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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION

KENNETH ADERHOLT, et al,
Plaintiffs,
The STATE OF TEXAS, by and through the
Office of the Attorney General of Texas, and
GEORGE P. BUSH, COMMISSIONER, of
the GENERAL LAND OFFICE of the
STATE OF TEXAS,

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

Plaintiff-Intervenor,
v.
BUREAU OF LAND MANAGEMENT, et al,
Defendants.

RESPONSE TO DEFENDANTS’ MOTION TO COMPEL ACCESS TO THE
INDIVIDUAL PLAINTIFFS’ LANDS, MOTION FOR PROTECTIVE ORDER, AND
MEMORANDUM IN SUPPORT

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TABLE OF CONTENTS

I.

EXECUTIVE SUMMARY ................................................................................................1

II.

BACKGROUND ................................................................................................................1

III.

RESPONSE TO DEFENDANTS’ MOTION TO COMPEL AND
MEMORANDUM IN SUPPORT OF MOTION FOR PROTECTIVE ORDER...............4
A.

STANDARD OF REVIEW ..........................................................................................4

B.

ARGUMENT AND AUTHORITIES ...........................................................................5

i.

Entry onto Plaintiffs’ properties without liability waiver and insurance policy
is an undue burden and risks undue expense ................................................................5

ii.

Entry onto Plaintiffs’ properties by armed federal law enforcement without a
warrant or permission of the property owner is oppressive and violates
Plaintiffs’ Fourth Amendment rights ............................................................................7

iii. Defendants’ demand for unlimited access to Plaintiffs’ properties seeks
irrelevant information ...................................................................................................9
iv. Defendants may access relevant areas via federally-owned land or public
access points................................................................................................................ 12
IV.

MOTION FOR PROTECTIVE ORDER .......................................................................... 12

V.

CONCLUSION ................................................................................................................. 13

VI.

CERTIFICATE OF CONFERENCE................................................................................ 14

VII.

CERTIFICATE OF SERVICE ......................................................................................... 15

Response to Defendants’ Motion to Compel &
Motion for Protective Order
Cause No. 7:15-cv-000162-O

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ii

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TABLE OF AUTHORITIES
Cases

Page

Banks v. Interplast Group, Ltd., 2003 WL 21185685 (S.D. Tex. 2003) ........................................4
Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904 (4th Cir. 1978) .........................................4
Berger v. State of New York, 388 U.S. 41 (1967) ...........................................................................9
Boyd v. United States, 116 U.S. 616 (1886) ...................................................................................9
Daitch v. Mid-America Apartment Communities, Inc., 250 S.W.3d 191 (Tex. App. 2008) ...........5
Hindle v. Nat’l Bulk Carriers, 18 F.R.D. 198 (S.D.N.Y. 1955) ................................................ 5, 6
Johnson v. Mundy Indus. Contractors, Inc., 2002 WL 31464984 (E.D.N.C. 2002) ......................4
Marshall v. Westinghouse Elec. Corp., 576 F.2d 588 (5th Cir. 1978) ............................................4
McKesson Corp. v. Islamic Republic of Iran, 185 F.R.D. 70 (D.D.C. 1999) .................................4
Micro Chemical, Inc. v. Lextron, Inc., 193 F.R.D. 667 (D. Col. 2000) ..........................................4
Minnesota Mining & Manufacturing Co. v. Nippon Carbide Industries Co., Inc.,
171 F.R.D. 246 (D. Minn. 1997) ..........................................................................................4
New York State Ass’n for Retarded Children, Inc. v. Carey, 706 F.2d 956 (2nd Cir. 1983) ...........4
Oklahoma v. Texas, 260 U.S. 606 (1923) ................................................................ 3, 9, 10, passim
Reyes v. Storage & Processors, Inc., 86 S.W.3d 344 (Tex. App. 2002) ........................................6
U.S. v. Acquest Wehrle, LLC, 2010 WL 1708528 (W.D.N.Y. April 27, 2010) ..............................8
U.S. v. Bell, 217 F.R.D. 335 (2003) ................................................................................................7
U.S. v. Bunker Hill Co., 417 F.Supp. 332 (D. Idaho 1976) ............................................................6
Rules
Fed. R. Civ. P. 26(b)(1)...................................................................................................................4
Fed. R. Civ. P. 26(c) .................................................................................................................1, 12
Fed. R. Civ. P. 34 ......................................................................................................................8, 12
Fed. R. Civ. P. 34(a)(2) ...................................................................................................................4
Response to Defendants’ Motion to Compel &
Motion for Protective Order
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Plaintiffs file their Response to Defendants’ Motion to Compel Access to the Individual
Plaintiffs’ Lands [ECF No. 102] and Motion for Protective Order pursuant to Federal Rule of Civil
Procedure 26(c).
I.

