Case 7:15-cv-00162-O Document 113 Filed 11/15/16

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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.

Civ. No. 7:15-CV-000162-O

BUREAU OF LAND MANAGEMENT

et al.,
Defendants.

DEFENDANTS EMERGENCY MOTION TO ENFORCE AND CLARIFY THE

COURTS OCTOBER 30, 2016 ORDER [ECF NO. 112] GRANTING DEFENDANTS
MOTION TO COMPEL ACCESS TO PLAINTIFFS LANDS
Defendants move this Court to enforce and clarify its previous Order directing Plaintiffs
to promptly allow access to the northern boundary of their land that abuts the disputed gradient
boundary. Order Granting Defs. Mot. Compel Access to Plaintiffs Land, at 11, ECF No. 112
(October 30 Order). After the Courts October 30 Order, the parties agreed that inspections
would begin on November 14, 2016, and on that date, Defendants commenced their inspection of
Plaintiff, Kevin Hunters lands.1 However, Plaintiffs continue to refuse reasonable access to
portions of the disputed area. Prompt action by the Court is required because Defendants
currently have personnel in the field to allow them to meet their December 16, 2016 expert
disclosures deadline.
This Court previously found that Plaintiffs northern boundary is central to resolution of
the present case, making inspection of the disputed area essential to Defendants ability to

Defendants expert disclosures are due December 16, 2016.

Defs. Motion to Enforce and Clarify

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understand Plaintiffs claims and prepare an adequate defense. ECF No. 112 at 10 (emphasis
added). In denying Plaintiffs request for a protective order, the Court further found that no
undue burden will result from permitting access to Plaintiffs land for Defendants to inspect the
disputed area. Id. at 9. Accordingly, [i]n order to understand Plaintiffs claims and prepare an
adequate defense, Defendants must be afforded the ability to investigate this contested area. Id.
(emphasis added). The Court further stated that:
The central importance of the boundary and its disputed nature make it essential
that Defendants be permitted on-the-ground access to inspect the land abutting the
southern gradient boundary, including Plaintiffs northern boundary. Because the
boundary between the Plaintiffs land and the federally-owned land is disputed, the
parties will inevitably hold different views of where one ends and the other begins,
making
inspection
of
the
northern
boundary
critical.
Id. at 5 (emphasis added). Thus, the Court recognized that there would be dispute between the
parties as to the location of that boundary, when ordering that Plaintiffs provide Defendants with
access to Plaintiffs properties.
However, Plaintiffs refuse to allow Defendants access to areas that would allow them to
inspect lands for the location of the southern bank as defined by the Supreme Court. For
instance, on the inspection of Mr. Hunters lands, commencing on November 14, Plaintiffs did
not permit Defendants to walk along the Kidder and Stiles boundary line decreed by the Supreme
Court.2 Around the location of the Hunter property, this Kidder and Stiles line was, at least on
November 14, over 1.5 miles from the flowing water in the Red River in places, but, being the

In the proceedings in Oklahoma v. Texas, the Supreme Court directed that Arthur D. Kidder and
Arthur L. Stiles be commissioned to run, locate and mark upon the ground, certain portions of
the southern gradient boundary. Oklahoma v. Texas, 261 U.S. 340, 341-42 (1923) (per curiam).
Kidder and Stiles surveyed and marked portions of this boundary, and delineated the boundary
between the states in that area upon cadastral maps, and the boundary they identified was entered
as a decree of the Court. See Oklahoma v. Texas, 265 U.S. 500 (1924) (per curium); Oklahoma v.
Texas, 267 U.S. 452 (1925).
2

Defs. Motion to Enforce and Clarify

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Supreme Courts prior determination of the boundary, it is unquestionably probative. See also
Oklahoma v. Texas, 260 U.S. 606, 638 (1923) (holding that party asserting material changes
should carry the burden of proving them). Moreover, inspecting the topography around this land
will assist Defendants in understanding how Kidder and Stiles determined the boundary decreed
by the Supreme Court.
Further, Plaintiffs did not permit Defendants to trace and re-examine the boundary lines
identified by a prior BLM survey. This survey (and others abutting other Plaintiffs properties)
comprise much of the basis for Plaintiffs assertion that there is a dispute in this matter giving
rise to jurisdiction under the Quiet Title Act. ECF No. 40 60-65. Because it they form much of
the basis for the alleged dispute in this case, they also are unquestionably probative.
Finally, Plaintiffs have prevented Defendants from inspecting topographic features or
elevations between the Kidder and Stiles boundary line and the location of flowing water in the
stream, which Defendants would like to evaluate as potential banks. Doing so requires traversing
along the feature. Yet, at Mr. Hunters property, Plaintiffs did not allow Defendants to do so, but
instead required that Defendants limit their access to only the designated access route.3
From the beginning, Defendants were clear that they intended to access such areas.
Defendants noted in a September 9 email that:
[W]e note that there may be some disagreement between BLM and your clients as
to how to apply those opinions [from Texas v. Oklahoma], and therefore we may
be looking at features and areas of the relevant parcels that your clients believe are
not necessary to determine the gradient boundary. Consistent with this, for instance,
we will want access to areas where there may be prior BLM surveyed boundaries.
ECF No. 104, Appx 021. And in the declaration attached to their Motion to Compel, Defendants

On the Hunter property, last night, Plaintiffs agreed to let Defendants access one additional point
on the Kidder and Stiles line, such that Defendants will be allowed to look a total of two, isolated
points on this line. Plaintiffs still will not agree to allow Defendants to traverse the line.

