UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

OPTIMA OIL & GAS COMPANY, LLC, a Colorado Limited Liability Company, Plaintiff-Appellant,

v. MEWBOURNE OIL COMPANY, a Texas Corporation, Defendant-Appellee. No. 11-6230 (D.C. No. 5:09-CV-00145-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TYMKOVICH , HOLLOWAY , and MATHESON , Circuit Judges.
Optima Oil & Gas Company, LLC, app eals from the district court’s order granting Mewbourne Oil Company’s motion to dismiss for lack of subject matter jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 23, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - BACKGROUND Optima owned 85% of the oil and gas le asehold rights in certain property in Ellis County, Oklahoma (the Unit). 1 Mewbourne owned the remaining 15%. In 2006, Optima informed Mewbou rne that it intended to be the operator of the Unit and that it was taking steps toward developmen t of the Unit. None theless, Mewbourne filed an application with the Oklahoma Corporation Commission (OCC) seeking an order force pooling Optima’s rights and in terests in the Unit and naming Mewbourne as the operator of the Unit. 2 Mewbourne sent notice of th e application and hearing to Optima’s Oklahoma City, Okla homa office. An Optima empl oyee signed the certified mail receipt, but did not give anyone in ma nagement the certifie d mail. Optima did not appear at the hearing on the applica tion, because it did not know about it. Despite knowing Optima’s opposition to the pooling application, Mewbourne proceeded at the hearing before an OCC Administrative Law Judge (ALJ) with an uncontested application for force pooling. The ALJ recommended to the OCC that the pooling application be granted. The day after the hearing, someone at Optima discovered the unopened mail containing the notice of hearing and the app lication. Optima file d a motion to stay

1 The Unit was in Section 1, Township 20 North, Range 24 West, Ellis County, Oklahoma.
2 “‘Force pooling’ occurs when the [OCC] requires owners of drilling rights to pool their interests and contri bute to development costs.” Fleet v. Sanguine, Ltd. , 854 P.2d 892, 895 n.8 (Okla. 1993), abrogated on other grounds by Purcell v. Santa Fe Minerals, Inc. , 961 P.2d 188, 193 (Okla. 1998).- 3 - issuance of an order granting the pooling application or to reopen proceedings. Although the motion was set for a hearing, the OCC granted the pooling application before the motion was heard. The same day the application was granted, Optima filed a motion to vacate the pooling orde r and requested a full hearing on the application’s merits. The ALJ held a hearing on the motion to reopen, at which Optima presented witness testimony and argued that Mewbour ne knew it opposed the application for force pooling and to name Mewbourne as opera tor. Mewbourne also appeared at the hearing and presented argument. The fo llowing day, the ALJ heard the motion to vacate, and the parties presented additi onal testimony, evidence, and argument. Mewbourne’s witness admitted on redirect that he knew Optima objected to the pooling application and request to na me Mewbourne as operator. The ALJ recommended that the pooling order be va cated and the matter be reopened for a complete hearing on the merits, in light of the question of no tice and Mewbourne’s knowledge that Optima opposed the pooling app lication. An appellate referee agreed with the ALJ’s recommendation, but the O CC rejected the recommendations to grant the motions to vacate and re open. Optima appealed. The Oklahoma Court of Civil Appeals vacated the pooling order and the order denying the motions to reopen and to vacat e, concluding that the OCC erroneously designated Mewbourne as operator. The Oklahoma Court of Civil Appeals found that Optima did not have actual notice of the pooling application and that Mewbourne- 4 - had presented the application as unconte sted despite knowing that Optima would oppose it. Also, the court found that Mewbourne misled the OCC by failing to disclose facts necessa ry for the OCC to make an in formed decision. The Oklahoma Court of Civil Appeals remanded to the O CC “for a full hearing on the merits of Mewbourne’s Pooling Application and any fu rther proceedings cons istent with this opinion.” Aplt. App., Vol. 1, at 47. The Oklahoma Supreme Court affirmed the Oklahoma Court of Civil Appeal’s decision in favor of Optima. Optima then filed this su it in federal district court against Mewbourne, alleging claims of tortious interference with contractual relationships and tortious interference with prospective busin ess opportunities and seeking damages. 3 The complaint asserted that wh ile the appeal from the O CC’s decision was pending, Optima’s lessors agreed to extend the leases for six m onths to commence drilling. Even though the lease extensions were re corded, Mewbourne contacted the lessors and convinced them to sign top leases covering the same leases Optima held. 4 Optima asserted that although Mewbourn e knew Optima’s lease extensions would expire if Mewbourne delayed drilling beyond the six-mont h extension time, Mewbourne filed a motion with the OCC fo r a one-year extension of time to begin

