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BAILEY v. SHELL WESTERN E&P, INC.

No. 08-20313.

609 F.3d 710 (2010)

Gerald O. BAILEY, for himself and on behalf of United States of America, State of Colorado, and Montezuma County, Board of Commissioners; Montezuma County Colorado; United States of America; State of Colorado, Plaintiffs-Appellants, v. SHELL WESTERN E&P, INC., now known as SWEPI LP, doing business as Shell Western E&P, Kinder Morgan CO2 Company, LP, formerly known as Shell CO2 Company Ltd.; Shell Oil Company, Defendants-Appellees. United States of America; State of Colorado; Gerald O. Bailey; Harry Ptasynski, Plaintiff-Appellants, v. Kinder Morgan CO2 Company, LP, A Texas Limited Partnership; Richard Timothy Bradley, Defendants-Appellees. Harry Ptasynski, Plaintiff-Appellant, v. Kinder Morgan GP, Inc., Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

June 16, 2010.

Attorney(s) appearing for the Case

Robert Bryan Perry, Plano, TX, Jennifer Heather Davidow, Vinson & Elkins, L.L.P., Houston, TX, for Plaintiff-Appellants.

Phillip Bruce Dye, Jr., Vinson & Elkins, L.L.P., Andrew McCollam, III, McCollam Law Firm, Houston, TX, for Shell Western Epinc., Kinder Morgan GP, Inc., Kinder Morgan CO2 Co., LP, Shell Oil Co., Bradley.

Peter M. Kelly, Moore & Kelly, PC, Houston, TX, for Ptasynski.

Before JONES, Chief Judge, and GARZA and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

In 1998, Shell Western E&P Inc. ("Shell") sued Gerald Bailey in Texas state court for a declaration regarding the proper calculation method for royalties on carbon dioxide ("CO2") in the McElmo Dome. Bailey counterclaimed. In 2005, the case was removed to federal court in the Southern District of Texas. The District of Colorado then transferred a similar action, Ptasynski v. Kinder Morgan G.P., Inc.,

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