USA v. Estate of E. Wayne Hage et al

Filing 310

ORDER Denying 293 and 294 Motions in Limine. Signed by Chief Judge Robert C. Jones on 3/23/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,
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Plaintiff,
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vs.
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ESTATE OF E. WAYNE HAGE et al.,
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Defendants.
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2:07-cv-01154-RCJ-VCF
ORDER

This case arises out of alleged trespassing of private cattle on federal land. Pending

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before the Court are Plaintiffs’ motions in limine. For the reasons given herein, the Court denies

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the motions.

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I.

PROCEDURAL HISTORY

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On August 29, 2007, Plaintiff the United States of America sued Defendants Estate of E.

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Wayne Hage (the “Estate”), Benjamin J. Colvin d.b.a. Colvin Cattle Co. (“Colvin”), and Wayne

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N. Hage (“Wayne Jr.”) in this Court for trespass, requesting both damages and an injunction.

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(See Compl., Aug. 29, 2007, ECF No. 1). The United States alleged by date, location, and brand

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thirty-nine (39) instances of Defendants’ cattle grazing without a permit on Bureau of Land

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Management (“BLM”)-managed lands, i.e., the Ralston, Monitor, Montezuma, and Meadow

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Canyon C&H Allotments, as well as on other National Forest System (“NFS”) lands between

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January 5, 2004 and August 23, 2007. (See id. ¶¶ 13, 15).

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Defendants moved to dismiss, and the United States filed the FAC after receiving leave

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to do so. The FAC named as Defendants Wayne Jr., individually and in his capacity as executor

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of the Estate, and Benjamin J. Covlin, individually and as an officer of Colvin Cattle Co.

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(“Colvin”). (See First Am. Compl., Apr. 10, 2008, ECF No. 37). The FAC alleged by date,

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location, and brand forty-four (44) instances of trespassing on BLM and NFS lands between

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January 5, 2004 and April 3, 2008. (See id. ¶¶ 14, 16). Defendants answered the FAC, moved to

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dismiss it, and Colvin filed a counterclaim, which the United States answered. The Estate also

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moved for summary judgment but withdrew that motion. The Court denied Defendants’ motions

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to dismiss. The United States voluntarily dismissed the FAC as against Colvin. The United

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States moved for offensive summary judgment against the Estate, and the Court denied that

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motion, as well as the Estate’s further motions to dismiss or stay the case. The Court granted the

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Estate’s motion to add a counterclaim for declaratory judgment. The United States moved to

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dismiss the counterclaim, and the Court granted the motion in part.

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II.

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LEGAL STANDARDS
A motion in limine is a procedural device to obtain an early and preliminary ruling on the

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admissibility of evidence. Black’s Law Dictionary defines it as “[a] pretrial request that certain

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inadmissible evidence not be referred to or offered at trial. Typically, a party makes this motion

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when it believes that mere mention of the evidence during trial would be highly prejudicial and

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could not be remedied by an instruction to disregard.” Black’s Law Dictionary 1109 (9th ed.

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2009). Although the Federal Rules of Evidence do not explicitly authorize a motion in limine,

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the Supreme Court has held that trial judges are authorized to rule on motions in limine pursuant

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to their authority to manage trials. Luce v. United States, 469 U.S. 38, 41 n.4 (1984) (citing Fed.

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R. Evid. 103(c) (providing that trial should be conducted so as to “prevent inadmissible evidence

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from being suggested to the jury by any means”)).

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A motion in limine is a request for the court’s guidance concerning an evidentiary

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question. See Wilson v. Williams, 182 F.3d 562, 570 (7th Cir. 1999). Judges have broad

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discretion when ruling on motions in limine. See Jenkins v. Chrysler Motors Corp., 316 F.3d

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663, 664 (7th Cir. 2002). However, a motion in limine should not be used to resolve factual

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disputes or weigh evidence. See C&E Servs., Inc., v. Ashland, Inc., 539 F. Supp. 2d 316, 323

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(D.D.C. 2008). To exclude evidence on a motion in limine “the evidence must be inadmissible

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on all potential grounds.” E.g., Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D.

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Ohio 2004). “Unless evidence meets this high standard, evidentiary rulings should be deferred

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until trial so that questions of foundation, relevancy and potential prejudice may be resolved in

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proper context.” Hawthorne Partners v. AT&T Tech., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill.

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1993). This is because although rulings on motions in limine may save “time, costs, effort and

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preparation, a court is almost always better situated during the actual trial to assess the value and

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utility of evidence.” Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1219 (D. Kan. 2007).

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In limine rulings are provisional. Such “rulings are not binding on the trial judge [who]

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may always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 753,

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758 n.3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine rulings are always subject to

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change, especially if the evidence unfolds in an unanticipated manner). “Denial of a motion in

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limine does not necessarily mean that all evidence contemplated by the motion will be admitted

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to trial. Denial merely means that without the context of trial, the court is unable to determine

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whether the evidence in question should be excluded.” Ind. Ins. Co., 326 F. Supp. 2d at 846.

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III.

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ANALYSIS
In Motion No. 293, the United States asks the Court to exclude any prospective testimony

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from professor Angus McIntosh consisting of legal conclusions. The Court denies the motion.

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The Court will caution the witness and counsel that purely legal questions are irrelevant but will

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not exclude Professor McIntosh’s testimony concerning historical practices or customs.

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In Motion No. 294, the United States asks the Court to exclude any prospective testimony

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from any witnesses concerning historic or customary use of federal land for grazing. The Court

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denies the motion. As the Court has already noted in previous rulings, customary usages will be

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relevant to determining to what extent foraging rights appurtenant to water rights were

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“recognized and acknowledged by the local customs, laws, and decisions of courts” under the

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1866 Act. The Court must determine whether livestock were customarily permitted to graze

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within fifty feet of a water source while watering there as a part of the water right, for example,

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before it can determine whether any particular instance constituted a trespass in this case.

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Plaintiff is attempting through this motion in limine to re-litigate the issue of whether water

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rights on federal land can ever include an appurtenant foraging right. The Court has indicated, as

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the Court of Federal Claims (“CFC”) has ruled, that under the 1866 Act, it might.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motions in Limine (ECF Nos. 293, 294) are

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DENIED.
IT IS SO ORDERED.
Dated this 23rd day March, 2012.
Dated this 20th day ofof March, 2012.
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ROBERT C. JONES
United States District Judge

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