Full opinion text
ORDER ON MOTIONS FOR SUMMARY JUDGMENT BRIMMER, District Judge. The above-entitled matter having come before the Court upon the parties’ motions for summary judgment and briefs in support of and in opposition thereto, and the Court having reviewed the materials on file herein, having heard argument from the parties, and being fully advised in the premises, FINDS and ORDERS as follows: Background This ease arises out of a dispute regarding the terms of a contract between the plaintiffs father, W.A. Moncrief, and the defendants, Williston Basin Interstate Pipeline Company (WBIPC) and Montana Dakota Utilities Resources Group (MDU), in which the defendants agreed to purchase natural gas from the Powell II Unit, an operating unit in Converse County, Wyoming. On July 7, 1976, MDU signed separate contracts with Woods Petroleum Company (Woods) and W.A. Moncrief, who had a working interest in the unit, and several other interest owners, to purchase gas produced from the Powell II Unit. Under the contract with Moncrief, MDU agreed to purchase from Moncrief “the daily quantity of gas which is physically available to Buyer at the delivery point on each day of the term hereof’ for a term of 20 years, until July of 1996. MDU wanted all the gas that Moncrief and Woods produced, but the contract capped MDU’s obligation to purchase from Powell II Unit at 12,000 Mcf (million cubic feet) per day, which was the capacity of the separation plant and pipeline from the unit. MDU did have the right to take volumes in excess of 12,000 Mcf daily by constructing facilities necessary to accept such volumes. The contract set a base price of $1.00 per MMBTU (million British Thermal Units) from the date of initial delivery until January 1, 1978. The price provision set escalations of 1.5 cents per MMBTU every year beginning January 1, 1978. In addition, the price provision of the contract contained three indefinite escalator clauses: (1) an area-rate clause providing that the contract price would automatically increase to a “higher just and reasonable area rate including all adjustments for the same type of gas as committed hereunder” prescribed or permitted for the pricing area in which the properties are located by the Federal Power Commission or a successor; (2) a favored-nations clause covering lands located East of the Continental Divide in Wyoming; and (3) a clause providing for a price redetermination in the event that deregulation of interstate gas should occur. This final clause prohibited any redetermination resulting in a price lower than the price otherwise applicable under the contract. During the term of the contract, the parties amended it to include additional lands outside the Powell II Unit upon which Woods and W.A. Moncrief had production. In 1983, the owners of the Powell II Unit started a repressurization program for secondary recovery of oil and natural gas from the unit. The reinjection plan called for a 14 year period of recycling followed by six or seven years of “blow down” production of the injected gas. All of the natural gas produced from the unit was processed to remove liquid hydrocarbons and then injected or “recycled” back into the unit to maintain the reservoir pressure. In addition to this recycled native gas, the unit owners were encouraged by MDU to purchase natural gas rather than nitrogen (which was less costly) from outside sources (“makeup gas”) because the nitrogen would have to be removed by processing upon production. All the natural gas from the unit was used for recycling and no gas was delivered to MDU during that time. Defendant MDU did, however, continue to purchase gas produced from Moncrief and others from lands located outside the pressure maintenance unit dedicated in the contract. The enactment of the Natural Gas Policy Act (NGPA) on November 9, 1978, for the first time extended price regulations to the intrastate market. The Powell II Unit gas sold under the contract was classified as § 105 gas by the Federal Energy Regulatory Commission (FERC). Section 105 gas is “old gas” which was sold under an existing contract on November 8,1978, but which was not committed or dedicated to interstate commerce. The Act established a maximum lawful price for § 105 gas which was the lower of the contract price or the maximum price for § 102 gas, new natural gas. Pursuant to the area rate clause of the Moncrief contract, MDU paid the § 102 price for gas delivered under the contract until January 1, 1985. The highest regulated price that MDU matched under the contract was the § 102 rate for December 1984 of $3,845. Additionally, MDU reimbursed Moncrief for severance taxes under Section 110 of the NGPA. Effective January 1,1985, some categories of §§ 102 and 103 gas prices were deregulated. The parties, however, dispute whether the deregulation covered the price of § 105 gas. Anticipating this deregulation, MDU sent a letter to its natural gas sellers, including W.A. Moncrief, proposing a price of $2.25 per MMBTU effective January 1, 1985. This proposed price was less than the previous regulated price. At about the same time, MDU formed a subsidiary, the Williston Basin Interstate Pipeline Company (WBIPC), and assigned its gas contracts to WBIPC, effective January 1, 1985. Williston Basin Interstate Pipeline Company offered to pay an additional fifty cents per MMBTU for gas produced in 1985, if the seller agreed to execute a contract amendment releasing MDU and WBIPC from any past claims under the contract, which Moncrief never did. Representatives from MDU and WBIPC met with W.A. Moncrief and W.A. Moncrief, Jr. (“Tex” Moncrief) in August of 1984 and February 28, 1985, to discuss these proposals. There is some dispute as to the outcome of those discussions: Ronald Tipton, the new vice-president in charge of gas supply at MDU, recalls that the Moncriefs would not agree to amend their contract, but he concluded that they would not sue WBIPC even if it reduced the price to $2.25 per MMBtu for the gas. Tex Moncrief does not recall the substance of these discussions, but notes taken by one of his employees indicate that Tex Moncrief never signed the amendment and' that he did orally agree to the $2.25 per MMBTU price. Williston Basin Interstate Pipeline Company paid Woods the $2.25 per MMBTU price for what it understood was Moncriefs interest in the gas purchased under the contract during 1985 and 1986 and those payments were cashed by Moncrief. W.A. Moncrief died on May 21,1986, at the age of 92, and Tex Moncrief became one of the co-executors of his father’s estate. He has since qualified as an independent executor in an ancillary probate proceeding commenced in Wyoming, since the working interests in the Powell II Unit are interests in rem and the Wyoming probate court therefore has exclusive jurisdiction thereof. See In re Ray’s Estate, 287 P.2d 629, 634 (Wyo. 1955) (adopting doctrine of lex loci rei sitae, the law of the place where the subject matter is located governs) and Wyo.Stat. Section 2-2-101 (Wyoming probate courts issuing letters testamentary have exclusive jurisdiction over all matters touching on the settlement and distribution of estates). On October 3, 1986, WBIPC notified Tex Moncrief of its intent to reduce the price it paid for natural gas effective January 1, 1987, and Williston Basin Interstate Pipeline Company subsequently paid Woods $1.75 per MMBTU