interference with Northern’s 

use of the Field was unreasonable 

Lastly, to prevail on its nuisance theory, Northern also has to establish that 

Defendants’ interference with Northern’s use and enjoyment of Cunningham Field “was 

of such a nature, duration or amount as to constitute unreasonable interference with 
18

[Northern’s] use and enjoyment of the land.” Williams, 734 P.2d at 1124-25 (emphasis 

added; quoting Prosser and Keeton on Torts, § 87, pp. 622-23 (5th ed. 1984)). “This does 

not mean that the defendant’s conduct must be unreasonable. It only means that the 

interference must be unreasonable.” Id. at 1125 (quoting Prosser and Keeton on Torts, 

§ 87). 

In deciding whether interference is unreasonable, Kansas law requires a court to 

consider the particular facts of a given case and weigh a number of factors:

What may or may not constitute a nuisance in a particular case depends 

upon many things, such as the type of neighborhood, the nature of the thing 

or wrong complained of, its proximity to those alleging injury or damage, 

its frequency of continuity, and the nature and extent of the injury, damage 

or annoyance resulting. Each case must of necessity depend upon its own 

particular facts and circumstances.

Vickridge First & Second Addition Homeowners Ass’n, Inc. v. Catholic Diocese, 510 

P.2d 1296, 1302-03 (Kan. 1973) (internal quotation marks omitted).

A court must also consider the social value of the competing interests: 

Reasonableness is a question of fact to be determined in each case by 

weighing the gravity of the harm to the plaintiff against the utility of the 

conduct of the defendant. . . . Determination of the gravity of the harm 

involves consideration of the extent and character of the harm to the 

plaintiff, the social value which the law attaches to the type of use which is 

invaded, the suitability of the locality for that use, the burden on plaintiff to 

minimize the harm, and other relevant considerations arising upon the 

evidence. Determination of the utility of the conduct of the defendant 

involves consideration of the purpose of the defendant’s conduct, the social 

value which the law attaches to that purpose, the suitability of the locality 

for the use defendant makes of the property, and other relevant 

considerations arising upon the evidence.

St. David’s Episcopal Church, 921 P.2d at 828 (internal quotation marks, alteration 
19

omitted). 

In this case, in determining that there was a substantial likelihood that Northern 

could establish that Defendants’ intentional interference with Northern’s use of the Field 

to store natural gas was unreasonable, the district court considered all of the 

circumstances at issue in this case and carefully weighed the relevant factors as well as 

the parties’ competing interests. See Sandifer Motors, 628 P.2d at 243-44 (weighing 

relevant factors). In particular, the district court acknowledged Defendants’ “right to 

produce natural gas to which they or their lessors hold title in the expansion area” and the 

facts that “Northern’s erroneous assessment of the underground fault appears to have 

contributed at least in part to the situation it now claims to be a nuisance” and that 

“Northern could also bear potential liability for what amounts to [its] unauthorized use of 

the Viola formation” to store natural gas “in the expansion area.” (Aplt. App. at 1952-

53.) The Court also weighed several other factors, including the fact that, although 

Defendants have an interest in drilling and producing native natural gas from their 

challenged wells, “there is strong evidence that all of the wells at issue would, if allowed 

to continue operating during this litigation, produce primarily storage gas.” (Id. at 1953.) 

Lastly, the court factored in the public interest served by using Cunningham Field as an 

underground natural gas storage facility. 

Weighing all of these competing interests and relevant factors, as Kansas law 

directs, the district court concluded that there was a substantial likelihood that Northern 

will be able to prove Defendants’ continued production of storage gas from their 
20

expansion area wells amounts to an unreasonable interference with Northern’s use and 

enjoyment of its storage facility. We cannot say that that determination was an abuse of 

discretion.4 F

5

Defendants counter that their continued production of natural gas in the expansion 

area, even after FERC issued Northern a certificate of public convenience and necessity

for that area, cannot be unreasonable because the KCC previously authorized Defendants 

to drill those wells and a Kansas court, in parallel state-court action litigation involving 

these same parties upheld Defendants’ production from those wells and declined to 

reconsider that ruling after the June 2010 FERC certification. These arguments are 

insufficient to justify overturning the preliminary injunction.

First, the fact that the KCC previously permitted Defendants to drill wells in the 

expansion area does not immunize Defendants from Northern’s nuisance claim. Under 

 5 In reaching this conclusion, we do not consider here two other factors that the district 

court considered. First, the district court considered that “Kansas law appears clear that 

the certificate [of public convenience and necessity FERC has now issued for the 

expansion area] means Northern retains title at least to any storage gas that has migrated 

or will migrate to the Expansion Area from June 2, 2010 [the date of the FERC 

certification] and thereafter.” (Aplt. App. at 1953.) Because we need not otherwise 

address who has title to the natural gas that has already migrated out of the storage field, 

we do not consider this factor here. Although the district court did consider it, the other 

factors on which the district court based its unreasonable interference determination were 

sufficient, on their own, to justify the district court’s decision to issue the preliminary 

injunction. The second factor the district court considered, which we do not, is the fact 

that Defendants’ wells are located in the expansion area and are, thus, now subject to 

Northern’s condemnation action. (Id. at 1954.) Although the district court mentioned 

this factor in concluding Defendants’ interference was unreasonable, this fact instead 

appears more relevant to the district court’s determination that the balance of harms 

weighed in favor of granting Northern the preliminary injunction. 
21

Kansas law, “the fact that a business is carried on lawfully and in accordance with 

ordinary methods does not relieve one from liability if the use is unreasonable and as 

such constitutes a nuisance.” Williams, 734 P.2d at 1122 (citing Helms v. E. Kan. Oil 

Co., 169 P. 208 (Kan. 1917)); see also Rosedale Drive-In Theater, Inc. v. Burlington N. 