Defs. Motion to Enforce and Clarify

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explained that Defendants intended, inter alia, to visit the points where previous BLM
monuments have been placed identifying the gradient and medial lines and examine any areas
where the gradient line was defined and monumented by Kidder and Stiles in the 1920s. Id. at
031. Yet never, including in their Motion for a Protective Order, did Plaintiffs indicate that they
objected to such activitiesuntil Defendants showed up for the first inspection.
This Court made clear in its October 30 Order that Plaintiffs cannot limit the scope of the
discovery to only those areas consistent with Plaintiffs theory of the case. It also observed that
no undue burden will result from permitting access to Plaintiffs land for Defendants to inspect
the disputed area. The Court should not countenance Plaintiffs new impediment to the
discovery authorized in that Order.
Moreover, the Courts prompt action on this request is necessary. After the Courts
October 30 Order, the parties negotiated a scheduled to allow Defendants access to each of the
Plaintiffs properties from November 14 through December 8, 2016, in order to meet their
December 16, 2016 expert disclosures deadline. Based upon Plaintiffs previous representations
of allowing access in accordance with the Courts October 30 Order, Defendants shifted work
priorities and expended significant resources to place personnel in the field during these dates to
conduct the necessary inspections. Plaintiffs further impediments to the discovery authorized by
the Courts October 30 Order are unwarranted, and equity requires that the issues set forth in this
motion must be quickly resolved.
CONCLUSION
Plaintiffs continued obstruction of Defendants efforts to investigate this contested
area to allow them to understand Plaintiffs claims and prepare an adequate defense is
inconsistent with the Courts October 30, 2016 Order. See ECF No. 112 at 5. Defendants
Defs. Motion to Enforce and Clarify
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respectfully request that the Court promptly order that Defendants be permitted to access the
Individual Plaintiffs properties to inspect those areas abutting the northern boundary, including
the areas encompassing the Kidder and Stiles gradient line, prior BLM surveys, and any features
that may serve as potential qualified banks for the gradient boundary.
Respectfully submitted this 15th day of November, 2016,
JOHN C. CRUDEN
Assistant Attorney General
JOHN R. PARKER
United States Attorney
/s/ Jason A. Hill
ROMNEY S. PHILPOTT, CO Bar #35112
JASON A. HILL, DC Bar #477543
United States Department of Justice
Environment and Natural Resources Division
999 18th Street, Suite 370
Denver, CO 80202
Telephone: (303) 844-1810 (Philpott)
(202) 514-1024 (Hill)
Facsimile:
(303) 844-1350 (Philpott)
(202) 305-0506 (Hill)
E-mail: romney.philpott@usdoj.gov
jason.hill@usdoj.gov
Attorneys for Defendants

CERTIFICATE OF CONFERENCE
I hereby certify that pursuant to Local Rule 7-1 and Rule 37 of the Federal Rules of Civil
Procedure, Defendants counsel conferred with Mr. Robert Henneke, Counsel for Plaintiffs, on
November 14, 2016 regarding the foregoing motion. Plaintiffs oppose the motion.
s/ Romney S. Philpott
ROMNEY S. PHILPOTT

Defs. Motion to Enforce and Clarify

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CERTIFICATE OF SERVICE
I, Jason Hill, hereby certify that on November 15, 2016, I caused the foregoing to be served
upon the following counsel of record through the Courts electronic service system:

Bradley W Caldwell bcaldwell@caldwellcc.com

J Austin Curry acurry@caldwellcc.com
Robert Henneke rhenneke@texaspolicy.com
Andrew Miller drew.miller@kempsmith.com
Megan M. Neal megan.neal@texasattorneygeneral.gov
Ken K. Slavin kslavin@kempsmith.com
Joel Stonedale jstonedale@texaspolicy.com
John Franklin Summers -- jsummers@caldwellcc.com
Deborah Trejo debroah.trejo@kempsmith.com
Leigh Ann Thompson lthompson@texaspolicy.com
Chance Weldon cweldon@texaspolicy.com

s/ Jason A. Hill
JASON A. HILL

Defs. Motion to Enforce and Clarify

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

KENNETH ADERHOLT et al.,

Plaintiffs,
Civ. No. 7:15-CV-000162-O

v.
BUREAU OF LAND MANAGEMENT
et al.,
Defendants.

[PROPOSED] ORDER
This matter is before the Court on Defendants Motion to Enforce and Clarify the Courts
Prior October 30, 2016 Order [ECF No. 112] Granting Defendants Motion to Compel Access to
the Individual Plaintiffs Lands. Having reviewed Defendants motion and supporting briefs, as
well as Plaintiffs opposition, if any, the Court finds that the Motion should be GRANTED.
Accordingly, it is ORDERED:
Defendants shall be permitted to access the Individual Plaintiffs properties to inspect
those areas abutting the northern boundary, including the areas encompassing the Kidder and
Stiles gradient line, prior BLM surveys, and any features that may serve as potential qualified
banks for the gradient boundary.
SO ORDERED on this __ day of ________, 2016.

________________________________
The Honorable Reed OConnor
UNITED STATES DISTRICT JUDGE

[Proposed] Order