for W.A. Moncriefs gas from January 1, 1987, through October 31, 1993. Those payments were made to Woods, as Moncriefs agent, accompanied by statements reflecting the purchase price for the gas. Woods then provided monthly settlement statements and checks to Moncrief which reflected the amounts received for the gas. These payments were accepted without reservation or objection. Moncrief admits that he became aware of the price being paid by WBIPC for at least a part of this period and has never tendered repayment of any of the checks. In 1993, Monerief and the Powell II Unit owners decided to discontinue production and begin blow-down of the unit. On August 9, 1993, Tex Monerief notified WBIPC that the gas produced during blow-down was dedicated and available for purchase under Moncrief s contract with WBIPC. In this letter, Monerief also stated for the first time his position that the governing contract price is the December, 1984, § 102 price of $3,845 per MMBtu plus tax reimbursement. Plaintiff Tex Monerief filed suit in this Court on November 10,1993, as the independent executor of W.A. Moncriefs estate. His co-executors and the grandchildren (and their trusts) of W.A. Monerief, to whom the working interests have been conveyed have since been added to this suit and realigned as plaintiffs. Plaintiffs theories of recovery have been evolving. Moncriefs three different complaints in this action have reflected three different theories of recovery. Moncriefs initial complaint argued that the sellers were owed a higher price based on the Section 7.6 “favored nation” clause of the contract. In this initial complaint, Monerief also asserted that the natural gas sold under the contract was deregulated on January 1, 1985, and that, based on the terms of the contract, the applicable price was the last regulated price of $3,845 per MMBtu plus tax reimbursement. In the plaintiffs First Amended Complaint he abandoned the application of the favored nations clause and concentrated on the last regulated price and his claim that the contract did not allow the contract price to de-^ crease. In the First Amended Complaint, Tex Monerief argued that deregulation of the contract price had occurred on January 1, 1985. Finally, the plaintiffs Second Amended Complaint, currently before the Court, proposes that the gas under the contract remained regulated after all. Monerief now argues that the governing price comes from the Natural Gas Policy Act § 105(b)(3) which sets a ceiling price for “old gas.” According to this contention, the applicable price under the contract is set by 18 C.F.R. 271.101. Plaintiffs Second Amended Complaint also responded to the defendants’ and the Court’s concerns about Tex Moncriefs status as the real party in interest by adding the numerous other members of the Monerief family, and their various trusts. Since all of these added parties are, like Tex Monerief, residents of Texas, diversity of citizenship did not exist; but at the pretrial conference hearing on October 28, 1994, the Court, sua sponte, realigned the new parties as cross-plaintiffs. Cross-Plaintiffs have filed a complaint against Tex Monerief, challenging his interest in his father’s estate and, at the same time, joining and supporting his complaint against the defendants. Both parties have moved for summary judgment on the various issues they dispute. Discussion I. Standard of Review . “By its very terms, [the Rule 56(c) ] standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). An issue of material fact is “genuine” if a “reasonable jury could return a verdict for the nonmoving party.’ 248, 106 S.Ct. at 2510. Id. at The trial court decides which facts are material as a matter of law. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id.; see also, Moya v. United States, 35 F.3d 501 (10th Cir.1994). Summary judgment may be entered “against a party who fails to make a sufficient showing to establish the existence of an element essential to that party’s case, and oh which that party will bear the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Moya, 35 F.3d at 503. The existence of “a scintilla of evidence in support of the plaintiffs position is insufficient to defeat a properly supported motion for summary judgment.” Moya, 35 F.3d at 503. In considering a party’s motion for summary judgment, the court must examine all evidence in the light most favorable to the nonmoving party. Moya, 35 F.3d at 502-503. II. Affirmative Defenses Asserted by the Defendants Before the Court considers the merits of the plaintiffs’ claims it must first address the affirmative defenses asserted by the defendants, for if the defendants have a valid affirmative defense, the merits need not be addressed by the Court. Defendants assert the following affirmative defenses in their Answer to the plaintiffs Second Amended Complaint: (1) Moncriefs claims for a contract price based upon the last regulated price plus production taxes are barred by the statute of limitations; (2) Force majeure based on governmental action; (3) Waiver of claim by Monrief s acceptance of payment; (4) The payments constituted a novation; (5) Estoppel; (6) Defendant has paid more than the contract required; (7) Accord and satisfaction; (8) Tex Monerief is not the real party in interest; and, (9) Moncriefs claims are barred by the doctrine of laches. The Court will discuss each of these affirmative defenses in turn. A. The Statute of Limitations. Defendants argue that Moncriefs claims are barred by the statute of limitations. Contracts for the sale of natural gas are governed by Article 2 of the Uniform Commercial Code (“U.C.C.”). Prenalta Corp. v. Colo. Interstate Gas Co., 944 F.2d 677, 687 (10th Cir.1991). Under Wyoming’s version of the U.C.C., an action for breach of a contract for the sale of goods must be commenced within four years from the time the cause of action accrues. Wyo.Stat. § 34-2-725 (1975 Supp.). Thus, argue the defendants, all claims for damages which accrued prior to December of 1989 are barred by the statute of limitations. Plaintiffs concede that pre-1989 claims are barred by the statute. However, the defendants also maintain that Moncriefs claims for a contract price based upon the last regulated price plus production tax reimbursement are also time-barred because they claim that the contract price was repudiated. Generally, in a case such as this, with a continuing or installment contract, a cause of action accrues, and the statute of limitations begins to run on each occasion that a party fails to render performance in accordance with the terms of the contract. WBIPC contends that when it repudiated the contractual obligation for performance in 1986, it anticipatorily breached the contract, which gave Moncrief an immediate right to sue for that breach. The breach of an installment contract by repudiation does not create separate causes of action for each defaulted portion of the agreement. See, e.g., Holt Drilling, Inc. v. Liberty Mut Ins. Co., 664 F.2d 252, 256 (10th Cir.1981); 18 S. Williston, Law of Contracts § 2026C (3rd ed. 1978), but, in the case of anticipatory repudiation, the statute of limitations begins to run on the date of repudiation. See American Cyanamid Co. v. Mississippi Chem. Co., 817 F.2d 91 (11th Cir.1987); U.C.C. § 2-610. WBIPC argues that it anticipatorily repudiated its contract with Moncrief by its letter of October 3, 