Free Joint Status Report - District Court of Federal Claims - federal

Case 1:04-cv-00786-SGB

Document 27

Filed 07/26/2007

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SACRAMENTO GRAZING ASSOCIA TION, INC., et aL.

Plaintiffs
v.

) ) ) ) ) )
) ) ) ) )

No. 04-786 L
Judge Susan G. Braden

UNITED STATES OF AMERICA
Defendant.

JOINT STATUS REPORT
The parties, Plaintiffs, Sacramento Grazing Association, Inc., James Goss, Frances Goss, Justin Goss, and Brenna Goss, and Defendant, United States of America, hereby submit the
following Joint Status Report.
On March 22, 2006, the parties requested a stay in this case pending a decision by the

New Mexico Supreme Court in Walker v. United States, No. 29,544 ("Walker"), stating that the
certified questions from the United States Court of

Federal Claims, No. 04-155L, addressed in

Walker, were "directly relevant to the issues remaining in this case." See Joint Motion for a Stay

(doc # 22). On March 27,2006, this Court issued an Order granting the stay, and requiring the

parties to "fie a Joint Status Report, proposing further proceedings in this case, within thirty days
of

the New Mexico Supreme Court issuing a decision in Walker." See Order Granting Motion to

Stay (doc # 23). On June 21, 2007, the New Mexico Supreme Court issued a decision in the
Walker case, and the date for the date for the parties' filing was subsequently set by this Court as
July 27,2007.

1

Case 1:04-cv-00786-SGB

Document 27

Filed 07/26/2007

Page 2 of 5

The New Mexico Supreme Court's decision in the Walker case answered the two certified
questions in the negative: (1) Does the law of the State of

New Mexico recognize a limited
the State of

forage right implicit in a vested water right?; (2) Does the law of

New Mexico

recognize a limited forage right implicit in a right-of-way for the maintenance and enjoyment of a

vested water right? Accordingly, the parties agree that pursuant to the Walker decision, Plaintiffs
lack a forage right implicit in any vested water rights Plaintiffs hold under New Mexico law or
implicit in any rights-of-way for the maintenance and enjoyment of any vested water rights
Plaintiffs hold under

New Mexico law.

Plaintiffs' Position:.

Plaintiffs, however, believe that triable issues of fact remain with respect to the taking of

their other propert rights. Plaintiffs further submit that they have not had the opportunity to
complete discovery with respect tothe remainder of

their taking claims. Accordingly, Plaintiffs

respectfully request that the Cour enter a scheduling order requiring the parties to complete all

discovery on liability by December 31, 2007, and setting a status conference as soon thereafter as

may be convenient for the Court to determine whether to set the case for trial or to establish a
schedule for dispositive motions, in accordance with Appendix A Section VI: Post-Discovery
Proceedings.

Plaintiffs do not believe that this case can be resolved on summary judgment at this time
because (1) there are numerous and complex factual issues which the parties are unlikely to agree

upon; and (2) without depositions and other discovery from Defendant, Plaintiffs are unable to

adequately defend such a motion for summary judgment. Plaintiffs disagree with Defendant's
characterization of

their takings claim as being limited to the Forest Service's administrative
2

Case 1:04-cv-00786-SGB

Document 27

Filed 07/26/2007

Page 3 of 5

decisions to reduce the number of cattle they are allowed to graze on their allotment; in fact, the
Forest Service has physically blocked Plaintiffs from access to their water sources (to which they
hold a water/propert right), and has taken numerous other actions, both physical and

administrative, which have deprived Plaintiffs of their water rights without just compensation.
Moreover, through these and other actions, both physical and legal, the Forest Service has so
severely interfered with Plaintiffs' ranching operations as to amount to a taking of

their cattle and

their ranching business under the Just Compensation Clause of

the Fifth Amendment.

