## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 2 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RUTTER & WILBANKS CORP.; ELLIOTT A. RIGGS; WILLIAM R. THURSTON, Trustee; GORDON TANNER; WALTER K. ARBUCKLE TRUST; ERIC B. WELLS; KEVIN C. WELLS; CHARLES R. WIGGINS; KEN KAMON,

Plaintiffs - Appellees, No. 02-1034

v. (D. Colorado) SHELL OIL COMPANY; SHELL WESTERN E & P, INC.; MOBIL OIL CORPORATION; MOBIL PRODUCING TEXAS & NEW MEXICO, INC.; MOBIL EXPLORATION & PRODUCING U.S., INC.; EXXON MOBIL, INC.; CORTEZ PIPELINE COMPANY, a partnership; SHELL CO 2COMPANY, LTD., a Texas limited partnership; KINDER MORGAN CO 2 COMPANY, a Texas limited partnership,

Defendants - Appellees,

-------------------------------------- (D.C. No. 00-Z-1854)

GERALD O. BAILEY and W. L. GRAY& CO.,

Applicants in Intervention - Appellants.* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

-2- ORDER AND JUDGMENT *

Before TACHA , Chief Judge, ANDERSON , and EBEL , Circuit Judges.

This appeal is generally related to the appeal in Rutter & Wilbanks Corp. v. Shell Oil Co. , Nos. 02-1220, 02-1221 (10th Cir. filed Dec. 24, 2 002), in which we recently affirmed the district court’s approval of a settlement of a group of cases arising out of litigation concerning the production of CO 2 contained within the McElmo Dome Unit in Colorado. In this appeal, appe llants Gerald O. Bailey and the W. L. Gray Co. (“Gray”) appeal the denial of th eir motions to intervene in one of the actions which was settled: Rutter & Wilbanks Corp. v. Shell Oil Co. , No. 00-Z-1854 (D. Colo. filed Sept. 22, 2000). We affi rm. Bailey and Gray were owners of overriding royalty i nterests (“ORIO”s) in the McElmo Dome Unit. The September 2001 settlement agreement settling Rutter & Wilbanks and three related cases gave them the right to optout of the settlement. On January 5 and January 7 of 2002, Gr ay and Bailey, respectively, opted out of the settlement. On January 10, 2002, they filed motions to intervene-3-

in Rutter & Wilbanks , which the district court denied essentially on th e ground that they were untimely: “[g]iven the length of ti me this litigation, as an entire matter, has endured thus far, and the late date at which the applicants move for intervention, the Court will deny the motion.” Ord er at 2, Appellants’ App. at 22. Additionally, Gray and Bailey are also involved in litigation in Texas involving the same defendants and claims involving CO 2production on the McElmo Dome Unit. In fact, Gray is a co-plaintiff in one proceeding with Harry Ptasynski, whose appeal of the denial of virtually identical motions to intervene we simultaneously affirm. See Rutter & Willbanks Corp. v. Shell Oil Co. , Nos. 01-1565, 01-1567 (10th Cir. filed Dec. 24, 2002). Bailey is a co-plaintiff and codefendant in various Texas proceedings with Bridwel l Oil Co., whose appeal of the denial of its motions to intervene we affirmed along with Ptasynski’s. See id. Plaintiffs and Defendants argue that Bailey and Gray lack standing, having opted out of the settlement before they filed theirmotions to intervene. It is well settled that, in order to show standing necessary to invoke federal court jurisdiction, a party must demonstrat e three things: (1) “injury in fact,” by which we mean an invasion of a legally protected interest that is “(a) concrete an d particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) a causal relation ship between the injury and the challenged conduct, by w hich we mean that the injury “fairly can be traced to th e challenged action of the defendant,” and has not re sulted “from the independent action of some third party no t before the court”; and (3) a likelihood that the in jury will be redressed by a favorable decision, by whichwe-4- mean that the “prospect of obtaining relief from th e injury as a result of a favorable ruling” is not “t oo speculative.” In re Integra Realty Res., Inc. , 262 F.3d 1089, 1101 (10th Cir. 2001) (quoting Northeastern Fla. Chapter of the Associated Gen. Co ntractors v. City of Jacksonville , 508 U.S. 656, 663-64 (1993)). In In re Integra , we held that parties who had opted out of a settlement lacked standing t o challenge the settlement because they “lack[ed] any legally protected intere st that could support the ‘injury in fact’ element necessary to demonstrate standing.” Id. at 1102; see also In re: Vitamins Antitrust Class Actions , 215 F.3d 26 (D.C. Cir. 2000) (holding that presumptive class members who had opted out of a se ttlement had no standing to challenge a specific clause in the settlement). We , and other courts, have recognized a narrow exception to this where nonsett ling parties can demonstrate that they will suffer “‘plain legal prejudice,’ as when ‘the settlement strips the party of a legal claim or cause of action.’” In re Integra , 262 F.3d at 1102 (quoting Mayfield v. Barr , 985 F.2d 1090, 1093 (D.C. Cir. 1993)) (further quotation omitted). Bailey and Gray assert that they “have not sought ‘ limited’ intervention to challenge the proposed settlement” but rather ask o nly that “they be allowed to intervene as parties in the case so that they may litigate their claims and protect their interests.” Appellants’ Reply Br. at 5. We agree with the Plaintiffs and-5-

Defendants in this case that, once they opted out o f the settlement, Bailey and Gray lost any legally cognizable interest in the pr oceedings into which they wish to intervene. Further, they do not argue that theyhave suffered plain legal prejudice in that they have been stripped by the se ttlement of any legal claim or cause of action; indeed, they have been actively pu rsuing claims against Defendants in Texas. Alternatively, were they able to identify some inte rest sufficient to confer standing, we would hold that the district court didnot abuse its discretion in finding their motions to intervene untimely. See Utah Ass’n of Counties v. Clinton , 255 F.3d 1246, 1249 (10th Cir. 2001) (“We general ly review a district court’s ruling on the timeliness of a motion to int ervene under an abuse of discretion standard.”).
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge