Grant Neibaur and Sons Farms et al v. United States of America

Filing 37

MEMORANDUM DECISION AND ORDER the motion to deem requests for admission admitted (docket no. 32 ) is GRANTED IN PART AND DENIED IN PART. It is further ordered that Plaintiffs file their supplemental answers to therequests for admission within 30 days from the date of this decision. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

GRANT NEIBAUR AND SONS FARMS, et
al.,

Case No. 4:11-CV-159-BLW

Plaintiffs,
MEMORANDUM DECISION AND
ORDER

v.

UNITED STATES OF AMERICA, et al.,
Defendants.

INTRODUCTION
The Court has before it the BLM’s motion to deem admitted ninety-seven requests
for admission. The motion is fully briefed and at issue. The Court will grant the motion
in part and deny it in part for the reasons expressed below.
LITIGATION BACKGROUND
In this lawsuit, plaintiffs sue the BLM, claiming that its application of the DuPont
chemical Oust in 1999 and 2000 caused damage to plaintiffs’ crops – specifically sugar
beets, potatoes and wheat – in 2002 and 2003. A related case, brought by a group of
different farmers making the same claims, went to trial in this Court in 2009. At the
conclusion of that trial, the Court entered Findings of Fact and Conclusions of Law
finding, among other things, that the BLM was 40% responsible for the damage to the
plaintiff farmers and defendant DuPont was 60% responsible.
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See Findings of Fact and