R.R., No. 90-2412-V, 1992 WL 135020, at *4 (D. Kan. May 29, 1992) (unreported) 

(noting that, even though it may have been lawful to build the bridge abutment at issue, 

that abutment “may still be the subject of an actionable nuisance”). 

Whether or not a use which in itself is lawful is a nuisance depends upon a 

number of circumstances – locality and surroundings, the number of people 

living there, the prior use, whether it is continual or occasional, and the 

extent of the nuisance and injury caused to the neighbor from the use. 

Williams, 734 P.2d at 1122 (quoting Helms, 169 P. at 208).5 F

6

 

Second, Defendants overstate what the Kansas state court concluded in the parallel 

 6 Defendants rely on Atchison, Topeka & Santa Fe Railway v. Armstrong, 80 P. 978

(Kan. 1905), to argue, to the contrary, that because the KCC permitted Defendants to drill 

their wells in the expansion area, production from those wells cannot be unreasonable. 

Armstrong, however, concerned the authorized operation of a railroad, which the Kansas 

Supreme Court noted is a “public necessity,” which “bring to the public great benefits,” 

and which also necessarily subjects the public to “incidental inconveniences, such as 

noise, smoke, cinders, vibrations of the ground, interference with travel at the crossings 

of roads and streets, and the like.” Id. at 980. Armstrong noted that “[s]uch 

inconveniences are common to the public at large. If each person had a right of action 

because of such inconveniences, it would go far to render the operating of railroads 

practically impossible.” Id. For these reasons, Armstrong held that “a railroad 

authorized by law, and lawfully operated, cannot be deemed a private nuisance.” Id.

(internal quotation marks omitted). Defendants, however, have failed to persuade us that 

the circumstances at issue in this case, involving private entities drilling for natural gas 

for their own benefit, is analogous to the circumstances addressed in Armstrong. This is 

particularly so in light of later Kansas authority, cited above, indicating that even a 

lawfully operated business can cause a nuisance. 
22

state litigation. In that state case, Northern sued the purchasers of the natural gas 

Defendants were producing, alleging that those purchasers were converting Northern’s 

natural gas that had migrated northward out of Cunningham Field. In that state case, the 

purchasers impleaded Defendants, asserting that if the purchasers were liable for 

converting Northern’s natural gas, then Defendants were liable to the purchasers for that 

conversion. In the state case, the trial court, applying Kan. Stat. § 55-1210, rejected 

Northern’s conversion claim after holding that Northern had lost title to its stored gas 

once that gas migrated several miles away from the Field. The state case, then, involved 

a different question than the one posed here. The state case addressed whether Northern 

had still had title to the natural gas that migrated several miles away from the Field. 

Here, on the other hand, the issue is whether Defendants’ production from their wells in 

the expansion area unreasonably interfered with Northern’s storing its natural gas in the 

Field. Therefore, the state court’s decision in the state-court proceeding cannot make 

Defendants’ interference with Northern’s storage field reasonable. 6F

7

D. The district court did not abuse its discretion in determining there was a 

substantial likelihood that Northern will prevail on its nuisance claim

 7 On appeal, Defendants further suggest that the state trial court’s decision in the parallel 

state action should have preclusive effect in this federal litigation. For the same reason, 

the state court decision does not preclude Northern’s recovery under its nuisance theory. 

Defendants also assert that the state court concluded that Defendants were not interfering 

with Northern’s use of the Field to store natural gas. That interference determination, 

however, was not made in the context of a nuisance claim, but was instead premised on 

Kan. Stat. § 55-1210(b), which the state court ruled was limited to gas migrating to 

“adjoining property.” (Aplt. App. at 792-94.) That limitation does not apply to this 

nuisance claim. We note, further, that this state case is still pending before the Kansas 

Supreme Court.
23

To summarize, the parties agree that, to prevail on its nuisance claim, Northern 

must establish four things: 1) Defendants acted with the intent to interfere with 

Northern’s use and enjoyment of the storage field; 2) there was some interference with 

the use and enjoyment of the Field of the kind Defendants intended; 3) that interference 

was substantial; and 4) the interference was of a such a nature, duration or amount as to 

constitute unreasonable interference with the use and enjoyment of the Field. See Pagel, 

316 F. Supp. 2d at 989. The district court did not abuse its discretion in determining that 

there was a substantial likelihood that Northern could prove all four of those elements of 

its nuisance claim.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the preliminary injunction.