PHILIP A. BRIMMER, District Judge.
This matter is before the Court on the Motion for Summary Judgment filed by plaintiff Entek GRB, LLC ("Entek") [Docket No. 149] and the Motion for Partial Summary Judgment filed by defendant Stull Ranches, LLC ("Stull") [Docket No. 146]. The Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331.
This case arises out of a dispute regarding the rights of a mineral lessee to traverse a surface owner's estate to develop subterranean minerals from a well located on an adjacent property. Entek is the lessee of mineral estates granted by the Bureau of Land Management ("BLM"). Entek is the successor-in-interest of Stone & Wolf, LLC ("Stone & Wolf"), Clayton Williams Energy, Inc. ("Clayton Williams"), and New Frontier Energy, Inc. ("New Frontier"). Entek's mineral estates are located in the Focus Ranch Unit ("FRU"), which is a collection of mineral leases combined to facilitate development. See Docket No. 149-3. Stone & Wolf created the FRU in 1999 and Entek is the current unit operator of the FRU. Id. Stull is not a party to the FRU.
The majority of the land located in the FRU is leased pursuant to two federal statutes: the Stock-Raising Homestead Act of 1916 ("SRHA"), 43 U.S.C. § 291 et seq. (repealed in part by Pub. L. 94-579 (1976)), and the Mineral Leasing Act of 1920 ("MLA"), 30 U.S.C. § 181 et seq.
Entek's mineral leases and patents in the FRU are granted pursuant to the SRHA, and Entek owns the rights to certain minerals subjacent to Stull's surface estate. Stull does not challenge Entek's ownership rights to the leases and patents at issue.
Entek's predecessors-in-interest Clayton Williams and New Frontier accessed the 3-1 well by using an easement ("Stull Easement") obtained through an agreement with Stull. The Stull Easement utilized the northwest portion of the Access Road, which travels across Section 33, Township 12 North, Range 88 West into Section 3, Township 11 North, Range 88 West. See Docket No. 126-2. However, Stull revoked the easement after New Frontier violated its terms and has refused to grant Entek an easement to access the 3-1 well. Entek does not claim any rights of access arising out of the Stull Easement.
Entek alleges that, if it is granted access to the 3-1 well, it intends to drill directionally from the 3-1 well to reach minerals located subjacent to Stull's surface estate under Lease COC-59491 and Patent 985094. See Docket No. 163-4 at 4. Stull argues that Entek cannot determine whether any minerals extracted by the 3-1 well will be located subjacent to Stull's surface estate until the 3-1 well is fully drilled.
On September 2, 2011, Entek filed a motion for a preliminary injunction [Docket No. 45] to gain access to the 3-1 wells.
On October 7, 2011, Entek filed an amended complaint [Docket No. 81]. Entek's first claim seeks a declaratory judgment that it has the right to: (1) stake, survey, drill, and develop well locations on Stull's surface (Count One); (2) use Stull's surface to reach well locations on adjacent property if those wells will develop Entek's
On July 31, 2012, Stull filed a motion for partial summary judgment [Docket No. 146] requesting that the Court enter judgment in its favor and against Entek on Counts Two and Three of the first claim for relief and on the second claim for relief. That same day, Entek filed a motion for summary judgment [Docket No. 149] requesting that the Court enter a declaratory judgment in its favor on all three counts in its first claim for relief and on Stull's counterclaim based on the accommodation doctrine.
On June 15, 2012, Entek filed a second motion for a preliminary injunction [Docket No. 126] to enjoin Stull from restricting its access to the 3-1 well. After an evidentiary hearing on Entek's motion on August 1, 2012, Docket No. 150, the Court denied the motion, finding that nothing in Entek's leases, patents, and the unitization agreement granted Entek the right to use Stull's surface estate to reach the 3-1 well located on BLM surface. See Docket No. 151 at 16-22.
