# In the United States Court of Federal Claims

No. 15

- 336C

(Filed: October 8 , 2019 )

ROCKY MOUNTAIN HELIUM, LLC

Plaintiff,

v.

UNITED STATES,

Defendant. ) ) ) ) ) ) ) ) ) ) ) Remanded c laim for breach of a settlement
agreement; contractual obligations under the settlement agreement; liability

Bryant Steven Banes, Neel, Hooper & Banes, P.C., Houston, TX, for plaintiff.

Jimmy S. McBirney , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him on the briefs were Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr.,

Dir ector, and Allison Kidd

- Miller, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Senior Judge.

This contract case returns to the court on remand from the Un ited States Court of Appeals
for the Federal Circuit. Plaintiff Rocky Mountain Helium, LLC (“Rocky Mountain”) had brought suit in this court against the Bureau of Land Management (“BLM” or “the government”) alleging

, inter alia

, that BLM breached the terms of a contract to extract helium from natural gas wells on federal lands, and also had breached a settlement agreement entered into by the parties

to resolve a dispute over the underlying contract . Compl. ¶ 3. The court dismissed the helium

con tractual claim on the merits and on jurisdictional grounds and dismissed the settlement

agreement claim for lack of subject

- matter jurisdiction

. S ee generally Rocky Mountain Helium,
LLC v. United States , 123 Fed. Cl. 551 (2015)

. Rocky Mountain appealed

. S ee generally Rocky Mountain Helium, LLC v. United States , 841 F.3d 1320 (Fed. Cir. 2016). On appeal, t he Federal
Circuit reversed the jurisdictional dismissal of the helium contractual claim but affirmed the
dismissal of that claim on the merits. Id . a t 132 6 . Separately, the court of appeals concluded that this court did have subject

- matter jurisdiction over the claim that the settlement agreement had
been breach ed and remanded the case for further proceedings. Id

. at 1326

- 27. When the
remanded case returned to this court, it was transferred from the originally assigned judge to the undersigned.2

In addressing the remanded case, on August 9, 2019, t he government filed a motion for summary judgment on the question of liability

. See Def.’s Mot. for Summ ary Judgment (“Def.’s Mot.”), ECF No. 105. Rocky Mount ai n responded with a cross

- motion for summary judgment on September 6, 2019. S ee Pl.’s Cross

- Mot. for Summ ary Judgment & Opp’n to Def.’s Mot. (“Pl.’s Cross

- Mot.”), ECF No. 108. The government filed a reply in support of its motion and in opposition to Rocky Mountain’s cross

- motion on September 20, 2019, see Def.’s Reply to Pl.’s Response (“Def.’s Reply”)

, ECF No. 109, and Rocky Mountain f iled a reply on September 24, 2019, see Pl.’s Reply to Def.’s Reply (“Pl.’s Reply”) , ECF No. 110

. A hearing was held on September 26, 2019.

The court concludes that BLM breached the terms of the settlement agreement

. Accordingly, the government’s motio n for summary judgment is DENIED and Rocky
Mountain’s cross

- motion for summary judgment is GRANTED.

BACKGROUND

Th e origins of this dispute trace back to a contract between BLM and Rocky Mountain
which they entered in 1994

. BLM g ranted Rocky Mountain t he right to extract helium gas from federal lands in Colorado and Utah, stipulating in return that Rocky Mountain “annually pay to the United States either rent of one dollar per acre ( i.e. , roughly $21,000) or royalties based on the helium that Rocky Moun tain extracted, whichever was greater.” Rocky Mountain Helium

, 841 F.3d at 1321 (citing Federal Helium Contract FLL 94

- 001)

. The roughly 21,500 acres of federal land involved were subject to leases between the United States and certain oil and gas
lessee s (“O&G l essees”). See Pl.’s First Am. Compl. Ex. 7 at 5 3 , ECF No. 27

. Those lease agreements, however, reserved to the United States ownership of, and the right to extract, helium
beneath the land

— thus permitting BLM to grant extraction rights to Rocky Mountain. See id

.

