from the United States Court of Federal Claims in No.
1:15-cv-00336-SGB, Judge Susan G. Braden.
Bernard Bush, David B. Bush, LLC, Wheat Ridge, CO, argued for
Burbank, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, argued for
defendant-appellee. Also represented by Allison Kidd-Miller,
Benjamin C. Mizer, Robert E. Kirschman, Jr.
Prost, Chief Judge, Taranto, and Hughes, Circuit Judges.
Taranto, Circuit Judge.
Mountain Helium, LLC sued the United States in the United
States Court of Federal Claims, asserting breach of two
contracts concerning Rocky Mountain's potential
extraction of helium from beneath federal lands-the 1994
Helium Contract and the 2008 Settlement Agreement (the latter
resolving a dispute centered on the former). The Court of
Federal Claims found lack of jurisdiction over both claims
and, in the alternative, dismissed the Helium Contract claim
on the merits. We partly reverse the jurisdictional dismissal
of the Helium Contract claim but affirm the merits dismissal
of that claim. We reverse the jurisdictional dismissal of the
Settlement Agreement claim and remand for further proceedings
on that claim.
1994, Rocky Mountain and the United States Bureau of Land
Management entered into the Helium Contract, under which the
Bureau gave Rocky Mountain the right, for up to 25 years, to
extract helium gas from roughly 21, 000 acres of federal
lands in Colorado and Utah. The Helium Contract (Federal
Helium Contract FLL 94-001) stipulated that Rocky Mountain
annually pay to the United States either rent of one dollar
per acre (i.e., roughly $21, 000) or royalties based
on the helium that Rocky Mountain extracted, whichever was
greater. The Helium Contract also gave Rocky Mountain certain
preferential rights to enter into a new agreement with the
Bureau if the Bureau terminated the Helium Contract. If,
within a year of such termination, the United States
"elects to enter into an agreement [with another
company] for the sale, extraction or other disposition of
helium" that would be covered by the Helium Contract but
for the termination, Rocky Mountain would have the right to
step in and take that deal instead of the other company. J.A.
Mountain never extracted helium from the property-which Rocky
Mountain alleges was the result of inadequate cooperation
from other firms whose oil and gas mining releases helium for
collection. For one year, Rocky Mountain paid the rent due to
the Bureau, then it stopped paying. J.A. 82 ("In nearly
15 years, [Rocky Mountain] has made no payment on its
contract . . . ."). In December 2004, the Bureau
informed Rocky Mountain that it had cancelled the Helium
Contract due to nonpayment. Rocky Mountain filed an
administrative appeal with the Civilian Board of Contracts
Appeals (CBCA). On August 29, 2008, before a CBCA decision,
the parties entered into a Settlement Agreement.
the Settlement Agreement, within specified periods the Bureau
had to direct certain oil and gas lessees of federal land to
furnish the Bureau with specified information ("the
Data") about gas composition on the federal lands
covered by the Helium Contract, and the Bureau then had to
provide "the Data" to Rocky Mountain. J.A. 70-71.
Within 90 days of receiving "the Data, " Rocky
Mountain had to pay $116, 579.90 (representing back rent) to
the Bureau. J.A. 70. After those events occurred, the 1994
Helium Contract would be reinstated. Additional provisions
specified certain interactions between the Bureau, Rocky
Mountain, and the oil and gas lessees to produce cooperation
leading to actual helium collection.
Settlement Agreement addresses what would happen if Rocky
Mountain failed to make the $116, 579.90 payment in the
specified time after receiving the contract-specified Data.
That failure, the Agreement says, "shall trigger" a
"Sunset Provision." J.A. 70. The Sunset Provision,
item III.1 of the Agreement, specifies the consequences of
[Rocky Mountain] agrees to completely and forever release any
and all claims, rights, and/or interest in or arising from
Federal Helium Contract FLL 94-001, in their entirety and
expressly including any preferential rights detailed therein,
and any and all claims against [the Bureau], the Department
of the Interior and the United States, relating to Federal
Helium Contract FLL 94-001. Furthermore [Rocky Mountain]
agrees that upon triggering of the Sunset Provision, [the
Bureau] may contract with third parties for Helium recovery
on the lands covered by Federal Helium Contract FLL 94-001.
the Settlement Agreement contains a disputes clause, which
states: "The parties agree that, except in the event of
a triggering of the Sunset Provision described at item III(1)
herein, disputes or disagreements arising from operation of
this Agreement will be submitted to the Honorable Judge Allan
Goodman at the CBCA for ADR [Alternative Dispute Resolution]
pursuant to CBCA rule 54." J.A.73. It is undisputed that
the cited rule 54 generally provides for CBCA participation
in dispute-resolution efforts, which are to be voluntary
unless the parties jointly agree to be bound, and that the
Settlement Agreement's disputes clause required only
voluntary efforts before Judge Goodman, not submission of a
dispute for a binding decision.
the Settlement Agreement, the Bureau sought information from
oil and gas lessees and provided Rocky Mountain with
information on December 5, 2008. Rocky Mountain objected that
the information was incomplete, i.e., was not
"the Data" required by the Agreement. Thus, Rocky
Mountain refused ...