In these consolidated appeals, we review an order of the district court dated February 25, 1994, granting a motion to dismiss filed by Samson Resources Company, an Oklahoma corporation, et al. (Samson or appel-lees), against Brumark Corporation, et al., (appellants), and an order of the district court dated March 29, 1994, denying appellants’ motion for reconsideration or alternative relief.
Facts
Appellants owned oil and gas leasehold interests in Section 8-T12N-R26W, Roger Mills County, Oklahoma. In the early 1980’s, a well, designated as Davis # 1-8, was drilled in Section 8, completed as a commercial natural gas producer operated by Samson. After Davis # 1-8 was completed, Dyeo Petroleum Corporation (Dyco) completed a well designated as Davis # 1-7 in adjoining Section 7. Samson subsequently acquired Dyeo’s leasehold interest in Sections 7 and 8.
On March 18, 1986, the Oklahoma Corporation Commission (OCC) issued Order No. 294864 (the order), classifying eight sections of land in Roger Mills County, including Sections 7 and 8, as a special allocated pool.
In 1988, a second gas well, Tucker # 2-8, was drilled and completed in Section 8 by Steinberg Associates, Ltd.
In April, 1993, Brumark, on behalf of itself, Steinberg Associates, Ltd., and others, requested that Samson curtail production at the Davis # 1-7 well immediately, to prevent it from taking an undue proportion from thе. common pool through drainage of Section 8. When Samson refused, appellants filed this suit, alleging that Samson had violated duties imposed by the OCC order. Appellants sought damages for conversion.
Appellants’ Amended Complaint alleged that: appellees were depriving them of their fair share of gas, and hence were engaging in conversion; appellees had manipulated the allowable procedures under the OCC’s order and had misrepresented the production of the Davis # 1-7 well; appellees had breached their duty not to take an undue proportion of oil and gas from the common supply; and appellees were in breach of their fiduciary duty to appellants as common owners of the oil and gas interests in the common supply. Appellants did not challenge the validity of the order or allege that Samson was producing more than the monthly production levels set by the OCC under the order.
Appellees moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6), contending that since appellants’ action required them [appellants] to establish appellees’ liability under the order, and since establishing such liability required a determination of the order, the matter was within the exclusive province of the OCC; thus, the district court should defer to the OCC as the proper forum to settle the dispute.
On February 25, 1994, the district court entered an order granting appellees’ motion to dismiss, finding/concluding, inter alia: ultimately, appellants’ cause of action is designed to enforce the order; no breach of duty or obligations alleged by appellants flows from a рrivate agreement independent of the order; the underlying theory of appellants’ claims is that the order is no longer an effective instrument to allocate the relative rights of the parties; central to this inquiry
Appellants moved for reconsideratiоn or alternative relief. On March 29, 1994, the district court entered an order denying appellants’ motion, finding/concluding, inter alia: a motion for reconsideration is an extreme remedy to be granted in rare circumstances; the decision to grant reconsideration is committed to the sound discretion of the district court; in exercising that discretion, courts consider whether there has been an intervening change in the law, new evidence, or the need to correct clear error or to prevent manifest injustice; none of thesе three factors has occurred or is present; and appellants have failed to present any rationale for reconsideration save their disagreement with the court’s conclusion.
The district court also rejected appellants’ request that it stay the proceedings to toll the relevant statute of limitations, concluding that there were no proceedings then presently before the court and that the appellants had not presented any compelling reasons as to why the court should tоll the statute of limitations on their claims.
Issues on Appeal
Appellants contend in No. 94-6113 that: (1)the district court has subject matter jurisdiction to entertain appellants’ action for money damages predicated on the violation of duties owed by appellees; (2) the district court is not precluded by state law from adjudicating the issue of a violation of the OCC’s order; assuming that the district court was correct in deferring to the OCC on the question of violation of the order, the court should have stayed or suspended appellants’ case pending resolution by the OCC, rather than dismissing the case for lack of jurisdiction; and (3) the district court erred in finding that it lacked jurisdiction to hear a claim for conversion.
Appellants contend in No. 94-6174 that the district court erred in denying their motion for reconsideration or alternative relief.