3 Optima also asserted a buse-of-process, fraud, and constructive-fraud claims in its complaint, but later voluntar ily dismissed t hose claims.
4 A top lease is a “lease[] that take[s ] effect only if the pr e-existing lease should expire or be terminated.” Concorde Res. Corp. v. Kepco Energy, Inc ., 254 P.3d 734, 736 n.4 (Okla. Civ. App. 2011).- 5 - drilling. A hearing was held on the motion. Both parties a ppeared and Optima objected to an extension. According to Optima, Mewbourne misrepresented at the hearing that granting an extension woul d preserve the status quo, even though Mewbourne knew that Optima would lose it s leasehold rights in the Unit and those rights would vest in Mewbourne due to th e top leases. The OCC granted a one-year extension of the date to begi n drilling. Optima successfu lly appealed, but its leases had already expired and Mewbourne had obtained all of Optima’s leas ehold interests. In the complaint, Optima asserted that Mewbourne’s tortious conduct caused it to lose significant business opportunities and subjected it to financial harm. Optima maintained that during Mewbourne’s actions before the OCC to force pool the Unit, Mewbourne, under oath, knowingly withheld a nd misrepresented mate rial facts to the OCC, wrongfully depriving Optima of its leasehold rights a nd interests. And “Mewbourne engaged in wrongful and fraudul ent conduct at the [OCC] designed to deny Optima the ability to commence drilling within th e time necessary to preserve its leasehold rights.” Id . at 25. Further, Optima contended that Mewbourne’s actions, despite knowing Optima held an 85% leasehold interest, resulted in extinguishment of Optima’s leasehold intere sts, thereby denying Optima prospective business opportunities. The district court denied Mewbourn e’s first two motions to dismiss—one under Federal Rule of Civil Procedure 12( b)(6) for failure to state a claim upon which relief may be granted and the othe r under Federal Rule of Civil Procedure- 6 - 12(b)(1) for lack of subject matter jurisdicti on due to incomplete diversity of citizenship between the partie s. The court granted, in part, Optima’s motion for partial summary judgment unde r Federal Rule of Civil Procedure 56, holding that Mewbourne is bound by the Oklahoma Court of Civil Appeal’s determination that Mewbourne misled the OCC, causing it to enter an erroneous pooling order. Mewbourne filed a third motion to dism iss. This Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction asserted th at Optima mu st submit its tortious interference claims for damages to the OCC. Th e district court granted the motion, relying on Leck v. Continental Oil Co ., 800 P.2d 224 (Okla. 1989). In Leck , the plaintiff sought damages for misreprese ntations the defendant made to the OCC during a hearing. Id . at 229. Leck held that the OCC has jurisdiction to consider intrinsic fraud claims for damages based on a defendant’s misrepresentations to the OCC during adversarial proceedings. Id . at 229-30. The dist rict court determined that, as in Leck , Optima’s complaint made clear that its tortious interference claims arose from Mewbourne’s misrepresentati ons to the OCC and jurisdiction would therefore lie only in the OCC, not the di strict court. Th is appeal followed. 5

