Appeal from the United States District Court for the District of Idaho. D.C. No. CV-91-34-EJL. Edward J. Lodge, District Judge, Presiding
Before: Wright, Beezer, Hall, Circuit Judges.
Plaintiff Conda Partnership appeals from the district court's order granting summary Judgement in favor of Defendant-Appellants Archer Investments Company et al., ruling that Archer was entitled to receive royalties on minerals mined from "fringe acreage" added to the Archer leasehold by Conda after Archer assigned the leasehold to Conda. Archer appeals from the district court's order denying Conda's motion for a stay of execution pending appeal, which order clarified that the district court's summary judgment ruling was the final order disposing of Archer's counterclaims. Both parties dispute jurisdiction.
Archer argues that there is no appellate jurisdiction over Conda's appeal from the October 11 Order granting Archer's motion for summary judgment while denying Conda's motion for the same. The basis for Archer's claim is that the October 11 Order was a final judgment only as to some of the claims that were before the court. We have jurisdiction over Conda's appeal regardless of whether the October 11 Order is a final appealable order.
If the order did dispose of all claims, notice of appeal was timely because it was filed within thirty days of the entry of judgment on October 15. F.R.A.P 4(a)(1). If the order did not dispose of all claims, notice of appeal was premature as there was not an appealable final judgment. See Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1402 (9th Cir. 1988). Under F.R.A.P 4(a)(2), however, a premature notice of appeal from an otherwise final decision ripens into an effective notice of appeal upon entry of a final judgment. See FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 274 (1991). The subsequent unequivocal dismissal of any remaining counterclaims by the March 6 Order validates Conda's notice of appeal if it was premature. Therefore, Conda's appeal is timely either way.
Conda argues that Archer's appeal of the district court's March 6th Order is not entitled to relief on appeal as Archer argued for alternative remedies and thus was not aggrieved by the order.*fn1 We find this argument persuasive.
It is clear that no Disposition was ever made of the argument in Archer's Amended Counterclaim that obtaining the Modified Lease in Conda's name was a present breach entitling Archer to cancellation. However, we find that Archer pled the counterclaim for cancellation as an alternative theory and thus was not aggrieved by its effective dismissal. This finding is supported by Archer's wording of paragraph 11 of the amended counterclaim, the manner in which it described its position in the accompanying memorandum in support, and its position to the district court at oral argument.
Conda argues that the district court erred in finding that, under the assignment agreement, Archer's royalty interest extends to phosphate mined from the "fringe acreage". We disagree and therefore affirm the district court's interpretation.
Archer acquired Phosphate Lease No. I-012989 from the federal government. The lease was assigned by Archer to Conda's predecessor, Mountain Fuel Supply Co., pursuant to an agreement dated December 14, 1962. The assignment reserves to Archer an overriding royalty of ". . . 15 cents per ton of phosphate or phosphate rock minded and removed from the leased premises." The lease, which is part of the parties' contract, contains an express provision incorporating federal regulations. These regulations, under which additional lands were made subject to the lease, appear to create a preference to lease fringe acreage. See 43 C.F.R. § 3516.2 (1992).
Archer maintained the status of holder of an existing federal lease on mineral lands contiguous to fringe acreage. This status was assigned to Conda, who used it to obtain fringe acreage leases noncompetitively. Conda applied for and was granted a modification of the lease by virtue of its status as holder of the Lease. Thus, we find that the fringe acreage arose under the lease, is subject to the lease, and as such is within the "leased premises".*fn2 The district court was ...