McDonough Family Land, Lp v. United States ( 2021 )

In the United States Court of Federal Claims
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MCDONOUGH FAMILY LAND, et al, )
)
Plaintiffs, )
) No. 20-368L
v. ) (Filed: June 10, 2021)
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THE UNITED STATES OF AMERICA, )
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Defendant. )
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)
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Quentin M. Rhoades, Rhoades Siefert & Erickson PLLC, Missoula, Montana, for Plaintiffs.
Jessica M. Held, Natural Resources Section, Environment & Natural Resources Division, U.S.
Department of Justice, Washington, DC, for Defendant, with whom was Jean E. Williams,
Deputy Assistant Attorney General, Environment & Natural Resources Division.
OPINION AND ORDER
Kaplan, Chief Judge.
Plaintiffs, McDonough Family Land, LP and the Ingersoll Ranch, FLP (“the Ranches”),
are limited partnerships that own real and personal property in Wolf Creek, Montana. The
Ranches filed this action seeking compensation for what they allege was a Fifth Amendment
taking of the property that occurred when the United States Department of Agriculture’s United
States Forest Service (“USFS”) ignited backfires and burnouts on Plaintiffs’ land during the
2017 Alice Creek Fire in Lewis & Clark County, Montana. See Compl., ECF No. 1. Currently
before the Court are: (1) the Ranches’ motion for partial summary judgment, ECF No. 11; and
(2) the government’s motion pursuant to Rule 56(d) of the Rules of the Court of Federal Claims
(“RCFC”), seeking an order allowing the completion of discovery, ECF No. 12.
For the reasons set forth below, the government’s motion is GRANTED, and Plaintiffs’
motion is DENIED without prejudice.
DISCUSSION
This case concerns resource management efforts undertaken by the USFS in response to
the Alice Creek Fire, which began after a lightning strike in July 2017 in Lewis and Clark
County, Montana. Compl. ¶ 11. On various dates in August and September of that year, USFS
intentionally ignited backfires and burnouts in the Helena-Lewis and Clark National Forest and
other federal and privately-owned lands as part of resource management efforts and in order to
manage the Alice Creek Fire. Answer ¶¶ 10, 12, ECF No. 5.
Plaintiffs allege that USFS intentionally burned large tracts of private range and timber,
and that it took timber and range vegetation owned by Plaintiffs in order to fuel its intentionally
ignited backfires and burnouts. Compl. ¶¶ 12, 14. According to Plaintiffs, range and timber
destroyed by USFS fires would not have burned but for USFS’ land management efforts in the
National Forest. Compl. ¶ 25. The government denies that USFS’ actions constituted a taking of
property, Answer ¶¶ 32–34, and asserts that, regardless, Plaintiffs’ claims are barred by the
doctrine of necessity and the relative benefits doctrine, see Answer at 6–7.
Fact discovery in the case has been underway since July of 2020, and is currently set to
close on August 30, 2021. See Scheduling Order, ECF No. 8; see also ECF No. 18 (granting
parties’ joint motion to modify discovery schedule). Expert discovery is set to close in April
2022. ECF No. 18.
In the meantime, on March 31, 2021, the Ranches filed the motion for summary
judgment that is currently before the Court. Pl.’s Mot. for Summ. J. on Liability and on Def.’s
Necessity and Burden Outweighed by Benefit Affirmative Defenses (“Pl.’s Mot.”), ECF No. 11.
Plaintiffs allege that the government lacks evidence to support its affirmative defenses and that
Plaintiffs are therefore entitled to judgment as a matter of law on their takings claim. See Pl.’s
Mot. at 1, 4.
In support of their motion, Plaintiffs point to the government’s responses to
interrogatories served on January 6, 2021, see Pl.’s Mot. at 3–4, in which the government
explained that it “is currently undertaking expert discovery,” and that the assertion of its defenses
“will rely in part on the expert opinions that [it] will disclose . . . in accordance with the schedule
set forth by the Court.” First Suppl. To United States’ Resps. to Pl.’s First Set of Disc. Reqs., at
3, ECF No. 12-4. Plaintiffs assert that “[t]he Government’s failure to provide even a scintilla of
factual basis of its affirmative defenses” has led Plaintiffs to conclude “that there must be none.”
