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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
KENNETH ADERHOLT et al.,
Plaintiffs,
v.
BUREAU OF LAND MANAGEMENT et
al.,
Defendants.

Civil Action No. 7:15-cv-00162-O

ORDER

Before the Court are Defendants Motion to Compel Access to Individual Plaintiffs Land,
Brief, and Appendix in Support (ECF Nos. 10204), filed October 6, 2016; Plaintiffs Response,
Appendix, and Motion for Protective Order (ECF Nos. 10910), filed October 20, 2016; and
Defendants Reply (ECF No. 111), filed October 24, 2016.
For the foregoing reasons, Defendants Motion to Compel Access to Plaintiffs Land is
GRANTED in part and DENIED in part. Further, Plaintiffs Motion for Protective Order (ECF
No. 109) is DENIED.
I.

BACKGROUND
Plaintiffs brought the above-styled action against Defendants on November 16, 2015,

challenging the alleged unconstitutional and arbitrary seizure of approximately 90,000 acres of
private property along the Red River in Texas. See generally Compl., ECF No. 1. Plaintiffs
include individual property owners (collectively, individual Plaintiffs or Plaintiffs),1 their
respective county governments of Wichita, Clay, and Wilbarger County, Texas (collectively,

For purposes of this Order, the term Plaintiffs refers to the individual property owners whose parcels
Defendants seek to access for inspection.
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County Plaintiffs), and Clay County Sheriff Kenneth Lemons, Jr. (Sheriff Lemons) in his
official capacity. Id. Plaintiffs filed their Amended Complaint on February 9, 2016, bringing the
following claims: (1) enforcement of the Quiet Title Act (QTA), 28 U.S.C. 2409a; (2) quiet
title for unsurveyed individual Plaintiffs; (3) quiet title for County Plaintiffs; (4) declaratory,
mandamus, and injunctive relief for County Plaintiffs against Defendants for unlawful and
unconstitutional acts regarding Defendants survey methods; (5) declaratory, injunctive, and
mandamus relief to determine proper survey standards for determining the south bank and gradient
boundary of the Red River; (6) declaratory, injunctive, and mandamus relief for Sheriff Lemons;
(7) declaratory, injunctive, and mandamus relief for violation of the Due Process Clause of the
Fifth Amendment; and (8) declaratory, injunctive, and mandamus relief for unreasonable seizure
of property under the Fourth Amendment. See generally Am. Compl., ECF No. 40.
Defendants now move this Court to compel Plaintiffs to reasonably and expeditiously
make their property available for Defendants to inspect, measure, survey, take GPS coordinates,
and photograph the properties. Defs. Mem. Supp. Mot. Compel 6, ECF No. 103. In pursuit of
their discovery efforts and in response to Plaintiffs objections, Defendants request (1) access to
all boundaries of Plaintiffs land; (2) permission to reach the disputed gradient boundary by
entering through Plaintiffs land; (3) ability to inspect Plaintiffs land without signing an
indemnification agreement; and (4) the presence of armed law enforcement officers during
inspection. See id. at 12. In response, Plaintiffs seek a protective order from this Court that
would require Defendants to (1) sign a waiver of personal liability for any unintentional injury; (2)
sign a written agreement to compensate Plaintiffs for any damage resulting from the inspection;
and (3) conduct the inspection without armed federal law enforcement agents. Pls. Resp. Mot.
Compel 1213, ECF No. 109. In reply, Defendants claim a clear right to access the individual

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Plaintiffs lands under Rule 34 so that they may evaluate the individual Plaintiffs QTA claims and
investigate appropriate defenses. Defs. Reply Supp. Mot. Compel 1, ECF No. 111. Per the
Courts Second Amended Scheduling Order, the discovery deadline is February 2, 2017, so
Defendants Motion to Compel is timely. See Order, July 21, 2016, ECF No. 95.
II.

LEGAL STANDARDS
The Federal Rules of Civil Procedure permit discovery of any nonprivileged matter that

is relevant to any partys claim or defense and proportional to the needs of the case, considering
. . . whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed.
R. Civ. P. 26(b)(1). The discovery rules are to be construed broadly and liberally. Burns v. Thiokol
Chemical Corp., 483 F.2d 300, 304 (citing Hickman v. Taylor, 329 U.S. 495, 500 (1947)). Rule
34 permit[s] entry onto designated land or other property possessed or controlled by responding
party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the
property or any designated object or operation on it. Fed. R. Civ. P. 34(a)(2).
A Rule 34 inspection must comply with the scope of Rule 26, which limits a partys ability
to obtain discovery that is unreasonably cumulative or duplicative, or can be obtained from some
other source that is more convenient, less burdensome, or less expensive or where the burden or
expense of the proposed [inspection] outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C),
(b)(1). Before compelling inspection, the degree to which the proposed inspection will assist the
moving party and its search for truth must be weighed against the hardships and hazards created
by the inspection. See Dittmar v. Kroger Texas, L.P., 2015 WL 11019135, at *4 (N.D. Tex. June
9, 2015) (citing Jones v. Gen. Growth Props., Inc., 2013 WL 2948151, at *2 (M.D. La. June 14,
2013)). A party requesting inspection of property under Rule 34 may seek an order compelling

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such discovery when the requested party fails to respond that inspection will be permitted. Fed.
R. Civ. P. 37(a)(3)(B)(iv).
The party moving to compel inspection bears the burden of showing that the inspection is
relevant to the case and would lead to admissible evidence. Abraham v. Alpha Chi Omega, 271
F.R.D. 556, 559 (N.D. Tex 2010) (citing Export Worldwide, Ltd., v. Knight, 241 F.R.D. 259, 263
(W.D. Tex. 2006)). A discovery request is relevant when the request seeks admissible evidence
or is reasonably calculated to lead to the discovery of admissible evidence. Crosby v. Louisiana
Health Serv. and Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011) (quoting Wiwa v. Royal Dutch
Petroleum Co., 392 F.3d 812, 820 (5th Cir. 2004)). The party resisting inspection bears the burden
to show specifically how the discovery request is not relevant or is overly broad, burdensome or
oppressive. See McLeod, Alexander, Powel and Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th
Cir. 1990).
In weighing the benefits of the sought-after inspection with the burdens it would place on
the Plaintiffs, this Court exercises the broad discretion it possesses over discovery matters. Beattie
v. Madison Cty. Sch. Dist., 254 F.3d 595, 606 (quoting Kelly v. Syria Shell Petroleum Dev., B.V.,
213 F.3d 841, 855 (5th Cir. 2000)); United States, ex rel., Rigsby v. State Farm Fire & Cas. Co.,
749 F.3d 457 (5th Cir. 2015).
III.

ANALYSIS
Because the disputed boundary between Plaintiffs properties and federally-owned land is

clearly relevant, Defendants will be permitted access to the northern boundary of Plaintiffs land
for inspection. The Court orders the following conditions be imposed on the inspection in order
to facilitate Defendants safety and alleviate some of Plaintiffs concerns.

Case 7:15-cv-00162-O Document 112 Filed 10/30/16

A.

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Defendants Motion to Compel

1. Land Subject to Inspection

The northern boundary of Plaintiffs land that abuts the southern gradient boundary of the
Red River is at the center of this dispute. See generally Am. Compl., ECF No. 40. In order to
understand Plaintiffs claims and prepare an adequate defense, Defendants must be afforded the
ability to investigate this contested area. Plaintiffs argue that Defendants could obtain the same
information without stepping foot on their land, but the Court disagrees. Pls. Resp. Mot. Compel
3, ECF No. 109. The central importance of the boundary and its disputed nature make it essential
that Defendants be permitted on-the-ground access to inspect the area abutting the southern
gradient boundary, including Plaintiffs northern boundary. Because the boundary between
Plaintiffs land and the federally-owned land is disputed, the parties will inevitably hold different
views as to where one ends and the other begins, making inspection of Plaintiffs northern
boundary critical.
Defendants also request access to every boundary of Plaintiffs land. Defs. Mem. Supp.
Mot. Compel 10, ECF No. 103. Because the northern boundary of Plaintiffs land is the only
boundary in dispute, it is not clear how the remaining portions of Plaintiffs land is relevant or
would assist Defendants in understanding Plaintiffs claims or preparing a defense. Individual
Plaintiffs land includes thousands of acres and granting access to every boundary would exceed
the scope of relevant discovery and impose an unreasonable burden on Plaintiffs. See Am. Compl.,
616, ECF No. 40. The area subject to discovery must not only be relevant to a partys claim
or defense but also proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Therefore,

