United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
H. RITTER U.S. MAGISTRATE JUDGE.
matter comes before the Court on Defendant United States'
Motion to Compel Production of Supplemental Responses and
Production of Documents in Response to the United States'
Interrogatories, Requests for Production, and Requests for
Admission, (Doc. 170), filed December 22, 2017, and
fully briefed on January 19, 2017. See Doc. 183. The
Court, having reviewed Plaintiff Pueblo of Jemez's
Response (Doc. 180), and the United States'
Reply (Doc. 182), finds that the Motion is
well-taken in part and will be granted in part, for the
reasons set forth below.
Pueblo of Jemez, a federally-recognized Indian Tribe, brought
this action against the United States to quiet its aboriginal
title to the lands known as the Valles Caldera National
Preserve, formerly referred to as Baca Location No. 1.
Doc. 91 (Joint Status Report) at 2. Plaintiff's
claim is premised upon the alleged fact that “[t]he
ancestral Jemez people were the predominant and primary
Native American occupants and land users of the Jemez
Mountains, including the lands of the Valles Caldera National
Preserve and the greater Rio Jemez watershed[.]”
Doc. 1 (Complaint) at 1-2. As set forth in the
Complaint, “[i]n 1860 Congress authorized the heirs of
Luis Maria Cabeza de Baca (the ‘Baca heirs') to
select 496, 447 acres, in no more than five square parcels,
of so-called ‘public domain' lands anywhere in the
Territory of New Mexico.” Id. at 2. One of the
parcels selected by the Baca heirs, subsequently known as
“Baca Location No. 1” encompassed approximately
99, 289 acres including and surrounding the Valles Caldera.
Id. Plaintiff claims, and the Tenth Circuit agreed,
that the Baca heirs received this grant subject to the
continuing aboriginal Indian Title of the Pueblo of Jemez,
“assuming that Jemez maintained aboriginal possession
at the time.” See Doc. 42-1 (Mandate) at 39
(As the Tenth Circuit “pointed out, Supreme Court
decisions since 1823 make clear that the Baca grant at issue
was subject to the Jemez Pueblo's aboriginal title -
assuming the Jemez maintained aboriginal possession at the
time.”). However, the Tenth Circuit made clear that it
expressed “no opinion on whether, on remand, the Jemez
Pueblo can factually establish aboriginal possession to the
land it claims.” Doc. 42-1 at 39. That was
left to this Court. Id. at 48 (“At this point
in the current proceedings, neither party has had the
opportunity to offer evidence about whether anyone has
actually interfered with the Jemez Pueblo's traditional
occupancy and uses of the land in question here, before or
Tenth Circuit's rationale in reversing this Court helps
frame the current discovery dispute. After reviewing Supreme
Court precedent, the Tenth Circuit pointed out that, in the
case of the Valles Caldera, “simultaneous occupancy and
use of land pursuant to fee title and aboriginal title could
occur because the nature of Indian occupancy differed
significantly from the occupancy of the settlers.”
Doc. 42-1 at 42. In other words, assuming that
Plaintiff continued in its “aboriginal use and
occupancy, ” the fact that the land was granted to the
Baca heirs did not extinguish Plaintiff's aboriginal
title. Id. This is because, as the Court pointed
out, “the terms ‘aboriginal use and
occupancy' have been defined ‘to mean use and
occupancy in accordance with the way of life, habits, customs
and usages of the Indians who are its users and
occupiers.'” Id. (citation omitted).
Whether Plaintiff could demonstrate aboriginal use and
occupancy of the land was therefore determined to be a fact
question, subject to development on remand. Doc.
42-1 at 44 (quoted authority omitted). Specifically,
Plaintiff was tasked with “show[ing] ‘actual,
exclusive, and continuous use and occupancy for a long time
of the claimed area.'” Id. The Court
explained that “the ‘exclusive' part of the
test mean[s] only that in order to establish aboriginal
title, a tribe ‘must show that it used and occupied the
land to the exclusion of other Indian
groups.'” Id. (emphasis in original).
“To show ‘actual' and ‘continuous use,
' on the other hand, the Jemez Pueblo must show, as it
alleges in its Complaint, that the Jemez people have
continued for hundreds of years to use the Valles Caldera for
traditional purposes, including hunting, grazing of
livestock, gathering of medicine and of food for subsistence,
and the like. As the cases make clear, if there was actually
substantial interference by others with these traditional
uses before 1946, the Jemez Pueblo will not be able to
establish aboriginal title.” Doc. 42-1 at
44-45. Accordingly, the question before this Court on remand
is whether Plaintiff can demonstrate actual, exclusive and
continuous use of the Valles Caldera/Baca Location No. 1.
remand, this Court entered a Scheduling Order and the parties
have engaged in discovery. See Doc. 94 (Scheduling
Order); Docs. 115 & 116 (Protective
Orders Governing Confidential Information) Doc. 119
(Order and Stipulation Regarding Discovery Procedure);
Doc. 144 (Stipulated Order Amending Scheduling
Orders); Doc. 187 (Stipulated Order Amending
Scheduling Order). The United States served its First Set of
Interrogatories and Requests for Production on May 17, 2016,
see Doc. 61 (Certificate of Service), and its First
Set of Request for Admission on May 25, 2016. See Doc.
