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Boulter, et al. v. Noble Energy, et al.
Owners of royalty rights from oil and gas wells in Colorado, including Mike Boulter; Boulter, LLC, Ralph Nix Produce, Inc. and Barclay Farms, LLC — on behalf of themselves and classes of similarly situated persons — filed a putative class action asserting contract claims for underpayment of royalties. According to the opinion, three prior substantially identical suits had been dismissed for lack of subject-matter jurisdiction owing to the owners’ failure to exhaust administrative remedies with the Colorado Oil and Gas Conservation Commission as required by Colorado law. Each of the first three dismissals was entered “without prejudice.”
Before the instant appeal, the owners appealed the dismissal of their second and third complaints, and the 10th Circuit Court of Appeals consolidated its review of both dismissal orders. It concluded “unless an exception applie[d],” the dismissal of the owners’ first complaint barred, on collateral estoppel grounds, relitigation of the administrative exhaustion issue and required dismissal of the second and third complaints, the opinion noted.
The owners invoked the intervening change-in-law exception to collateral estoppel, arguing the Colorado Court of Appeals decision in Antero Res. Corp. v. Airport Land Partners, Ltd. extinguished their obligation to exhaust administrative remedies with the commission and thereby enabled them to avoid the preclusive effect of the initial dismissal.
The 10th Circuit held such an exception was unavailable where the supposed change in law occurred after the initiation of the subsequent action in which the exception was invoked. “[F]or the issue preclusion change-in-law exception to apply, the relevant change in law must occur between the preclusive judgment and any subsequent action.”
Because Antero was released more than two weeks after the owners filed their second complaint, the 10th Circuit held the complaint was barred by issue preclusion even if Antero had changed the law governing Colorado’s administrative exhaustion requirements. As to the third complaint, filed after Antero was issued, thereby qualifying as an “intervening” decision for issue preclusion purposes, the 10th Circuit held the Colorado Court of Appeals “did not intend to change the law in Antero,” and it affirmed the dismissal of that complaint on issue preclusion grounds.
While the consolidated Boulter appeal was pending, the owners filed another substantially similar complaint, their fourth, on July 26, 2022. Roughly eight months later, on March 23, 2023, the Colorado Supreme Court affirmed the Colorado Court of Appeals’ Antero decision in Antero Resources Corp. v. Airport Land Partners, Ltd.
In opposing the dismissal of their fourth complaint before the district court, the owners urged the Airport Land decision “squarely reject[ed]” any argument the owners are “required to exhaust their administrative remedies” with the commission. The district court dismissed the fourth complaint, applying issue preclusion and concluding Airport Land wasn’t an intervening change in the law because it didn’t address, and therefore couldn’t have altered, the owners’ obligation “to first present their dispute” to the commission to exhaust administrative remedies. But unlike the first three dismissals, the district court entered the fourth dismissal “with prejudice.” This timely appeal followed.
Exercising jurisdiction the 10th Circuit affirmed the district court’s application of issue preclusion to dismiss the fourth complaint and remanded for the district court to reflect that its dismissal of that complaint is “without prejudice.”