EXECUTIVE SUMMARY

Defendants acknowledge that they could avoid this entire controversy by accessing the
gradient boundary from their territory north of the boundary. Nothing in the Federal Rules of Civil
Procedure requires plaintiffs here to abrogate their private property rights solely for Defendants’
convenience.
II.

BACKGROUND

Defendants served Plaintiffs with an extremely broad Request to Enter and Inspect Lands
Pursuant to Rule 34 of the Federal Rules of Civil Procedure (“Request”). P. Appx. 0001-0003. The
Request demanded that all of the Individual Plaintiffs make their properties available for entry and
inspection from 8:00am-5:00pm on a range of dates. Id. Plaintiffs timely served their Objections
in response. P. Appx. 0020-0029. Although both parties agree that Defendants could access the
relevant areas from the adjacent federally-owned land, Plaintiffs nonetheless negotiated with
Defendants in good faith to determine a mutually acceptable plan for entry. As part of this
negotiation, Plaintiffs asked Defendants to enter unaccompanied by armed law enforcement and
execute liability waivers for the surveyors entering the property. At least as to Mr. Aderholt’s
properties, Defendants initially agreed.
The survey was scheduled for Monday, October 3, 2016. After the parties’ agreement,
Plaintiffs’ counsel scrambled to arrange for a third-party sheriff’s deputy to facilitate Defendants’
entry and exit from the Aderholt property and drafted the liability waiver.1

Defendants

1

From the beginning, Plaintiffs have been faced with the logistical challenge of how to facilitate Defendants’
access to their properties over the time period of approximately one month. Defendants’ initial request that Plaintiffs
Response to Defendants’ Motion to Compel &
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Motion for Protective Order
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subsequently withdrew their agreement, ceased negotiations, and instead filed their Motion to
Compel.
Negotiations broke down over three points. First, notwithstanding their prior agreement,
Defendants refused to indemnify or provide liability waivers to Plaintiffs for injury to Defendants’
agents while on Plaintiffs’ lands and refused to address liability for any damage caused by
Defendants during the inspections. Second, notwithstanding their prior agreement, Defendants
demand that its surveyors be accompanied onto Plaintiffs’ private property in the company of
armed law enforcement. Third, Defendants demand access to all of Plaintiffs’ property, not only
the disputed gradient boundary. While the Federal Rules may allow for entry on lands in certain
circumstances, the Rules neither permit nor require the unfettered access that Defendants demand
here. As Defendants can access these boundaries from their own lands, Plaintiffs’ requested
conditions and objections to Defendants’ demands are reasonable under the circumstances.
First, demanding a liability waiver is important and reasonable for Plaintiffs here.
Plaintiffs’ properties are in rural areas and contain the usual hazards found in that area: poisonous
snakes, wild animals, hunters, sinkholes, and unstable terrain. Given these risks, it is a very real
possibility that Defendants could, through no fault of Plaintiffs, injure themselves while on the
property.

