Tri-State Generation & Transmission Ass'n v. Shoshone River Power, Inc.

874 F.2d 1346, 1989 WL 47073

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 5, 1989
• Docket: No. 87-2288
• Status: Published

Opinions

McKAY, Circuit Judge.

I. Background

The background of this case is detailed in our previous opinion, reported at Tri-State Generation & Transmission Association, Inc. v. Shoshone River Power, Inc., 805 F.2d 351 (10th Cir.1986) [hereinafter Shoshone 7], which considered Tri-State Generation and Transmission Association, Inc.’s (Tri-State’s) appeal from the district court’s dissolution of the preliminary injunction in this case. We highlight portions of the background for purposes of this appeal as follows.

In 1936 Congress enacted the Rural Electrification Act, 7 U.S.C. §§ 901-950b (1982 & Supp.1986), which instituted a program designed to provide electric power to rural America. Apparently, Congress was concerned with the fact that those then engaged in the business of generating electrical energy had failed to extend electric service to the rural communities of America and determined that the national interest would be served by subsidizing the rural user of electricity. The Rural Electrification Act created the Rural Electrification Administration (REA) and authorized the REA to make and guarantee loans that would enable rural communities to obtain electric power.

In response to the Rural Electrification Act, rural communities across America formed nonprofit electric distribution cooperatives. In 1942 individuals from Park County, Wyoming, organized a distribution cooperative, Shoshone River Power, Inc. (Shoshone). Basically, the consumers of electric power within the geographic area served by Shoshone are the members of Shoshone.

After REA-financed distribution cooperatives such as Shoshone were formed, groups of cooperatives banded together to form central generation and transmission cooperatives (G & Ts).¹ This second-level cooperative formation stemmed from an effort on the part of the distribution cooperatives to secure and more economically obtain a long-term source of power.

In 1952 distribution cooperatives in Colorado, Nebraska, and Wyoming formed a central G & T, Tri-State, to be “operated on a cooperative, non-profit basis for the mutual benefit of its members.”² Record, vol. 1, doc. 86, exh. A (Articles of Incorporation, art. IV; Bylaws, art. VII, § 1). Specifically, Tri-State was organized for the purpose of furnishing long-term wholesale power and energy to its member distribution cooperatives who, in turn, funnel the power to their consuming members. TriState is comprised of its member distribution cooperatives which are comprised of the actual consumers of the electric power.

Although not one of the original distribution cooperatives forming Tri-State, Shoshone became a member of Tri-State in 1958. Like all member distribution cooperatives, Shoshone entered into a long-term wholesale power contract (the all-requirements contract) with Tri-State for electric service. In general, the all-requirements contract provides that Tri-State would sell and deliver to Shoshone, and Shoshone would purchase and receive from Tri-State, all electric power and energy which Shoshone would require for the operation of its system. The contract secures a long-term source of power for Shoshone, assures a stable market for the power produced by Tri-State, and provides a long-term revenue stream with which Tri-State could repay obligations incurred by it on behalf of its members.

Shoshone initially agreed that the all-requirements contract would remain in effect for a term of thirty-three years — until December 31, 1991. On June 23, 1965, the contract was replaced by a similar all-requirements contract, under which Shoshone agreed to extend the term of the contract to December 31, 2005. This 1965 contract recites that Tri-State proposed to construct

an electric generating plant or transmission system, or both, and that Tri-State would enter into similar all-requirements contracts for electric power with all member distribution cooperatives. The contract also provides that the rate for electric power charged to Shoshone, along with the other member distribution cooperatives, could be revised so that the revenues produced from the all-requirements contracts and other sources would be sufficient to meet the costs of operating and maintaining Tri-State’s system and sufficient to make payments on all of Tri-State’s indebtedness. The 1965 contract was subsequently modified, Shoshone agreeing most recently in 1977 to extend the term of the contract to December 31, 2020.

Getting electric power out to the rural communities was obviously an expensive task. The REA program and formation of central G & Ts made it possible for rural communities to obtain the needed help and financial aid. With the all-requirements contracts in place, the G & T system provided a stable, interdependent network whereby the distribution cooperatives could pool their resources and band together to obtain power at wholesale prices, build central facilities, obtain favorable loans, and attempt to keep costs down. In this respect, notwithstanding a G & T’s low equity ratio,³ it is clear from the record that REA has been willing and authorized to provide and guarantee favorable long-term, low-interest loans to G & Ts inasmuch as REA is able to look to the revenue stream under the all-requirements contracts as an assured source of repayment and security for the loans⁴ and as an essential factor to the cohesiveness and financial strength of the G & T systems. Effectually, then, the all-requirements contracts place the financial strength of the distribution cooperatives behind G & T loans.

Initially, Tri-State operated as a paper G & T; it owned no generation facilities and acted mainly as a pooling agent to manage more efficiently its members’ power allocations. Later, during the 1960’s, the member distribution cooperatives anticipated substantial future growth in demand for electricity and projected increased needs. The record is clear that in response to its members’ power requirement forecasts and to avert a possible power shortage, TriState built generation and transmission facilities, obtaining REA loans and REA-guaranteed loans to do so. The terms of Tri-State’s all-requirements contracts with its member distribution cooperatives were extended to match the payment periods of the loans taken out by Tri-State. The record is clear that REA required extensions and the member distribution cooperatives agreed to the extensions so that TriState could obtain loans to build the facilities for its members’ benefit.

After Tri-State built facilities, made substantial capital outlays, incurred debt, and expended funds on behalf of its members, economic conditions changed. The projected growth in demand failed to materialize, and there was an oversupply of electric power. In the early 1980’s, Tri-State, like other G & Ts, found itself with stagnant demand, excess capacity, enormous debts to be repaid, and increasing rates being charged to its members.

In October 1985, Shoshone entered into a Memorandum of Understanding with Paci-fiCorp dba Pacific Power & Light Company (Pacific), an investor-owned utility. Pursuant to the Memorandum of Understanding, Pacific offered to purchase substantially all of Shoshone’s assets, which include the power-delivery subscriptions of Shoshone’s members and some poles and power lines. The sale was subsequently approved by Shoshone’s members.

Tri-State brought this action to recover monetary damages and enjoin the sale of Shoshone’s assets to Pacific. Tri-State claims, among other things, that it is a breach of Shoshone’s obligations under the all-requirements contract to sell its assets to Pacific without making provision for the purchase of electric power from Tri-State throughout the remaining term of the contract. Shoshone, on the other hand, claims that selling its assets and ceasing business do not breach its obligations under the all-requirements contract because a sale, which is not expressly prohibited under the contract, would eliminate any power requirement Shoshone may have had under the contract.

REA intervened as a plaintiff in this action, subsequently claiming that it would be irreparably damaged if Shoshone is allowed to sell its assets to Pacific.⁵ REA sought injunctive relief.

