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Pueblo of Jemez v. United States

United States District Court, D. New Mexico

October 3, 2018

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



         This matter comes before the Court on Defendant United States9');">9; Renewed Motion to Compel Production of Documents, [Doc. 234');">234], filed August 17, 2018, and fully briefed on September 12, 2018. [See Doc. 260]. The Court, having reviewed Plaintiff Pueblo of Jemez9');">9;s Response [Doc. 256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256], and the United States9');">9; Reply [Doc. 9');">9');">259');">9');">9');">9');">259');">9], finds that the Motion is well-taken and will be granted for the reasons set forth below.

         I) BACKGROUND

         Plaintiff, 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. 9');">91 (Joint Status Report) at 2]. Plaintiff9');">9;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 heirs9');">9;) to select 49');">96, 447 acres, in no more than five square parcels, of so-called ‘public domain9');">9; 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 9');">99');">9, 289');">9 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');">9 (As the Tenth Circuit “pointed out, Supreme Court decisions since 1823 make clear that the Baca grant at issue was subject to the Jemez Pueblo9');">9;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');">9]. 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 Pueblo9');">9;s traditional occupancy and uses of the land in question here, before or after 19');">946.”)].

         On remand, this Court entered a Scheduling Order and the parties have engaged in discovery. [See Doc. 9');">94 (Scheduling Order); Docs. 115 & 116 (Protective Orders Governing Confidential Information); Doc. 119');">9 (Order and Stipulation Regarding Discovery Procedure); Doc. 144 (Stipulated Order Amending Scheduling Orders); Doc. 187 (Stipulated Order Amending Scheduling Order)]. Trial is set for October 29');">9, 2018. [Doc. 223].

         Defendant served its First Set of Interrogatories and Requests for Production on May 17, 2016, [see Doc. 61 (Certificate of Service)]. Plaintiff served its Objections and Responses to Defendant9');">9;s First Set of Requests for Production and Interrogatories on July 11, 2016, [Doc. 71 (Certificate of Service)]. Ultimately, Defendant filed a Motion to Compel Plaintiff9');">9;s responses to certain requests for production, among other things. [See Doc. 170]. While this Court granted Defendant most of the relief requested in its Motion, it did not rule on Defendant9');">9;s requests for production, denying the relief requested without prejudice. [See Doc. 218]. This was because Defendant9');">9;s Motion did not comply with this Court9');">9;s Local Rules which required it to attach the requests at issue and Plaintiff9');">9;s responses to them. [Id., p. 15');">p. 15]. Defendant has now renewed its Motion as to its requests for production. [See Doc. 234');">234].

         Most basically, Defendant asks the Court to overrule Plaintiff9');">9;s assertion of privilege as to approximately three thousand (3, 000) documents that it has withheld. [See Doc. 234');">234]. Defendant argues that Plaintiff9');">9;s asserted “Legislative Process Privilege” either does not exist or does not apply to the facts of this case. [See id., p. 13].[2] Plaintiff9');">9;s Response, on the other hand, argues that Defendant has still failed to comply with this Court9');">9;s local rules in renewing its motion and that the Motion should be denied as untimely. [See Doc. 256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256');">256, pp. 5-10]. Alternatively, Plaintiff argues that it “appropriately asserted the legislative process privilege” in response to Defendant9');">9;s document requests. [Id., p. 10]. In Reply, Defendant argues that any failure to comply with the Court9');">9;s local rules was inadvertent and harmless, and that its Motion was not untimely. [See Doc. 9');">9');">259');">9');">9');">9');">259');">9, pp. 2-8]. Moreover, Defendant argues that Plaintiff has failed to demonstrate that its asserted privilege applies to shield it from discovery in this case. [See id., p. 13].


         1. Is Defendant foreclosed from a decision on the merits of its Motion?

         2. If not, does Plaintiff9');">9;s invocation of the “legislative process privilege” preclude production of the documents at issue?


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 party9');">9;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 parties9');">9; relative access to relevant information, the parties9');">9; 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 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 ...

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