Similarly, Defendants could also cause their own harm to Plaintiffs’ properties,

potentially damaging trails and water crossings with heavy vehicles, disturbing valuable hunting
areas, or igniting a wildfire with a discarded cigarette or engine spark. These are not concerns

either leave their gates unlocked or provide Defendants with their gate combinations is patently unreasonable.
Likewise, it was not reasonable to require the individual Plaintiffs to interact directly with Defendants’ agents in
opening their properties and overseeing Defendants’ agents while on their homes. It is not possible for Plaintiffs’
counsel to spend a month opening up their Clients’ properties.
Needing a neutral third-party, Plaintiffs have arranged for a deputy sheriff to open Plaintiffs’ properties and
facilitate access, in the event the Court deems that such access is warranted. The purpose of a local deputy sheriff
providing access is not to intimidate Defendants’ agents, but rather is a good faith attempt at a compromise solution
where no other third-party option exists in this sparsely populated rural area.
Response to Defendants’ Motion to Compel &
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Motion for Protective Order
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trumped up for purposes of litigation. Plaintiffs share these concerns with many of their guests,
and, in the normal course, Plaintiffs guard against these hazards by requiring guests to sign liability
waivers. Defendants deserve no special treatment here.
Second, Defendants should not be permitted to bring armed federal law enforcement on
private property. Defendants have no warrant, probable cause, or permission from these property
owner Plaintiffs. Plaintiffs, like all Americans, are protected under the Fourth Amendment from
unreasonable searches. That right does not end when discovery begins. Here, Plaintiffs have been
accused of no crime, Defendants have articulated no specific threat to their safety, and the armed
federal law enforcement agents serve none of the functions permitted by Rule 34.
Third, Defendants should not be allowed to access all parts of Plaintiffs’ properties. This
case is about locating the disputed southern gradient boundary of the Red River as set forth in
Oklahoma v. Texas, 260 U.S. 606 (1923). This is the only boundary that is relevant to this case.
There is no legitimate reason to allow Defendants access to Plaintiffs’ eastern, western, and
southern boundaries – and everything in between. Defendants’ demand for free rein on Plaintiffs’
properties is irrelevant and not reasonably calculated to lead to the discovery of admissible
evidence.
Again, Defendants can obtain the same information on the gradient boundary by traversing
its own lands, not Plaintiffs’. In these circumstances, Plaintiffs should not be forced to welcome
armed federal law enforcement without a warrant, probable cause, or any concrete threat to BLM’s
safety. Plaintiffs should not be forced to open portions of their private property to federal officials
that are entirely irrelevant to the disputed issues in this case. And Plaintiffs should not be forced
to take the risk of injury or damage caused to or by Plaintiffs’ properties. If Defendants cannot
agree to these conditions, they should be forced to undertake the inconvenience of accessing this
Response to Defendants’ Motion to Compel &
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information from their own property. For these reasons, Defendants’ Motion to Compel should
be denied.
III.
A.

RESPONSE TO DEFENDANTS’ MOTION TO COMPEL AND
MEMORANDUM IN SUPPORT OF MOTION FOR PROTECTIVE ORDER

STANDARD OF REVIEW
Rule 26(b)(1) permits discovery of any “non-privileged matter that is relevant to any

party’s claim or defense and proportional to the needs of the case…” Fed. R. Civ. P. 26(b)(1).
Assuming the requirements of Rule 26 are met, Rule 34(a)(2) generally allows for entry onto the
land or property of another. Nevertheless, neither Rule 34 or Rule 26 automatically authorizes
discovery; the court retains discretion to determine that a discovery request is too broad and
oppressive. Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir. 1978).
Federal courts have recognized that since “entry upon a party’s premises may entail greater
burdens and risks than the mere production of documents, a greater inquiry into the necessity for
inspection” is warranted. Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir.
1978).2 When considering a motion under Rule 34(a)(2), “the degree to which the proposed
inspection will aid in the search for truth must be balanced against the burdens and dangers created
by the inspection.” Banks v. Interplast Group, Ltd., 2003 WL 21185685 (S.D. Tex. 2003) (quoting
Belcher, 588 F.2d at 908). Relevant inspections may be objected to on any basis that would support
a Rule 26(c) protective order such as annoyance, embarrassment, oppression, or undue burden or
expense. Minnesota Mining & Manufacturing Co. v. Nippon Carbide Industries Co., Inc., 171
F.R.D. 246, 248 (D. Minn. 1997); see also Belcher, 588 F.2d at 908.