Prior to trial, the parties filed cross motions for partial summary judgment, seeking interpretation of the all-requirements contract. The district court granted a portion of Pacific’s and Shoshone’s motion, ruling that under the contract Shoshone is not required to remain in business or otherwise to purchase power from Tri-State throughout the term of the contract. Rather, according to the district court, Shoshone breaches its contractual obligations only if it eliminates its requirements and ceases business in bad faith.

A jury trial was held in April and May, 1987. The jury returned a verdict in TriState’s favor on every issue, finding, among other things, that Shoshone had breached its implied obligation of good faith and fair dealing and was estopped from selling its assets and going out of business. The jury awarded damages totaling $37 million. The district court ordered Tri-State to remit $31 million of the jury’s award or face a new trial. After Tri-State declined to file a remittitur, the district court set aside the jury’s verdict and granted Shoshone’s and Pacific’s motion for a new trial on all issues. The district court also denied Tri-State’s and REA’s request for a permanent injunction.

Tri-State and REA appeal the district court’s order denying their request for a permanent injunction. They also appeal the district court’s order ruling on the parties’ cross motions for partial summary judgment regarding the proper interpretation of the all-requirements contract and the need for REA approval and the district court’s orders ruling on post-trial motions and granting a new trial on all issues.

II. Jurisdiction

We must first determine whether or not we have jurisdiction to hear this appeal and, if so, the scope of that jurisdiction. As a general rule, only final decisions of the district courts are appealable. 28 U.S. C. § 1291 (1982). A statutory exception to the finality rule is set forth in 28 U.S.C. § 1292(a)(1) (1982), which provides that courts of appeals shall have jurisdiction of appeals from interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions....”

Tri-State and REA appeal the district court’s order which expressly denies their request for a permanent injunction. Although the order is interlocutory,⁶ it is appealable under section 1292(a)(1) and reviewable at this stage of the proceedings. Section 1292(a)(1) thus provides us with jurisdiction to hear this appeal.

We agree with the Eleventh Circuit in Cable Holdings of Battlefield, Inc. v. Cooke, 764 F.2d 1466, 1471 (11th Cir.1985), that an interlocutory order expressly granting or denying injunctive relief fits squarely within the plain language of section 1292(a)(1). Cases such as Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981), and Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S.Ct. 1177, 1183-84, 94 L.Ed.2d 389 (1987), which require an additional showing that the interlocutory order might have a “serious, perhaps irreparable, consequence” and that the order can be “effectually challenged” only by immediate appeal, are inapposite. Carson and its progeny do not deal with interlocutory orders that explicitly deny or grant a motion for injunctive relief but with orders that have “the practical effect of refusing an injunction.” Carson, 450 U.S. at 84, 101 S.Ct. at 996; see I.A.M. National Pension Fund Benefit Plan A v. Cooper Industries, Inc., 789 F.2d 21, 24 n. 3 (D.C.Cir.) (“ Carson does not apply to an order clearly granting or denying a specific request for injunctive relief; such orders are always appealable under § 1292(a)(1).”), cert. denied, 479 U.S. 971, 107 S.Ct. 473, 93 L.Ed.2d 417 (1986); 16 C. Wright, A. Miller, E. Cooper, E. Gressman, Federal Practice and Procedure § 3924 (1977 & Supp.1987) [hereinafter Wright & Miller]. When an order, although not expressly denying or granting an injunction, has the practical effect of doing so, the Carson line of cases extends the coverage of section 1292(a)(1) and allows the order to be appealable under that section, but only if the additional requirements are satisfied.

Tri-State and REA have also attempted to appeal other interlocutory orders of the district court under the doctrine of pendent appellate jurisdiction, including an order ruling on cross motions for partial summary judgment and orders ruling on post-trial motions and granting a new trial. First, we are convinced that all reasons underlying the district court’s denial of the injunction are reviewable at this time as a matter of law. See, e.g., Takeda v. Northwestern National Life Insurance Co., 765 , 818 (9th Cir.1985); Cable Holdings, 764 F.2d at 1472; Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir.1984) (“We have power ... to review all issues underlying an injunction.”); Gould v. Control Laser Corp., 650 F.2d 617, 621 n. 7 (5th Cir. Unit B July 1981); Energy Action Educational Foundation v. Andrus, 654 F.2d 735, 745-46 n. 54 (D.C.Cir.1980), rev’d on other grounds sub nom. Watt v. Energy Action Educational Foundation, 454 U.S. 151, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981); Wright & Miller, supra p. 11, § 3921, at 17, 23. Obviously, if we did not have appellate jurisdiction to review matters of law addressed by the district court in its order denying injunctive relief, this court could not properly exercise its jurisdiction under section 1292(a)(1) and resolve the issues pertinent to the permanent injunction claim.

We further believe that on appeal from a grant or denial of injunctive relief, this court as a matter of law may justifiably, though cautiously, decide other generally nonappealable legal issues. See, e.g., Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 755-57, 106 S.Ct. 2169, 2175-77, 90 L.Ed.2d 779 (1986) (court of appeals’ decision to review applicable law and address merits of the case on appeal from preliminary injunction was proper); Deckert v. Independence Shares Corp., 311 U.S. 282, 287, 61 S.Ct. 229, 232, 85 L.Ed. 189 (1940) (extending appellate jurisdiction to an order denying motions to dismiss when appeal of a preliminary injunction ruling was properly before the court); Energy Action, 654 F.2d at 745-46 n. 54 (court can decide issues closely related to the interlocutory order on appeal); McNally v. Pulitzer Publishing Co., 532 F.2d 69, 73-74 (8th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d 131 (1976); Wright & Miller, supra p. 11, § 3921, at 16-25 (suggesting common-sense approach to deciding issues on which further factual development is unnecessary). “Jurisdiction of the interlocutory appeal is in large measure jurisdiction to deal with all aspects of the case that have been sufficiently illuminated to enable decision by [this court] without further trial court development.” Wright & Miller, supra p. 11, § 3921, at 17.

In the district court’s denial of TriState’s and REA’s request for a permanent injunction, the district court referred to and in part relied on its previous order ruling on cross motions for partial summary judgment that Shoshone does not have an implied obligation to maintain requirements and remain in business. See, e.g., record, vol. 3, doc. 287, at 18, 20-23. This merits determination need not be decided as part of our consideration of the permanent injunction issue because of our determination below that the record presently before us does not support a finding of irreparable harm. Nonetheless, we believe that we have jurisdiction to review this legal determination inasmuch as it was a basis for the district court’s determination that the injunctive relief sought was overly broad and thus improper.⁷ Also, we think that in the interest of judicial economy, such review is appropriate to avoid unnecessary litigation and delay. Courts are “not required to remand in futility.” Thornburgh, 476 U.S. at 757 n. 7, 106 S.Ct. at 2177 n. 7. Indeed, the Supreme Court has stated: “[Rjeview of interlocutory appeals was designed not only to permit the defendant to obtain immediate relief but also in certain cases to save the parties the expense of further litigation.” Id. at 756, 106 S.Ct. at 2176 (citing Smith v. Vulcan Iron Works, 165 U.S. 518, 525, 17 S.Ct. 407, 410, 41 L.Ed. 810 (1897)). We have before us a sufficiently complete factual and legal presentation from which to address the issues of law decided by the district court on summary judgment. We conclude that the issues can be decided without further development of the record and that it would be a waste of judicial resources not to review the district court’s ruling at this time.