I n the decade that followed, Rocky Mountain neither extracted any helium nor paid BLM

any rent due after the first year

. Rocky Mountain Helium , 841 F.3d at 1322. Consequently , in December 2004, BLM informed Rocky Mountain that

, due to its nonpayment

, it had cancelled the contract, leading Rocky Mountain to file an administrative appeal with the Civilian Board of Contracts Appeals (“CBCA”). Id. While t hat appeal was pending b efore the CBCA , the parties reached a settlement and entered into an agreement

— the terms and performance of which are at
issue here. See Def.’s Mot. App. at 1

- 1 3 (“Settlement Agreement”)

. 1

Recognizing “that helium is a valuable resource,” the agreement ’s stated purpose was to facilitate the “recovery of helium” by implement ing the parties’ contract. Def.’s Mot. App. at 1

. The agreement would allow Rocky Mountain to install facilities for extraction of helium from
the vent stream at the Badger Wash Gas Plant located on the leased lands, where extracted gas was already being pro cess ed. See id

. App. at 3

- 4

. 2 But Rocky Mountain needed certain

1 The government appended to its motion for summary judgment a compendium of documents pertinent to issues arising with the Settlement Agreement, totaling 180 pages. That Appendix will be cited by page number, e.g ., “ App. at ___.”

2 The helium comprising part of the produced gas stream is found in the vent gas at the Badger Wash Gas Plant. The plant processes produced gas into natural gas for pipeline delivery,3

technical data to assess whether the B adger W ash G as P lant processed sufficien t helium

- bearing

gas to render the pursuit of helium extraction commercially and technically feasible. See id

. App. at 127. In other words, Rocky Mountain was n ot willing to make the “multi

- million dollar capital expenditure” necessary to install the helium recovery facilities “without, at a minimum, confirmation there can be a return of that investment from sources of helium gas supplying the helium recovery facility.” Id

. App . at 138. To that end, the agreement require d BLM to “direct the O&G Lessees to provide [BLM] the Data as described in Exhibit A” of the settlement
agreement. Def .’s Mot. App. at 7

- 13 (“Settlement Agreement”) ; i d

. App. at 2 ( § II.1 )

. “[A]fter its receipt thereof” from the O&G less ees, BLM was then required to “provide the Data to [ Rocky Mountain ] ” within 60 days

. Id. App. at 3

. Rocky Mountain’s receipt of the data triggered an obligation to pay BLM $116,579.90 within ninety days

, and upon receiving payment, BLM agreed to “formall y reinstate the [c]ontract.” Id. App. at 2 (§ I.1,

. 3)

. A s unset provision , however, stated that if Rocky Mountain failed to pay within the required ninety days, it agreed “to completely and forever release any and all claims, rights, and/or interest in or arising from” the helium contract. Id. App. a t 4

- 5 (§ II

. 1)

.

Exhibit A of the A greement set forth the “data to be provided by O&G lessees

, ” Def.’s Mot. App. at 8

- 9 (Ex. A ¶ 1), and listed the thre e O&G lessees at the time of the A greement

— Foothills Energy Ventures (“Foothills”) , Augustus Energy Partners (“Augustus”) , and Lone Mountain Production Company (“Lone Mountain”)

. Id . App. a t 9 (Ex. A ¶ 3)

. The exhibit permitted the O&G lessees some flexibilit y by allowing them to choose to provide one of two
alternative sets of data (enumerated in Ex. A ¶¶ 1, 2, respectively)

. See id. App. at 8

- 9

. Par agraph 1(a)

- (d) required them to provide documents setting out raw data about gas composition of produced gas (for determining helium content)

, vent gas quantity

, composition,
temperature

, and pressure, well logs, and production records. Id. App. at 8 ( Ex. A ¶ 1)

. I n lieu
of the raw data described in Par agraph 1, Par agraph 2(a)

- (d) permitted O&G lessees instead to
submit statements

— “ prepared consistent with industry standards and practices verified by a qualified petroleum engineer and/or geologist

, ” id . App. a t 8

- 9 (Ex. A ¶ 2),

— about current produced gas composition

, the vent gas composition, re serve estimates , the quantities of natural gas produced from the leased lands during the past twenty

- four months, and the monthly quantities of vent stream gases vented during the same period. Id. App. at 8

- 9 (Ex. A ¶ 2)

. Thus,

Par agraph 2 gave the O&G l essees an alternative option to satisfy the information request if any of the raw data enumerated in Par agraph 1 was unavailable or did not exist.

On September 26, 2008, BLM sent a letter to each of the three O&G lessees requesting that they furnish the data listed in an enclosed attachment, which copied verbatim the data listed

in E xhibit A of the S ettlement A greement. Def.’s Mot. App. at 14

- 17. The O&G lessees opted to provide the information required by Par agraph 2, i d . App. at 14, and BLM then forwarded the
data it received f

rom the O&G lessees to Rocky Mountain on December 3, 2008

, s ee id . App. at
19

- 126.

“Sold NGLs ” ( liquids comprised of eth a ne and higher hydrocarbons), and ve nt gas. The vent gas
stream contain s helium, nitrogen, carbon d i oxide, hydrogen sulfide, and other gaseous components

. See Def.’s Mot. App. 21

- 55 (Report of Badger Midstream Services, LLC, the
operator of the Badger Wash Gas Plant).4

Rocky Mountain found the data inadequate to “evaluate the feasibility of helium recovery

from the [ B adger Wash G as P lant ] ” or satisfy the S ettlement A greement ’s data requirements

. Def.’s Mot. App. at 128. In a letter dated February 26, 2009 to the O&G lessees and BLM

, Rocky Mounta in commented that “[a]fter a review of the information forwarded to us by the BLM and independent research of Utah and Colorado oil & gas agency databases, the source(s) of approximately 50% of the gas volumes processed by the [ B adger Wash G as P lant] still cannot
be identified.” I

d. App. at 128 , 130

. BLM disagreed, asserting in a reply dated March 2, 2009, that Rocky Mountain had “been provided the relevant informatio n . . . . [,] meeting, in full, Exhibit A, part 2(a)

- (d).” Id. App. at 132. In a letter dated March 13, 2009, Ro cky Mountain again reiterated the inadequacy of the data provided, enumerating four specific deficiencies : (1)
the lack of data to identify the wells producing approximately 50% of the gas volumes processed
into the Badger Wash Gas Plant ; (2) the absence o f any gas samples or reserve estimates relating
to the Bar

- X wells (which constitute d about one quarter of the B adger W ash G as P lant intake
volumes ) ; (3) the failure of Augustus Energy to provide any data disclosures whatsoever ; and (4)
insufficient data t o determine the “ current gas composition of the natural gas beneath, and produced from, the Leased Lands.” Id. App. at 13 7

- 39. On April 3, 2009, BLM provided additional gas analysis from the Bar

- X wells but refused to provide records or estimates of monthly wellhead or vent stream gases, asserting that this “information is unavailable and cannot be provided.” Id. App. at 149. The parties also att empted, unsuccessfully, to resolve the matter by invoking the assistance of a j udge of the CBCA. See Rocky Mountain Helium , 841 F.3d at

1326.

After a series of letter exchanges and payment extensions, none of which yielded agreement about the disputed deficiencies in the data , BLM notified Rocky Mountain on April

21 , 2009 that it intended to invoke the sunset provision for nonpayment and regarded the helium contract “fully, finally, and permanently terminated.” Def.’s Mot. App. at 160. Ultima tely, Rocky Mountain brought suit in this court on April 1, 2015, alleging that BLM had breached the settlement agreement. See Compl.