2

See also Johnson v. Mundy Indus. Contractors, Inc., 2002 WL 31464984 at *3 (E.D.N.C. 2002); Micro
Chemical, Inc. v. Lextron, Inc., 193 F.R.D. 667, 669 (D. Col. 2000); New York State Ass’n for Retarded Children
Inc. v. Carey, 706 F.2d 956, 960 (2nd Cir. 1983); McKesson Corp. v. Islamic Republic of Iran, 185 F.R.D. 70, 77
(D.D.C. 1999).
Response to Defendants’ Motion to Compel &
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Motion for Protective Order
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B.

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ARGUMENT AND AUTHORITIES
i.

Entry onto Plaintiffs’ properties without liability waiver and insurance policy
is an undue burden and risks undue expense.
Rural North Texas can be a dangerous place. P. Appx. 0004-0009. Poisonous snakes may

be lurking in the heavy brush. Id. Hunters may be tracking game on adjacent properties. Id.
Livestock may become aggressive in defending their young. Id. The land can be riddled with
sinkholes and the roads, although appearing safe, may be severely washed out. Id. These are real
hazards that may cause real, significant harm. Further, although these hazards are unique to the
area, Defendants have provided no assurances that their surveyors will be experienced with the
area and its risks.
Defendants and their agents seek to traverse Plaintiffs’ properties by foot, road vehicle, or
off-road vehicle.3

P. Appx. 0013. Under Texas’s premises liability law, Plaintiffs could face

potential liability for any injury to Defendants’ agents while on Plaintiffs’ properties. Specifically,
if any injured party alleges that Plaintiffs (1) had actual or constructive knowledge of a condition
on the property, (2) the condition posed an unreasonable risk of harm, (3) the property owner did
not exercise reasonable care to reduce or eliminate the risk, and (4) that failure proximately caused
the injury, Plaintiffs would likely face a negligence lawsuit. See, e.g., Daitch v. Mid-America
Apartment Communities, Inc., 250 S.W.3d 191, 194 (Tex. App. 2008). Even though Plaintiffs do
not intend to hide any known dangers from any guest on their properties—including BLM—

3

In their Memorandum supporting their Motion to Compel, Defendants quote with approval from Hindle v.
Nat’l Bulk Carriers, 18 F.R.D. 198 (S.D.N.Y. 1955), where the court held that it was unnecessary to determine the
extent of the duty, if any, owed by the property owner to the agent entering onto his property for the purpose of a Rule
34 inspection, and that “the extent of that duty, whatever it is, is fixed by law.” ECF No. 103 at 7; citing Id. at 199.
As an initial matter, Hindle was decided by a New York federal district court and has not been cited by any court in
the Fifth Circuit. But more importantly, there is no indication in Hindle, which involved entry onto a ship to gather
evidence concerning an accident occurring on that ship in a case arising from that accident, that the party seeking
inspection could obtain identical information without entry.
Response to Defendants’ Motion to Compel &
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Motion for Protective Order
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ultimate resolution of that issue would require an expensive and wholly preventable lawsuit against
the Plaintiff property owner. Id. This significant risk of expense and burden are disproportionate
to any benefit to Defendants. Requiring Defendants’ agents to execute a liability waiver or
otherwise indemnify Plaintiffs against injury to Defendants’ agents is a reasonable way to relieve
this unacceptable burden on Plaintiffs while still allowing the inspection of their property to
proceed.
Defendants claim that Plaintiffs are asking for special treatment when they seek a liability
waiver and damage insurance. ECF No. 103 at 7 (quoting Hindle, 18 F.R.D. at 199) (reasoning
that the property owner “is in no position to stipulate that, in the event of accident, it shall receive
treatment more favorable than that to which it would be entitled by law.”) (emphasis added)).
Defendants are wrong. Under 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).
Plaintiffs frequently require their guests to sign liability waivers. See, e.g., P. Appx. 00170019. If Defendants’ agents were typical guests, Plaintiffs could clearly force a similar waiver.
Here, Defendants seek special treatment because they are government agents entering onto land
pursuant to discovery in a lawsuit filed because of their own unlawful conduct. Plaintiffs
reasonably want to protect themselves against the real threat of future litigation by using a legal
instrument that would normally be available to them.4 Where the same discovery is obtainable via
less intrusive means, requiring this condition is reasonable.