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether summary judgment is appropriate, the Court construes all facts and reasonable inferences drawn from the record in the light most favorable to the nonmoving party. See McBeth v. Himes, 598 F.3d 708, 715 (10th Cir.2010). Where, as here, the parties file cross-motions for summary judgment, the Court "assume[s] that no evidence needs to be considered other than that filed by the parties, but summary judgment is nevertheless inappropriate if disputes remain as to material facts." James Barlow Family Ltd. P'ship v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir.1997); Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000).
Because Stull does not bear the ultimate burden of persuasion at trial, it will be entitled to summary judgment if it can establish "`a lack of evidence for [Entek] on an essential element of [Entek's] claim[s].'" Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998). If Stull can show a lack of evidence on an essential element of one of Entek's claims, Stull will be "entitled to a judgment as a matter of law" because Entek, the nonmoving party, would have failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). By contrast, Entek will be entitled to summary judgment if it can "show that there is no genuine issue as to any material fact" with regard to any of its claims. Id.
In its motion for summary judgment, Entek requests that the Court enter a declaratory judgment finding that Entek has the right to use:
Docket No. 149 at 9.
Entek contends that it is entitled to a declaratory judgment because the federal government granted it an express right of access over Stull's surface estate pursuant to its patents and leases, the SRHA, 43 C.F.R. §§ 3101.1-2, and the unitization agreement. See Docket No. 163 at 1. Entek states that it does not seek to enforce any implied rights of access over Stull's surface estate, but rather only express rights of access. Id.
Entek seeks a declaratory judgment that it may use "Stull's surface to explore for, extract, and remove minerals located under [Stull's] surface," even if the proposed well locations are not identified with particularity. Docket No. 149 at 9.
Generally, a surface estate is subservient to a mineral estate, which is considered dominant. See Kinney-Coastal, 277 U.S. at 504, 48 S.Ct. 580; Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 926 (Colo. 1997). The mineral estate impliedly carries with it a right to use as much of the surface as may be reasonably necessary for operations relating to the mineral estate. See Kinney-Coastal, 277 U.S. at 504-05, 48 S.Ct. 580 (noting that, pursuant to federal mineral leases, the lessee has "the right to extract and remove the oil and gas [and] also the appurtenant right to use the surface so far as may be necessary"); Bourdieu v. Seaboard Oil Corp., 38 Cal.App.2d 11, 100 P.2d 528, 532 (1940) ("lessees have not only a right to extract the oil and gas, but also the appurtenant right to enter and to use and occupy so much of the surface of the land"). Under the SRHA, a mineral lessee "shall have the right at all times to enter upon the lands entered or patented ... for the purpose of prospecting for coal or other mineral therein." 43 U.S.C. § 299(a). In addition, a federal "lessee shall have the right to use so much of the leased lands as is necessary to explore for, drill for, mine, extract, remove and dispose of all the leased resource in a leasehold." 43 C.F.R. § 3101.1-2. As noted by the Tenth Circuit in Gilbertz v. United States, 808 F.2d 1374 (10th Cir. 1987), once a federal mineral lessee satisfies all of the conditions precedent for entry to its federal mineral lease, the surface owner cannot restrict a lessee's access to the surface if it is reasonably incident to the extraction of minerals. Id. at 1379; see also Reno Livestock Corp. v. Sun Oil Co., 638 P.2d 147, 151 (Wyo.1981).
Accordingly, the Court declares that, upon the satisfaction of all state and federal regulations and conditions precedent to access its mineral estate, Entek shall have the right to access Stull's surface estate to (1) perform work that is reasonably incident to the development of Entek's mineral estate that is subjacent to Stull's surface estate, such as staking and surveying proposed well sites on Stull's surface estate, and (2) access well sites or proposed well sites that are located on or upon, but not adjacent to or adjoining, Stull's surface estate to remove its minerals from a mineral estate that is subjacent to Stull's surface estate. Entek's access to perform work on Stull's surface estate is limited to the geographical scope of Entek's particular mineral lease. 43 U.S.C. § 299(a).
Entek requests a declaratory judgment that it may access Stull's surface estate to drill directionally from a well located on BLM property, which bore may drain oil or gas from beneath Stull's surface. Docket No. 163 at 8. Entek claims that it may use Stull's surface estate in this manner because of its federal patents and leases, the SRHA, and the so-called "unity" rule of Mountain Fuel Supply Co. v. Smith, 471 F.2d 594 (10th Cir.1973). Id. at 9.
