In the United States Court of Federal Claims

MCDONOUGH FAMILY LAND, et al,

Plaintiffs,

v.

THE UNITED STATES OF AMERICA,

Defendant.

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 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”) ignited backfires and burnouts on Plaintiffs’ land during the 

2017 Alice Creek Fire in Lewis & Clark 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 

County, 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 and
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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 private range and timber, 

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 Plaintiffs, 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 denies that USFS’ actions constituted a taking of 

property, Answer ¶¶ 32–34, and asserts that, regardless, Plaintiffs’ claims are barred by the 

doctrine of necessity and the relative benefits doctrine, see 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). Expert 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 that 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, see 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 schedule 

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 Plaintiffs 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. It explains that it has already 

provided Plaintiffs with more than 4,000 pages of documents, id. at 4, and disclosed the names of 

nine individuals 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 essential to justify its opposition” to 

a motion for summary judgment, the Court may: “(1) defer considering the motion or deny it; (2) 

allow time to 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 States 
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anticipates will support application of the doctrine of necessity, the police powers doctrine, and 

relative benefits principles” and that discovery will allow “the development of facts expected to 

show an actual emergency, an imminent danger to 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 set by the United States as part of an ‘actual 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 principles.” 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 grant 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.” Huntleigh 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. United 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 concludes 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 of 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.
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s/ Elaine D. Kaplan 

ELAINE D. KAPLAN

Chief Judge