The Federal Circuit’s remand mandates that the court address Rocky Mountain’s claim that BLM did not properly implement its responsibilities under the Settlement Agreement. S ee Rocky Mountain Helium , 841 F.3d at 1320. The parties’ cross

- motions for summary judgment
focus on that issue and now are before the court for disposition.

STANDARDS FOR DECISION

A. Summary Judgmen t

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” R ule 56(a) of the Rules of the Court of Federal Claims (“RCF C”) . A fact is material when it “might
affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986) (interpreting Fed. R. Civ. P. 56)

. 3 A genuine dispute exists when the finder of fact may reasonably resolve the dispute in f avor of either party. Id. at 250.

3 Because RCFC 56 mirrors Fed. R. Civ. P. 56, they should be interpreted in pari materia

.5

The movant bears the burden of demonstrating the absence of any genuine disputes of material fact, s ee Celotex Corp. v. Catrett , 477 U.S. 317, 32 2 (1986), which requires the movant to “cite[] to particular parts of materi als in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials,” RCFC 56(c)(1)(A). The court may consider other

materials in t he record even if not cited by the parties . RCFC 56(c)(3). “[T]he inferences to be drawn . . . must be viewed in the light most favorable to party opposing the motion

. ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587

- 88 (1986) (quot ing United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962)). If the record taken as a whole “could not lead a

rational trier of fact to find for the non

- moving party, there is no ‘genuine issue for trial’” and summary judgment is appropriate. Matsushit a , 475 U.S. at 587 (quoting First Nat’l Bank of
Ariz. v. Cities Serv. Co. , 391 U.S. 253, 289 (1968)).

When the parties have cross

- moved for summary judgment, “the court must evaluate each party’s motion on its own merits, taking care in each instance to d raw all reasonable inferences against the party whose motion is under consideration.” Mingus Constructors, Inc. v.
United States , 812 F.2d 1387, 1391 (Fed. Cir. 1987) (citations omitted). “The fact that both parties have moved for summary judgment does n ot mean that the court must grant judgment as
a matter of law for one side or the other.” Id. “To the extent there is a genuine issue of material fact, both motions must be denied.” Marriott Int’l Resorts, L.P. v. United States , 586 F.3d 962,

969 (Fed. Cir. 2009).

B. Contract Interpretation

“ I t is axiomatic that a settlement agreement is a contract.” Greco v. Dep artment of the Army , 852 F.2d 558, 560 (Fed. Cir. 1988). Furthermore, the “interpretation of the terms of a contract is a question of law.” Id. The contract’s provisions “must be considered as a whole and interpreted to effectuate [their] spirit and purpose, giving reasonable meaning to all parts.” Hunt
Const. Grp

. , Inc. v. United States , 281 F.3d 1369, 1372 (Fed. Cir. 2002) (citing Gould, Inc. v.
United States , 935 F.2d 1271, 1274 (Fed. Cir. 1991)). When engaging in contract interpretation, “[t]he starting point . . . is the plain language of the agreement.” Cheaves v. United States

, 108 Fed. Cl. 406, 409 (2013) (citing Foley v. United States , 11 F.3d 1032, 1034 (Fed. Cir. 1993)).

T he court should “look first to the terms of the agreement itself

. . . to determine the intent of the partie s at the time they contracted, as evidenced by the contract itself.” Greco , 852 F.2d at 560

. Moreover, w here the language of a contract is unambiguous, review is generally limited to the contract itself, but trade practice and custom are available to inform meaning so long as they do not “create ambiguity where there otherwise is none.” Cheaves , 108 Fed. Cl . at 409 (citing Metric Constructors, Inc. v. Nat iona l Aeronautics and Space Admin. , 169 F.3d 747, 752 (Fed. Cir. 1999)).