In its response to Stull's motion for partial summary judgment, Entek states that Stull does not have the "right to deny the government or Entek access to the reserved minerals through future laws allowing directional drilling or unitization."
Because Entek is only a mineral lessee, it does not stand in the same position as the federal government.
Accordingly, the question presented here is not whether the federal government can access Stull's surface estate to reach a well located on BLM property, but whether the federal government expressly granted Entek the right to cross Stull's surface estate to reach a well located on BLM property. With these principles in mind, the Court addresses Entek's arguments.
Entek claims that it may cross Stull's surface estate to reach a well located on BLM's surface because the SRHA allows a mineral lessee to enter so much of the surface estate as is "required for all purposes reasonably incident" to the extraction of federal minerals. 43 U.S.C. § 299(a); see also 43 C.F.R. § 3101.1-2. Entek claims that construction of the phrase "reasonably incident" includes the ability to build a road or use a road located on Stull's surface estate to reach a well located on BLM's surface estate so long as Entek is able to remove minerals that are subjacent to Stull's surface estate.
Entek contends that the plain meaning of the term "reasonably incident" allows it to cross Stull's surface to reach a well located on BLM property. Docket No. 163 at 10-11. In support of this argument, Entek provides general examples of "reasonable" uses of surface estates as well as general examples of what courts have deemed activities "incident" to the removal of minerals. Docket No. 163 at 10-11.
In Mountain Fuel, the Tenth Circuit discussed the Agricultural Entry Act of 1914 ("AEA"), which leased federal surface estates subject to a reservation of rights for the federal government similar to the one found in Entek's leases. Id. at 471 F.2d at 595. In construing the AEA, the Tenth Circuit found that a federal mineral lessee's use of a surface estate "for development on the lands of others or to haul over such surface the production from the lands of others" was not allowed pursuant to federal mineral leases. Id. at 597 (emphasis added). In the preliminary injunction order, the Court referred to this legal principle as the "two surface owners rule" after the decision in Stone & Wolf, LLC v. Three Forks Ranch Corp., No. 00-cv-01130-REB-OES, 2004 WL 5615898 (D.Colo. Jan. 8, 2004). See Docket No. 151 at 10-11. The preliminary injunction order also noted that the relevant determination for surface access under the two surface owners rule is generally the location of the well. Id.; see also Mountain Fuel, 471 F.2d at 596-97 ("Thus the doctrine considered above concerns the use of property of one owner for development on, or use of, the property of another") (emphasis added); Bourdieu, 100 P.2d at 534-35; Gilbertz, 808 F.2d at 1382; 83 A.L.R.2d 665, § 3(a) (collecting cases).
In light of the holding in Mountain Fuel, none of the general descriptions Entek provides are persuasive. Entek has identified no cases, federal or state, that have construed the phrases "reasonably incident" or "reasonably necessary" as including the right to cross a surface estate to perform activities on the land of adjacent or adjoining surfaces. Accordingly, the Court rejects Entek's plain meaning argument.
Entek next argues that if "Entek can put an access road and drill a well on Stull's patented surface in Sec. 33 to reach the minerals under Sec. 33, ... it can also put only the access road on the same surface to reach the very same minerals." Docket No. 163 at 12 (emphasis in original). The issue, however, cannot be resolved by that type of deductive reasoning, but rather the Court must determine what rights Stull has regarding the use of its surface. Given that Stull has a right to object to Entek's use of its surface estate unless Entek is expressly granted such a right, Entek's argument is unpersuasive. See Mountain Fuel, 471 F.2d at 596.
Third, Entek cites Gulf Oil v. Deese, 275 Ala. 178, 153 So.2d 614 (1963), in support of the proposition that the two surface owners rule is not well suited for cases involving the production of oil and gas.
