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North Dakota v. United States

United States District Court, D. North Dakota, Southwestern Division

November 25, 2014

North Dakota, Plaintiff,
v.
United States of America, Defendant. Billings County, et. al., Plaintiffs,
v.
United States of America, Defendant

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For North Dakota, ex rel., Wayne Stenehjem, Attorney General for the State of North Dakota, Plaintiff (1:12-cv-00125): Hope L. Hogan, William Christopher Harvey, LEAD ATTORNEYS, Attorney General's Office, Bismarck, ND; Matthew A. Sagsveen, LEAD ATTORNEY, ATTORNEY GENERAL'S OFFICE, NATURAL RESOURCES DIV., BISMARCK, ND.

For Billings County, ND, a municipal entity, Golden Valley County, ND, a municipal entity, Slope County, ND, a municipal entity, McKenzie County, ND, a municipal entity, Consolidated Plaintiffs (1:12-cv-00125): Charles M. Carvell, LEAD ATTORNEY, Larry L. Boschee, PEARCE & DURICK, BISMARCK, ND; Constance E. Brooks, Danielle Hagen, LEAD ATTORNEYS, C. E. BROOKS & ASSOCIATES PC, DENVER, CO.

For United States of America, Defendant (1:12-cv-00125, 1:12-cv-00102-DLH-CSM): Sara Porsia, LEAD ATTORNEY, PRO HAC VICE, U.S. Department of Justice, Environment Enforcement Section, Washington, DC; Stephen G. Bartell, U.S. Department of Justice, Environmental & Natural Resources Division, Washington, DC.

For Billings County, ND, a municipal entity, Golden Valley County, ND, a municipal entity, McKenzie County, ND, a municipal entity, Slope County, ND, a municipal entity, Plaintiffs (1:12-cv-00102-DLH-CSM): Constance E. Brooks, LEAD ATTORNEY, C. E. BROOKS & ASSOCIATES PC, DENVER, CO; Dennis E. Johnson, Johnson & Sundeen Law Firm, Watford City, ND; Michael B. Marinovich, PRO HAC VICE, C. E. BROOKS & ASSOCIATES PC, DENVER, CO.

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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL

Charles S. Miller, Jr., Magistrate Judge.

I. BACKGROUND

A. Introduction

Case No. 1:12-CV-125 is an action filed by the State of North Dakota seeking to quiet

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title to its claim of section line rights-of-way within the Little Missouri National Grassland, the Sheyenne National Grassland, and the portion of the Cedar River National Grassland located in North Dakota - all of which are a part of the Dakota Prairie Grasslands administered by the United States Forest Service, which is an agency of the United States Department of Agriculture (" USDA" ). Case No. 1:12-CV-102 is an action by four North Dakota counties (Billings, McKenzie, Slope, and Golden Valley - collectively referred to herein as the " Counties" ) seeking to quiet title to the claimed section line rights-of-way in just the Little Missouri National Grassland as well as six individual roads claimed by McKenzie County. The two actions have been consolidated with the State of North Dakota's action being the " lead case" and the action by the four counties being the " consolidated case."

Before the court now is a joint motion to compel discovery by North Dakota and the Counties. Before turning to the motion, some understanding of what overall is in dispute is important.

B. Plaintiffs' quiet title claims

1. Revised Statute 2477

In 1866, Congress provided for public access across unreserved public domain lands by granting rights-of-way for the construction of highways by the passage of a statute that is commonly referred to as " R.S. 2477," which read in its entirety as follows:

The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.

Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, Title VII, § 706(a), 90 Stat. 2743, 2793.

On October 21, 1976, Congress abandoned its prior approach to public lands and instituted a preference for retention of lands in federal ownership, with an increased emphasis on conservation and preservation, by its enactment of the Federal Land Policy and Management Act of 1976 (" FLPMA" ). Among other things, the FLPMA repealed R.S. 2477 but preserved " any valid" right-of-way " existing on the date of approval of this Act." Pub. L. No. 94-579, § § 701(a), 706(a), 90 Stat. at 2786, 2793; see Southern Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740 (10th Cir. 2005).

