UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT

NORTHERN NATURAL GAS CO., 

 Plaintiff–Appellee, 

v. 

NASH OIL & GAS, INC., 

 Defendant–Appellant, 

and 

VAL ENERGY, INC.,

 Defendant. 

------------------------------ 

L.D. DRILLING, INC., 

 Amicus Curiae.

No. 09-3135

(D.C. No. 6:08-CV-01405-WEB-DWB)

(D. Kan.)

ORDER AND JUDGMENT*

Before LUCERO, HOLLOWAY, and HOLMES, Circuit Judges. 

 

 

* This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. This court generally disfavors the 

citation of orders and judgments; nevertheless, an order and judgment may be cited under 

the terms and conditions of 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 30, 2010

Elisabeth A. Shumaker 

Clerk of Court

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Nash Oil & Gas, Inc. (“Nash”) appeals the grant of a preliminary injunction 

permitting Northern Natural Gas Company (“Northern”) to test four Nash gas wells. 

Because Northern has already conducted the tests ordered by the district court and tested 

the same wells pursuant to a data request issued by the Federal Energy Regulatory 

Commission (“FERC”), we dismiss this appeal as moot. 

I 

Northern owns an underground natural gas storage facility in south-central Kansas 

known as the Cunningham Storage Field. Nash operates several natural gas wells located 

to the north of Northern’s facility. After years of litigation between the parties over 

Northern’s claim that various Nash wells were producing Northern storage gas, Northern 

applied for FERC permission to expand its certificated storage field to include an 

additional 4,800 acres. N. Natural Gas Co., 125 F.E.R.C. ¶ 61,127, at 61,629 (2008). 

FERC found that Northern storage gas had migrated into a portion of the proposed 

expansion area and granted the application in part, permitting Northern to extend its 

certificated boundary to cover an additional 1,760 acres. Id. at 61,635.

In December 2008, Northern filed suit against L.D. Drilling, Inc., Val Energy, 

Inc., and Nash in the United States District Court for the District of Kansas. Alleging 

that defendants are producing Northern storage gas by creating “pressure sinks” that 

cause Northern storage gas to migrate to defendants’ wells, Northern’s complaint asserts 

claims for declaratory and injunctive relief, conversion, unjust enrichment, nuisance, 

tortious interference with a business relationship, and civil conspiracy. 

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Northern moved for a preliminary injunction to compel Nash to permit testing of 

four wells, citing a Kansas statute that grants injectors of natural gas the right to test wells 

on “adjoining property” to determine if gas migration has occurred. Kan. Stat. 

§ 55-1210(c)(2). The district court acknowledged that each of the four wells is located at 

least a mile from the boundary of Northern’s certificated storage field. However, the 

court further found that all four Nash wells were located on property adjoining sections in 

which Northern had obtained storage lease rights: Two wells were located in sections in 

which Northern had storage lease rights, and the others were located in sections adjoining 

those in which Northern had storage lease rights. The district court concluded that the 

lease rights qualified Nash’s wells as “adjoining property” and granted Northern’s 

motion. Nash timely appealed. 

While this appeal was pending, Northern collected and tested gas samples from 

each of the four Nash wells at issue. Based in part on these tests, Northern filed a new 

application with FERC in September 2009 to expand the certificated boundaries of the 

Cunningham Storage Field. After Nash voluntarily intervened, FERC issued a data 

request requiring Nash to submit gas samples from the four wells. Northern subsequently 

collected gas samples pursuant to FERC’s order and submitted the resulting information 

to FERC. 

II 

 Before addressing the substance of Nash’s appeal, we must first determine if we 

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have jurisdiction. Northern contends we lack jurisdiction because the appeal is moot.1 

“To qualify as a case fit for federal-court adjudication, an actual controversy must be 

extant at all stages of review, not merely at the time the complaint is filed.” Greater 

Yellowstone Coal. v. Tidwell, 572 F.3d 1115, 1121 (10th Cir. 2009) (quotation omitted). 

In determining whether a case is moot, we ask “whether granting a present determination 

of the issues offered . . . will have some effect in the real world.” Kan. Judicial Review 

v. Stout, 562 F.3d 1240, 1246 (10th Cir. 2009) (ellipses in original, quotation omitted). A 

case is moot if we can no longer grant effective relief as a practical matter. Id. “If a 

party to an appeal suggests that the controversy has . . . become moot, that party bears the 

burden of coming forward with the subsequent events that have produced that alleged 

result.” Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 98 (1993) (citation 

omitted). 