Contrary to Shoshone’s and Pacific’s contention, United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987), does not preclude this court from reviewing the contract issue which was decided on summary judgment and is connected to a determination of the propriety of injunctive relief. We note first that Stanley involved an appeal from a certified order under 28 U.S.C. § 1292(b) (1982 & Supp.1985) and is inapposite to the present appeal.⁸ Also, in response to the unique procedural setting in Stanley, the Supreme Court simply determined that when an order is certified by the district court for immediate appeal, the court of appeals has jurisdiction of only that order and cannot review uncertified orders. Furthermore, although the issues raised in the orders were similar, the district court apparently did not refer to or rely on the uncertified orders in addressing the issues raised in the certified order or in arriving at its conclusions. Also, the un-certified orders related to claims against the United States; and the United States was not even a party to the appeal.

The line of cases addressing the issue of reviewability of nonappealable matters on appeal from a Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), collateral order is also inapposite to this case. The Cohen collateral order doctrine allows for the appealability of a non-final order that finally determines a claim completely collateral to the merits of the action and not merged into or affected by a final judgment on the merits, when review after final judgment would be ineffective. In that instance, review is apparently limited to the collateral order and does not extend to nonappealable matters. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); cf. San Filippo v. United States Trust Co., 737 F.2d 246, 255 (2d Cir.1984) (court exercised discretion to consider otherwise nonappealable issues on appeal from a Cohen collateral order because there was sufficient overlap in the factors relevant to the appealable and non-appealable issues), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985). Since an order appealable under the Cohen collateral order exception is necessarily collateral to the rest of the case, and appeal is only permitted for that very reason, review of unrelated matters or matters affecting the merits of the case does not appear to be suitable—unlike in the appeal of an order granting or denying injunctive relief.

We conclude that we have jurisdiction of Tri-State’s and REA’s appeal of the district court’s order denying permanent injunctive relief. Also, we choose to exercise our pendent appellate jurisdiction over the matters of law addressed by the district court in its order denying the injunction. This would include reviewing the district court’s determination on summary judgment that Shoshone does not have an implied obligation to maintain requirements and remain in business. Other matters, including whether or not the district court abused its discretion in ordering a remit-titur or a new trial, in requiring a new trial on all issues, in setting aside the jury’s punitive damage award against Pacific, or in granting defendant H. David Brannon’s motion for judgment notwithstanding the verdict, are matters which we consider inappropriate for review at this time. Accord Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1555 n. 2 (11th Cir.1984) (appeal of order granting new trial is properly taken after final judgment in new trial); Delano v. Kitch, 663 F.2d 990, 1001 (10th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2012, 72 L.Ed.2d 468 (1982).

III. The District Court’s Order Denying Request for Permanent Injunction

A permanent injunction is appropriate when the remedy at law is inadequate to compensate the injury sustained. The classic remedy for breach of contract is the award of monetary damages. However, if damages at law cannot adequately compensate the injury sustained from the breach or cannot be reasonably measured, then the remedy at law is inadequate and injunctive relief providing for specific performance may be appropriate because of irreparable injury. Cf. Northern Indiana Public Service Co. v. Carbon County Coal Co., 799 F.2d 265, 279 (7th Cir.1986); Holly Sugar Corp. v. Goshen County Cooperative Beet Growers Association, 725 F.2d 564, 570 (10th Cir.1984) (“if damages can compensate [injury sustained,] injunction will not lie”); Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 197 (4th Cir.1977) (quoting Foundry Services, Inc. v. Beneflux Corp., 206 F.2d 214, 216 (2d Cir.1953) (Hand, J., concurring)) (“irrepara-bility of harm includes the ‘impossibility of ascertaining with any accuracy the extent of the loss’ ”); Danielson v. Local 275, Laborers International Union, 479 F.2d 1033, 1037 (2d Cir.1973) (“Irreparable injury is suffered where monetary damages are difficult to ascertain or are inadequate.”); Gulf & Western Corp. v. Craftique Productions, Inc., 523 F.Supp. 603, 607-08 (S.D.N.Y.1981); Lee v. Brown, 357 P.2d 1106, 1110-11 (Wyo.1960). Injunctive relief, of course, is an extraordinary remedy. Kincheloe v. Milatzo, 678 P.2d 855, 861 (Wyo.1984).

Under the circumstances of this case, a permanent injunction is appropriate if (1) Shoshone breaches its contractual obligations to Tri-State by selling its assets to Pacific or is estopped from eliminating its requirements and ceasing business through the term of the all-requirements contract and (2) an award of monetary damages is inadequate to compensate Tri-State or REA (as third-party beneficiary to the contract) for the injury sustained. Although the granting or refusing of injunctive relief rests in the sound discretion of the trial court, accord McKinney v. Gannett Co., 817 F.2d 659, 670 (10th Cir.1987), the exercise of that discretion is subject to review. Goldammer v. Fay, 326 F.2d 268, 270 (10th Cir.1964).

Based on the evidence presented at trial, the district court determined that Tri-State has an adequate remedy at law and is not irreparably harmed by a breach of the all-requirements contract. The district court also determined that REA’s claim of inadequate legal remedy and irreparable harm is too speculative to permit the issuance of an injunction. Furthermore, according to the district court, the injunction sought by TriState and REA cannot be granted because it would enjoin Shoshone from ever selling its assets to Pacific and enjoin Pacific from ever acquiring any Tri-State member. The district court premised this determination on its previous ruling on summary judgment that Shoshone does not have an express or implied obligation under the all-requirements contract to maintain requirements and remain in business.⁹ Consequently, the district court denied TriState’s and REA’s request for injunctive relief.

Initially, we must determine whether or not the district court’s premise was correct that Shoshone does not have an obligation to maintain requirements and remain in business. If Shoshone has such an obligation, the district court erred in granting summary judgment on that issue in favor of Shoshone and Pacific and in relying on that determination in evaluating the propriety of permanent injunctive relief. We must then determine whether or not the district court clearly erred in concluding that Tri-State has an adequate legal remedy and that REA’s claim of irreparable harm is speculative. If monetary damages cannot adequately compensate Tri-State, or if REA is irreparably harmed, the district court abused its discretion in denying injunctive relief.