2. Plaintiffs' primary claim of right-of-way based on North Dakota's section line law

The primary claim of North Dakota and the Counties is that every section line within or adjacent to the Forest Service lands identified above is subject to a 66' wide public right-of-way running along and extending 33' on either side of the section lines. Plaintiffs contend this right-of-way burdens the Forest Service lands regardless of whether a road has been constructed or there is evidence of use of the section lines for public travel. Plaintiffs' claim rests upon an 1871 Dakota Territory law and successor versions enacted after statehood that plaintiffs contend, and the North Dakota Supreme Court agrees, was an " acceptance" of the purported open-ended grant of right-of-way for highways under Revised Statute 2477. E.g., Small v. Burleigh County, 225 N.W.2d 295 (N.D. 1974) (" Small" ); Faxon v. Lallie Civil Twp., 36 N.D. 634, 163 N.W. 531, 532 (N.D. 1917).

The law enacted by the Dakota Territory in 1871, stated that " [h]ereafter all section lines in this territory shall be and are hereby declared public highways as far as practicable[.]" Id. After North Dakota achieved statehood in 1889, the statute was

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amended in 1895 without substantial change to the relevant portion quoted above. N.D. Revised Code § 1050 (1895). Since then, it has been revised from time-to-time and whether any of these changes are material may be subject to some dispute.[1] The present version is codified at N.D.C.C. § 24-07-03 (2013) and reads as follows:

§ 24-07-03. Section lines considered public roads open for public travel--Closing same under certain conditions.
In all townships in this state, outside the limits of incorporated cities, and outside platted townsites, additions, or subdivisions recorded pursuant to sections 40-50.1-01 through 40-50.1-17 or recorded prior to July 1, 1987, under former chapter 40-50, the congressional section lines are considered public roads open for public travel to the width of thirty-three feet [10.06 meters] on each side of the section lines.
* * * *

Without getting too deep into the merits of plaintiffs' primary claim of right-of-way, the position of the United States in opposition is twofold. The United States first points out that R.S. 2477, by its very language, does not apply to lands that were reserved for public use and states that some of the section lines at issue lie within or along reserved lands.[2] Second, the United States contends that the grant of right-of-way pursuant to R.S. 2477 was only for highways that were actually constructed and not a present grant of right-of-way for possible future highway construction. Consequently, according to the United States, no right-of-way now exists along the sections lines of unreserved lands if a highway was not actually constructed prior to the repeal of R.S. 2477 in 1976.[3] According to the United States,

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section lines themselves are not highways, rather they are simply geographic lines, and a mere declaration by a state that they are highways cannot trump what it contends was the clear purpose and meaning of R.S. 2477 any more than if the State had chosen to declare quarter-quarter lines or, perhaps more broadly, township lines as highways.

3. McKenzie County's additional claims

In addition to this primary claim of " section line" right-of-way, McKenzie County seeks to quiet title to several specific roads within the Forest Service grasslands that do not necessarily follow the section lines. The claims with respect to these roads are based entirely, or in substantial part, on things other than the State's section line law. And, since Mckenzie County has not argued why it needs discovery of the material that is the subject of the motion to compel with respect these claims, they will be ignored for purposes of the decision here.[4]

C. The Motion to Dismiss by the United States

The United States has filed a motion to dismiss, contending that plaintiffs' complaints are deficient because they fail to describe with particularity the land in question and also that, in any event, plaintiffs' claims are barred by the 12-year limitation period for commencing an action under the Quiet Title Act (" QTA" ), which is jurisdictional. Following the filing of this motion, the parties agreed that discovery limited to the issues raised by the motion to dismiss would be conducted and a briefing schedule was established for supplemental briefing on a renewed motion to dismiss following the completion of discovery.

D. Plaintiffs' joint motion to compel discovery

Before the court now is a joint motion to compel discovery brought by plaintiffs in both actions (Doc. No. 73). The motion seeks to compel disclosure of two categories of documents that the United States claims are privileged.

The first category are documents that set forth, reference, or otherwise relate to opinions issued by two attorneys within the USDA's Office of General Counsel - Morris Hankins and James Wood - that relate to R.S. 2477 and/or North Dakota's section line law. Hankins issued his principal opinion in 1962 and Wood issued his opinions in 1980. More specifically plaintiffs seek an order compelling the following withheld or redacted documents: USA74919, 75171, 76370, 76417, 76422, 76452, 76983, 77004, 77034, 77037, 77038, 77039, 77047, 77050, 77056, 77058, 77064, 77065, 77074, 77078, 77167, and 77170.