4

The other case cited by Defendants, U.S. v. Bunker Hill Co., 417 F.Supp. 332 (D. Idaho, 1976) has also not
been cited by a court in the Fifth Circuit. While the Bunker Hill court was “of the view that no officer of the United
States is authorized to execute such an indemnity agreement,” the indemnity agreement here would be executed by
Response to Defendants’ Motion to Compel &
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In addition to the risk of personal liability lawsuits, Plaintiffs also risk costly damage to
their properties. If Defendants forget to lock a gate, they could lose valuable livestock or those
animals could be injured or damage adjacent properties. Heavy vehicles and all-terrain vehicles
can damage roads and trails, particularly after a heavy rain, and a stuck vehicle or cigarette butt
can spark a dangerous wildfire. P. Appx. 0004-0009. Because they are arriving in the midst of
whitetail deer season, Defendants may also disturb or damage valuable hunting areas, feeders, and
stands throughout Plaintiffs’ properties. P. Appx. 0004-0009. Again, where Defendants can
obtain this information via other means, Plaintiffs should not be forced to face a risk of damage
that Defendants’ inspection may cause.
ii.

Entry onto Plaintiffs’ properties by armed federal law enforcement without a
warrant or permission of the property owner is oppressive and violates
Plaintiffs’ Fourth Amendment rights.
Defendants also demand to enter Plaintiffs’ properties with armed federal law enforcement

officers, which they claim are necessary to ensure the safety of BLM personnel. ECF No. 103 at
8. This demand is unnecessary, oppressive, and tramples on Plaintiffs’ Fourth Amendment rights
to be secure against unreasonable searches and seizures by the government. U.S. Const. amend.
IV.
Plaintiffs’ Fourth Amendment rights do not end when discovery begins.5

Beyond

Defendants’ vague claims that armed federal law enforcement officers are necessary to protect
against unspecified “third parties who could pose a risk,” Defendants have not articulated any

the individual surveyors, not by the United States, because those individuals, not the United States, would be the party
to any personal injury lawsuit.
5
U.S. v. Bell, 217 F.R.D. 335, 343 (2003) does not support Defendants’ position here either. While discovery
may not constitute a legally cognizable violation of the Fourth Amendment, Bell expressly recognizes that a litigants’
Fourth Amendment rights are legitimately considered in evaluating the reasonableness of a discovery request. Bell,
217 F.R.D. at 343 (“There is no ‘right of privacy’ privilege against discovery in civil cases . . . However, the court
may take concerned individuals’ privacy interests into consideration in determining whether a discovery request is
oppressive or unreasonable.”).
Response to Defendants’ Motion to Compel &
Motion for Protective Order
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concrete threats against their surveyors’ safety to justify bringing armed law enforcement officers
onto Plaintiffs’ private property. ECF No. 103 at 8. Nor do Defendants assert any authority that
would entitle them to demand their surveyors be accompanied by armed law enforcement, if a
concrete threat was articulated.
Plaintiffs are suspected of no crime and have made no threats against the Defendants or
their agents. Further, Plaintiffs are aware of no third parties with intent to harm Defendants while
they work. Plaintiffs are law-abiding citizens who enjoy the right to be secure from incursions
onto their private property by armed federal law enforcement officers in the absence of a search
warrant or the permission of the landowner. Given how Defendants fail to articulate any threat that
would warrant an armed escort, Defendants’ demand here appears to be little more than a bullying
and intimidation tactic.
Additionally, Rule 34 permits entry onto land 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. Defendants freely admit that the armed federal law enforcement agents
will play no role in inspecting, measuring, photographing, testing, or sampling on the property.
ECF No. 103 at 9 (arguing that the armed agents will attend “solely for the purpose of ensuring
the safety of BLM personnel.”). Rule 34 does not allow for entry onto land for any purpose, but
rather for the purposes specified in the Rule. Since BLM’s armed federal law enforcement agents
will not be inspecting, measuring, photographing, testing, or sampling, they should not be present.6