Consequently, none of the evidence Entek provides supports the conclusion that the phrase "reasonably incident" allows a mineral lessee the right to access a surface estate to perform work on adjoining or adjacent property. On the contrary, because of the holding in Mountain Fuel, the Court finds that the plain meaning of the term "reasonably incident" does not allow a federal mineral lessee to use a surface estate to perform mining operations on or upon an adjacent or adjoining surface estate owned by a third party.
Entek argues that there are no "express" statutory limitations to the federal government's ability to allow Entek to access Stull's surface estate. Docket No. 163 at 15-16. Entek claims that the only express limitation to a mineral lessee's access to the surface estate is the requirement that the lessee post a bond in lieu of an agreement. Id. Entek additionally claims that, pursuant to "future legislation" under the MLA, Entek has the right to "bottom a well bore" underneath Stull's surface estate from a well near Stull's surface. Id. at 16 (citing M.J. Harvey, Jr., 109 Int.Bd. Land App. 31, 1989 WL 255274 (IBLA 1989) and F.S. Prince, A-30801 (October 25, 1967) (attached as Ex. I. to Docket No. 163)).
Entek's ability to extract minerals from a well located on property adjacent to or adjoining Stull's surface estate (without considering the issue of surface access) is not at issue in this case. See, e.g., Carmichael v. Old Straight Creek Coal Corp., 232 Ky. 133, 22 S.W.2d 572, 575 (1929) (noting that the question of whether "the owner or lessee of coal underlying a tract of land may use the underground passages made in the course of the mining operations for transporting coal from one part to another of adjacent tracts of land" is different from the question of the surface access rights of a mineral lessee). Because the question raised here pertains to the use of a surface estate, citations to M.J. Harvey and F.S. Prince are not persuasive.
Entek argues that the state court decisions in Trivette v. Consolidation Coal Co.,
Trivette and Carmichael are Kentucky Supreme Court cases issued before Wiser Oil Co. v. Conley, 346 S.W.2d 718, 722 (Ky.1961). In Wiser, the Kentucky Supreme Court construed a right-of-way provision contained in an oil and gas lease that gave the mineral lessee the right to use a road "for any purposes" not to include the right to use the road for the production of minerals from adjoining or adjacent lands. 346 S.W.2d at 722. Because Wiser affirms the two surface owners rule and is a later issued opinion by the Kentucky Supreme Court related to oil and gas leases, the viability of inconsistent holdings in Trivette and Carmichael is tenuous at best.
In Bagley, the Alabama Supreme Court found that a mineral lessee's use of air shafts and fans as well as tram lines "under the surface of the lands in question" was permissible under the terms of the lease. 69 So. at 18. This case also does not support Entek's argument because the right to use subterraneous tram lines or passageways to move minerals from adjacent or adjoining mines is not a question presented by this case. See Carmichael, 22 S.W.2d at 575. Moreover, the use of air shafts and fans is not analogous to Entek's proposed use of the Access Road.
In summary, none of the aforementioned cases calls into question the viability of Mountain Fuel's two surface owners rule. Moreover, none of these cases construed the SRHA or other federal mineral leases.
Entek claims that 43 C.F.R. § 3101.1-2 allows it to have access to Stull's entire surface estate that is superjacent to Entek's mineral estate without regard to patent or lease lines. Docket No. 163 at 14-15. Based on this argument, Entek seeks a declaration that the unity rule allows Entek to cross Stull's surface estate in Section 33 to reach Stull's surface estate in Section 3 solely for the purpose of placing a well on Stull's surface estate in Section 3. Id. at 19; see also Docket No. 126-2.
In Mountain Fuel, the Tenth Circuit held that, once separately owned surface estates are joined together in common ownership, the mineral lessee does not have to request permission to access each lease independently. 471 F.2d at 597. This legal principle will be referred to as the "unity rule."