The second category of documents that plaintiffs seek are title opinions rendered to the Forest Service that may identify and address the same issues with respect to specific sections lines. The title opinions that plaintiffs seek are: USA75212, 75257, 75265, 75320, 75339, 75379, 75391, 75408, 75447, 75470, 75484, 75507, 75535, 75554, 75586, 75626, 75652, 75658, 75681,

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75749, 75907, 75942, 75990, 76102, 76301, 76310, 76327, and 76992.

The United States makes two arguments for why the motion to compel should be denied. First, the United States contends that the documents are irrelevant to the court's consideration of its motion to dismiss on jurisdictional grounds, i.e, that the documents are irrelevant to the complained lack of specificity in the complaints and, more importantly, to whether plaintiffs' QTA claims are untimely. Hence, the United States urges the court to defer consideration of the motion to compel until after the motion to dismiss is ruled on. Second, the United States argues that the documents need not be disclosed because they are all attorney-client privileged.[5]

After an initial consideration of the motion papers, the court ordered the United States to produce the documents for in camera review. Unfortunately, after a review of all the material, the arguments being made with respect to lack of relevance, whether the attorney-client privilege applies to some or all of the withheld documents, and whether the attorney-client privilege has been waived are all particularly thorny and complex. Recognizing that the decision set forth below may very well not be the last word on the subject, all of the issues will be addressed in turn so that those who may take them up later will have the benefit of the undersigned's analysis, for whatever that might be worth.

II. THE RELEVANCY OBJECTION

A. Introduction

The court is well aware of the standards for discovery set forth in Fed.R.Civ.P. 26(b)(1) as well as the court's discretion in terms of the timing of discovery. If the court was to conclude that the withheld documents are irrelevant at this stage, the court would be well within its power to defer consideration of the motion to compel until after the ruling on the motion to dismiss, despite plaintiffs' argument to the contrary.

Because the relevancy objection of the United States requires the court to delve into the merits of its statute-of-limitations issue - at least to some extent, it is helpful first to consider the applicable statutes of limitation.

B. The QTA's statute-of-limitations

The QTA is a limited waiver of the sovereign immunity of the United States from suit. E.g., Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) (" Block" ); Spirit Lake Tribe v. North Dakota, 262 F.3d 732, 737 (8th Cir. 2001). For that reason, the prevailing view (including most importantly that of the Eighth Circuit) is that satisfaction of the QTA's statute of limitations provisions is jurisdictional. Spirit Lake Tribe, 262 F.3d at 738. (" [T]he QTA statute of limitations acts as a jurisdictional bar unlike most statutes of limitations, which are affirmative defenses." ).

When the QTA was enacted in 1972, it contained a 12-year statute of limitations that applied to all QTA actions and read as follows:

Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or

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his predecessor in interest knew or should have known of the claim of the United States.

Block, 461 U.S. at 275 n.1 (quoting Act of Oct. 25, 1972, Pub. L. No. 92-562, 86 Stat. 1176, codified at 28 U.S.C. § 2409a(f)).

In 1983, the Supreme Court held in Block that this limitations period applied even to claims brought by states. Because of dissatisfaction with this result, Congress amended the QTA in 1986. For claims brought by persons or entities other than states, the limitations period, including when it accrues, remained the same and is presently codified as follows:

Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.

28 U.S.C. § 2409a(g). For claims asserted by states, however, new provisions were added that, among other things, limit the reach of the 12-year limitations period to only certain lands of the United States and, for some types of lands, provide a new test for when a claim accrues.

In terms of this case, to the extent there is now a statute of limitations that applies to North Dakota's claim, it lies with the following statutory provisions - at least for those claims that accrued after the 1986 amendments became effective:

(i) Any civil action brought by a State under this section with respect to lands, other than tide or submerged lands, on which the United States or its lessee or right-of-way or easement grantee has made substantial improvements or substantial investments or on which the United States has conducted substantial activities pursuant to a management plan such as range improvement, timber harvest, tree planting, mineral activities, farming, wildlife habitat improvement, or other similar activities, shall be barred unless the action is commenced within twelve years after the date the State received notice of the Federal claims to the lands.
* * * *
(k) Notice for the purposes of the accrual of an action brought by a State under this section shall be--
(1) by public communications with respect to the claimed lands which are sufficiently specific as to be reasonably calculated to put the claimant on notice of the Federal claim to the lands, or
(2) by the use, occupancy, or improvement of the claimed lands which, in the circumstances, is open and notorious.