Conclusions of Law (Dkt. No. 1681 in Adams v US, 4-03-CV-49-BLW). The Court will
refer to that earlier case as Adams.
Due to the similarity of claims and counsel, the BLM served requests for
admission on the plaintiffs here, asking them to admit to many of the findings made by
the Court in its Findings of Fact and Conclusions of Law in Adams . For example, the
BLM’s requests for admission 2 through 47 (except for 21, 32, 33, & 40) quote directly
from the Court’s Findings of Fact in Adams and ask the plaintiffs to admit those facts.
Thus, request no. 3 asks plaintiffs to admit that “each year, wildfires burn thousands of
acres of BLM land.” Request no. 7 asks plaintiffs to admit that Idaho wildfires are
“fueled by cheatgrass, and they end to be very large, sometimes catastrophic.” Requests
nos. 18 to 31 (excluding 21) seek admissions relating to the BLM’s testing of various
herbicides and selection of Oust, and again quote directly from the Court’s findings.
Other requests – nos. 48, 49, 52, 55, 56, 58-69, 71-74, 79-90, 92 & 93 – quote
from the BLM’s proposed Findings of Fact that it filed in Adams, rather than from the
Court’s Findings of Fact. For example, request no. 59 asks plaintiffs to admit that
“DuPont represented to BLM that the half-life of Oust was short.” Request no. 90 asks
plaintiff to admit that “in determining whether a burned area required rehabilitation, each
BLM district office considered range and habitat support provided by the land.”
Finally, there are other requests that are tied to specific transcript page numbers or
exhibits from Adams, or seek admissions on mixed questions of law and fact. For
example, request no. 91 asks plaintiffs to admit that “there was no negligence by the
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United States during the implementation of the Oust treatment.” Request no. 21 asks
plaintiffs to admit that “BLM’s decision to use Oust was susceptible to a balancing of
policy goals, such as wildlife restoration, protecting property from future wildfires and
allocating resources in a cost-effective manner.”
The plaintiffs objected to each of these requests, stating that the requests sought
irrelevant information because the parties had stipulated to the BLM’s 40% liability. The
plaintiffs argued that the only remaining questions concerned specific causation and
damages, and that these questions did not address those issues.
This response ignores the BLM’s discretionary function exception defense. The
requests seek to establish Oust’s characteristics and the environmental context within
which the BLM made its decision to apply Oust. This information is important in
determining how and why the BLM arrived at its decision to apply Oust, and is therefore
directly relevant to the BLM’s discretionary function defense.
Moreover, these same requests concern important background information for the
specific causation inquiry. For example, Oust’s potency and persistence in the soil will
be critical factors in determining whether Oust actually damaged the plaintiffs’ crops at
issue here. For all these reasons, plaintiffs’ relevance objection must be rejected.
Plaintiffs also objected on the ground that “the information to answer these
requests was not known to plaintiffs nor readily obtainable.” See Plaintiffs’ Response
(Dkt. No. 32-3) at p. 3. Plaintiffs argue that they are entitled to investigate these asserted
facts to determine their accuracy before being compelled to admit or deny them.
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Rule 36(a)(4) allows plaintiffs to refuse to answer based on a lack of knowledge
only if they “state that [they have] made reasonable inquiry and that the information
[they] know[] or can readily obtain is insufficient to enable [them] to admit or deny.” The
plaintiffs’ response – that they were entitled to pursue discovery before deciding whether
to challenge the Court’s factual findings – was essentially a variation of the response
permitted by Rule 36(a)(4). Plaintiffs were saying that they needed more time to make
their “reasonable inquiry” – that is, they needed to complete discovery.
Plaintiffs’ response is not expressly permitted by Rule 36(a). But it would be
unjust to require plaintiffs to admit or deny factual findings made in Adams, a case in
which they were not parties, without first having an opportunity to do discovery. Rule 36
“seeks to serve two important goals: truth-seeking in litigation and efficiency in
dispensing justice.” Conlon v U.S., 474 F.3d 616, 622 (9th Cir. 2007). The Federal Rules
as a whole are intended “to secure the just, speedy, and inexpensive determination of
every action.” See Fed.R.Civ.P. 1. Forcing plaintiffs to admit or deny before conducting
discovery would sacrifice justice for efficiency, a trade-off that would not promote the
goals of Rules 1 or 36. Accordingly, the Court finds that the plaintiffs’ response was
reasonable under Rule 36(a) at the time it was made.
However, discovery has since closed, and there is no longer any excuse for
plaintiffs to avoid answering the requests. As discussed above, the requests seek
information directly relevant to the issues of specific causation and discretionary function.
Rule 36 is designed to “facilitate proof with respect to issues that cannot be eliminated
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from the case and . . . to narrow the issues by eliminating those that can be.” Conlon, 474
F.3d at 622. The BLM is entitled to know if the plaintiffs are going to challenge the
factual findings made in Adams and the other matters addressed in the requests.
Moreover, Rule 26(e)(1) puts plaintiffs under a continuing duty to supplement
their responses to requests for admission when plaintiffs “learn that in some material
respect the . . . response is incomplete or incorrect.” Now that discovery is complete, the
plaintiffs’ response becomes incomplete – the lack of opportunity to conduct a
“reasonable inquiry” can no longer serve as an excuse, and plaintiffs have a duty under
Rule 26(e)(1) to supplement their earlier response. Accordingly, it is now time for
plaintiffs to provide answers to the requests.
The plaintiffs argue, however, that “[t]he [BLM] want to re-file its discretionary
function motion from the Adams case, but because no facts have been developed in this
case to support its motion, it asked plaintiffs to admit the necessary facts.” Plaintiffs’
Reply Brief (Dkt. No. 33) at p. 2. If plaintiffs have good reason to believe that the BLM
cannot prove the facts necessary for the discretionary function exception, they are under
no duty to admit those contested facts: “[C]aution should be exercised in compelling a
party to admit something believed true where there is a reasonable ground for concluding
that the party seeking the admission will fail to establish the point at trial.” 8B, Wright,
Miller and Marcus, Federal Practice & Procedure (2010) at § 2261, pp. 365-66. On the
other hand, if plaintiffs without good reason refuse to admit a matter, they will be
required to pay the costs incurred in proving that matter. Id. at § 2265, p. 401.
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Thus, plaintiffs are under no compulsion to admit any of the requests that they
have good reason to believe the BLM cannot prove in this litigation. But this only
addresses how plaintiffs may respond in their Rule 26(e)(1) supplementation, and does
not alter the Court’s ruling that plaintiffs must file that supplementation.
Conclusion
The Court will grant in part and deny in part the BLM’s motion to deem admitted
the ninety-seven requests for production. The Court will deny the motion to the extent it
seeks to deem the requests admitted, but will grant the motion to the extent it seeks
supplemental answers by plaintiffs. The plaintiffs shall file their supplemental answers
within thirty days from the date of this decision.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to deem
requests for admission admitted (docket no. 32) is GRANTED IN PART AND DENIED
IN PART. The motion is denied to the extent it seeks to deem the requests admitted, but
is granted to the extent it seeks supplemental answers by plaintiffs.
IT IS FURTHER ORDERED, that plaintiffs file their supplemental answers to the
requests for admission within thirty (30) days from the date of this decision.

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DATED: November 9, 2012

Honorable B. Lynn Winmill
Chief U. S. District Judge

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