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Pueblo of Jemez v. United States

United States District Court, D. New Mexico

June 13, 2018

UNITED STATES OF AMERICA, Defendant, and NEW MEXICO GAS COMPANY, Defendant-in-Intervention,



         This 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.

         I) BACKGROUND

         Plaintiff 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, [1] 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 after 1946.”).

         The 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.

         On 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.

         In 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.


         Federal 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 benefit.

Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.

         Parties 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. 37(a)(3)(B)(iii).

         Parties 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).

         Parties 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).

         Parties 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).

         III) ANALYSIS

         Defendant's 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 ...

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