28 U.S.C. § 2409a(i)& (k).

What appears to have not been definitively decided is what statutory provisions apply to North Dakota's claim if it accrued prior to the 1986 amendments. The United States takes the position that the old " knew or should have known" provisions, which the Supreme Court upheld as to the states in Block, still apply for some older claims by states. For purposes of the present motion to compel, the possibility of there being two tests that may apply to the claim of North Dakota, depending upon when it accrued, has some materiality with respect to the argument by the United States as to lack of relevancy, although it does not change the result.

To the extent the Counties have separate claims in this case ( i.e., claims not subject to the control of the State), there is authority holding they are subject to the " knew or should have known" standard that applied to all claimants prior to the

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1986 amendments and now applies to non-state plaintiffs based on the conclusion that a political subdivision of a state is not a " state" for purposes of the 1986 amendments to the QTA. Calhoun County, Tex. v. United States, 132 F.3d 1100, 1103 (5th Cir. 1998).

C. Discussion re the relevancy objection

1. Plaintiffs' argument that the withheld material is relevant to the issue of abandonment

Unfortunately, it may not be possible to resolve the question of whether plaintiffs' lawsuits are timely in complete isolation of all other issues. This is because the Eighth Circuit and some other courts have held that, if the United States at any point " clearly and unequivocally abandons" a property interest which is purportedly in conflict with that claimed by a plaintiff, " the government's outright abandonment effectively removes the cloud on a plaintiff's title and extinguishes his obligation to file a quiet title action within 12 years." Spirit Lake, 262 F.3d at 739. Then, if the government later reasserts the claim (and putting aside whether any claim could at that point be revived), " the reasserted claim is properly regarded as a new claim and a new12-year period begins in which a plaintiff may file his QTA action against the government." Id.

In this case, plaintiffs surmise, based upon what the Unites States has disclosed, that James Wood,[6] an OGC attorney in the Billings regional office, issued one or more opinions in 1980 to the effect that North Dakota's statutes governing sections lines (as well as its territorial predecessors) constituted a valid acceptance of a § 2477 grant and that, as a consequence, every section line on the bulk of the Forest Service's lands in question is a public highway, regardless of whether any road has ever been constructed. Plaintiffs further surmise that the Wood opinions were contrary to those that may have been issued earlier by OGC attorney Morris Hankins in the 1960s. Plaintiffs argue that the undisclosed Wood opinions would be evidence of the Forest Service's abandonment of any claim of full title ( i.e, title unburdened by any claim of right-of-way by plaintiffs) or, at the very least, would lead to the discovery of other evidence relevant to an abandonment argument.

In response, the United States contends that it takes a lot to prove the United States actually abandoned its interest, that plaintiffs have offered nothing to suggest any real possibility of an abandonment, and that there is nothing in the withheld documents that will get them there. The United States cites to the Eighth Circuit's decision in Spirit Lake as well as other authority for what it claims is required for an actual abandonment by the United States of an interest in property. See, e.g., Royal Indem. Co. v. United States, 313 U.S. 289, 294, 61 S.Ct. 995, 85 L.Ed. 1361, 1941-1 C.B. 391 (1941) (Subordinate officers of the United States lack the power to dispose of real property belonging to the United Sates, unless such power " has been conferred upon them by Act of Congress or is to be implied from other powers so granted." ); Cheyenne Arapaho Tribes of Okla. v. United States, 558 F.3d 592, 597-98, 385 U.S.App.D.C. 76 (D.C. Cir. 2009); Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d 1189, 1199 (9th Cir. 2008) (" It is well established that the United States does not abandon its claims to property by inaction." ); Rio Grande Silvery Minnow v. Bureau of Reclamation, 599 F.3d 1165, 1187

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(10th Cir. 2010) (" Rio Grande" ) (" '[I]ntra-office memoranda,' and similar intra-governmental communications 'do not bind the government,' such that they can effect an abandonment of property and stop the QTA's limitations clock." ) (quoting Spirit Lake, 262 F.3d at 742); Spirit Lake, 262 F.3d at 739-44.

Plaintiffs suggest in reply that the authority the United States relies upon for its argument of a very high threshold for abandonment only applies when the United States is abandoning its total interest in property and that less is required when the United States is simply giving way to a claim that represents a burden on its interest, such as plaintiffs' claim of public right-of-way in this case. Plaintiffs cite to Shultz v. United States Dep't of Army, 886 F.2d 1157, 1161 (9th Cir. 1989) and Middle Fork Holding Co., Inc. v. United States, 2010 WL 107380, at *4 (D. Idaho Jan. 7, 2010).