We review the district court’s order of dismissal for lack of subject matter jurisdiction or failure to state a claim upon which relief can be granted de novo. Maddick v. United States,
Disposition No. 91-6113
I.
Appellants contend that the district court has subject matter jurisdiction to entertain their action for monetary damages predicated upon appellees’ violation of duties appellees owed to them.
Appellants argue that since the OCC has already adjudicated the correlative rights of the parties under the order, they may proceed with their tort action against appellees in the district court. Appellants argue that they are not seeking relief which impinges on the exclusive authority of the OCC, but rather they seek to enforce rights private in nature arising from the appellees’ brеach of “the duties owed to owners of oil and gas interests in a common source of supply of gas regulated by the Commission.” (Brief for Appellants at 6).
Oklahoma’s Oil and Gas Conservation Act, 52 Okla.Stat.Ann. § 81, et seq., was established to prevent waste and to protect correlative rights. Atlantic Richfield Co. v. Tomlinson,
The term ‘correlative rights’ has been defined as a convenient method of ‘indicating that each owner of land in a common source of supply of oil and gas has legal privileges as against other owners of land therein to take oil аnd gas therefrom by lawful operations conducted on his own land, limited, however, by duties to other land owners not to injure the source of*945 supply and by duties not to take an undue proportion of the oil and gas.’ Summers Oil and Gas, Yol. 1, See. 63.
“The term correlative rights refers to all the rights and duties which exist between mineral owners with regard to a common source of hydrocarbon supply.” Pelican Production Corp. v. Wishbone Oil & Gas, Inc.,
The OCC “has the sole authority to adjust the equities and to protect the correlative rights of interested parties.” Woods Petroleum Corp. v. Sledge,
Under this statute the Commission properly exercises its power to protect correlative rights by the establishment of spacing units and the setting of allowable production. This allows protection of the public interest in orderly development and production of resources and the prevention of the drilling of unnecessary wells. The setting of allowables on production insures that no one party or parties takе an undue proportion of the oil and gas.
In Nilsen v. Ports of Call Oil Co.,
where the parties, such as here, are conducting operations under a Commission imposed pooling order, and the question sought to be litigated arises from the construction of that pooling order, the proper forum to decide the question of construction is the Corporation Commission.
In Leck v. Continental Oil Co.,
Clearly, the correlative rights of all mineral rights owners in the common source of supply for the subject unit fall within the parameters of public rights when a unitization order, pooling order, or order setting the allowables on the unit’s well were concerned. Thus, when the appellants applied for an order to restrict the allowable on the Wosika # 1 well “in order to protect the correlative rights of all parties to the common source of supply,” they properly brought the application before the commission.
However, when a dispute arises between a lessor and a lessee regarding the lessee’s breach of an implied covenant, the rights involved enter the realm of the private world and are disputes for the district court to resolve because they involve issues concerning the construction of a private contract between the parties.3 Therefore, the appellants’ action for damages for the lessee’s alleged breach of an implied covenant to protect from drainage is a private action arising from their contract and does not involve the correlative rights of the “public.”
The OCC’s right to regulate the production of oil and gas pursuant to 52 OMa. Stat.Ann. § 87.1, which permits the OCC to require separate owners of tracts or interests to pool and develop their lands in spacing units, is limited to situations where the common rights to drill within an existing spacing unit and separate or undivided ownership exists. Helmerich & Payne, Inc. v. Corporation Commission,
There is no “bright line” applicable in the determination of the jurisdictional issue presented here under Oklahoma law. In Slawson v. Mack Oil Co.,
In GHK Exploration Co. v. Tenneco Oil Co.,
... the Commission has jurisdiction to interpret, clarify, amend and supplement its orders and to resolve any challenges to the “public issue of conservation of oil and gas.” ... The courts, on the other hand, have jurisdiction to enforce the Commission’s orders and to resolve the “private rights” of the parties that are usually created by private operating аgreement under a forced pooling order.
On rehearing in GHK Exploration Co. v. Tenneco Oil Co.,
In Leede Oil & Gas v. Corporation Com’n,
It is equally clear that, once the parties have reached subsequent agreement among themselves regarding the rights and obligations due each from and to the others in the development of a unit well, the agreement between the parties concerning their rights is enforceable in the district court.
Id. at 297.