1986, stating that it would pay a price based on a current market price for deregulated gas and, as a result, the statute of limitations began to run and has now expired. In addition, the defendants assert that their payments of $1.75/MMBtu commencing in January of 1987 answered any question Moncrief could have had about the repudiation, since to the extent that the contract provided for a price equal to the last regulated price plus production taxes, the price obligation was thereby repudiated. WBIPC argues that Moncrief should have resorted to available U.C.C. remedies at that time. Specifically, defendants contend that Moncrief had the right to withhold further delivery of the gas, resell the gas to a third party and seek damages from WBIPC under Wyo.Stat. § 34r-2-706 (1975 Supp.), or sue under Wyo. Stat. § 34-2-708 (1975 Supp.) to recover the difference between the market price and the contract price for the remaining deliveries under the contract. Defendants argue that because the plaintiffs failed to pursue these remedies within the four-year statute of limitations period, they are barred from seeking damages resulting from the repudiation and are also barred from seeking damages based upon Moncriefs asserted contract price of $3,845 plus taxes. Plaintiffs contend, however, that WBIPC’s conduct did not constitute an anticipatory repudiation. In J.B. Service Court v. Wharton, 632 P.2d 943, 945 (Wyo.1981), the Wyoming Supreme Court considered whether a letter advising that an agreement should be cancelled was an anticipatory breach. The court stated that “[a]n anticipatory breach of contract is one committed before the time has come when there is a present duty of performance, and is the outcome of words or acts evincing an intention to refuse performance in the future.” Id. (citing 17 Am.Jur.2d Contracts § 448 (1964)). The court went on to describe what constitutes an anticipatory breach: [I]n order to predicate a cause of action upon an anticipatory breach, the words or conduct evidencing the breach must be unequivocal and positive in nature. An anticipatory breach of contract is not established by a negative attitude or one which indicates more negotiations are sought or that the party may finally perform .... [T]he refusal to perform must be of the whole contract or of a promise or obligation going to the whole consideration, and it must be distinct, unequivocal, and absolute. A mere request for a change in the terms or a request for cancellation of the contract is not in itself enough to constitute a repudiation. Id. (citations omitted and emphasis added by court). Moreover, both the United States Supreme Court and the Tenth Circuit Court of Appeals have stated that “[a]n offer to perform in accordance with the promisor’s interpretation of the contract although erroneous, if made in good faith, is not such a clear and unequivocal refusal to perform as amounts to a renunciation giving rise to an anticipatory breach.” Kimel v. Missouri State Life Ins. Co., 71 F.2d 921, 923 (10th Cir.1934), cited in Ricketts v. Adamson, 483 U.S. 1, 19, 107 S.Ct. 2680, 2690, 97 L.Ed.2d 1 (1987) (Brennan, J. dissenting). Based upon these well-accepted premises of the law of contracts and sales, this Court must conclude that there has been no anticipatory repudiation in this case for two reasons. First, the defendants’ 1984 and 1986 letters were merely offers to modify the contract’s terms, but were not “clear and unequivocal” refusals to perform. In its June 24, 1984, letter MDU wrote as follows: MDU believes, therefore that the decontrolled gas price on January 1, 1985, should be approximately $2.25 per MCF.... As stated hereinbefore, this suggested decontrolled price will be reviewed with you at a meeting to be scheduled soon. (Emphasis added). Defendants’ Exhibit 8. This language is similar to the language used in the J.B. Service Court ease where one party wrote, “I am writing to you ... to advise you that we should cancel the agency and Memorandum of Agreement.... Please let me hear from you immediately regarding this matter so that we can cancel the agreement.” The court in that case concluded that this language did not constitute an anticipatory repudiation because it only spoke to cancellation of the contract in the future. J.B. Service Court, 632 P.2d at 944-45. In this case, the language of the 1984 letter merely speaks to the future, in less than positive and unequivocal terms. Moreover, the 1984 letter from David Price, a MDU vice-president, addresses modification of the existing contract, not its cancellation. For example the letter states, “MDU is purchasing such gas in accordance with the terms of the natural gas purchase contraet(s) listed on Appendix A attached hereto.” In the next paragraph, Mr. Price writes, “MDU believes, therefore, that the decontrolled gas price on January 1, 1985, should be approximately $2.25 per MCF, delivered, plus taxes.” Defendants’ Exhibit 8. Similarly, the WBIPC letter of October 3, 1986, evidences only an attempt at modification of the contract price for 1987. That letter states: Current market conditions dictate that Williston Basin pay $1.75 per MMBtu for 1987 purchases of deregulated gas.... Should concurrence not be received prior to January 1, 1987, payment for purchases for deregulated gas during 1987 will be made at $1.50/MMBtu including all costs of production_ Should you wish to discuss the 1987 purchase plan, please feel free to contact either Dennis Haider or me. Defendants’ Exhibit 9. Again, this letter constitutes an offer to modify the contract price paid under the contract during the year of 1987 only. MDU does not purport to renounce unequivocally performance under the contract so that the entire contract would be repudiated, but its actions are more consistent with an amendment or modification of the contract. Had a dispute thereafter arisen over some other portion of the contract, the Court is confident that WBIPC would have claimed that it was still in effect. Second, the price actually paid to Monerief might plausibly be considered overpayment of the actual contract price. In other words, the defendants’ conduct might be interpreted as “[a]n offer to perform in accordance with the promisor’s interpretation of the contract.” Kimel, 71 F.2d at 923. Defendants have argued that they paid more than was actually due under their interpretation of the terms of the contract. Defendants maintain that the contract price was the escalated base price of $l/MMBtu with a 1.5 cent/ MMBtu fixed escalation. If this were the case, then the defendants’ notice that the “decontrolled gas price ... should be approximately $2.25/per Mcf’ could hardly be considered an anticipatory breach. There simply is not a repudiation of the contract in their words or actions. For these reasons, the Court holds that the defendants did not anticipatorily breach the contract with Monerief. Accordingly, the statute of limitations with respect to the post-1989 claims has not run. B. Government orders and regulations make the contract impracticable to perform and create a force majeure. Exhibit A of the contract includes Article XI defining application of force maj-eure to the contract. That article provides that neither of the parties hereto shall be hable to the other for any interruption in delivery or receipt of gas, or any loss or detriment resulting from failure to perform any and ah obligations hereby imposed, if such failure shall be caused by ... act or order of public officials or agents of government ... beyond the control of the party so failing to perform. Defendants suggest that the federal government’s regulation of intrastate gas was a force majeure. However, there is a basic question whether the regulation of gas prices in general and intrastate gas in particular can, in fact, be considered a force majeure. “Force majeure ” has been defined as “an irresistible force ... [a]n event that cannot be definitely foreseen or controlled.” 