Pl.’s Mot. at 11.
For its part, government contends that Plaintiffs’ summary judgment motion is
premature. See Def.’s Opp. to Pl.’s Mot. for Summ. J. and Cross-Mot. to Allow Completion of
Disc. Under Rule 56(d) (“Def.’s Resp.”) at 1–2, ECF No. 12. It explains that it has already
provided Plaintiffs with more than 4,000 pages of documents, id. at 4, and disclosed the names of
nine individuals likely to have discoverable information, Def.’s Initial Disclosures Pursuant to
RCFC 26(a)(1) at 1–4, ECF No. 12-1, but that more time is needed to conduct the discovery
necessary to support its arguments given its intended reliance on expert discovery on the issue of
its affirmative defenses, Def.’s Resp. at 6.
RCFC 56(d) states in pertinent part that, “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition” to
a motion for summary judgment, the Court may: “(1) defer considering the motion or deny it; (2)
allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.” The government has supplied a declaration from its counsel, in which she
asserts that the government is “working with experts to ascertain facts that the United States
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anticipates will support application of the doctrine of necessity, the police powers doctrine, and
relative benefits principles” and that discovery will allow “the development of facts expected to
show an actual emergency, an imminent danger to life and property, and a reasonable firefighting
response.” Decl. of Jessica M. Held ¶ 8, ECF No. 12-5. As counsel explains, the government
believes that further discovery is “likely to give rise to a genuine issue of material fact as to
whether fires set by the United States as part of an ‘actual emergency and imminent danger’ were
a reasonable response that was necessary to protect life and property” such that Plaintiffs’ claims
would be barred “under the doctrines of necessity and police power principles.” Id. ¶ 9.
The Supreme Court has instructed that summary judgment “be refused where the
nonmoving party has not had the opportunity to discover information that is essential to his
opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). Where the party
opposing summary judgment “has not had any opportunity to gather evidence through
discovery” and has submitted the Rule 56(d) “affidavit stat[ing] that [it] could not present
sufficient facts to prove its case without discovery,” it is improper to grant the movant’s request
for summary judgment. Dunkin’ Donuts of Am., Inc. v. Metallurgical Exoproducts Corp., 840
F.2d 917, 919 (Fed. Cir. 1988).
“The issue of whether a taking has occurred is a question of law based on factual
underpinnings.” Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377 (Fed. Cir.). In light
of “the fact-intensive nature of takings cases,” Moden v. United States, 404 F.3d 1335, 1342
(Fed. Cir. 2005), in which discovery is often “necessary to determine whether plaintiffs’
allegations demonstrate a taking,” the parties “should be given the opportunity to develop facts
in support of their claims.” Orr v. United States, 145 Fed. Cl. 140, 158 (2019); see also Arkansas
Game & Fish Comm’n v. United States, 568 U.S. 23, 32 (2012) (noting that “most takings
claims turn on situation-specific factual inquiries”).
Finally, the Court notes that “[m]otions for additional discovery under RCFC 56(d) ‘are
generally favored and are liberally granted.’” Clear Creek Cmty. Servs. Dist. v. United States,
100 Fed. Cl. 78, 83 (2011) (quoting Chevron U.S.A. Inc. v. United States, 72 Fed. Cl. 817, 819
(2006)); see also Doe v. United States, 2017 WL 74292, at *3 (Fed. Cl. Jan. 6, 2017) (stating the
same). Applying that standard here, the Court concludes that the government has made an
adequate showing that completion of discovery is needed to ensure that it can present facts
essential to its opposition to the Ranches’ motion, and that it is entitled to conduct discovery in
order to meet its burden of presenting proof that it believes establishes its affirmative defenses.
CONCLUSION
Based on the foregoing, the government’s motion pursuant to RCFC 56(d)(1) is
GRANTED, ECF No. 12, and Plaintiffs’ motion for summary judgment, ECF No. 11, is
DENIED without prejudice. The Court will set a schedule for the filing of dispositive motions, if
appropriate, at the close of discovery.
IT IS SO ORDERED.
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s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Chief Judge
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