 Since entry of the district court’s order, Northern has completed the ordered 

testing. Accordingly, we cannot offer Nash meaningful relief: We cannot undo tests that 

have been completed. Nash argues that we could impose limits on Northern’s use of the 

test results, but this too would be ineffectual. Pursuant to a FERC data request, Northern 

again sampled the four Nash wells and obtained information regarding the composition of 

natural gas in the wells—information that is entirely redundant with the information 

 1

 Northern also argues that Nash lacks standing to appeal. Because we conclude 

this appeal is moot, we need not address Northern’s standing argument. See Arizonans 

for Official English v. Arizona, 520 U.S. 43, 66-67 (1997). 

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obtained as a result of the district court’s order. We lack “jurisdiction to interfere with an 

ongoing proceeding before FERC.” N. Natural Gas Co. v. Trans Pac. Oil Corp., 529 F.3d 

1248, 1252 (10th Cir. 2008). Thus an order restricting Northern’s use of the courtordered testing would have no actual “effect in the real world.” Kan. Judicial Review, 

562 F.3d at 1246; cf. Navani v. Shahani, 496 F.3d 1121, 1127-30 (10th Cir. 2007) 

(proceedings before another tribunal can moot an action when they foreclose relief in the 

instant action).2

 

 Nash further argues that this case remains fit for adjudication because the question 

(as characterized by Nash) of whether the district court could expand Northern’s storage 

rights “is a live and active controversy,” and because Nash could sue for wrongful 

 2

 At oral argument, Nash’s counsel raised two arguments not included in its 

briefing on the mootness issue. First, counsel stated that the information obtained from 

the FERC-ordered testing was subject to a protective order restricting its use. Second, 

counsel argued that the appeal was not moot because information with respect to well 

bores, depths, manners of completion, and pressure was not provided to FERC and thus 

could be subject to a meaningful restrictive order. We generally do not consider issues 

raised for the first time at oral argument. See Thomas v. Denny’s, Inc., 111 F.3d 1506, 

1510 n.5 (10th Cir. 1997). 

Further, Northern’s counsel disputed Nash’s characterizations at oral argument, 

and submitted a Fed. R. App. P. 28(j) letter showing the district court heard testimony 

and admitted exhibits regarding the FERC-ordered test results. This information suggests 

the FERC tests are not subject to a protective order. Nash did not file a response. Nor 

has it cited evidence of a protective order or the information it contends was included in 

the court-ordered testing but not the FERC-ordered testing. 

Finally, we note that Nash’s counsel conceded at oral argument that the continuing 

injury for which it seeks redress on appeal is Northern’s use of information regarding the 

“content and nature of the gas” rather than “these other matters.” The content and nature 

of the gas, as discussed above, has been obtained by Northern by alternative means. 

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injunction if we reversed. These arguments miss the mark. An appeal becomes moot 

when the court can no longer grant the appellant effective relief. See Mills v. Green, 159 

U.S. 651, 653 (1895). We may not “declare principles or rules of law [that] cannot affect 

the matter in issue in the case before” us. Id. This prohibition holds true even if the rule 

appellant urges us to articulate might be used in future proceedings. California v. San 

Pablo & Tulare R.R. Co., 149 U.S. 308, 314 (1893) (Federal courts are “not empowered 

to decide moot questions or abstract propositions, or to declare, for the government of 

future cases, principles or rules of law which cannot affect the result as to the thing in 

issue in the case before it.”).3

 We therefore lack jurisdiction to address the issues Nash 

identifies, even if our holdings on those issues might aid Nash in some other proceeding. 

III 

 For the foregoing reasons, we DISMISS the appeal as moot.4

 All pending 

 3

 Exceptions to this rule exist when an issue is “capable of repetition yet evading 

review” or when “the defendant voluntarily ceases an allegedly illegal practice but is free 

to resume it at any time.” Riley v. INS, 310 F.3d 1253, 1257 (10th Cir. 2002). Nash 

does not contend that either exception applies in this case. 

4

 Although as a general rule we have a duty to vacate lower court judgments when 

we dismiss a case as moot, see United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 

(1950), “[t]he duty to vacate . . . is not to be fulfilled sua sponte by the court, but rather a 

motion by one of the parties is required,” Plotner v. AT&T Corp., 224 F.3d 1161, 1169 

(10th Cir. 2000); see Munsingwear, 340 U.S. at 40-41. Neither party has moved to 

vacate the district court’s judgment nor mentioned such relief in its briefing. We 

therefore dismiss the appeal without vacating the judgment below. 

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motions not addressed by this order and judgment are DENIED. 

ENTERED FOR THE COURT 

Carlos F. Lucero 

Circuit Judge 

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