Breach of contract occurs when a party “is in material non

- compliance with the terms of
the contract.” Gilbert v. Department of J ustice , 334 F.3d 1065, 1071 (Fed. Cir. 2003) . Non

compliance is material “when it relates to a matter of vital importance, or goes to the essence of
the contract.” Thomas v. Dep artmen t of Hous. & Urban Dev. , 124 F.3d 1439, 1442 (Fed. Cir. 1997) (citing 5 Arthur L. Corbin, Corbin on Contracts § 1104 (1964)). Therefore, the determination of whether a party is in breach of contract is a mixed question of law and fac t that6

requires deciding both what the terms of the contract required and whether the alleged ly breaching party did or did not perform in conformity with those terms. See Gilbert , 334 F.3d at

1071

- 7 2 (citing Mass achusetts Bay Transp. Auth. v. United States , 129 F.3d 1226, 1231 (Fed. Cir. 1997)). Thus, where facts are undisputed, “the determinati on of whether there has been
material non

- compliance with the terms of a contract, and hence breach, necessarily reduces to a question of law. ” Id. (citation omitted).

ANALYSIS

The parties do not dispute that Rocky Mountain never paid BLM $116,579.90 due under the Settlement Agreement once the O&G lessee ’ s data was in hand . Therefore, the court must determine whether Rocky Mountain’s obligation to pay was ever triggered by BLM’s fulfillment of its obligations under the Agreement . If BLM f ailed to satisfy its obligations, then BLM breached the agreement and Rocky Mountain had no obligation to pay.

The government argues that it is entitled to summary judgment because there is no genuine dispute of material fact that: (1) BLM “directed” the O&G lessees to furnish the data via letters that copied verbatim the language from Exhibit A of the A greement; (2) BLM “provided” the data that it received in response from the O&G lessees; and (3) Rocky Mountain never made any portion of its payment. See Def.’s Mot. at 8

- 9. In short, the government argues that it satisfied its obligation simply by “directing” the O&G lessees to furnish the requisite data and then “providing” whatever data they produced to Rocky Mountain, rega rdless of whether the
dat a co nformed to that enumerated in Exhibit A. See Hr’g Tr. 7:18

- 21 (Sept. 26, 2019) (“[W]hether, number one, the oil and gas lessees actually complied with that directive or, number two, whether they even could comply with it is not a matter of whether BLM bre ached. All BLM had to do was direct.”). 4 On thi s reading of the A greement, BLM avers that it had no obligation to provide Rocky Mountain with “any data beyond what the oil and gas lessees provided to BLM, nor to create or independently ‘obtain’ data that did not exist, or that the oil and gas lessees did not possess.” Def.’s Mot. at 9. Stated differently , the government contends that it was not required to give Rocky Mountain anything that the O&G lessees did not provide.

Rocky Mountain, o n the other h and

, argues that it is entitled to summary judgment
because , while BLM provided all the data it received from the O&G lessees, there is no genuine dispute of material fact that the O&G lessees did not provide key elements of the data required by Exhibit A

. See Pl.’s Cross

- Mot. at 2. Importantly, Rocky Mountain asserts

, the A greement “did not give BLM the option of only providing [Rocky Mountain] with the [d] ata it received” in

response to its directive to the O&G lessee s

. Id . at 4. Thus, Rocky Mountain’s core contention is that the agreement contains “no escape clause for the required [d] ata if the O&G Lessees do not provide it, nor is there any contractual excuse if the O&G Lessees claim it does not exist.”

Id. And, Rocky Mountain asserts th at because the O&G lessees and BLM did not provide the data required by Exhibit A

, s ee id. at 3

, Rocky Mountain’s obligation to pay was never triggered

,

s ee id.

4 The dat e will be omitted from further citations to the he aring transcript.7 A. BLM’s Obligations Under the Settlement Agreement

On the government’s reading of the A greement, BLM could satisfy its obligation s by simply providing Rocky Mountain with whatever data the O&G lessees supplied in response to BLM’s direction, regardless of whether those data were entirely consonant with the data
identified in Exhibit A. The resulting question is whether the government’s interpretation is consistent with the plain meaning of the A greement’s terms and structure or whether it circumvents the explicitly stated essence of the Settlement

.