A. Shoshone’s Implied, Contractual Obligation

“[I]t is well settled that a contract includes not only what is stated expressly but also that which of necessity is implied from its language.” Arch Sellery, Inc. v. Simpson, 360 P.2d 911, 912 (Wyo.1961). When a contract is indefinite on a pertinent aspect of the parties’ contractual relationship, it may be appropriate to search the surrounding circumstances in order to ascertain what the parties contemplated at the time of contracting. Accord Mountain Fuel Supply Co. v. Central Engineering & Equipment Co., 611 P.2d 863, 868 (Wyo.1980) (because contract was silent on warranty starting date, court examined the surrounding circumstances); Peters Grazing Association v. Legerski, 544 P.2d 449, 459 (Wyo.1975) (contract may be “considered in . light of all the surrounding circumstances, related facts showing relations of the parties, the nature and situation of the subject matter and the apparent purpose in making the contract”). “[T]he fundamental canon of construction applicable to contracts generally is the ascertainment of the intention of the parties.” Shellhart v. Axford, 485 P.2d 1031, 1034 (Wyo.1971). Further, a promise that is not expressed in the contract, or an unexpressed condition of an express promise, can be implied when the conduct of the parties reasonably interpreted has expressed the promise. And an unexpressed promise can be put in by construction of law when justice demands it under the circumstances that have arisen. HML Corp. v. General Foods Corp., 365 F.2d 77, 82 (3d Cir.1966) (citing 3 A. Corbin, Contracts § 569, at 339-41 (1960)). In a requirements contract, a gap may be filled by implication if it is “necessary in order that the contract should not be unreasonable or unfair to one of the parties” under the circumstances. Id. at 81.

In reviewing the all-requirements contract in this case, we note several aspects of the contract that make it a unique requirements contract. First, it is clear from the contract that the parties are interrelated. Shoshone is specified throughout the contract as a member of Tri-State. This relationship indicates that the all-requirements contract is not a commonplace arm’s-length requirements deal between private parties. Second, it is clear from the all-requirements contract that the REA, which is referenced throughout the contract, is materially connected to the contract and the parties’ contractual relationship. As an example, the contract, including each supplement to the contract, is not effective or binding on the parties until approved by REA. Indeed, a contract among Shoshone, Tri-State, and REA, which serves as a supplement to the June 23, 1965, contract, specifies that execution of the all-requirements contract is subject to the approval of REA under the terms of the loan contracts entered into with REA. Also, the all-requirements contract provides that the rate schedule and any revision of rates must be approved by REA.

The all-requirements contract makes clear that the Tri-State cooperative system was organized by its members for the purpose of furnishing them a long-term source of power. The 1965 contract specifies further that Tri-State expected to construct an electric generating plant or transmission system, or both, for the purpose of supplying electric power and energy to its members. And the contract specifies that TriState entered into a similar all-requirements contract with each member of TriState. This recital clearly shows the interrelationship of the Tri-State system and its members.

The contract also connects Shoshone’s purchase of its system’s requirements to Tri-State’s indebtedness. For example, the 1965 contract specifies that Tri-State can revise the rates charged for electric power so that the revenues produced under the all-requirements contracts are sufficient to make payments on account of Tri-State’s indebtedness. Moreover, in 1958 Shoshone agreed to purchase its system’s electric power requirements until 1991, agreeing that the contract “shall remain in effect until midnight of the 31st day of December, 1991.” Beginning in 1965 and in subsequent years, Shoshone agreed to extend the term of the all-requirements contract, each extension matching Tri-State’s new loan repayment period. As noted, the extensions required REA approval.

With the most recent extension in effect, Shoshone agreed to purchase the electric power requirements of its system from Tri-State until December 31, 2020. We believe that that promise to purchase requirements for a definite term, especially in light of the extensions and other pertinent provisions in the contract, implies that Shoshone will remain in business and maintain requirements throughout the term of the contract, as long as there are sufficient members in Shoshone’s system requiring electric power. We also believe that an agreement to remain in business and maintain requirements must be implied so that the all-requirements contract can be carried out in the way clearly anticipated and not rendered unreasonable to Tri-State and REA.

To be sure, the all-requirements contract does not specifically state that Shoshone is to remain in business and maintain requirements. On the other hand, the contract does not state that Shoshone can just eliminate its requirements (even though it has members requiring power) and cease business prior to the end of the agreed-upon term of the contract simply by selling its assets and member subscriptions to Pacific. Because the contract is not clear on this point,¹⁰ we believe it appropriate to review the circumstances surrounding the parties’ contractual relationship, including the parties’ relationship and their conduct in extending the term of the contract to match loan pay-off periods, to ascertain what the parties contemplated at the time of contracting. Accord Rouse v. Munroe, 658 P.2d 74, 78 (Wyo.1983); Shepard v. Top Hat Land & Cattle Co., 560 P.2d 730, 732 (Wyo.1977).

An obligation on the part of the buyer to maintain requirements and remain in business has been implied even in situations involving a requirements contract stemming from an arm’s-length business deal between unrelated, private parties. For example, Central States Power & Light Corp. v. United States Zinc Co., 60 F.2d 832 (10th Cir.1932), involved a contract requiring a buyer to purchase a specified amount of gas each day for a set number of years. The contract provided, however, that if the buyer’s total daily requirements were less than the specified amount, the buyer was only required to take and pay for the amount of its requirements. Prior to the end of the contract’s term, the buyer discontinued operation of its plant. The buyer claimed that it was no longer required to purchase gas from the seller since the buyer was only required to purchase the amount of its total requirements and its total requirements were zero. According to the court, the contract was to be in full force and effect for a definite period; and the closing or discontinuance of the buyer’s plant did not eliminate the buyer’s liability under the contract. “The [buyer] owning an established business had the implied obligation to continue it in the usual manner, and accept during the time fixed the gas required to so conduct it.” Id. at 834. The court then viewed the circumstances under which the parties entered into the contract and determined that the effect of the buyer’s contention was that “the [seller] was to go to great expense in preparation to deliver the gas, but the [buyer] was not obligated to take it for any definite time, with the result that, if [buyer] could be rid of the obligation at the end of the period of operation, it could likewise avoid it in one month or one day.” Id. According to the court, “[s]urely this would be a most unreasonable interpretation of the contract. And it overlooked the stipulation to take the gas for a certain period; also the expression in the contract of ‘requirements’ instead of desire or will on the part of the [buyer].” Id.

To be sure, the contract in Central States was not a pure requirements contract. Even so, the court noted that the buyer “was not bound to take beyond its requirements.” Id. We think the reasoning in Central States may be applied in the present action.

In Diamond Alkali Co. v. P.C. Tomson & Co., 35 F.2d 117 (3d Cir.1929), the parties entered into a requirements contract wherein the buyer agreed to purchase its entire requirements of soda ash, caustic soda, and bicarbonate of soda, from the seller over a certain period of time. Also, the seller agreed to sell to the buyer a piece of land on which to erect a new plant. The seller further agreed to loan a certain sum of money to the buyer as needed for the erection of the new plant, and the buyer agreed not to encumber its assets. The buyer agreed not to sell or lease the new plant. While the new plant was being built, the buyer continued to operate its old plant and purchase its requirements from the seller. However, prior to moving into the new plant, the buyer sold its old plant, went out of business, and refused to open or operate the new plant. The issue before the court was whether or not the buyer was obligated to continue in business and buy its requirements throughout the term of the contract.