6

United States v. Acquest Wehrle LLC, 2010 WL 1708528 at *2 (W.D.N.Y. April 27, 2010) does not aid
Defendants’ argument. That case involved scientists conducting “ecological and hydrological examinations, testing
and sampling” related to an alleged violation of the Clean Water Act. Id. The plaintiffs contended that this sampling
itself violated the Fourth Amendment. Here, Plaintiffs contend that a federal security detail accompanying the
surveyors, not the survey itself, violates (or at least implicates) their Fourth Amendment rights.
Response to Defendants’ Motion to Compel &
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A citizen’s right to be secure in their homes and property against intrusions by unwanted
and uninvited armed agents of the government has been recognized as foundational since the dawn
of our democracy. See, e.g. Berger v. State of New York, 388 U.S. 41, 49 (1967) (Individual
privacy “has been held since Lord Camden’s day that intrusions into it are ‘subversive of all the
comforts of society…And the Founders so decided a quarter of a century later when they declared
in the Fourth Amendment that the people had a right ‘to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures.’”). Courts have long recognized and
enforced this right. See, e.g. Boyd v. United States, 116 U.S. 616, 630 (1886) (“[t]he essence of
the offense . . . [was] the invasion of this sacred right which underlies and constitutes the essence
of Lord Camden’s judgment.”). When balancing this fundamental constitutional right against
Defendants’ unnecessary and unjustified demand, this Court should not permit the use of armed
federal law enforcement as part of any Defendant’s entry onto Plaintiffs’ property.
iii.

Defendants’ demand for unlimited access to Plaintiffs’ properties seeks
irrelevant information.
This case is about correctly locating the Red River’s southern gradient boundary. It is

undisputed that federal territory lies to the north of the gradient boundary and private property
within Texas lies to the south. Although portions of Plaintiffs’ lands in areas beyond those
immediately adjacent to the southern gradient boundary of the Red River are entirely irrelevant,
Defendants nevertheless demand access to every corner of Plaintiffs’ properties.
In 1923, the Supreme Court determined that Texas begins at the southern bank of the Red
River, and defined “bank” as the sliver of land that separates the sandy “[river]bed from the
adjacent uplands.” Oklahoma v. Texas, 260 U.S. 606, 634 (1923). The Court concluded that “the
cut bank along the southerly side of the sand bed constitutes the south bank of the river, and that
the boundary is on and along that bank at the mean level of the water, when it washes the bank
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without overflowing it.” Id. at 636. The sandy riverbed itself is the property of the United States.
The Supreme Court’s decision in Oklahoma v. Texas set in stone the only process allowed for
determining the northern boundary of Texas and obligated all future surveyors to follow that
process.7
In setting the boundary at the south bank of the Red River, the Court did not find that the
bank was a fixed point, but rather a boundary line subject to the right application of the doctrines
of erosion and accretion and of avulsion to any intervening changes.8 Id. The Court instructed its
appointed commissioners to locate and mark the boundary between Texas and Oklahoma in
accordance with the principals set forth in the decision. Id. at 640.
Defendants’ basis for seeking unfettered access to Plaintiffs’ property remains unclear.
They appear to raise two grounds. First, despite the Supreme Court’s clear guidelines, Defendants
abstractly claim that “there may be some disagreement between BLM and [Plaintiffs] as to how to
apply those opinions, and therefore we may be looking at features and areas of relevant parcels
that [Plaintiffs] believe are not necessary to determine the gradient boundary.” P. Appx. 0013.
But while Plaintiffs recognize there may be some disagreement as to “features and areas” that may