The “starting point” in contract interpretation “is the plain language of the agreement.”

Cheaves , 108 Fed. Cl. at 409. T he Agreement require d BLM to “direct” the O&G lessees to provide the data defined in Exhibit A

. Employed as a transitive verb, “direct” means “[t]o order, appoint, prescribe (a thing to be done or carried out). ” Direct, Oxford English Dictionary

, https://www.oed.com/view/Entry/53294?rskey=CzdnI1&result=3&isAdvanced=false#eid (last
visited Oct. 8 , 2019). Correlatively

, as defined in Blac k’s Law Dictionary, “direct” means “[t]o cause (something or someone) to move on a particular course” or “[t]o instruct (someone) with authority.” Direct

, Black’s Law Dictionary (8th ed. 2004). The se dictionary definition s are helpful but not conclusive. They indicate that BLM was required to order, instruct, or cause the O&G lessees to perform an action, i.e. , provide the data enumerated in Exhibit A, yet use of the
word “direct” does not explicitly call upon BLM to act if th at direction was not carried out. Was BLM required to take at least some reasonable steps to obtain the requisite information if the oil and gas lessees did not provide basic data?

C onsideration of the text and structure of the Agreement addresses this question

. See generally Hunt Const. Grp., Inc. , 281 F.3d at 1372 (“[The contract’s provisions] must be considered as a whole and interpreted to effectuate [their] spirit and purpose, giving reasonable meaning to all parts.”). In numerous places the langu age of the A greement refers to the information BLM was obligated to furnish by using a definite article

— “the Data”

— and it does so to refer to specific set s of data to be provided in one of two alternative means , namely, th ose outlined in Exhibit A. It use s the definite article both when it refers to the information that BLM was to “direct” the O&G lessees to provide and when it mentions the information BLM was ultimately to send Rocky Mountain. As just one example, two consecutive sentences in the Agreeme nt state th at “BLM will direct the O&G Lessees to provide it the Data ” and that “BLM will provide the Data to [Rocky Mountain], after its receipt thereof.” Def.’s Mot. App. at 2

- 3 (§

I I .1) (emphasis added). Elsewhere, it refers to the “delivery from BLM to [Rocky Mountain] of
the Data described herein at [Exhibit A]” and the “date of delivery of the Data to [Rocky Mountain].” Id. App. at 2 (§ I.1) (emphasis added). The government prefers to interpret “the Data” to mean “the requirements of Exhibit A” in one sentence and to mean “whatever the O&G lessees provide” in the very next sentence. But the rules of English grammar and usage do not
support such a distinction. In every occurrence where it is used in the A greement, “the Data” refers to the specific information outlined in Exhibit A.

T he structure of Exhibit A also contravenes the government’s interpretation. The data specifications were crafted in such a way to ensure that Rocky Mountain received enough information to conduct its analysis of the feasibility of recovering helium from the extracted gas

streams

. Allowing two alternative methods for providing data supplie d a measure of assurance8

that Rocky Mountain would receive the minimum information it needed even if some of the raw
data it might prefer was unavailable. That careful crafting of Exhibit A is undermined by a reading of the A greement that allows BLM to pr ovide less than all the information required by
either Par agraph 1 or Par agraph 2. If BLM could ultimately furnish incomplete data in any event, then creating a mechanism for providing statements , current analyses, and estimates (allowed by Par agraph 2) i n lieu of potentially unavailable records (required by Par agraph 1) would serve no purpose. The government’s understanding would thus render ineffectual Exhibit
A’s alternative system. See State of Ariz., By and Through Ariz

. Dep’t of Transp. v. United

S tates

, 575 F.2d 855, 863 (Ct. Cl. 1978) (noting that a contract “ interpretation which gives a reasonable meaning to all parts will be preferred to one which leaves a portion of it useless, inexplicable, inoperative, void, insignificant, meaningless, superf luous, or achieves a weird and whimsical result”) (citations omitted).