The court noted that there was no express provision in the contract requiring the buyer to continue in business and buy its requirements throughout the term of the contract. Nevertheless, “[t]hat there may be an agreement in which an undertaking not express is imputed to a party because of other undertakings, which are expressed, is undoubted.” Id. at 118. The court reviewed the contract and other evidence in the record and determined that the parties anticipated, intended, or implied that the contract was to continue throughout the definite term. The court stated: “There was a period during which it was understood that ‘the term of this contract’ was to run. There is no intimation that ‘the term’ was to be other than the five years mentioned.” Id. at 119. Likewise, in the present action, there is a definite term under the contract during which it was clearly understood by the parties that the contract was to run.

The court in Diamond Alkali stated further:

All the negotiations between the parties, the entire contract with all its covenants and the entire enterprise of the parties were based upon the proposed “continuance” of the contract for “the term” of five years. The fulfillment of their undertakings necessarily implied such a continuance. The parties in good faith contemplated performance of the covenants requiring the [buyer] to purchase all its specified supplies from the [seller] for five years and implicit in these negotiations and stipulations was the bona fide operation by the [buyer] of its manufacturing plant ... for that period. The [buyer] did not intend to do otherwise until an unexpected opportunity to make “an advantageous sale” presented itself.

Id. at 119. As in Diamond Alkali, it is clear from the record that the all-requirements contract and the entire enterprise of the parties in this case are based on the continuance of the contract throughout the agreed-upon term, especially in light of the cooperative nature of the Tri-State system, the role the all-requirements contract plays in the cooperative venture, and the participation and interrelationship of the individual cooperatives. Clearly, the fulfillment of Tri-State’s and Shoshone’s undertakings necessarily implies such a continuance. “Whenever a contract cannot be carried out in the way it was obviously expected that it would be carried out without one party or the other performing some act not expressly promised by him, a promise to do that act must be implied.” Id. at 119-20. The record is clear in this case: The parties obviously expected that Shoshone would continue purchasing electric power from Tri-State throughout the term of the contract as long as Shoshone had sufficient members requiring electric power. If Shoshone is able to eliminate its requirements by simply transferring its member subscriptions to Pacific, the contract cannot be carried out in the way it was expected. If Shoshone puts itself in a position in which it cannot carry out the all-requirements contract, it breaches the contract.

Texas Industries, Inc. v. Brown, 218 F.2d 510 (5th Cir.1955), involved a requirements contract under which the buyers agreed to purchase from the seller all of the lightweight aggregate that the buyers would require for a period of five years. Because the seller’s production at its plant was already committed to other customers, it was necessary for the seller to build a new aggregate plant in order to supply the buyers’ needs. In determining whether the buyers remained obligated under the contract notwithstanding that they leased the plants to a third party, the court stated: “In our opinion, neither a sale nor lease of the [buyers’] plants, nor an assignment of the contract, by the buyers could in law effectuate a release of their obligations under the contract without the consent of [the seller].” Id. at 512 (emphasis added). According to the court, the contract showed that the requirements of the buyers’ plants were the subject matter of the parties’ contract and within the parties’ contemplation: “The plants have not been sold; they have not been shut down; they have not been dismantled; they have never ceased to operate and to have requirements.” Id. Similarly, in the present case, it is quite clear from the all-requirements contract that the requirements of Shoshone’s members were the subject matter of the parties’ contract and within the parties’ contemplation at the time of contracting. Those members have not ceased to have electric power requirements; Shoshone is merely transferring its members’ requirements to Pacific.¹¹

Based on the above analysis, the court in Texas Industries held:¹²

In these circumstances, the law ... imposes an implied obligation upon the buyers to keep the plants in operation lest, by disposing of them or shutting them down, the buyers be permitted to destroy the subject matter of the contract, the requirements of the plants, in violation of the intention of the parties that sales and purchases under it would continue for the full term thereof.

Id. (determination made on appeal from summary judgment). The court further held that a business situation can necessarily provide a promise “on the part of the buyer to maintain his business or plant as a going concern, and to take its bona fide requirements. ‘In other words, this view implies an obligation to carry out the contract in the way anticipated, and not for purposes of speculation to the injury of the other party.’ ” Id. at 512-13 (quoting Portland Gas Co. v. Superior Marketing Co., 150 Tex. 538, 243 S.W.2d 823, 825 (1951)).¹³ Like the buyer in Texas Industries, Shoshone cannot be permitted to destroy the subject matter of the all-requirements contract — the requirements of its members — in violation of the obvious intention of the parties that purchases under the contract would continue throughout the full term of the contract.

Although an obligation to remain in business and maintain requirements has been implied in certain situations, we are aware that typically “the buyer in a requirements contract is required merely to exercise good faith in determining his requirements and the seller assumes the risk of all good faith variations in the buyer’s requirements even to the extent of a determination to liquidate or discontinue the business.” HML Corp., 365 F.2d at 81. This conventional rule, of course, is based on the self-interest of the buyer to continue a profitable business and have the largest possible requirements; and the rule is recognized in the routine arm’s-length requirements deal inasmuch as the seller can adjust the price in proportion to the risk he carries that the buyer will have no requirements.¹⁴

The all-requirements contract in this case, however, is not a routine arm’s-length requirements contract between unrelated, private for-profit parties. Shoshone’s participation in the Tri-State cooperative system and its interrelationship with Tri-State and the other members of the Tri-State system make the parties’ contractual relationship á unique one. The all-requirements contracts which form the Tri-State system are not simple requirements contracts but rather interdependent, joint and mutual contracts with a common purpose of securing the REA loans and thereby effectuating the REA policy to provide the economic means for supplying electricity to rural areas. The case law dealing with the run-of-the-mill requirements contracts between private parties is not dispositive. Indeed, as we have mentioned earlier, “this case arises in an unusual context with no close parallel in the extant cases.” Shoshone /, 805 F.2d at 359.

Because of the unique circumstances in this case, the all-requirements contract must be viewed in conjunction with the entire cooperative system and REA program, including Shoshone’s participation in and relationship to Tri-State, the interdependency of the members in the Tri-State system, the purpose behind the REA program and its connection to the all-requirements contract, Shoshone’s realization of benefits at the Tri-State level as a member of an REA-financed cooperative system, the purpose for which Tri-State obtained the REA loans, the reasons for entering into the all-requirements contract, the connection between the contract and TriState’s indebtedness, the role the all-requirements contract plays in the cooperative system, and the obvious need for an intact system and a continued revenue stream.