Defendant's Position:

Defendant believes that Plaintiffs' two remaining takings claims in this case -- namely,

Plaintiffs' claim that the United States has taken Plaintiffs' alleged water rights located on
federal

land, and Plaintiffs' claim that the United States has taken their fee propert, otherwise

known as the Goss Ranch - should be decided by motion, prior to the parties engaging in
unecessary and time-consuming depositions (the parties have already completed written

discovery). Briefly, Plaintiffs primarily allege that when the Forest Service reduced the number
of cattle Plaintiffs were permitted to graze on the Sacramento Allotment, the Forest Service
deprived Plaintiffs of their right to make beneficial use of 143 sources of water on federal

land.

See e.g., Pls.' Amended Complaint, Appendix A, §§ 25, 32. Stated another way, Plaintiffs
contend that the Forest Service's land management decisions on federal

land effected a taking of

Plaintiffs' alleged water rights. However, since Plaintiffs do not have a legally compensable
propert right to graze their cattle to a water source located on federal

land, and the United States

has the right under the Propert Clause to regulate the public lands without limitation, Plaintiffs'
allegations that the Forest Service's land management decisions effected a taking of

their alleged

3

Case 1:04-cv-00786-SGB

Document 27

Filed 07/26/2007

Page 4 of 5

water rights is a legal issue that is amenable to resolution by motion.

In addition, Plaintiffs' claim that the United States has taken Plaintiffs' Ranch is also

amenable to resolution by motion. For example, Plaintiffs base their contention that the United
States has taken Plaintiffs' Ranch on their allegations that the United States has taken their

propert rights in water, forage and grazing land. See PIs.' Amended Complaint § 33. However,
since Plaintiffs do not have a legally compensable propert right in forage or federal grazing
land, and the United States has not taken Plaintiffs' alleged water rights, Plaintiffs' claim
regarding a taking of its Ranch is amenable to decision by motion. Accordingly, Defendant believes that no additional discovery is needed to resolve the

above legal issues and therefore proposes the following motion schedule:
1. Dispositive motions to be fied on or before September 28,2007;
2. Responses to dispositive motions to be filed on or before November 9, 2007;

3. Replies to dispositive motions wil be fied on or before December 7, 2007;
4. If

the motions are denied in whole or in part, Defendant proposes that the parties file the Court's decision, setting forth proposed another Joint Status Report within 30 days of dates for depositions, expert discovery, and other proposed proceedings.

If the Cour agrees with Plaintiffs that motions are not appropriate at this time, and
"liability" discovery should be completed by December 31, 2007, Defendant requests that the
Court clarify that only fact discovery must be completed by December 31,2007. To date, the

parties have not identified any expert witnesses (either related to liability or just compensation),
and Defendant believes that any discovery regarding expert witnesses or just compensation should be postponed until after Defendant has been given an opportunity to file a dispositive

motion. Accordingly, Plaintiffs' suggestion that the Court should set a Post-Discovery Status
Conference after December 31, 2007 in accordance with Appendix A Section VI, is premature

4

Case 1:04-cv-00786-SGB

Document 27

Filed 07/26/2007

Page 5 of 5

since all discovery wil not be completed by December 31, 2007.
Furher, due to counsel for Defendant's upcoming maternity leave, the case will be

temporarily reassigned to Kristine Tardiff. Ms. Tardiffwil enter an appearance shortly.
Counsel for Defendant has conferred with counsel for Plaintiff, who has authorized
counsel for Defendant to sign and fie this motion on behalf of

both parties.

Dated: July l.(P, 2007
Respectfully Submitted,

b J il£L¡¡ tt VJJfL
(I all (ÀJ) mCUi 'li..l I p.

ltû~ Dùs~
KATHLEEN L. DOSTER Natural Resources Section Environment & Natural Resources Division U.S. Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0481 (phone)
(202) 305-0506 (fax)
kathleen.doster(fusdoi .gov

NANCIE G. MARZULLA Marzulla & Marzulla 1350 Connecticut Ave., NW 410 Suite Washington, DC 20036 (202) 822-6760 (phone)
(202) 822-6774 (fax)

nancie(fmarzulla.com
Attorney of Record for Plaintiff

Attorney of Record for Defendant

5