# In the United States Court of Federal Claims

M C DONOUGH FAMILY LAND, et al

,

Plaintiff s ,

v.

THE UNITED STATES OF AMERICA

,

Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 20

- 368L (Filed: June 10, 2021 )

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 ”) ignit ed backfires and burnouts on Plaintiffs ’ land during the

2017 Alice Creek Fire in Lewis & C lark 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

Count y , 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 and2 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 pri v ate range and tim b er, 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 Plaintif fs, 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 denie s that USFS’ actions constituted a taking of
property

, Answer ¶¶ 32

– 34, and assert s that , regardless, Plaintiffs ’ claims are barred by the doctrine of necessity and the relat ive benefits doctrine

, s ee 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). E xpert 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 th at 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

, s ee 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 schedu le 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 Pl aintiffs 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. I t explains that it has already provided Plaintiffs with more than 4,000 pages of documents, id

. at 4, and disclosed the names of

nine ind ividuals 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 essentia l to justify its opposition ” to a motion for summary judgment, the Court may: “ (1) defer considering the motion or deny it; (2)

allow time t o 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 States3 anticipates will support application of the doctrine of necessity, the police powers doctrine, and

rela tive benefits principles” and that discovery will allow “the development of facts expected to show an actual emergency, an imminent danger t o 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 se t b y the Unite d States as part of an ‘ act u al 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 principl es.” 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 gr ant 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.” Huntleig h 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. Un ited 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 conc ludes 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 o f 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.4 s/ Elaine D. Kaplan

ELAINE D. KAPLAN

Chief Judge