Based on our review of the contract and the circumstances surrounding the parties' contractual relationship, we are convinced that Tri-State and Shoshone contemplated at the time of contracting and when entering into the cooperative venture that Shoshone would remain in business and continue purchasing the requirements of its members from Tri-State throughout the agreed-upon term of the contract. We are further convinced that each time Shoshone agreed to extend the contract, the parties pre-supposed that Shoshone would provide a revenue stream corresponding to TriState’s repayment of its debt obligations— obligations clearly incurred on behalf of Shoshone and the other cooperative members of Tri-State.¹⁵ Only through these expectations and the fulfillment of the parties’ respective obligations could the cooperative system work. Indeed, the assurance of a long-term source of power and a long-term revenue stream is the very essence of the all-requirements contract and the Tri-State system; and the cooperative nature of the Tri-State system is dependent on the continuance of each member’s contract. The contracts also allow the entire system to be viewed as a whole, combining the members’ financial strength and increasing their ability to obtain funds, through Tri-State, to build facilities and obtain power in an attempt to meet the members’ actual and projected power needs. Shoshone and its members have been able to take advantage of the combined strength of individual cooperatives and the electric power transmitted by TriState to the Shoshone service area as a direct result of the federal monies obtained at the Tri-State level. In effect, Tri-State and the federal government through the REA program have made it possible for Shoshone to provide electric power to its members. Selling out prior to the end of the contract would constitute an abuse of the federal program.¹⁶ If Pacific is allowed to purchase Shoshone’s member subscriptions, Shoshone is not sharing the burden that has come with the benefits it has received under the REA program; and Pacific would be purchasing assets supported by federal dollars and a ready-made market created by a federal program, without having to assume corresponding obligations. “The sale converts taxpayer bounty to the private profit of Pacific.” Id.

We hold, therefore, that Shoshone has an implied obligation to remain in business and not to eliminate its requirements, as long as there are members in the Shoshone system requiring electric power. In other words, the fulfillment of Shoshone’s contractual undertakings necessarily implies the continuance of Shoshone’s system. Otherwise, the contract could not be carried out in the way anticipated and would be rendered unreasonable to Tri-State and the REA. Consequently, Shoshone breaches the all-requirements contract as a matter of law when it attempts to eliminate its requirements by selling its member subscriptions to Pacific and ceasing business. The district court erred in determining that there was no such obligation.

Although the all-requirements contract in this case is not a commonplace requirements contract between private parties, we do agree that an unavoidable reduction or elimination of Shoshone’s requirements would not be a breach of Shoshone’s obligation to remain in business and maintain requirements. As an example of an unavoidable circumstance, the record indicates that cogeneration (where the customer generates its own electricity and does not need to buy from the neighborhood utility) could result in the drastic loss of members and even the cessation of Shoshone’s system. Also, because a majority of Shoshone’s customers are industrial load customers, the shutting in of oil wells could reduce or even eliminate Shoshone’s requirements. And a force majeure (uncontrollable force) may result in the elimination of requirements and cessation of Shoshone’s business.¹⁷ If any of these events causes Shoshone to cease existence or eliminate its requirements, that may be a good faith elimination and thus not a breach of Shoshone’s contract. However, as a matter of law, we are convinced that when there are sufficient members in Shoshone’s system requiring electric power, a sale of Shoshone’s assets or member subscriptions to Pacific cannot qualify as a good faith reduction or elimination of requirements.

There is no question that at the time of the purported sale there were sufficient members in Shoshone’s system requiring electric power. Those members have never ceased to have requirements. Indeed, a sale of Shoshone’s assets does not reduce or eliminate Shoshone’s requirements for power except in the most technical sense. Only the source of the power changes. Under these circumstances, Shoshone cannot escape its contractual obligations simply by taking its members’ requirements out of the Tri-State system and transferring them to Pacific. Cf. Western Oil & Fuel Co. v. Kemp, 245 F.2d 633, 638 (8th Cir.1957) (buyer did not cease to do business in good faith inasmuch as requirements never ceased except in the most technical sense).

Inasmuch as we have determined as a matter of law that the sale of Shoshone’s assets to Pacific under the circumstances of this case is a breach of Shoshone’s implied obligation to remain in business and maintain requirements, a new trial on liability on this issue is unnecessary. Having made this determination, we turn to the adequacy of Tri-State’s and REA’s legal remedy to determine whether or not the district court abused its discretion in denying permanent injunctive relief.

B. Adequacy of Legal Remedy

We have reviewed the record and believe that monetary damages could likely compensate Tri-State for the injury it would sustain as a result of a breach of Shoshone’s contractual obligation. If TriState is awarded in damages the present value of what it would have realized over the life of Shoshone’s all-requirements contract, Tri-State is presumably made whole under the contract.¹⁸ Other members of the Tri-State system would not be adversely affected by Shoshone’s leaving the system because the damages awarded could cover the revenue stream that would have come in under the Shoshone contract. Also, an award of damages reduces the possibility of a “domino effect” (i.e., the likelihood that once Shoshone leaves the Tri-State system, other members will follow suit, resulting in a possible collapse of the entire system). Because Shoshone would be required to pay damages, other Tri-State members no doubt would be discouraged from leaving the system under circumstances similar to the present case because they also would be required to pay for their wrongful elimination of requirements. In other words, we are not evaluating the possible domino effect if Shoshone is freely permitted to sell its assets and leave the system. A permanent injunction cannot be granted simply because Shoshone’s leaving the system may result in others leaving. An injunction is appropriate only if Shoshone commits a legal wrong by leaving the system — e.g., a breach of contract — and if the injury sustained from that wrong cannot be adequately compensated. Thus, we are evaluating the possible domino effect if Shoshone breaches its all-requirements contract, pays damages as a result of the breach, and leaves the system. In that instance, we are not persuaded from the record before us that Shoshone’s wrongful departure from the system would prompt an exodus of members resulting in the collapse of Tri-State or the irreparability of Tri-State’s injury.

With regard to REA, we cannot say that REA’s security or loan position will be irreparably impaired or that the viability of the whole REA system and the policies implemented through it would be threatened by the sale of Shoshone’s assets, if Shoshone is required to pay monetary damages for the wrongful elimination of its requirements. An award of damages to Tri-State would cover the loss of Shoshone’s revenue stream which REA looks to as security for the Tri-State loans. Additionally, we cannot say that the district court was clearly erroneous in finding that REA would not be irreparably harmed.