5 Before ruling on the second motion to dismiss, the district court held an evidentiary hearing on the issue of wh ether there was complete diversity of citizenship between the parties. The court concluded th at there was. On appeal, we granted Optima’s unopposed motion to file a Supplemental Appendix containing an affidavit more clearly establ ishing diversity. Accordi ngly, the only jurisdictional question before us is whethe r the district court erred in granting the third motion to dismiss.- 7 - ANALYSIS We review de novo the district court’ s Rule 12(b)(1) dism issal for lack of subject matter jurisdiction. Smith v. United States , 561 F.3d 1090, 1097 (10th Cir. 2009). In doing so, we “accept[] the distri ct court’s findings of jurisdictional facts unless they are clearly erroneous.” Wyoming v. U.S. Dep’t of Interior , 674 F.3d 1220, 1231 (10th Cir. 2012) (internal quotati on marks omitted). Optima argues that the district court ha d subject matter juri sdiction over its tort claims related to or arising from Mewbourne’s misconduct before the OCC. Optima contends that the court applied Leck too broadly, because Leck is limited to cases involving intrinsic fraud, whereas its tort claims involve extrinsic fraud. See Leck , 800 P.2d at 226 (stating th at “allegations . . . in the nature of intrinsic fraud” must be decided in forum where fraud occurred). Optima maintains that all issues of fact concerning intrinsic fraud were resolved by the Oklahoma Court of Civil Appeals, but its tort claims could not be resolved by the OCC because they are not based on the adjudicated facts. Leck defines intrinsic fraud as any fraudulent conduct of the succes sful party which was practiced during the course of an actual advers ary trial of the issues joined and which had no effect directly and affi rmatively to mislead the defeated party to his injury after he announced ready to proceed with trial. If during the trial the successful party ur ges forged instruments or perjured testimony or fails to introduce witn esses of whom he had knowledge and whose testimony would help his adversary and impair his own case, he is guilty of fraud; but it is intr insic fraud, for relief from which application must be made to the c ourt having jurisdiction of the issues joined and tried.- 8 - 800 P.2d at 229-30 (internal quotation marks om itted). In contrast , extrinsic fraud is “(a) any fraudulent conduct of a successful party, (b) perpetrated outside of an actual adversary trial or process a nd (c) practiced directly and affirmatively on the defeated party, (d) whereby he was prevented from presenting fully and fairly his side of the
case.” Patel v. OMH Med. Ctr., Inc. , 987 P.2d 1185, 1196 (Okla. 1999). “Examples of extrinsic fraud include false representati ons that the defeated party is merely a nominal party against whom no relief is sought, false promise of compromise, concealment of suit, kidnapping of witnesses, and similar conduct.” Id . The Leck court found that the “allegations of misrepresentation” in th at case were “allegations of intrinsic fraud because they refer[red] to fa lse information given by the appellee at the adversarial hearing before th e [OCC].” 800 P.2d at 230. In its complaint, Optima asserted misrepresentati on by Mewbourne to the OCC as the basis for its cl aims. With respect to the tortious interference with contractual and business relations claim, Optima assert ed that “[a]s a result of Mewbourne’s misconduct, Mewbourne interfered with Optim a’s contractual rights under its leases. . . . Mewbourne engaged in wrongful a nd fraudulent conduct at the [OCC] designed to deny Optima the ability to commence drilling within the time necessary to preserve its leasehold interest s.” Aplt. App., Vol. 1, at 25. With respect to the tortious interference with prospective bus iness advantage, Opti ma asserted that “Mewbourne’s intentional and tortious acts and conduct resulted in the extinguishment of Optima’s leasehold interests. Mewb ourne wrongfully,- 9 - intentionally and maliciously interfered with [Optima’s] prospective business advantage by cutting off Optima’s leasehol d interests and all potential business opportunities related thereto . . . .” Id . at 26. As the district court found, these clai ms arise from misrepre sentations made by Mewbourne to the OCC and any damages arise as a result of the mi srepresentations. The alleged fraudulent misrepresentations to the OCC with regard to cutting off Optima’s leasehold interest s are intrinsic fraud. See Fransen v. Conoco, Inc. , 64 F.3d 1481, 1489 (10th Cir. 1995). “A claim that a party mi srepresented facts to the OCC is properly brought before the OCC.” Id . (citing Leck ); Leck , 800 P.2d at 230 (“Relief from intrinsic fraud must be made by direct attack in the same case in which the fraud was committed.”). The district court therefore corr ectly determined that it did not have jurisdiction to consider Optima’s claims. See Fransen , 64 F.3d at 1489 (citing Leck ); Leck v. Cont’l Oil Co. , 892 F.2d 68, 69 (10th Cir. 1989) (per curiam) (concluding that district court correctly decided that it la cked subject matter jurisdiction to consider issue regarding misreprese ntation to OCC). Optima also contends that Leck is distinguishable because there was no adversarial proceeding on the merits of the force pooling application. 6 See Leck,