46 A.L.R.4th 976 § 2(a). In the mid-1970s, when the instant contract was signed, the energy industry was in a volatile condition and aggressive regulation by the federal government was more the rule than the exception. Force majeure claims ordinarily result from unexpected Acts of God or war, but not from the acts of Congress. See, Mobil Oil Exploration & Prod S.E., Inc. v. United Distribution Co., 498 U.S. 211, 111 S.Ct. 615, 112 L.Ed.2d 636 (1991) (discussion of approaches to regulation of natural gas sales). Therefore, the defendants cannot make a credible argument that expanded federal government regulation was so unforeseeable as to create a force majeure. See, also Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565-566 (10th Cir.1989) (rejection of buyer’s assertion of force majeure defense based on change in gas price). Similar reasons prevent the application of the defense of impracticality. For a governmental regulation or order to make a duty impractical, its non-occurrence must have been a basic assumption of the contract. See, Union Pac. Resources Co. v. Texaco, 882 P.2d 212, 226 (Wyo.1994), citing Restatement (Second) of Contracts § 264 (1981). Ongoing and changing governmental regulation of the gas industry was the rule rather than the exception when the 1976 contract was drafted. Reasonable men, experienced in the gas industry, as were W.A. Moncrief, his sons, and the agents of the defendants must have expected it. The Court must conclude that the non-occurrence of governmental regulations could not have been a basic assumption of the contract. C. Waiver of Claim and Estoppel. Although the defendants assert the affirmative defenses of waiver and estop-pel separately, they are essentially the same — that in addition to the statute of limitations, Moncriefs claims should be barred by his acceptance of payments without protest and delay in bringing this action. At the outset, the Court notes that the defendants made payments for eight years without any suspension of gas deliveries by Moncrief. Tex Moncrief objected to the 1985 and 1987 price changes, but he also accepted payments from Woods for the Moncrief gas without protest. “Waiver is the intentional relinquishment of a known right manifested in an unequivocal manner.” St. Paul Fire & Marine Ins. Co. v. Albany County Sch. Dist. No. 1, 763 P.2d 1255, 1262 (Wyo.1988). “The necessary intent for waiver may be implied from conduct” but the “conduct should speak the intent clearly.” Murphy v. Stevens, 645 P.2d 82, 93 (Wyo.1982). While a protest of insufficient payments can preserve a party’s rights even when those payments are accepted, the payments made by the defendants were received by Moncrief for eight years without reoceurring protest of any kind. See, Rupe v. Triton Oil & Gas Corp., 806 F.Supp. 1495, 1503 (D.Kan.1992) the payments made by the defendants were received without reoccurring protest. Under the U.C.C., the waiver of contract rights is governed by Section 2-209 which states that attempts at modification may operate as a waiver. Wyo.Stat. § 34-2-209 (1975 Supp.). Moncrief and the defendants dispute whether W.A. Moncrief, and later, Tex Moncrief agreed to the redetermined price under the contract. However, they do not dispute that, despite Moncriefs objections to the lowered price, the defendants did pay the redetermined price and those payments were received by the Moncriefs without an express reservation of rights. It is-also undisputed that Moncrief continued to supply gas under the contract and only after the defendants repudiated the contract in 1993 did Moncrief bring suit. No matter how strenuous the objection at the time, Moncriefs continuing performance under the contract after the 1985 and 1987 price changes can constitute a waiver of his claim. Wyoming Game and Fish Comm’n v. Mills Co., 701 P.2d 819, 823 (Wyo.1985). In Western Transmission Corp. v. Colorado Mainline, Inc., 376 F.2d 470, 472 (10th Cir.1967) (an appeal from a breach of contract case from the District of Wyoming), the Tenth Circuit held, It is elementary that an innocent party may waive a breach of contract and continue performance on his- part. If such performance is continued, with no conditions attached, the innocent party has made an election and waived the breach. But the innocent party may continue performance on the condition that his right to subsequently assert the breach is preserved. In that event the right must not only be asserted but must be assented to by the other party. Also, even after an innocent party has elected to proceed under the contract, despite the breach by the other party, he may thereafter change his position and assert the breach if the other party has not relied on the election and changed his position because of such reliance. Id. at 472 (footnotes omitted).' The Court has received evidence that Moncrief grudgingly accepted the proposed contract price, but also that Moncrief never interrupted the supplying of gas to the defendants or reserved his rights to further payments. However, the Court has not been given evidence of Tex Moncriefs explicit preservation of his right or the defendants’ assent to such preservation. Nor does the Court have before it any evidence of “intentional relinquishment of a known right” by the grandchildren, who are now also plaintiffs. In a somewhat similar situation the Tenth Circuit held that there was a factual question of whether there had been an intentional relinquishment of a party’s claims. Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 685 (10th Cir.1991). Although it would appear that because the supply of gas continued uninterrupted, Moncriefs objections were insufficient to preserve his rights undqr the contract, the Court must conclude that the waiver issue is a factual question which is inappropriate for summary judgment. As noted in Western Transmission Corp., it is also required that a party seeking to assert waiver must prove that he relied on that waiver. Western Transmission Corp., 376 F.2d at 473. The Tenth Circuit’s reliance requirement is consistent with U.C.C. § 2-209. Wyo.Stat. § 34-2-209 (1975 Supp.) In a preeminent ease interpreting U.C.C. § 2-209, Judge Posner of the Seventh Circuit held that reliance was a required element of waiver under the U.C.C. Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280 (7th Cir.1986). While Wisconsin Knife Works presented a slightly different question because the contract involved in that case had a no modification clause, Id. at 1283, the decision is still valuable because of its insightful balance of the apparent internal inconsistencies found in § 2-209. Primary among those inconsistencies is § 2-209(2)’s enforcement of no modification clauses in contracts and § 2-209(4)’s allowance of waiver. Wisconsin Knife Works resolved this inconsistency by requiring reliance by the breaching party on the non-breaching party’s waiver. Wisconsin Knife Works, 781 F.2d at 1287. The requirement of reliance for a valid waiver is in accord with the Tenth Circuit’s view of Wyoming law. Western Transmission Corp., 376 F.2d at 473. Therefore, with a sufficient showing of reliance by the defendants, they might establish that Moncrief waived his , right to higher payments by accepting the payments made by MDU or WBIPC. But, because questions of material fact about the plaintiffs’ relinquishment and the defendants’ reliance thereon still remain, the Court denies the defendants’ Motion for Summary Judgment on this issue. Finally, in Prenalta, the Tenth Circuit held that the Wyoming common law doctrine of voluntary payments may be applicable where CIG voluntarily paid a commercially reasonable price for gas. Prenalta, 944 F.2d at 685. While this could become applicable to any claims of defendants that the price should have been upon deregulation should have become the price provided for in the contract ($1 per million Btu plus 1.5 cents per million Btu for each year from January 1, 1978 to 1985), thereby resulting in a claim that there had been an overpayment, the Court does not consider that doctrine applicable here. D.Amendment or novation of contract. Under Wyoming law there are four elements of novation: (1) a previous valid obligation; (2) an agreement of all parties to a new contract; (3) extinguishment of the prior contract; and (4) the validity of the new contract. Lewis v. Platt, 837 P.2d 91, 92 (Wyo.1992). For an existing contract to be superseded by a new agreement both parties must agree that the obligations of the second contract shall replace those of the first contract. Id. at 92. Defendants have not provided the Court with sufficient evidence that the parties did indeed agree to extinguish their prior agreement and replace it with a new con-traet. On the contrary, the passionate arguments by both parties about their 1976 contract demonstrate that a novation never occurred and that the original contract governs this dispute. E. Moncrief has been paid equal to or greater than the contract price. Because this affirmative defense goes to the merits of the plaintiffs’ claims, the Court will discuss it below. F. Accord and satisfaction. Defendants’ assertion of the defense of accord and satisfaction creates a difficult question of choice of law. While the Court has applied Wyoming’s Uniform Commercial Code of 1976 to many of the issues presented in this case, Wyoming’s U.C.C. did not have a provision on accord and satisfaction until 1991. Wyo.Stat. Section 34.1-3-311 (1991) (accord and satisfaction by use of instrument). Also, the Court has found a scarcity of law in Wyoming on accord and satisfaction. Therefore, the Court considers Wyo. Stat. § 34.1-3-311 (1991) and its comments as persuasive authority on accord and satisfaction in Wyoming for payments made before 1991 and binding to payments made after 1991. Defendants contend that even if the contract price is different from the amounts paid, Moncriefs claims are barred because there has been an accord and satisfaction. Under Wyoming law adopting the U.C.C. provisions governing accord and satisfaction, a claim is discharged if the person against whom the claim is asserted proves: (1) the person in good faith tendered a cheek to the claimant as full satisfaction of the claim; (2) the amount of the claim was unliq-uidated or subject to a bona fide dispute; (3) the check or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim; and (4) the claimant cashed the check. Wyo.Stat. § 34.1-3-311; John v. Burns, 593 P.2d 828, 829 (Wyo.1979). WBIPC argues that it sent monthly checks to Woods which was acting as the Moncriefs agent, in full satisfaction for the gas delivered during the prior month. WBIPC contends that the amounts paid represented a fair value for the gas in the approximate amount that WBIPC believed would be determined in a formal price redetermination. Thus, WBIPC asserts that it made a good faith tender in full satisfaction of the claims. WBIPC also contends that the purchase price was unliquidated because the parties had not negotiated a deregulated price. Next, WBIPC maintains that the June 1984 and October 1986 letters clearly indicated that the proposed market prices were intended as full satisfaction for the purchase of the gas. Finally, WBIPC asserts that in all instances its checks to Woods were cashed. Monerief argues that WBIPC does not satisfy the requirements for accord and satisfaction because it did not make a conspicuous statement indicating that its checks were tendered in full satisfaction of the claim. Monerief maintains that because nowhere on WBIPC’s remittance documents does it say “in full and final payment” or “payment in full satisfaction” or other words to that effect the conspicuousness requirement cannot be established. While these “magic words” written on a check or remittance will notify the recipient that the payor tendered the instrument as full satisfaction of the claim, those words are not the sole means by which one can satisfy the conspicuous notification requirement. Wyoming Statutes, Section 34.1-3-311 comment seven, states in pertinent part that “[a] claimant knows that a check was tendered in full satisfaction of a claim when the claimant ‘has actual knowledge’ of that fact.” Thus, WBIPC could have given conspicuous notice that its remittance was intended as payment in full without writing the magic words on its check. The Court holds that there is a genuine issue of material fact regarding the question of whether the letters written by WBIPC and its statements accompanying its checks to Woods satisfy this requirement for accord and satisfaction, thus, summary judgment on this issue cannot be granted. In addition, Monerief argues that WBIPC stopped paying Woods, Moncriefs agent, in April of 1991. From April of 1991 through June of the same year, WBIPC paid Sonat Exploration Company and from July 1991 through October of 1993, WBIPC paid Kerr-McGee Corporation for Powell II Unit production. Monerief contends that because he never appointed either Sonat or Kerr-McGee as his agent, there can be no accord and satisfaction with respect to payments made to them. This Court is not persuaded. If Sonat and Kerr-McGee were acting as Mon-criefs agents in a similar manner as Woods had previously, there was no reason for WBIPC to expect that they were not his agents. Comment seven to Wyo.Stat. § 34.1-3-311 (1991) explains that when the claimant is an organization, “it has knowledge that a check was tendered in full satisfaction of the claim when that fact is ‘brought to the attention of the individual conducting that transaction, in any event when it would have been brought to his attention if the organization had exercised due diligence.’ ” Id. Moncriefs contention that Sonat and Kerr-McGee had no authority to accept payments also raises issues of apparent authority. Apparent authority, also known as authority by estoppel, occurs where the actions of a principal induce a third party to rely on the authority of an agent and that agent does not have the necessary authority. Restatement 2d Agency § 8 (1958). The Wyoming Supreme Court has held, “[a] principal is bound by the acts of an agent performed with apparent authority where the third person acted upon reliance of apparent authority held out by the principal.” Kure v. Chevrolet Motor Div., 581 P.2d 603, 609 (Wyo.1978). See, also, Wyo.Stat. § 34-3-403 (1975 Supp.) (no particular form of appointment necessary to establish authority of party signing note). Thus, Moncriefs assertion that Sonat and Kerr-McGee did not have authority to accept payments is contradicted by Moncriefs lack of protests which in turn creates a question of material fact about the apparent authority to those agents. For these reasons, the Court concludes that there are also genuine issues of material fact regarding the transactions with Sonat and Kerr-McGee and whether the payments made to Moncrief via these operators constituted accord and satisfaction. Accordingly, summary judgment cannot be granted on this issue. G. Plaintiffs are not the real party in interest. Defendants have made numerous and changing arguments that Tex Moncrief is not the real party in interest to the disputed contract. Most of these arguments involve the merits of the Wyoming and Texas probate cases involving W.A. Moncriefs estate. The Texas probate court, as the domiciliary estate, and the Wyoming probate court as the ancillary estate, properly have jurisdiction, but of course the Wyoming court which has the jurisdiction of the res, the working interests in Wyoming minerals, has the exclusive jurisdiction to determine the ownership therein and the disputes of the heirs thereto. See In re Ray’s Estate, 287 P.2d 629, 634 (Wyo.1955) (adopting doctrine of lex loci rei sitae, the law of the place where the subject matter is located governs); Wyo.Stat. Section 22-101 and Bancroft’s Probate Practice 2d § 33. As a result, judgment must be properly reserved for that court concerning the cross-claims of the realigned plaintiffs against “Tex” Moncrief. However, under Wyoming law the executors of W.A. Moncriefs estate have the authority to pursue this action. Wyo.Stat. § 2-7-104. (personal representative of estate may bring contract action to assert interests of estate). The executors under Wyoming law have the right to possession of the assets of the estate for the purposes of administration, even though the title to the working interest has devolved to the grandchildren and their trusts, as the grantees of the devisee of W.A. Moncrief, deceased. The executors of the estate of W.A. Moncrief, deceased, may continue this action pending a decision of the Wyoming probate court which closes the estate and decides the rights of his purported heirs. Until the probate is completed and the estate of W.A. Moncrief, deceased, is closed, Tex Moncrief, as executor, is a party in interest in this matter, together with his co-executors, the grandchildren and their trusts. Defendants’ motion for summary judgment on this matter is therefore denied. H. The Doctrine of Laches Laches is an equitable remedy, the elements of which are: (1) inexcusable delay, and (2) .injury, prejudice, or disadvantage to the defendant or others. See Moncrief v. Sohio Petroleum Co., 775 P.2d 1021 (Wyo.1989); Big Piney Oil & Gas Co. v. Wyoming Oil and Gas Conservation Comm’n., 715 P.2d 557 (Wyo.1986); Harnett v. Jones, 629 P.2d 1357 (Wyo.1981). WBIPC contends that the first element has been satisfied because as early as June 24, 1984, Moncrief had notice that WBIPC intended to pay a market price of approximately $2.25 per Mcf for the Powell II Unit gas upon deregulation. WBIPC argues, that Mon-criefs delay in presenting his claims for a price of $3,845 per MMBTU plus tax reimbursement and the filing of this suit is inexcusable. Defendants also argue that the second element of laches has been met because during the time that WBIPC purchased gas from Moncrief, it resold the gas to customers at prices that were regulated by the Federal Energy Regulatory Commission and were directly tied to the prices paid by WBIPC. Defendants maintain that any payments for out-of-period adjustments from prior gas sales must have been made by July 31, 1994, pursuant to FERC Order No. 636, and that because it is impossible that a final order will be entered in this proceeding prior to that date, it is at risk of losing some or all of any amounts that could be awarded to Moncrief. It is a well-accepted principle that the doctrine of laches is particularly well-suited for application in the oil and gas and mining areas due to the nature of these property interests. See, e.g., Patterson v. Hewitt, 195 U.S. 309, 321, 25 S.Ct. 35, 38, 49 L.Ed. 214 (1904); Twin-Lick Oil Co. v. Marbury, 91 U.S. (1 Otto) 587, 592-93, 23 L.Ed. 328 (1875); Amerada Petroleum Corp. v. Rio Oil Co., 225 F.Supp. 907 (D.Wyo.1964); Torgeson v. Connelly, 348 P.2d 63 (Wyo. 1959); Eblen v. Eblen, 234 P.2d 434 (Wyo. 1951). Generally, however, the doctrine of laches has been applied to parties who sit back or wait to assert their rights until the value of their rights has been demonstrated by the other party. For example, in Merrill v. Rocky Mountain Cattle Co., 26 Wyo. 219, 181 P. 964 (1919), the Wyoming Supreme Court, relying partly upon the doctrine of laches, affirmed the denial of specific performance to convey certain lands upon which oil had been discovered. The court noted that: [W]ith knowledge of the facts, the plaintiffs waited before asserting their right here claimed until the value of the land for oil purposes had been demonstrated by the defendant Phelps through his lease to said operating company, allowing their decision to insist upon what they now claim as their right to depend upon the success or failure of the drilling operations carried on at the expense of others. Id. 181 P. at 975. In Madrid v. Norton, 596 P.2d 1108, 1120 (Wyo.1979), the court similarly stated that “[t]here is an inherent injustice in one purportedly holding a right to assert an ownership in property to voluntarily await the propitious event and then decide, when the danger which has been at the risk of another is over, to come in and claim a share of the profits.” Again, in Amerada Petroleum, this Court held that the defendants’ hostile claims against certain Wyoming property were barred by laches where the defendants had known for years of the existence of the property but, thinking it worthless, delayed prosecuting their claims until approached by an oil company regarding mineral leasing. Amerada Petroleum, 225 F.Supp. at 914. In that case, Judge Kerr wrote: “[t]he rule of laches must foreclose tardy claimants from asserting any rights in property when they sit quietly by and permit some one else ‘to bring into form and being a latent property right’ which only in recent years appeared to have considerable or potential value.” Id. (citing Hodgson v. Federal Oil and Dev. Co., 285 F. 546 (Wyo.1922)). This case, however, is not a one where Moncrief has waited in speculation for a change in circumstances guaranteeing him a superior position before suing. What is disputed here is the price term which is contained in the contract. This term, at least arguably, may have been modified by certain economic factors, a question which is at the heart of the issue here. Laches should not apply when a party merely asserts in good faith what he believes to be his rights under a contract, where any delay which does not toll the statute of limitations is excusable and does not prejudice the party against whom his rights are asserted. See Moncrief v. Sohio Petroleum Co., supra; Big Piney