Based on the holding in Mountain Fuel, Entek may not cross Lease COC-69894 for the sole purpose of extracting minerals subjacent to Lease COC-59491. In Mountain Fuel, the Tenth Circuit noted that "the lessees are restricted in their use of the surface by the geographic extent of their particular lease or leases ... The fact that the field has been unitized is of no significance...." 471 F.2d at 597. Had Entek sought to access Lease COC-59491 by crossing Lease COC-69894 when the surface land was owned by two separate individuals, it would have needed to request access from two separate owners. Id. The unity rule excuses a mineral lessee from requesting
Any other construction of the unity rule would defeat the rationale underlying the development of split estates as it would allow a mineral lessee to "use the [surface estate] simply as a highway to adjoining property, where the minerals may be of greater value." Percy La Salle Mining & Power Co. v. Newman Mining, Milling & Leasing Co., 300 F. 141, 147 (D.Colo.1924). Thus, although Entek does not have to request permission to enter Stull's surface estate when it owns the mineral estate subjacent to Stull's surface estate, Entek's access to Stull's surface estate is limited to the geographic boundaries of the lease from which Entek intends to extract minerals.
In summary, none of the arguments presented by Entek establishes that Entek is entitled to its requested declaratory judgment on Count Two. Therefore, the Court finds that Stull is entitled to summary judgment on this count.
Entek seeks a declaration that it may cross Stull's surface estate that is superjacent to federal minerals unitized by the FRU agreement to explore for and produce minerals anywhere within the FRU. Docket No. 163 at 21. Entek contends that, by approving the creation of the FRU, the Secretary of the Interior has expressly modified and amended the federal mineral leases and granted Entek, as the unit operator, the right to access any and all surface estates included in the FRU. Id. at 22.
In response, Stull contends that Entek is collaterally estopped from making its FRU argument because the court in Stone & Wolf, LLC v. Three Forks Ranch Corp., No. 00-cv-01130-REB-OES, 2004 WL 5615898 (D.Colo. Jan. 8, 2004), decided the issue adversely to Entek's predecessor-in-interest. Docket No. 146 at 7-11. Stull contends that all of the elements of collateral estoppel are met in this case and Entek has no right to relitigate the same legal issue. Id. Entek, however, argues that it should not be barred from relitigating a unit operator's right of access because collateral estoppel does not apply to unmixed question of law. Docket No. 163 at 31.
Before discussing general principles of collateral estoppel, the Court considers whether the unmixed question of law exception applies.
However, in United States v. Stauffer Chemical Co., 464 U.S. 165, 172-73, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984), the Supreme Court narrowly restricted the unmixed question of law exception. There, the Court found that the federal government was collaterally estopped from relitigating an issue because the claims presented in the two actions were related, virtually identical, and involved exactly the same parties. Id. The Third Circuit in Burlington N. R.R. Co. v. Hyundai Merchant Marine Co., Ltd., 63 F.3d 1227 (3d Cir.1995), interpreted the Supreme Court's opinion in Stauffer to stand for the proposition that the exception of unmixed question of law applies only when the issue presented is a pure question of law and either (1) the two actions involve claims that are substantially unrelated or (2) a new determination of the legal issue is warranted in light of an intervening change in the law. Id. at 1229. The Tenth Circuit and the Colorado Supreme Court have yet to address this issue.
Entek argues that Three Forks Ranch held, purely as a matter of law, that a unit operator does not have access to the entire surface area within a federal unit based on the terms of the unitization agreement, the patents, and the leases. Docket No. 163 at 31. The Court, however, need not decide whether the holding in Three Forks Ranch constitutes a clear question of law. See Stauffer, 464 U.S. at 171 n. 4, 104 S.Ct. 575 ("[A]n exception which requires a rigid determination of whether an issue is one of fact, law or mixed fact and law, as a practical matter, would often be impossible to apply"). Given that the Three Forks Ranch decision raised identical issues to the ones presented here and Entek is in privity with the plaintiffs in that case, it is undisputed that the two cases are related. In addition, Entek does not argue that an intervening change in the law warrants the application of the unmixed question of law exception. Based on Stauffer, the Court has "no trouble finding [that the unmixed question of law exception] is inapplicable [where there is] close alignment in both time and subject matter" between the two cases. Id. at 170.
Given that the unmixed question of law exception does not apply, the Court next turns to the issue of whether collateral estoppel bars Entek's attempts to relitigate the issue of whether the unitization agreement allows a unit operator to access all of the surface estates located in the FRU.