Tri-State claims that its legal remedy is inadequate because damages are not calculable or measurable at this time with any reasonable degree of accuracy or certainty. This is the most persuasive of Tri-State’s contentions. Cf. Molex, Inc. v. Nolen, 759 F.2d 474, 477 (5th Cir.1985) (irreparable harm includes injuries “for which compensation cannot be measured by any certain pecuniary standard”); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386 (7th Cir.1984) (difficult to project loss into distant future; incalculability of damages renders legal remedy inadequate); Central Illinois Public Service Co. v. Consolidated Coal Co., 527 F.Supp. 58, 67 (C.D.Ill.) (no adequate remedy at law because damages under long-term requirements contract “will be very difficult of ascertainment”), aff'd, 673 F.2d 1333 (7th Cir.1981); U-Haul International, Inc. v. Jartran, Inc., 522 F.Supp. 1238, 1255 (D.Ariz.1981) (“The difficulty of measuring actual injury to a party is justification itself for granting injunctive relief, since any remedy at law would be inadequate.”), aff'd, 681 F.2d 1159 (9th Cir.1982). However, we do not believe that the district court abused its discretion as a matter of law in denying injunctive relief after determining that Tri-State’s damages are reasonably calculable based on the evidence presented at trial. In this respect, although damages for breach of a long-term requirements contract may appear to be difficult to ascertain, especially when requirements can vary considerably over a lengthy period of time, we cannot say at this time that the damages in this case cannot be calculated with a reasonable degree of accuracy or that the estimation of damages is so speculative that any award would be inadequate. Cf. U-Haul International, 522 F.Supp. at 1255-56 (measure of injury defies calculation and can be measured only by speculation and conjecture). We reach this conclusion on the record presently before us. Tri-State’s own expert witness, Dr. George F. Rhodes, testified that a reasonable estimate could be made, even though it would be difficult to determine Tri-State’s exact loss over the term of Shoshone’s all-requirements contract. Dr. Rhodes thoroughly explained his method of calculating Tri-State’s future “lost profits.” He apparently relied on pertinent historical data and the 1986 power requirements study on future load growth and related forecasts, and exhibited no difficulty in making a reasonably accurate calculation of Tri-State’s losses. The assumptions and projections based on these data appear to present a plausible basis for calculating the damages Tri-State would suffer. Dr. Rhodes gave a firm opinion that Tri-State's damages would fall within a relatively narrow range and that his calculations were a “reasonable estimate” to a “reasonable degree of economic certainty.” Record, vol. 10 (Transcript of Trial Proceedings), at 1667-68. Most importantly, we find nothing in the record to indicate that the calculations made by Dr. Rhodes were not reasonably accurate or that the extent of Tri-State’s loss was impossible to ascertain with a reasonable degree of certainty. Dr. Rhodes’ expert testimony was uncontradicted.¹⁹ Although the jury did not award the full amount of damages calculated by Dr. Rhodes, this does not necessarily mean, without additional indications of the jury’s difficulty in assessing damages, that Tri-State’s future damages as a result of Shoshone's leaving the system cannot be reliably measured.

As mentioned, the district court relied on the evidence presented at trial in determining that the damages in this case are reasonably calculable. However, since there will be a new trial on the issue of damages,²⁰ and evidence will necessarily be presented on Tri-State’s future damages, the district court may determine after the new trial and upon further consideration of all evidence presented that future damages resulting from a breach of Shoshone’s long-term all-requirements contract are too difficult to measure with any reasonable degree of certainty, notwithstanding Dr. Rhodes’ testimony. In this respect, evidence concerning Tri-State’s future damages is obviously intertwined with and directly affects the determination of whether injunctive relief should be granted because future damages are incalculable. Indeed, the evidence at the new trial may shape up differently and bear out that damages are incalculable. The jury may indicate that it cannot calculate Tri-State’s future damages with any reasonable degree of accuracy or that it is having substantial difficulty measuring damages. Such an indication will certainly affect our review on a subsequent appeal if the district court again determines that damages are calculable and consequently denies injunctive relief. We therefore determine it necessary to vacate the district court’s order denying the permanent injunction, pending a final determination after the new trial as to whether or not adequate damages are actually calculable in this case. If future damages are not capable of reliable calculation, injunctive relief would be appropriate.

Tri-State next contends that effective legal relief cannot be obtained without multiple suits. However, if Shoshone breaches its contractual obligations by leaving the system and is required to pay damages to Tri-State as a result of that breach, we do not see that this would result in numerous suits needing to be instituted to compensate Tri-State for injury sustained as a result of Shoshone’s breach. In other words, we do not believe that effective relief for Shoshone’s breach can be secured only through the prosecution of multiple lawsuits. Unlike Taylor Ditch Co. v. Carey, 520 P.2d 218 (Wyo.1974), this is not a case where the injury sustained by the same wrong is of a continuing nature. Any future litigation involving the elimination of requirements of other members of the Tri-State system would require a separate evaluation of how and under what circumstances the requirements were eliminated. Also, the extent of Tri-State’s or REA’s injury will depend on the resulting effect of and the circumstances surrounding the breach.

Tri-State also contends that its remedy at law is inadequate because an award of damages is uncollectible inasmuch as Shoshone would cease existence upon selling its assets. However, Pacific has agreed to indemnify Shoshone and hold it harmless with respect to claims, actions, proceedings, or demands which are associated with the sale of Shoshone’s assets. As a result of this indemnification agreement, we cannot say, based on the record now before us, that Tri-State will have such difficulty in collecting a damages award against Shoshone so as to render the legal remedy inadequate.

Also, we agree with the district court that Pacific is judicially estopped from denying its obligation to pay any judgment rendered against Shoshone. Inasmuch as the application of judicial estoppel in this diversity action goes to the adequacy of Tri-State’s legal remedy, we look to the appropriate state law to determine whether judicial estoppel is recognized. See, e.g., Ellis v. Arkansas Louisiana Gas Co., 609 F.2d 436, 440-41 (10th Cir.1979), cert. denied, 445 U.S. 964, 100 S.Ct. 1653, 64 L.Ed.2d 239 (1980); Reno v. Beckett, 555 F.2d 757, 770 (10th Cir.1977). The parties do not dispute that Wyoming law is the applicable state law in this case. Under Wyoming law, Pacific is judicially estopped from subsequently taking a position inconsistent with its representations in this action to the effect that it will indemnify Shoshone for any damages rendered against Shoshone in this action. See Amfac Mechanical Supply Co. v. Federer, 645 P.2d 73, 79 (Wyo.1982); Gray v. Fitzhugh, 576 P.2d 88, 91 (Wyo.1978). The perceived rejection of judicial estoppel in United States v. 49.01 Acres of Land, 802 F.2d 387, 390 (10th Cir.1986), which is not a diversity case, is inapposite to the present action.

IV. Conclusion

We conclude that the district court erred in determining that Shoshone does not have an implied obligation to maintain requirements and remain in business throughout the term of the all-requirements contract, and in referring to or relying on that determination in concluding that the injunctive relief sought by Tri-State and REA was overly broad and thus improper. We further conclude that Shoshone breached its implied obligation as a matter of law when it eliminated its requirements by selling its assets, including the member subscriptions, to Pacific. Because we so hold, a new trial on the issue of liability is unnecessary.

Additionally, we conclude at this time that the district court did not abuse its discretion in denying the permanent injunction based on the evidence before the court. However, because a new trial on damages must still be undertaken, we vacate the district court’s order denying the permanent injunction so that the district court can make a final determination after the new trial as to whether or not future damages are actually measurable in this case. If the evidence presented indicates to the court that future damages are not reasonably calculable, permanent injunctive relief would be appropriate.

The district court’s order denying TriState’s and REA’s request for a permanent injunction is SET ASIDE and VACATED in accordance with this opinion.

1 . Upper Missouri G & T Electric Cooperative, Inc. v. McCone Electric Co-op, Inc., 160 Mont. 498, 503 P.2d 1001 (1972), details the banding together of a group of electric distribution cooperatives to form a central generation and transmission cooperative in order to secure a long-term source of power to avert a power shortage.