T he government’s reading is also at odds with the A greement’s stated purpose. The

A greement recogniz ed that “helium is a valuable resource,” and it was designed to facilitate the future “recovery of helium” by reinstating the original extraction contract. Def.’s Mot. App. at 1

. It was for t his reason that the A greement created a mechanism for Rocky Mountain to obtain
information which it could then use to make d ecisions about whether, and how best to pursue , helium recovery. Under the government’s interpretation, however, BLM could satisf y its obligation s so long as it delivered whatever it received from the O&G lessees

— even if that information was inadequate fo r Rocky Mountain to conduct its analysis. If the lessees failed to provide most or all the data

, the government’s contention becomes manifestly unreasonable because the whole purpose of the data

- provision requirements would be thwarted if BLM could
satisf y its obligation by simply forwarding obviously inadequate data to Rocky Mountain. A reading that would permit BLM to complete its information

- providing function by merely producing whatever data the O&G lessees provided

— even if what was provided fell sho rt of what was required by Exhibit A

— is fundamentally inconsistent with the stated purpose of the contract. That understanding would essentially allow BLM to circumvent the data

- providing obligation, and such a reading is incompatible with the plain terms of the A greement. The plain meaning and manifest purpose of the A greement are to furnish Rocky Mountain with the data
outlined in either Par agraph s 1(a)

- (d) or 2(a)

- (d) of Exhibit A of the S ettlement A greement. To the extent that BLM did not provide the specified data, it negated the essence of the A greement.

Related provisions of the Agreement also blunt the thrust of the government’s arguments. Section II of the Agreement sets out “Terms for the Recovery of Helium,” governing what BLM was to require of the O&G lessees if Rocky Mountain desired to proceed with helium

- recovery facilities. See Def.’s Mot. App. at 2 . The O&G lessees presumptively would need to install new facilities to enable Rocky Mountain to be sent helium

- bearing gas. Id

. The stated standard BLM was to apply was “whether the items of the propos al [ by the O&G lessees for installation of new
facilities ] are reason ably necessary to effectuate delivery of the helium

- bearing gas (the ‘Vent Stream’) to R[ocky Mountain] for helium recovery.” Id . App. at 3 (§ II.3). The Agreement gave
BLM some discretion in the m ode of its interaction with the O&G lessees, but it provi ded an overarching obligation on BLM’s part :

The manner in which BLM directs the O&G Lessees to fulfill their helium recovery obligations under the O&G Leases in accordance with the9

Agreement shall be at BLM’s sole discretion. However, BLM agrees to take

whatever st e ps are necessary, including issuance of direct written orders to the

O&G Lessees

— in form and content to be determined by BLM alone

— to meet the terms for helium recovery described herein.

Id . App. at 5 (§ III.6) . In short, BLM had discretion in how it directed the O&G lessees to perform their obligations under their O&G le ases , but BLM was to “take whatever steps are necessary” to “meet the t erms for helium recovery” set out in the Agreement. Id . To the same general effect is another provisi on of the Agreement, which conditioned Rocky Mountain ’s release of its obligations upon BLM’s “good faith performance ” of its obligations:

After good faith performance of the BLM’s obligations under this Settlement Agreement and the Contract, R [ocky Mount ain] hereby releases BLM, the Department of the Interior and the United States from any liability in
connection with R [ocky Mountain] ’s Appeal now pending (CBCA, No. 159).

Id . App. at 5 (§ III.2). These provisions emphasize that BLM’s obligations under t he Agreement

were not perfun c tory b ut rather required taking necessary steps to implement the Agreement’s provisions.

B. BLM’s Performance Under the Settlement Agreement

Having determined that BLM was contractually obligated to provide Rocky Mountain with the data specified in either Par agraph s 1(a)

- (d) or 2(a)

- (d) of Exhibit A, the court next turns to whether BLM satisfied that obligation. The court concludes that it did not.