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the inspection will be limited to: the Plaintiffs northern boundary2 that abuts the disputed southern
gradient boundary of the Red River. If Defendants wish to expand the inspection to include the
other boundaries, they must provide further briefing to explain why such discovery is relevant.
The Court will consider any further briefing on the need to expand the inspection to the entirety of
the properties, but Defendants shall proceed with the inspection of the northern boundary without
delay.
2. Inspection Entry Point
Plaintiffs claim that Defendants can access the disputed area from federally-owned land
without entering Plaintiffs property. Pls. Resp. Mot. Compel 12, ECF No. 109. While potentially
feasible, the condition would place an unreasonable burden on Defendants access to the area
subject to inspection, increase the chance of conflict with third parties, and further delay discovery.
Accessing the disputed area via federally-owned land would require Defendants to travel great
lengths upstream or downstream from various public access points, in one case over fifteen miles
in either direction. Defs. Mem. Supp. Mot. Compel 14, ECF No. 103. With no roads connecting
the public access points to the disputed area, Defendants would be required to travel by boat and
foot for several miles. Id.
Because of the safety risk, financial expense, and unnecessary delay that would result from
forcing Defendants to access the northern boundary of Plaintiffs land from public access points,
Defendants will be allowed to access the disputed area by crossing Plaintiffs land. Plaintiffs shall
notify Defendants of the route they are permitted to take to the northern boundary within 3 days
of this order and Defendants must strictly adhere to that route. To facilitate an efficient inspection

Defendants are also authorized to inspect any eastern and western boundaries of Plaintiffs land that
intersect with the disputed southern gradient boundary, as the parties previously agreed. Pls. Resp. Mot.
Compel 11, ECF No. 109.
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and ensure Defendants restrict their survey to the disputed area, a local deputy sheriff may escort
the BLM inspection team directly to the northern boundary that abuts the southern gradient
boundary of the Red River.
3. Indemnity Agreement
Plaintiffs seek an indemnity agreement from Defendants to relieve the land owners of any
liability resulting from the inspection. Both parties agree that the area subject to inspection can be
a dangerous place and the Court makes provisions in this Order to facilitate the safety of those
involved in discovery. Pls. Resp. Defs. Mot. Compel 5, ECF No. 109; Defs. Mem. Supp. Mot.
Compel 9, ECF No. 103. But whatever hazards Defendants may face in conducting the inspection,
they do not require that Defendants waive any rights to pursue relevant discovery. The Fifth
Circuit has not directly addressed the issue of indemnity agreements in the context of a Rule 34
inspection, but Defendants cite several cases that explain a party is not required to indemnify the
[party hosting inspection] . . . before entering on the lands of the [party hosting inspection] for
purposes of carrying out discovery procedures in preparation for trial. United States v. Bunker
Hill Co., 417 F. Supp. 332, 333 (D. Idaho 1976); see, e.g., Hindle v. Natl Bulk Carriers, 18 F.R.D.
198, 199 (S.D.N.Y. 1955); White v. Union Pac. R.R. Co., LEXIS 40962, at *2 (D. Kan. Apr. 14,
2011). Defendants also argue that federal law prevents them from agreeing to an indemnity
agreement. Defs. Reply Supp. Mot. Compel 4, ECF No. 111 (citing Bunker Hill Company, 417
F. Supp. at 333). Further, Plaintiffs do not offer any support for their contention that a party may
require its opponent to indemnify it for any injury resulting from a Rule 34 inspection.3 The Court