7

Following the 1923 decision, the Court issued the following order:
It is ordered and decreed: 1. The boundary between the states of Oklahoma and Texas…is
part of the international boundary established by the treaty of 1819 between the United
States and Spain, and is on and along the south bank of that river (Red River) as the same
existed in 1821, when the treaty became effective, save as hereinafter stated. 2. Where
intervening changes in that bank have occurred through the natural and gradual processes
known as erosion and accretion the boundary has followed the change; but where the
stream has left its former channel and made for itself a new one through adjacent upland
by the process known as avulsion the boundary has not followed the change, but has
remained on and along what was the south bank before the change occurred…4. The rules
stated in the last two paragraphs will be equally applicable to such changes as may occur
in the future.
Partial decree in Oklahoma v. Texas, 261 U.S. 340, 341 (1923) (emphasis added).
8

The Court found that in cases of erosion and accretion the “boundary follows the varying course of the
stream,” and in cases of avulsion “the resulting change of channel works no change of boundary, which remains in
the middle of the old channel.” Id. at 636-7. Defendants have not alleged the existence of any avulsive events
applicable to the subject properties.
Response to Defendants’ Motion to Compel &
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or may not define the gradient boundary, Defendants demand access to all other boundaries of
the Plaintiffs’ properties as well. Regardless of whether the parties disagree on “features”
necessary to survey the gradient boundaries, there is no reasonable argument that the southern,
western, or eastern boundaries are “feature[s]” necessary to determine the northern one.
Next, Defendants claim that broad access to Plaintiffs’ lands is necessary because Plaintiffs
have not “provided Defendants with their position as to the precise location of the northern borders
of their lands.” ECF No. 103 at 11. Defendants are simply wrong. Plaintiffs have been clear since
the beginning that the precise location of the northern borders of Plaintiffs’ lands are the “southern
gradient boundary of the south cut bank of the Red River.” ECF No. 40 at 13. Any survey
conducted in accordance with the process set forth in Oklahoma v. Texas, taking into account
erosion and accretion per the Supreme Court’s instructions, will locate the Red River’s southern
gradient boundary and thus the precise location of the northern borders of Plaintiffs’ properties.
The southern, eastern, and western boundaries of Plaintiffs’ properties are simply not in dispute,
and—except for the limited areas of the eastern and western boundaries that intersect with the
gradient boundary—can have no bearing whatsoever in determining the southern gradient
boundary of the Red River in accordance with Oklahoma v. Texas. Thus, Defendants’ demand to
access these boundaries is unreasonable and unduly burdensome.
While Rule 26 allows wide latitude in discovering relevant information, relevance is not
so broad as to permit Defendants’ demand to traipse across Plaintiffs’ private property for no
discernable or legitimate purpose. Defendants’ motion to compel access to these boundaries
should be denied.

Response to Defendants’ Motion to Compel &
Motion for Protective Order
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iv.

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Defendants may access relevant areas via federally-owned land or public
access points.
The sandy riverbed of the Red River is federally-owned land. The riverbed abuts Texas’s

northern border and Plaintiffs’ property. Id. Defendants have complete access to the gradient
boundary from this federally-owned land on foot or all-terrain vehicle; there is thus no need to
enter onto Plaintiffs’ land at all.
Because of this undisputed fact, Plaintiffs have never conceded that any access to their
properties is appropriate. See P. Appx. 0010-0016. However, in response to Defendants’ request
to access the southern gradient boundary via Plaintiffs’ lands out of convenience, Plaintiffs have
attempted to negotiate in good faith with Defendants on a way to accommodate their request that
does not leave Plaintiffs open to liability for injuries to or damages caused by Defendants’ agents,
and that does not trample on Plaintiffs’ Fourth Amendment rights or permit Defendants’ agents to
roam the entirety of Plaintiffs’ properties at will. As discussed, if Defendants will not enter these
properties without these untenable conditions, Defendants may discover this same information
from their own land. As such, Defendants’ motion to compel should be denied.
IV.