BLM insists that it provided all the data required by Par agraph 2(a)

- (d) but with an important caveat: “to the full extent it existed.” Def.’s Reply at 10. In other words, BLM concedes that it provided the data required “ except that which does not exist (namely, the Vent Stream quantities ) .” Def.’s Mot. App. at 148 (emphasis added). BLM emphasiz es that it did provide the cumulative totals of natural gas produced fr om the leased lands, see Pl.’s Cross

- Mot. at 14, but not wellhead

- specific information

. Id . BLM did not, however, provide any vent stream quantitie s, wh ether cumulative or on a daily basis, and it provided a vent stream analysis for one day out of a 720

- day period. See Pl.’s Cross

- Mot. at 13; id . App. at 116

- 17 (Ex. 5 at 71:16 to 72:2 (Dep. Of Denny Migl (Dec. 6., 2018))) . Those dat a were manifestly ins ufficient for any assessment of whether th ere was a commercially sufficient amount of helium in the vent

stream from the Badger Wash Gas Plant , where helium would be present and potentially
recoverable. Paragraph 2 of Ex. A to the Agreem e nt required BLM to submit “statements [] prepared consistently with industry standards and practices and verified by a qualified petroleum engineer and/or geologist .” Def.’s Mot. App. 8 ( Ex. A § 2)

. The language of the contract thus expressly incorporates in dustry standards, and Paragraph 2(d) explicitly requires statements covering “the most recent twenty four [24] month period .” Id . App. at 9 ( Ex. A § 2 ( d)). When no quantities of the vent stream gases were provided, Rocky Mountain was forestalled from10

per forming a reasonable analysis of helium recovery, wholly apart from other data omissions. 5 BLM argues that the Badger Wash Gas Plant did not measure the vent stream quantities omitted,
and thus no data were available. See Hr’g Tr. 12:9

- 12, 62: 7

- 11. Yet, there was no effort to
obtain at least partial or current vent stream volumes , and only a very limited analysis of the vent stream composition was provided. Those omissions strike at the heart of the Settlement Agreement.

Industr y standards cannot be i rrelevant , particularly when the express language of the

contract specifically incorporates industry standards and practices. The government’s argument

falls short because those standards indicate that data were required , and thus there is no genuine dispute of material fact that BLM failed to provide the requisite data under Par agraph 2 of
Exhibit A of the Settlement Agreement and thereby breached its obligations under the

A greement. 6

CONCLUSION

For the reasons stated , the government’s motion for summary judgment is DENIED and Rocky Mountain’s cross

- motion for summary judgment is GRANTED as to liability.

On or before October 25, 2019, the parties are requested to provide a proposed plan and schedule for addressing damages.

I t is so ORDERED

.

s/Charles F. Lettow
Charles F. Lettow
Senior Judge

5 Rocky Mountain compiled a spreadsheet summariz ing all the information it received
from BLM

, s ee Def.’s Mot. App. at 24

, listing deficiencies in the data provide d . In addition to
the vent

- stream quantities and composition required by Paragraph s 2(b) and (d) , these asserted
deficiencies include gas composition data for at least s ix wells (Badger Wash #1, Badger Wash #3, Badger Wash #5, San Arroyo #2, Federal No. 1, Govt. #31

- 1) as required by Paragraph 2(a)

,

see Pl.’s Cross

- Mot. at 8

- 9 , 31

, and monthly wellhead

- specific

— as contra s ted to cumulative

— volume data for all but three wells in the Bar

- X field as required by Paragraph 2(a)

, see id. at 8

- 9

. Rocky Mountain does not appear to dispute that the reserve estimates required by Paragraph 2(c) were provided, though they consider what was furnished “the bare minimum.” Id. at 12.

6 While the parties dispute the factual question of whether data about wells sourced from outside federal land was required by the Agreement, see Def.’s Mot. App. at 148, that factual dispute does not preclude summary judgment because BLM is in breach regard less of the status
of those wells.