Oil & Gas Co., supra; and Harnett, supra, (requiring inexcusable delay and prejudice for application of affirmative defense of laches). The delay in this case may be excusable. Wyoming law courts have sometimes added a third requirement for laches: knowledge of the claim. Torgeson, 348 P.2d at 69. As this Court reasoned in its discussion of the affirmative defense of waiver, there are questions of material fact regarding Tex Moncriefs knowledge of his claim, and certainly there is a serious problem, which has not been addressed by the parties, of how much-the co-executors and the grandchildren, and their trustees, knew and when they knew it. Moreover, the delay in bringing this action may not have prejudiced the defendants. Any prejudice to the defendants may arise not because of the delay, but because the suit was filed in the first place. Defendants state that if it had been determined that they were required to pay a higher price for the gas in question here, they could have passed the price on to its customers and that any adjustments for prior gas sales must have been made by July 31,1994. This type of injury is one that is typical in breach of contract gas cases. The Court concludes that the record must be developed further regarding other remedies available to Defendant MDU, and as a result, the defendants’ motion for summary judgment on this issue is denied. III. The Applicable Contract Price Because the Court concludes that the defendants’ affirmative defenses create questions of material fact as to the affirmative defenses of waiver, accord and satisfaction and laches, the Court will proceed to the heart of the parties’ dispute: the applicability of § 105(b)(3) of the NGPA to the contract price. The controversy between the parties centers on the price escalation clause found in Section 7.4 of the contract and the applicability to it of intrastate gas regulations. Section 7.4 of the contract reads: If the Federal Power Commission, or any successor or other governmental authority having jurisdiction in the premises, shall at any time hereafter prescribe or permit, for the pricing area in which the properties are located, a higher just and reasonable area rate including all adjustments for the same type of gas as committed hereunder than the price herein provided to be paid, then the price hereunder shall be increased, effective as of the date such higher rate is prescribed, to equal such higher rate. (Emphasis added). Moncrief argues that the intention and purpose of this section was to raise the contract price to the highest regulated price for gas. Defendants argue that the section was only intended to track interstate gas prices, because at the time the contract was signed and negotiated intrastate gas was not regulated. The ultimate question before the Court is whether this escalation clause is triggered by § 105(b)(3) of the Natural Gas Policy Act (NGPA) which set a ceiling price for intrastate gas prices. 15 U:S.C. Section 3315(b)(3). Because jurisdiction in this matter is based on diversity of citizenship and the contract deals with the production of Wyoming gas, the sale of which takes place in Wyoming, the Court must apply the substantive law of the forum state of Wyoming. Wyo.Stat. Section 34-21-105 (1977); Cherry Creek Dodge, Inc. v. Carter, 733 P.2d 1024 (Wyo.1987). Oil and gas contracts and leases should be treated under doctrines of contract law. State v. Moncrief, 720 P.2d 470 (Wyo. 1986). Under Wyoming law, the purpose of contract interpretation is to determine the true intention and understanding of the parties. State v. Pennzoil, 752 P.2d 975, 978 (Wyo.1988); Amoco Prod. v. Stauffer Chem. Co. of Wyo., 612 P.2d 463, 465 (Wyo.1980). If the contract is in writing and its language is clear and unambiguous, that intent is determined solely from the contract language. Id. The existence of an ambiguity as well as the interpretation and construction of a contract is a matter of law for the Court. Id. An ambiguous contract is one which is “obscure in its meaning, because of indefiniteness of expression, or because a double meaning is present.” Bulls v. Wells, 565 P.2d 487, 490 (Wyo.1977). In determining whether or not there is any ambiguity which would justify an examination of extrinsic evidence, the Court must look to the language of the document itself. State v. Pennzoil, supra. The Court finds no ambiguity in the pricing provisions (Article VII) of this contract. The Court also notes that the contract is for the sale of goods and is therefore governed by the Uniform Commercial Code as codified in Wyoming. Prenalta Corp. v. Colorado Interstate Gas Co., 944 F.2d 677, 687 (10th Cir.1991). A. The Applicability of Section 105(b)(3). The key language of Section 7.4 of the contract is “higher just and reasonable area rate ... for the same type of gas as committed hereunder” because such a rate triggers the price escalation. At the outset, the Court must consider the defendants’ contention that § 105(b)(3) should not apply because no regulations of intrastate gas had occurred when the contract was signed and, as a result, only interstate gas regulations should be applicable. But, the plain language of Section 7.4 of the contract does not distinguish between interstate and intrastate regulations; it speaks only of “a higher just and reasonable area rate including all adjustments for the same type of gas committed hereunder.” Whether that rate is prescribed or permitted by governmental interstate or intrastate regulations wouldn’t matter if it was a “higher just and reasonable rate ,.. for the same type of gas.”. The Court discounts that argument because of the language of the contract which is unambiguous and invokes an applicable governmental “just and reasonable area rate”, without distinguishing between interstate and intrastate gas. See, True Oil Co. v. Sinclair Oil Corp., 771 P.2d 781, 790 (Wyo.1989) (if the language of a contract is clear and unambiguous then it governs the parties’ intent). The Court concludes that the instant contract is subject to the intrastate regulation found in Section 105(b)(3) of the NGPA, but must next determine whether the “maximum lawful price” therein specified is a “just and reasonable area rate.” Section 105 of the NGPA provides, in part Sec. 105. Ceiling Price For Sales Under Existing Intrastate Contracts. (a) APPLICATION. — The maximum lawful price computed under subsection (b) shall apply to any first sale of natural gas delivered during any month in the ease of natural gas, sold under any existing contract or any successor to an existing contract, which was not committed or dedicated to interstate commerce on November 8, 1978. 15 U.S.C. § 3315(a). The NGPA became effective on November 8, 1978. The instant contract was signed in 1976 and involved natural gas committed to intrastate commerce before then. Therefore § 105 covers the gas committed under the instant contract. Part (b)(3) of § 105 is entitled “Price increases resulting from indefinite price escalator clauses” and defines indefinite price escalator clauses as any provision of any contract— (i) which provides for the establishment or adjustment of the price for natural gas delivered under such contract by reference to other prices for natural gas, for crude oil, or for refined petroleum products; or (ii) which allows for the establishment or adjustment of the price of natural gas delivered under such contract by negotiation between the parties. 