The cases plaintiffs rely upon, however, appear to be distinguishable. Whether the United States could abandon its claim to full title, unburdened by an adverse claim of right-of-way, by not enforcing its rights in full knowledge of activity inconsistent with its claim on a discrete tract of land is not the situation here. Rather, the purported abandonment that plaintiffs are attempting to argue involves the United States giving way to thousands of miles of section line right-of-way affecting tens of thousands of acres of Forest Service land in North Dakota alone. There is nothing in the case law cited by plaintiffs that would suggest that the mid- to lower-level USDA officials involved in the withheld documents in this case had the authority to make such an abandonment.[7]

Also, putting aside the question of authority, there is nothing in the withheld material which would support a " clear and unequivocal" abandonment by the United States to its claim of unfettered title. In fact, what appears clear from both the withheld and the disclosed information is that the Wood opinions were not followed to any significant degree and it was soon decided instead to rely upon older OGC opinions absent clarification from higher-ranking OGC counsel in Washington.

Finally, with respect to any argument that disclosure of the withheld material might lead to the discovery of relevant evidence of abandonment, plaintiffs were aware from what was disclosed by the United States that there may have been differing opinions expressed by OGC counsel at different times with respect to the scope of § 2477 and the application of North Dakota's section line law. In fact, plaintiffs argued as part of their motion to compel that the United States's failure to redact information in one or more intra-agency communications suggesting that there was a conflict in the opinions amounted to a waiver of the privilege. Consequently, armed with that knowledge, plaintiffs have been free to pursue discovery with respect to any claim of abandonment,

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and there is nothing in the withheld material the court has reviewed that points to other possible relevant evidence of abandonment - much less evidence that could not have been pursued with the knowledge plaintiffs already possessed.

In short, if plaintiffs only need for the withheld material was to support or develop a claim of actual abandonment, the undersigned might be inclined to deny the motion. See Cheyenne Arapaho Tribes of Okla. v. United States, 558 F.3d at 597-98 (affirming denial of continuance to conduct discovery because the materials sought " would not demonstrate abandonment of the United States' interest in the land" ).[8]

2. Relevancy re timeliness of plaintiffs' QTA claims

a. Introduction

The United States contends that the withheld material is also not relevant with respect to resolving whether plaintiffs' lawsuits were timely brought with respect to their principal QTA claims. As noted earlier, what triggers the accrual with respect to the State's claim (at least for a certain part of the period in question), is whether the State received a public communication of the position of the United States or there was some use, occupancy, or improvement by the United States of the property in question adverse to the State's claims. The United States argues that the withheld material is irrelevant to these elements because obviously there was no communication to the State of the material that has been withheld and that use, occupancy, or improvement are objective actions that were either sufficient on their face to trigger the accrual or were not, and the withheld material would have no bearing with respect to that. And, with respect to the " knew or otherwise should have known" standard that otherwise may apply to the QTA claims of the Counties and possibly also to that of the State depending upon when it accrued, the United States contends that what plaintiffs did not know about likewise would be of no relevance.

Plaintiffs disagree. They contend the withheld documents are relevant in at least two respects. They contend the evidence is necessary and relevant to their being able to rebut the evidence proffered by the United States relating to certain proposed initiatives by the Forest Service for maintaining the pristine character of some of the lands in question by prohibiting new roads and/or vehicular traffic, which, for shorthand reference here, will be referred to collectively as the " roadless" proposals. They also contend the evidence is relevant to whether the United States in fact had any position with respect to their claims of section line rights-of-way during the time periods in question such that plaintiffs knew or should have known that it might contest their claimed rights-of-way. These arguments will be addressed in turn followed by some additional observations regarding relevancy.

b. Relevant to rebutting evidence of " roadless" proposals

The United States contends that the various " roadless" proposals advanced by the Forest Service prior to September 16, 2000 (twelve years prior to the earliest

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filing of the two complaints in this action) amounted to a communication of its position that it deemed plaintiffs' section line right-of-way claims to be without merit if no road had been constructed prior to the repeal of R.S. 2477 as well as evidence of what plaintiffs " knew or should have known" about the position of the United States. Although these " roadle.ss" proposals apparently never explicitly addressed the question of section line rights-of-way, the United States contends this was not necessary for purposes of its statute of limitations arguments because the proposals were so obviously in conflict with plaintiffs' claims.