In Samson Resources v. Okl. Corp. Com’n,
In Tenneco, as in the case at bar, the issue before this Court was the proper forum for deciding whether onе of the parties had properly elected to participate in the drilling of a well. But unlike the case before us, the parties in Tenneco had entered into a private operating agreement which had to be construed in order to determine whether the election was valid. This court found that the dispute involved the private rights of the parties, and that “no attempt*947 [was] made by any party ... to change or challenge the public issue of conservation of oil and gas,” and therefore the proper forum was the distriсt court. Tenneco,687 P.2d at 1054-1055 .
Samson,
Applying these standards, we hold that the district court did not err in granting appel-lees’ motion to dismiss.
Significantly, appellants have conceded that: “[i]t would be beyond the authority of a district court to either attempt to enter such an order [to protect correlative rights] or to attack the Commission’s power to have done so,” (Brief for Appellants at 9); “[t]he district court is not possessed of the government’s power to determine how to protect correlative rights. In Oklahoma, that governmental function is vеsted in the Commission,” id.; and “[t]he commission is the appropriate forum to adjudicate equities of oil and gas owners and to protect their correlative rights.... Admittedly, such an adjudication took place through the entry of Order No. 294864.” Id. at 10.
The questions sought to be litigated here clearly involved the correlative rights of the parties. As set forth, supra, appellants alleged that: appellees were depriving them of their fair share of gas, and hence were engaging in conversion; appellees had manipulated the allowable procedures under the OCC’s order and had misrepresented the production of the Davis # 1-7 well; appellees had breached their duty not to take an undue proportion of gas from the common supply; and appellees were in breach of their fiduciary duty to appellants as common owners of the oü and gas interests in the common supply. Each of these contentions deals with the compliance and/or construction, adjustment or modification of the OCC’s order.
At no time have appеllants alleged that their grievances arose from a private agreement with appellees. The disputes here relate to correlative rights subject to the jurisdiction of the OCC. See Woods Petroleum Corp.,
Here, the questions sought to be litigated arose from the construction of OCC Order No. 294864. Thus, “the proper forum to decide the question of construction is the Corporation Commission.” Nilsen,
II.
Appellants argue that the district court was not precluded by state law from adjudicating the issue of a violation of an order of the OCC. Appellants further argue that, assuming the district court was correct in deferring to the OCC on the question of the violation of the order, the correct action in response thereto would have been to stay or suspend the action pending the OCC’s resolution of the question rather than dismissal for lack of jurisdiction. This contention was advanced by appellants in then-motion for reсonsideration or alternative relief.
We review under an abuse of discretion standard the district court’s decision whether to apply primary jurisdiction and
No abuse of discretion occurred here. The motion for reconsideration or alternative relief was untimely filed. See, infra, No. 94-6174, I.
III.
Appellants contend that the district court erred in its determination that it lacked jurisdiction to hear a claim for conversion.
Conversion is defined in Oklahoma as any act of dominion wrongfully exercised over personalty of another which is incоnsistent with that party’s rights therein. ITT Indus. Credit Co. v. L-P Gas Equipment, Inc.,
No. 9b-6m
On February 25, 1994, the district court entered its order granting appellees’ motion to dismiss appellants’ amended complaint. On March 9, 1994, 13 days later, appellants filed/served a motion for reconsideration or alternative relief. On March 25,1995, appellants filed a notice of appeal from the district court’s order of February 25, 1994. We designated that appeal No. 94-6113. Under Fed.R.App.P. 4(a)(4), (effective Dec. 1, 1993), that appeal would have been abated pending disposition of the motion for reconsideration, or alternative relief, if timely filed ( ... the time for appeal for all parties shall run from the entry of the order denying a new trial or granting оr denying any other such motion).
On March 29, 1994, the district court entered an order denying appellants’ motion for reconsideration or alternative relief. On April 29, 1994, 31 days later, appellants filed an amended notice of appeal from the district court’s order of February 25, 1994, and the district court’s order of March 29, 1994. We treated appellants’ amended appeal as a separate appeal and designated it No. 94-6174.