2 . Likewise, the preamble to Tri-State’s Articles of Incorporation states that the members "voluntarily associate [themselves] together for the purpose of forming” Tri-State. Article II provides further that Tri-State was established by the members in part to generate and acquire electric energy for the members only. Article II authorizes Tri-State to sell energy to nonmembers for the ultimate benefit of its members and to construct facilities to carry out its objectives.

3 . Rather than having to build its equity, a G & T is able to operate on a very small margin, thereby passing the savings on to its members. Normally, a highly leveraged company is a credit risk and must pay premium interest rates, if it is able to borrow at all. Because all-requirements contracts allow the REA and the financial market to view G & Ts and their member distribution cooperatives as an integrated whole, reasonable and necessary financing can be made available to G & Ts despite the small equity margin.

4 .To make loans to G & Ts for the purpose of financing the construction and operation of generating plants and electric transmission and distribution lines or systems for the furnishing of electric energy to rural communities, REA must first determine that the security for the loan is “reasonably adequate" and that the loan will be repaid within the time agreed. 7 U.S.C. § 904 (1982). It cannot be seriously disputed that the all-requirements contracts within the G & T systems provide an essential source of "reasonably adequate” security for the REA loans.

5 . In an order dated April 17, 1987, the district court determined on cross motions for partial summary judgment that REA is a third-party beneficiary of the all-requirements contract between Tri-State and Shoshone.

6 . The district court’s order expressly denying Tri-State’s and REA’s request for a permanent injunction is not a final order inasmuch as the district court ordered a new trial. The district court has not directed the entry of a final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, nor has the court certified any order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (1982 & Supp. 1985).

7 . We note, too, that this case proceeded to trial on the basis of the district court’s ruling on summary judgment and that the district court relied on the evidence presented at the tried in denying the injunction.

8 . Our position that the resolution of the pendent appellate jurisdiction issue on an appeal from a certified order is not applicable to an appeal from an order granting or denying injunctive relief is somewhat confirmed by the fact that the Supreme Court in Stanley does not mention Thornburgh, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779, decided only a year before Stanley, in which the Supreme Court approved the court of appeals’ decision to address the merits of the case on appeal from a preliminary injunction.

9 . In its order denying the permanent injunction, the district court also referred to and relied on its determination on summary judgment that Shoshone does not have to seek REA’s approval of the sale since Shoshone’s direct debts to REA have been paid in full. We agree with the district court that the plain language of 7 U.S.C. § 907 (1982) does not require Shoshone to obtain REA approval prior to selling its assets when its direct debts to REA are repaid. It is clear from the record that Shoshone is not individually liable for any portion of the Tri-State debt owing to REA. Public Utility District No. 1 v. United States, 417 F.2d 200 (9th Cir.1969), which involves a unilateral state condemnation of a portion of an REA-financed cooperative system without REA approval, is not on point.

10 . We do not agree with the district court’s legal determination that the all-requirements contract unambiguously spells out Shoshone’s obligations on this point.

11 . Nothing in the record suggests that if Shoshone is not permitted to leave the Tri-State system, it could not remain a viable distribution cooperative fulfilling its members’ needs.

12 . Although the court in Texas Industries looked to Texas law, we believe the conclusion and rationale in that case would be followed by the Wyoming courts.

13 . The court in Texas Industries, 218 F.2d at 513, briefly discusses three cases in support of its position: Wells v. Alexandre, 130 N.Y. 642, 29 N.E. 142 (1891), Great Lakes & St. Lawrence Transportation Co. v. Scranton Coal Co., 239 F. 603 (7th Cir.1917), and Kamm v. Pritchard, 296 F. 871 (5th Cir.1924). We are told that in Wells the court held that the buyer’s sale of steamers after making a contract to purchase coal for one year did not relieve the buyer from the obligation to take coal that the ordinary and accustomed use of the steamers required. In Great Lakes the court held that a contract carried with it an implied obligation on the part of the buyer to continue its business during the term of the contract and run its boats in a reasonable manner. And in Kamm the court held that although a contract to sell the defendants’ output of lumber contained no covenant by the defendants not to sell their entire lumber operation, the contract was nevertheless enforceable by the plaintiff.

14 . In this case the very purpose behind forming the cooperative Tri-State system to provide electric power to rural users at a reasonable cost is obviously undercut if Tri-State raises the rates charged to its members simply to take into account the possibility that the members will sell out and have no requirements. Also, the rationale stated undercuts the cooperative, nonprofit nature of the whole Tri-State system.

15 . We do not decide how the contract governs the rights and liabilities of the parties in a situation where a cooperative member becomes financially unable to continue to service its customers. The record is clear that Shoshone is not in such a position.

16 . Cf. Upper Missouri G & T Electric Cooperative, Inc. v. McCone Electric Co-op, Inc., 160 Mont. 498, 503 P.2d 1001, 1004 (1972) (quoting Upper Missouri G & T Electric Cooperative, Inc. v. McCone Electric Co-Op, Inc., 157 Mont. 239, 484 P.2d 741, 747 (1971)) ("Ten years after the [wholesale power] contract, initiated and inspired, we are told, by defendant [McCone], defendant [McCone] now wants a better deal elsewhere. It is as simple as that.”).

17 . We note that the General Power Contract Provisions, which have been incorporated into the all-requirements contract, expressly state that Shoshone is not in default under the all-requirements contract if Shoshone is prevented from fulfilling its obligations under the contract by reason of uncontrollable forces, i.e., causes beyond Shoshone’s control, which by due diligence and foresight Shoshone could not reasonably have been expected to avoid.

18 . Of course, the loss of a member such as Shoshone would result in a loss of an all-requirements contract that could have been extended and thus looked to as additional security if Tri-State needed to obtain additional loans to maintain and operate its system. However, there is no assurance that Shoshone would have agreed to further extend the term of the contract to match additional loan repayment periods.

If Tri-State is awarded monetary damages for Shoshone's breach, we also do not think that Tri-State’s financial position or strength will be adversely affected to the point of terming TriState’s legal remedy ‘'inadequate."

19 . As mentioned, Dr. Rhodes relied on several assumptions and forecasts in arriving at his conclusions. The past has shown, however, that the electric power market is volatile and somewhat unpredictable. In fact, this very lawsuit stems from problems with the accuracy of certain power forecasts. Also, although Tri-State is presently in a surplus situation, that could change at any time. And Shoshone’s power requirements and even the rates charged under the contract could vary considerably over the remaining term of the contract. The unpredictability of the electric power market and the variability of Shoshone's requirements over the next 32 years could create a real problem in determining damages with any reasonable degree of accuracy. However, we do not find anything in the record establishing the uncertainty of calculation. We have only Dr. Rhodes’ expert testimony, which appears to be sound in light of the fact that there is no contradictory evidence.

20 . We noted earlier that the district court granted a new trial on all issues. Because the determinations on this appeal have rendered unnecessary a new trial on the issue of liability, it appears that the new trial will be limited to the issue of damages.