NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEYSERS DEVELOPMENT No. 18-16654

PARTNERSHIP,

D.C. No. 3:17-cv-06834-WHO Plaintiff-Appellee,

v. MEMORANDUM*

GEYSERS POWER COMPANY, LLC,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding

Argued and Submitted February 11, 2020 San Francisco, California

Before: RAWLINSON and CALLAHAN, Circuit Judges, and BOLTON,** District Judge.

This case concerns a lease entitling Geysers Power Company, LLC to

extract steam from and produce geothermal power on Geysers Development

Partnership’s (GDP) land in exchange for royalties. GDP sued for declarations that

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. the lease (1) allows it to grant transmission-line easements to other companies

producing geothermal power in the area and (2) does not allow Geysers Power to

grant such easements. The district court granted summary judgment in GDP’s

favor. We have jurisdiction under 28 U.S.C. § 1291 and affirm.1

California courts treat geothermal resources as minerals, Phillips Petroleum

Co. v. Cty. of Lake, 18 Cal. Rptr. 2d 765, 767-68 (Cal. Ct. App. 1993), and mineral

leases as contracts, San Mateo Cmty. Coll. Dist. v. Half Moon Bay Ltd. P’ship, 76

Cal. Rptr. 2d 287, 291 (Cal. Ct. App. 1998). We therefore construe this lease like

any other contract, giving effect to the parties’ intent, as derived in the first

instance from the instrument’s language. Cal. Civ. Code §§ 1636, 1639. That

said, mineral leases are somewhat unique in that we interpret them “liberally in

favor of the lessor and strictly against the lessee.” San Mateo Cmty. Coll. Dist., 76

Cal. Rptr. 2d at 291 (citation omitted).

Geysers Power reads the lease as broadly granting it the exclusive use of the

surface for any purpose related to geothermal power, even when that power is

produced by a third party on neighboring land. The lease does not support this

reading. It gives Geysers Power the more limited right to extract steam and steam

by-products from GDP’s property. See Phillips Petroleum, 18 Cal. Rptr. 2d at 768

1 Because the parties are familiar with the facts of this case, we do not discuss them at length here.

2 (describing the interests of a mineral lessee). Geysers Power’s other, incidental

rights are limited to activities necessary for carrying out this purpose. For

example, the lease cabins Geysers Power’s right to build transmission lines to

those that “Lessee may desire . . . in carrying on its business and operations on or

from said land” or with respect to power “developed thereon.”

Geysers Power points out that the lease also allows it to erect plants and

equipment “for the conversion of steam to electric power and for extraction of by-

products from steam produced from said land and/or premises in the vicinity of

said land.” But, like the district court, we read this sole reference to nearby

“premises” as more logically applying only to steam by-products. It fails to

contravene the “well established principle” that a mineral lease “does not carry

with it the right to use the surface in aid of mining or drilling on other lands.”

Russell v. Tex. Co., 238 F.2d 636, 642 (9th Cir. 1956) (citations omitted). The

lease, then, does not give Geysers Power rights over transmission lines for power

produced off-site.

Nor does the lease deprive GDP of these rights. GDP specifically reserved

for itself commercial uses of the land, and transmission lines fall within dictionary

definitions of “commercial.” See, e.g., Commercial Use, Black’s Law Dictionary

(11th ed. 2019) (“A use that is connected with or furthers an ongoing profit-

making activity.”). To be sure, the lease bars GDP from unreasonably interfering

3 with Geysers Power’s rights and operations, but the contemplated transmission

lines would not themselves cause such interference.

Furthermore, the parties’ extrinsic evidence of past easements shows, at

most, an inconclusive course of dealing. The district court therefore rightly relied

solely on the lease in its ruling. See Brobeck, Phleger & Harrison v. Telex Corp.,

602 F.2d 866, 871-72 (9th Cir. 1979). And although Geysers Power contends that

allowing competitors to build transmission lines over the land would violate the

implied covenant of good faith and fair dealing, it waived the argument by failing

to assert it in its opening brief. Accordingly, we conclude that the lease

unambiguously supports GDP’s position.2

AFFIRMED.

2 Geysers Power did not expressly argue below that the lease is ambiguous. We nonetheless entertain the argument because it is strictly legal and GDP will suffer no prejudice. See Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir. 2006).

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