15 U.S.C. § 3315(b)(3)(B) The rest of § 105 sets the maximum lawful price for contracts with such indefinite price escalator clauses. While the unambiguous language found in Section 7.4, the governmental price escalator clause, and Section 7.6, the favored nations clause, fits well within the definition of “indefinite price escalator clause” as found in § 105(b)(3)(B), the ultimate question before the Court is whether the “maximum lawful price” set by § 105(b)(3) is a “just and reasonable area rate” provided for in Section 7.4 of the contract. The Court concludes that Section 105(b) establishes a ceiling price, but did not establish a just and reasonable area rate. The distinction between a ceiling price and a “controlled” or area price was explored.by the Fifth Circuit in Pennzoil v. FERC, 645 F.2d 360 (5th Cir.1981), cert. denied, 454 U.S. 1142, 102 S.Ct. 1000, 71 L.Ed.2d 293 (1982). According to the Fifth Circuit, [a] ceiling price sets a maximum price above which the sales price cannot go, but at the same time does not set a minimum; the sales price, given sufficient economic conditions, can be established at a point below that ceiling. A ceiling price must be distinguished from a ‘controlled’ price. The latter is both a maximum and a minimum allowable price. With price ceilings, as opposed to controlled prices, the parties are free to contract for sale prices at or below, but not above, the ceiling. Similarly, the parties may adopt amendments increasing or decreasing the contract price so long as the amended price does not exceed the ceiling. Upward contractual escalation of the contract price does not convert the ceiling price into a price floor, but is instead consistent with the existence of a cap on price increases. Consumers’ contention otherwise is inconsistent with past FPC [Federal Power Commission, the predecessor of the' FERC] price regulation, since area rate clauses escalated contract prices to newly established, higher FPC ceilings. /$. at 372. (Emphasis added). The Fifth Circuit’s analysis, which is discussed in more detail below, led that court to conclude that the Natural Gas Policy Act’s (NGPA) price ceilings neither precluded nor required area rate clauses to match NGPA ceiling prices. Id. Much of the complexity of the questions before this Court and the court in Pennzoil is based on the differing purposes behind the NGPA’s ceiling rates and area rates set by the FPC. The question then becomes whether the parties intended the NGPA ceiling price to trigger the area rate clause. For the answer to this question, the Court must explore the parties’ intent behind the contract, the language and purpose of the Natural Gas Policy Act, and the commercial circumstances surrounding these events. Such an inquiry is proper even though the court holds the contract to be unambiguous. See, Prenalta Corp. v. Colorado Interstate Gas, 944 F.2d 677, 688 (10th Cir.1991) (Tenth Circuit application of Wyoming law holding “[a] contract, however, does not exist in a vacuum; its terms must be understood in light of the commercial context in which it was drawn.”) and Wyo.Stat. §§ 34-1-205, 34-2-208 (1975 Supp.) (course of dealing and trade usage of terms may be used to interpret an agreement). The contract is a balance between the buyer’s desire for a long-term stable supply and the seller’s desire for a flexible price which tracks the market price. Here, the balance that-was achieved was a long-term contract that allowed the contract price to change. The Court must also consider the regulatory scheme of the gas market before and during the contract. When the parties signed their contract in 1976, natural gas was regulated on the interstate market but not the intrastate market. William P. Schwartz, Indefinite Price Escalation Clause in Natural Gas Sales Contract; Unconscionable and Contrary to Public; A Comment on Kerr McGee Corp. v. Northern Utilities, Inc., 17 Land & Water L.Rev. 257, 258 (1982). The result was inflated prices at the intrastate level and inflated demand at the interstate level. See, generally, Breyer and MacAvoy, The Natural Gas Shortage and the Regulation of Natural Gas Producers, 86 Harv. L.Rev. 941 (1973). However, shortly after the contract was signed, Congress passed the broad ranging Natural Gas Policy Act, codified at 15 U.S.C. Section 3315 et seq. For the first time the NGPA extended federal price regulation to sales of intrastate gas. NGPA § 105,15 U.S.C. Section 3315. There is of course no dispute about the defendants’ payment of the proper amount during this period of regulation. But, pursuant to the NGPA, the regulation of both interstate and intrastate gas ended on December 31, 1984. 15 U.S.C. § 3331. Despite the overall scheme of deregulation Congress did provide a ceiling for certain “indefinite price escalators” in intrastate gas contracts through which the reader is referred to in § 105(b)(3) of the NGPA. 15 U.S.C. §§ 3331, 3315(b)(3). Thus, even though Congress was deregulating gas prices, it continued some limits through its restrictions on some price escalator clauses in intrastate contracts such as the instant one. This conflict in the Natural Gas Policy Act — an overall scheme of deregulation coupled with a regulated ceiling price — creates an ambiguity within the statute, which clouds the picture of Congress’ intent. If there is sufficient ambiguity in legislation, it becomes appropriate to examine the legislative history, United States v. Abreu, 962 F.2d 1447, 1450 (10th Cir.1992) (en banc), vacated on other grounds, — U.S.-, 113 S.Ct. 2405, 124 L.Ed.2d 630 (1993), as well as the overall policy behind the NGPA. Crandon v. United States, 494 U.S. 152, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990). The legislative history of the NGPA is valuable in determining whether the rate set by § 105(b)(3) of the NGPA was a “just and reasonable area rate.” The Natural Gas Policy Act prohibited indefinite price escalation clauses in interstate contracts, and instead provided “area rates” as the maximum price for interstate gas sales. Williams and Meyers, Oil and Gas Law, Vol. 8, p. 58. But at the time of the instant contract in 1976, there was no such ban on indefinite escalator clauses in intrastate gas contracts. When gas was deregulated, Congress was concerned about intrastate gas prices becoming inflated by escalator clauses that were suddenly released. 124 Cong.Rec. 38,365 (1978) (Statement of Rep. Dingell). As a result, Congress drafted an absolute limit for such escalator clauses through § 105(b)(3) of the NGPA. According to the Conference Committee Report, this limitation would apply to deregulated gas but was not intended to trigger “just and reasonable” clauses tied to the National Gas Act. 1978 U.S.C.C.A.N. 8999-9000. That Conference Committee Report indicates that the purpose of § 105(b)(3) was not to set an “area rate” but was instead intended as an outer limit to the indefinite price escalator clauses that were to come into effect after deregulation of intrastate gas. That is consistent with the federal regulatory scheme which has historically constrained prices. David Crump, Natural Gas Price Escalation Clauses, 70 Minn.L.Rev. 61 (1985). Plaintiffs argue, essentially, that Congress gave deregulation with one hand but it took it back with the other by setting an area rate as a