Collateral estoppel is an "equitable doctrine that operates to bar relitigation
Under Colorado law, collateral estoppel applies when the moving party can show that: (1) the issue presented in the current case is identical to an issue actually litigated and necessarily adjudicated in the prior proceedings; (2) the prior action reached a final adjudication on the merits; (3) the party against whom the doctrine is raised was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Bebo Constr. Co., 990 P.2d at 84-85; see Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir.2000) (identifying the elements for federal common law collateral estoppel).
Entek does not dispute that the first three elements of collateral estoppel are met in this case, namely, that the same legal claim was at issue in Three Forks Ranch, the action was adjudicated on the merits, and that it is a successor in interest to the plaintiffs in that case.
The Court agrees that the first three elements of collateral estoppel are met in this case. Three Forks Ranch found that Stone & Wolf and Clayton Williams could not cross Three Forks Ranch's surface estate solely to reach the 12-1 well because nothing in the unitization agreement, the deeds, patents, and leases issued to Stone & Wolf and Clayton Williams allowed these plaintiffs to increase the burden on Three Forks Ranch's surface estate. 2004 WL 5615898, at *12-13. Entek's current claim is identifical to the issue presented in Three Forks Ranch and the issue in that case was actually litigated and necessary to the holding.
The issue then becomes whether the fourth element of collateral estoppel has been satisfied. To determine whether a previous litigant had a full and fair opportunity to litigate an issue, courts determine whether the remedies and procedures of the first proceeding are substantially different from the proceeding in which collateral estoppel is asserted; whether the party in privity with the party against whom collateral estoppel is sought had sufficient incentive to litigate vigorously; and the extent to which the issues are identical. Bebo Constr. Co., 990 P.2d at 87. Here, the forum is the same as the previous action and the issues are identical; thus, the only question is whether the plaintiffs in Three Forks Ranch had an incentive to litigate the case.
Entek argues that its predecessors-in-interest did not have an incentive to vigorously litigate the Three Forks Ranch ruling through to an appeal because they secured access to the 12-1 well before the decision in Three Forks Ranch was issued. Docket No. 138 at 4-5. However, the right to a full and fair opportunity to litigate does not include whether a party chooses to appeal an adverse decision. Taking into account discretionary factors regarding whether a party decided to file an appeal would "substantially frustrate the doctrine's purpose of protecting litigants from burdensome relitigation and of promoting judicial economy." Stauffer, 464 U.S. at 172, 104 S.Ct. 575. Instead, the focus is properly upon the trial or hearing that resulted in the adverse ruling. Entek has raised no suggestion about the fairness of the trial or the incentive of its predecessors to vigorously litigate the issue of the FRU before they secured the Stull Easement.
As a result, the Court finds that Stull has established all of the collateral estoppel elements and Entek is estopped from relitigating the issue raised in Count Three.
A district court may only issue a permanent injunction when the remedy at law is inadequate to compensate a party for the injury sustained. Tri-State Generation & Transmission Ass'n v. Shoshone River Power, Inc., 874 F.2d 1346, 1353 (10th Cir.1989). In order to obtain a permanent injunction, the party seeking a permanent injunction has the burden of demonstrating: "(1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest." Sw. Stainless, LP v. Sappington, 582 F.3d 1176, 1191 (10th Cir.2009) (quoting Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir.2007)) (internal quotation marks omitted). Notwithstanding these factors, the most important factors in the district court's decision to grant an injunction is whether the facts indicate a danger of future violations. Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1230 (10th Cir.1997).
The Court finds that Entek has not shown that the risk of future violations as to Count One is likely to occur after the resolution of the issues in this case. Although Stull has previously restricted Entek's access to its surface estate, such restriction was based on Stull's belief that Entek's access was limited to surveying and staking a specific well location. In light of the Court granting a declaratory judgment on Count One of the first claim for relief, this issue has been decided and
In light of the foregoing, the Court declares the following:
It is
In accordance with the orders filed during the pendency of this case, and pursuant
Pursuant to the Order of Judge Philip A. Brimmer entered on March 29, 2013 [Docket No. 173] it is