Plaintiffs chiefly rely on Reyes, a Texas appellate case, to show that [u]nder Texas law, Plaintiffs have
the right to require any guests on their property to sign a liability waiver, provided the waiver satisfies the
fair notice requirements of conspicuousness and the express negligence doctrine. Reyes v. Storage &
Processors, Inc., 86 S.W.3d 344, 348 (Tex. App. 2002); Pls. Resp. Mot. Compel 6, ECF No. 109. But as
Defendants point out in their reply, the Reyes case says nothing about the rights of Texas landowners to
insist on liability waiversthe case addressed whether a liability release signed by an employee shielded
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has carefully considered the concerns raised by both parties and tailors the scope and means of
discovery accordingly.
Defendants will not be required to execute any type of liability waiver or indemnity
agreement with Plaintiffs. But Defendants must provide every member of the BLM survey team,
security detail, and participant in the entry authorized by this order with written notice as to the
potentially hazardous conditions that exist on the properties they will inspect, including but not
limited to: unstable terrain, sinkholes, poisonous snakes, wild animals, and hunters. The written
notice should warn all persons participating in the inspection in any manner that if they agree to
enter the properties at issue, they risk encountering these and similar dangers, and are obligated to
take appropriate precautions.
4. Law Enforcement Presence
Considering the dangerous conditions pointed out by both parties, it is reasonable for
Defendants to bring a maximum of two armed federal law enforcement officers in plain clothes to
accompany the inspection team for security purposes.4 The rural, sparsely populated area is
referred to as a no mans land that hosts a variety of unlawful and dangerous activity, indeed,
a basis for this lawsuit is the need to identify the precise boundary so that the appropriate law
enforcement agency may police the no mans land. Defs. Mem. Supp. Mot. Compel 89, ECF
No. 103; see also Am. Compl., 2123, 10711, ECF No. 40. Allowing Defendants to take
reasonable steps to ensure a safe and efficient inspection does not infringe on Plaintiffs
constitutional rights.

his employer from a negligence claim. Defs. Reply Supp. Mot. Compel 3, ECF No. 111. The federal
discovery rules do not require any liability waiver to complete a Rule 34 inspection, and therefore neither
will this Court.
4
Defendants have already agreed that any armed federal law enforcement agents who accompany the
inspection team will be dressed in plain clothes and employed by BLM. See Defs. Mem. Supp. Mot.
Compel 8; Decl. Charles I. Doman, App. 03334, 7.
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Defendants will ensure, as they have stipulated in the briefing, that the role of any federal
law enforcement officer who escorts the inspection team will be limited to providing security and
they will not participate in the inspection in any way or undertake any investigatory action. See
Defs. Mem. Supp. Mot. Compel 9; Decl. Charles I. Doman, App. 03334, 7. Additionally, as
already agreed by the parties, Plaintiffs may recruit the services of a local deputy sheriff to oversee
the Defendants entry and exit from Plaintiffs land, provided the local agent does not interfere
with Defendants inspection.5 Pls. Resp. Mot. Compel 12 n.1, ECF No. 109.
B.

Plaintiffs Motion for Protective Order

Courts have discretion to issue protective orders under Rule 26(c) provided that good
cause exists to protect a party from from annoyance, embarrassment, oppression, or undue
burden or expense. Fed. R. Civ. P. 26(c)(1). The party seeking the protective order bears the
burden of demonstrating the necessity of its issuance. In re Terra Intern., Inc., 134 F.3d 302 (5th
Cir. 1998). Here, Plaintiffs seek a protective order to ensure (1) Defendants execute a waiver of
personal liability prior to entering the property; (2) Defendants agree to compensate Plaintiffs for
any damage resulting from the inspection; and (3) no federal law enforcement agents are permitted
on Plaintiffs land without a valid search warrant or the Plaintiffs permission. The Court finds no
undue burden will result from permitting access to Plaintiffs land for Defendants to inspect the
disputed area and hereby DENIES Plaintiffs motion for protective order, but imposes additional
conditions on the inspection to address Plaintiffs stated concerns.