MOTION FOR PROTECTIVE ORDER

Individual Plaintiffs Kenneth Aderholt, et al., move this Court under Rule 26(c) of the
Federal Rules of Civil Procedure, for a Protective Order denying Defendants’ entry onto Plaintiffs’
properties for the purposes of inspection under Federal Rule of Civil Procedure 34, or in the
alternative, ordering Defendants to effect entry onto Plaintiffs’ properties only under the following
conditions:
1. Each Defendant or Defendants’ agent will execute a waiver of personal liability for
unintentional injury prior to entering onto any property owned by Plaintiffs. Said
waiver will apply to each property inspected.
Response to Defendants’ Motion to Compel &
Motion for Protective Order
Cause No. 7:15-cv-000162-O

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2. Defendants will enter into a written agreement to compensate Plaintiffs for any
damage, be it intentional or unintentional, to Plaintiffs’ properties as a result of
Defendants’ inspection.
3. Armed federal law enforcement agents will not be permitted onto Plaintiffs’
properties without a valid search warrant or the express permission of the property
owner.
For the reasons stated in Plaintiffs’ Response to Defendants’ Motion to Compel Access to
the Individual Plaintiffs’ Lands and Memorandum in Support of Motion for Protective Order, filed
herewith in accordance with Local Rules 7.1 and 7.2, Plaintiffs respectfully request that the Court
grant Plaintiffs’ Motion.
V.

CONCLUSION

Defendants demand to access Plaintiffs’ properties exceeds the scope contemplated by
Rules 26 and 34 and unreasonably burdens Plaintiffs with the risk of liability for personal injury
and property damage, tramples Plaintiffs’ Fourth Amendment rights, and grants free access to
areas of Plaintiffs’ properties that are not relevant to this case. Plaintiffs appeal to this Court to
deny Defendants’ unlawful demands in denying Defendants’ Motion to Compel and grant
Plaintiffs’ Motion for Protective Order.
Respectfully submitted,
/s/ Robert Henneke
______________________________________
ROBERT HENNEKE
Texas Bar No. 24046058
rhenneke@texaspolicy.com
CHANCE WELDON
Texas Bar No. 24076767
cweldon@texaspolicy.com
TEXAS PUBLIC POLICY FOUNDATION
Response to Defendants’ Motion to Compel &
Motion for Protective Order
Cause No. 7:15-cv-000162-O

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Center for the American Future
901 Congress Avenue
Austin, Texas 78701
Telephone: (512) 472-2700
Fascsimile: (512) 472-2728
Bradley W. Caldwell
Texas Bar No. 24040630
bcaldwell@caldwellcc.com
John Austin Curry
Texas Bar No. 24059636
acurry@caldwellcc.com
John F. Summers
Texas Bar No. 24079417
jsummers@caldwellcc.com
CALDWELL CASSADY CURRY P.C.
2101 Cedar Springs Road, Suite 1000
Dallas, Texas 75201
Telephone: (214) 888-4848
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF CONFERENCE
I hereby certify that pursuant to Local Rule 7.1 and Rule 37 of the Federal Rules of Civil
Procedure, I conferred with Mr. Romney Philpott and Mr. Jason Hill, Counsel for Defendants, on
October 3, 2016, regarding the foregoing motion. Defendants oppose the motion.

/s/ Robert Henneke
______________________________________
ROBERT HENNEKE

Response to Defendants’ Motion to Compel &
Motion for Protective Order
Cause No. 7:15-cv-000162-O

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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was filed electronically in
compliance with Local Rule 5.1(d). As such, this document was served on all counsel who are
registered users of ECF on this 20th day of October, 2016.
/s/ Robert Henneke
______________________________________
ROBERT HENNEKE

Response to Defendants’ Motion to Compel &
Motion for Protective Order
Cause No. 7:15-cv-000162-O

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