63 (same). Plaintiff served its Objections and Responses
to Defendant's First Set of Requests for Production and
Interrogatories on July 11, 2016, Doc. 71
(Certificate of Service) and its First Supplemental
Objections and Answers to Defendant United States' First
Set of Interrogatories on June 27, 2017. Doc. 135.
Plaintiff served its Objections and Responses to
Defendant's First Set of Requests for Admission on
November 2, 2017. Doc. 153. The parties met and
conferred about Plaintiff's allegedly deficient responses
to Defendant's Interrogatories and Requests for Admission
over the course of 2016 and 2017. See Doc. 170 at
2-3 (Motion). Ultimately, the parties reached an impasse, and
the pendent motion was filed.
bringing the present Motion, Defendant asserts that
“Plaintiff has essentially declined to provide
information on topics the Tenth Circuit identified as
critical elements of Plaintiff's case.” Doc.
170 at 5. The United States so asserts on the grounds
that Plaintiff has “provided incomplete and often
summarized responses to the United States'
Interrogatories and Requests for Admission” and
“has withheld thousands of admittedly relevant
documents on the basis of privileges that either do not exist
or, if they exist, do not shield the documents in question
under the circumstances of this case.” Id. at
5-6. Plaintiff, on the other hand, responds that it
appropriately responded to Defendant's Interrogatories
and Requests for Admission, and withheld the documents at
issue on the basis of the Pueblo of Jemez' legislative
privilege. See Doc. 180.
Rule of Civil Procedure 26(b)(1) governs the scope of
discovery, providing that
[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
Fed. R. Civ. P. 26(b)(1). “Information within this
scope of discovery need not be admissible in evidence to be
may issue interrogatories pursuant to Federal Rule of Civil
Procedure 33, which “may relate to any matter that may
be inquired into under Rule 26(b).” Fed.R.Civ.P.
33(a)(2). “Each interrogatory must, to the extent it is
not objected to, be answered separately and fully in writing
under oath.” Fed.R.Civ.P. 33(b)(3). A responding party
may object to an interrogatory; however, the grounds for an
objection “must be stated with specificity.”
Fed.R.Civ.P. 33(b)(4). A party may move to compel the answer
to an interrogatory under Rule 33 if good faith attempts to
secure the answer are unsuccessful. Fed.R.Civ.P.
may issue requests for admission under Federal Rule of Civil
Procedure 36 directed at “any matters within the scope
of Rule 26(b)(1) relating to: (A) facts, the application of
law to fact, or opinions about either; and (B) the
genuineness of any described documents.” Fed.R.Civ.P.
36(a)(1). “If a matter is not admitted, the answer must
specifically deny it or state in detail why the answering
party cannot truthfully admit or deny it. A denial must
fairly respond to the substance of the matter; and when good
faith requires that a party qualify an answer or deny only a
part of a matter, the answer must specify the part admitted
and qualify or deny the rest.” Fed.R.Civ.P. 36(a)(4).
“The requesting party may move to determine the
sufficiency of an answer or objection. Unless the court finds
an objection justified, it must order that an answer be
served. On finding that an answer does not comply with this
rule, the court may order either that the matter is admitted
or that an answer be served[.]” Fed.R.Civ.P. 36(a)(6).
may issue requests for production pursuant to Federal Rule of
Civil Procedure 34 “within the scope of Rule
26(b)[.]” Fed.R.Civ.P. 34(a). Each request must be
responded to or addressed by specific objection. Fed.R.Civ.P.
34(b)(2). A party may move to compel a response to a request
for production if good faith attempts to secure the answer
are unsuccessful. Fed.R.Civ.P. 37(a)(3)(B)(iv).
are under a continuing duty to supplement responses to
discovery “in a timely manner if the party learns that
in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective
information has not otherwise been known to the other party
during the discovery process.” Fed.R.Civ.P.
26(e)(1)(A). The failure to supplement a discovery response
may result in sanctions “unless the failure was
substantially justified or is harmless.” Fed.R.Civ.P.
37(c)(1). “[A]n evasive or incomplete disclosure,
answer, or response must be treated as a failure to disclose,
answer or respond.” Fed.R.Civ.P. 37(a)(4).
Motion is not a model of clarity, insofar as it does not
directly identify which discovery requests are at issue until
the concluding paragraph. There, Defendant
“respectfully requests that this Court compel Plaintiff
to supplement its responses to the United States'
Interrogatories 1-5, 7-8, 10, and 18, and to respond to
Requests for Production 1, 3, 4, and 5[.]” Doc.
170 at 28. “Finally, the United States
respectfully moves the Court to overrule Plaintiff's
executive/leg. process privilege objection and to order
Plaintiff to produce all documents that have until now been
withheld on the basis of that objection.” Id.
However, Defendant also appears to take issue with
Plaintiff's responses ...