6 Mewbourne contends that this issue, as well as others, were not raised in the district court and therefore should not be considered on appeal. We reject that argument because waiver and fo rfeiture rules do not apply to jurisdictional issues and therefore issues concerning jurisdic tion can be raised at any time. See Forest Guardians v. U.S. Forest Serv. , 495 F.3d 1162, 1170 n.7 (10th Cir. 2007); Huerta v. Gonzales , 443 F.3d 753, 755 (10th Cir. 2006).- 10 - 800 P.2 at 230 (noting misrepre sentation made at a dversarial hearing). It is true that the proceedings on the uncontested applica tion were not adversarial because Optima had not received actual notice of the heari ng and application a nd therefore did not appear at the hearing. All other pro ceedings before the OCC, however, were adversarial proceedings. And the Okla homa Court of Civil Appeals explicitly remanded for a full hearing on the merits of the pooling application. Therefore, we conclude that there were a dversarial proceedings availabl e for Optima to assert its claims against Mewbourne. Optima next contends that Okla. Stat. tit. 23, § 3 pe rmits a cause of action for tortious interference. See id. (“Any person who suffers detriment from the unlawful act or omission of another, may recover from the pers on in fault a compensation therefor in money, which is called damage s.”). This statute does not in any way undermine Leck’s holding that proceedings on intrinsi c fraud must occur before the OCC, not the district court. Optima further contends that because it does not seek relief from the prior OCC ruling on the intrinsic fraud issues that have already been vacated and there is no issue to reconsider at the OCC, the onl y remaining issue is a private dispute for money damages, which is appropriately heard in the district court. “The distinction between public and private rights is not always immediat ely apparent.” Rogers v. Quiktrip Corp ., 230 P.3d 853, 857 (Okla. 2010). Leck states that dist rict courts have jurisdiction over private right s disputes, whereas the OCC has limited jurisdiction to- 11 - protect the “public rights in development and production of oil and gas.” 800 P.3d at 226; see id . (indicating that unitization orders, pooling orders, and orders setting allowables on unit’s well are matters of public rights; recognizing that OCC “has jurisdiction to hear only public rights di sputes involving actions on joint operating agreements or disputes concer ning a pooling order’s effect”); see also Rogers , 230 P.3d at 857 (“Public right s, at a minimum, must ar ise between the government and others: the liability of one individual to another u nder the law as defined is a matter of private rights.”). When a ddressing the misrepresentation issue, Leck does not expressly state that it is dealing with a public right. We conclude, however, that Leck considered a public right, because the essence of the claim was intrinsic fraud on a tribunal. Since we concl ude that intrinsic fraud is at issue in this case, we also conclude that a public right is at issue. Additionally, we note the Leck plaintiff sought money damages for the misrepresent ations to the OCC. Leck, 800 P.2d at 229. Therefore, nothing in Leck precludes Optima from also seeking damages from the OCC.- 12 - CONCLUSION Accordingly, we conclude the distri ct court correctly granted Mewbourne’s motion to dismiss for lack of subject matter jurisdiction. The judgment of the district court is AFFIRMED.

Entered for the Court
Timothy M. Tymkovich Circuit Judge