Plaintiffs, on the other hand, contend there was no obvious conflict. They argue, among other things, that there never was a realistic possibility the mere existence of the rights to use the section lines for possible construction of roads would actually result in the construction of roads on every mile, in each direction, on the lands subject to the " roadless" proposals given several things. One is that some of the lands are so remote and the areas surrounding them so thinly populated that mere economics would prohibit widespread construction of new roads. In addition, for some of the lands, the terrain is so rugged along the section lines their use for roads is impracticable and, once there would be a need to deviate from the section lines, the United States would be able to exert control as a practical matter. Still another is that the State and Counties likely would agree that some of the lands should remain roadless in order maintain their relatively pristine character and would cooperate with the Forest Service. Viewed from this framework, plaintiffs contend that a realistic and plausible construction of the " roadless" proposals is merely that no roads would be permitted where there were not already established rights to construct roads, including no new roads within the interior of the sections of land in the proposed " roadless" areas.

Turning to the possible relevancy of the withheld evidence, plaintiffs contend the real reason why the " roadless" proposals did not specifically address the question of section line roads was likely because of concerns that plaintiffs' claims of right-of-way were valid, or at least might be, and not because " roadless" obviously referred to all roads as the United States contends. Plaintiffs contend the withheld evidence could be at least circumstantial evidence of this concern and the reason for silence. If so, plaintiffs contend the withheld evidence would assist in their being able to rebut the argument that the " roadless" proposals were a communication by the United States of its position that plaintiffs' section line right-of-way claims were without merit as well as what plaintiffs reasonably should have gleaned from the proposals.

While it may very well be that the United States has more than enough evidence demonstrating plaintiffs were aware of its position without having to resort to the " roadless" proposal evidence, the United States has nevertheless offered the evidence and it is only fair that plaintiffs be given the opportunity to fully respond. And, at that this point, the undersigned is not prepared to conclude that the withheld evidence would be of no relevance to rebutting the " roadless" proposal evidence proffered by the United States.

c. Relevant to whether the United States had a position that plaintiffs " knew or should have known" was contrary to their section line right-of-way claims

Plaintiffs' second and more granular argument is that the withheld evidence is relevant generally to whether it can be demonstrated they " knew or should have known" of the United States's position. In

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their brief, plaintiffs frame the argument this way:

[I]t is illogical to demand the Plaintiffs should have known the position of the Defendant if there was no position, or if the position at the time was contrary to what the Defendant now argues Plaintiffs should have understood.

(Doc. No. 78, p. 5).

In the abstract, the logic of this argument seems inescapable. And, if there was conflicting OGC counsel advice with respect to the matters at issue, that might be circumstantial evidence for the lack of a position or there having been a position contrary to what the United States now claims.

That being said, having reviewed the withheld material, the undersigned has substantial doubts as to whether it will be of any practical benefit to plaintiffs in advancing this argument. If anything, it is more likely that the withheld evidence will provide the United States with a more complete explanation for why material that has been disclosed and is likely to be relied upon by plaintiffs may not have the significance they believe it has once it is put in context by the withheld material. Nevertheless, this assessment goes to the weight of the withheld evidence, and the undersigned is not prepared to conclude it is of no relevance to plaintiffs' second point.

d. Additional observations re relevancy

Further complicating the question of relevancy is the fact the United States is not content to demonstrate that plaintiffs' claims had accrued as of September 16, 2000, which is twelve years prior to the earliest filing of the two complaints in this action. Rather, the United States is also claiming that plaintiffs' claims accrued decades earlier. And, with respect to those arguments, the relevance of the withheld evidence must be assessed as of those earlier points in time. So, for example, what was going on in the early 1980s may have been more relevant to whether any of plaintiffs' claims accrued then as opposed to later, say in the late 1990s and 2000 time frame when what occurred in 1980 may have less relevance.

Finally, the United States' lack-of-relevancy arguments ring hollow when the United States has itself affirmatively relied on evidence of the same subject matter as the first category of withheld evidence to prove that plaintiffs had notice of its claims, including particularly the " Gippert memorandum." This is discussed in more detail later in connection with whether the United ...


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