On July 27, 1994, we issued a show cause order notifying counsel that we were considering summary dismissal of No. 94-6174 fоr lack of jurisdiction. We directed the parties to file simultaneous memorandum briefs addressing:
Whether this court has jurisdiction to review the March 29, 1994 order of the district court denying the plaintiffs’ motion for reconsideration where the notice of appeal was filed 31 days after the entry of the order? See Fed.R.App. 4(a).
Within their memorandum brief, appellants argue that we have jurisdiction to review the district court’s order of March 29, 1994, based on the excusable neglect of counsel, a mathematical error in computation of time. Within their memоrandum brief, ap-pellees argue that an appeal must be filed within 30 days under Rule 4(a)(4) and that appellants’ appeal was untimely because it was filed 31 days after the district court’s order of March 29, 1994. Thereafter, we entered an order in which we reserved judgment on the jurisdictional issue raised in our show cause order and consolidated appeals Nos. 94-6113 and 94-6174 for disposition on the merits.
I.
Appellants contend that the district court erred in denying their motion for reconsideration and/or for alternative relief.
Apрellants do not challenge the district court’s findings that they failed to meet any of the three requirements for granting reconsideration, i.e., an intervening change in the controlling law, the availability of new evidence, or the need to correct clear error or prevent manifest injustice. Rather, appellants simply argue that the district court erred in denying their motion because: “the act of the District Court in dismissing [their] complaint can result in adverse consequences relating to statutes of limitations and issue preclusion doctrines. Clearly, such drastic
Appellees respond that “[t]he denial of the motion to reconsider is not properly before the Court because Brumark’s [appellants’] appeal was untimely.” (Appellees’ Brief at 2). We agree.
Under Fed.R.App.P. 4(a)(1), an appeal in a civil ease “must be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from.” The “taking of an appeal within the prescribed time is mandatory and jurisdictional.” Budinich v. Becton Dickinson & Co.,
Federal Rules of Appellate Procedure 26(b) prohibits this court from enlarging the time for filing a notice of appeal. Savage v. Cache Valley Dairy Ass’n,
Inasmuch as appellants did not file their notice of appeal until April 29, 1994, 31 days after the district court’s order of March 29, 1994, we are without jurisdiction over this appeal. Collard v. United States,
II.
Although not raised by the parties, we also beliеve that we are without jurisdiction to consider this appeal inasmuch as appellants’ motion for reconsideration and/or for alternative relief was not timely filed.
Federal Rules of Civil Procedure 59(e) provides that “[a] motion for a new trial shall be served not later than 10 days after the entry of judgment.” In Hilst v. Bowen,
As set forth, swpra, the district court entered its order granting appellees’ motion to dismiss on February 25, 1994. Thirteen days, later on March 9, 1994, appellants filed their motion for reconsideration and/or alternative relief. This motion was not filed within the ten-day limit prescribed by Rule 59(e). Assuming that the motion was not served prior to the date of its filing, the district court lacked jurisdiction to entertain it. See Brock v. Citizens Bank of Clovis,
We deny appellants’ post-judgment “Motion for Certification of Questions of State Law to Highest State Court and Stay Pending State Court’s Decision.”
AFFIRMED.
Notes
. The OCC's order of March 18, 1986, created a "Special Allocated Pool" entered pursuant to 52 Okla.Stat.Ann. § 87.1(e) in order "... to avoid the drilling of unnecessary wells (waste), or to protect correlative rights.” The order created field rules for drilling and produсtion within the pool covering the Morrow common source of supply of gas in relation to drilling and spacing units of 640 acres each, previously created by the OCC.
. On appeal, appellants contend that the matters alleged in their Amended Complaint involve a "private rights” dispute exclusively reserved for the courts, based upon a tort, i.e., breach of the duty imposed by the oil and gas conservation laws of Oklahoma, as implemented through the OCC field rules.
. Samson Resources v. Corporation Commission and TXO Production Corp.,
. During oral argument counsel for appellants stated that the Davis # 1-7 well was ordered shut in but that appellees refused to do so. Counsel also stated that Commission relief was not available to appellants because "this is a depletion reservoir. The reservoir was depleted to the point where when we found out, there was no effective relief at the Commission we could seek.” Counsel later stated that his statement that the well had been shut in was incorrect.
Counsel for appellees denied that the well had been shut in and that the field had been depleted. Nothing in the record indicates that the well was ordered shut in or that the field was depleted.