Citing the need for a neutral third-party to facilitate access to Plaintiffs properties, Plaintiffs suggested
recruiting the services of a local deputy sheriff. Defs. Reply Supp. Mot. Compel 6, ECF No. 111. The
Court finds this to be an agreeable compromise for the inspection to proceed without the need for Plaintiffs
or Plaintiffs counsel to be present to open up the properties. Because the federal rules presume the
responding party must bear the expense of complying with discovery requests, the Court finds that
providing a local deputy sheriff for a maximum of three days per property is not an undue burden or
expense. Oppenheimer Fund, Inc., v. Sanders, 437 U.S. 340, 358 (1978). Plaintiffs will bear all expenses
associated with the services of a local deputy sheriff should they desire to employ one.
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The Court finds that Plaintiffs northern boundary is central to resolution of the present
case, making inspection of the disputed area essential to Defendants ability to understand
Plaintiffs claims and prepare an adequate defense. The Court recognizes that an inspection of land
is inherently more intrusive and burdensome than more traditional forms of discovery, such as the
mere production of documents. Belcher v. Bassett Furniture Indus. Inc., 588 F.2d 904, 908 (4th
Cir. 1978). The Court also points out that Defendants are required to take reasonable steps to avoid
imposing undue burden or expense on the landowners whose land is subject to inspection. See
Fed. R. Civ. P. 45(d)(1). Therefore, to relieve some of the burdens and risks borne by Plaintiffs,
the Court orders that the inspection of Plaintiffs land conform to the following conditions, and the
failure to comply with any of these conditions shall subject the offending individual to sanctions:6

Defendants will have access to every individual Plaintiffs parcel of land for no more than
three days.7

No inspection will be permitted on Saturday or Sunday.8

Every inspection must be conducted Monday to Friday between the hours of 8:00 a.m. and
5:00 p.m.9

Plaintiffs are not required to be present during the inspection but are certainly permitted to
observe the inspection and access their land at all times, provided they do not interfere with
Defendants inspection.

Defendants shall notify each person who enters the properties at issue in this lawsuit of these conditions,
ensure each person agrees to abide by them, and that each person is aware they may be sanctioned for
violating any condition, before permitting any person to enter.
7
Defendants indicated in briefing that three days would be sufficient for each inspection. Defs. Mem.
Supp. Mot. Compel 1213, ECF No. 103. (Any inspection would only last two or three days per
property.). The parties shall agree to the actual dates of inspection. If they are unable to mutually agree,
the Court will unilaterally schedule the dates.
8
Condition previously agreed to by both parties. App. 018, 023, ECF No. 104.
9
Condition previously agreed to by both parties. App. 018, 023, ECF No. 104.
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Defendants must provide at least three days notice to each Plaintiff indicating the names
and titles of all personnel who will be present for the inspection, every date an individual
Plaintiffs land will be subject to inspection, and the exact time Defendants plan to arrive
and depart from the parcel.10

All Defendants must show photo identification before entering Plaintiffs land for
inspection.

Defendants are prohibited from damaging or disturbing the property in any manner, other
than as needed to carry out the survey, and shall ensure any gate they open is securely
fastened before leaving the gated area.

Defendants are prohibited from damaging or disturbing any animals, hunting areas,
feeders, or stands.

Defendants are prohibited from smoking while on Plaintiffs property.

Defendants are prohibited from undertaking any excavation, soil sampling, or movement
of earth.11

IV.

Defendants may not enter any building or disturb any structure on Plaintiffs properties.12
CONCLUSION
For the foregoing reasons, Defendants Motion to Compel (ECF No. 102) is GRANTED

to the extent that Plaintiffs must promptly allow access to the northern boundary of their land that
abuts the disputed gradient boundary in accordance with the mandates set out in this Order. The
Motion is DENIED as to Defendants motion to inspect the remaining portions of Plaintiffs land
or boundaries.

Defendants previously agreed to giving three days notice before inspection and disclosing the names
and titles of all personnel participating in the inspection. App. 018, 023, ECF No. 104.
11
Condition previously agreed to by Defendants. App. 018, ECF No. 104.
12
Condition previously agreed to by Defendants. App. 018, ECF No. 104.
10

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Further, Plaintiffs Motion for Protective Order (ECF No. 109) is hereby DENIED.
Accordingly, it is ORDERED that if Defendants seek any access to Plaintiffs properties beyond
that allowed by this Order, they shall provide briefing on the issue no later than November 14,
2016. Plaintiff shall respond to Defendants brief no later than November 21, 2014.
SO ORDERED on this 30th day of October, 2016.

_____________________________________
Reed OConnor
UNITED STATES DISTRICT JUDGE

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