Citations
- 64 F. Supp. 3d 1314
Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION TO COMPEL
CHARLES S. MILLER, JR., United States Magistrate Judge.
I. BACKGROUND
A. Introduction
Case No. L12-CV-125 is an action filed by the State of North Dakota seeking to quiet title to its claim of section line rights-of-way within the Little Missouri National Grassland, the Sheyenne National Grassland, and the portion of the Cedar River National Grassland located in North Dakota — ail of which are a part of the Dakota Prairie Grasslands administered by the United States Forest Service, 'which is an agency of the United States Department of Agriculture (“USDA”). Case No. 1:12-CV-102 is an action by four North Dakota counties (Billings, McKenzie, Slope, and Golden Valley — collectively referred to herein as the “Counties”) seeking to quiet title to the claimed section line rights-of-way in just- the Little Missouri National Grassland as well as six individual roads claimed by McKenzie County. The two actions have been consolidated with the State of North Dakota’s action being the “lead case” and the action by the four counties being the “consolidated case.”
Before the court now is a joint motion to compel discovery by North Dakota and the Counties. Before turning to the motion, some understanding of what overall is in dispute is important.
B. Plaintiffs’ quiet title claims 1. Revised Statute 2477
In 1866, Congress provided for public access across unreserved public domain lands by granting rights-of-way for the construction of highways by the passage of a statute that is commonly referred to as “R.S. 2477,” which read in its entirety as follows:
The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.
Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 U.S.C. § 932, repealed by Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, Title VII, § 706(a), 90 Stat. 2743, 2793.
On October 21, 1976, Congress abandoned its prior approach to public lands and instituted a preference for retention of lands in federal ownership, with an increased emphasis on conservation and preservation, by its enactment of the Federal Land Policy and Management Act of 1976 (“FLPMA”). Among other things, the FLPMA repealed R.S. 2477 but preserved “any valid” right-of-way “existing on the date of approval of this Act.” Pub.L. No. 94-579, §§ 701(a), 706(a), 90 Stat. at 2786, 2793; see Southern Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735, 740 (10th Cir.2005).
2. Plaintiffs’ primary claim of right-of-way based on North Dakota’s section line law
The primary claim of North Dakota and the Counties is that every section line within or adjacent to the Forest Service lands identified above is subject to a 66' wide public right-of-way running along and extending 33' on either side of the section lines. Plaintiffs contend this right-of-way burdens the Forest Service lands regardless of whether a road has been constructed or there is evidence of use of the section lines for public travel. Plaintiffs’ claim rests upon an 1871 Dakota Territory law and successor versions enacted after statehood that plaintiffs contend, and the North Dakota Supreme Court agrees, was an “acceptance” of the purported open-ended grant of right-of-way for highways under Revised Statute 2477. E.g., Small v. Burleigh County, 225 N.W.2d 295 (N.D. 1974) (“Small”); Faxon v. Lallie Civil Twp., 36 N.D. 634, 163 N.W. 531, 532 (1917).
The law enacted by the Dakota Territory in 1871, stated that “[h]ereafter all section lines in this territory shall be and are hereby declared public highways as far as practicable!!.]” Id. After North Dakota achieved statehood in 1889, the statute was amended in 1895 without substantial change to the relevant portion quoted above. N.D. Revised Code § 1050 (1895). Since then, it has been revised from time-to-time and whether any of these changes are material may be subject to some dispute. The present version is codified at N.D.C.C. § 24-07-03 (2013) and reads as follows:
§ 24-07-03. Section lines considered public roads open for public travel — Closing same under certain conditions.
In all townships in this state, outside the limits of incorporated cities, and outside platted townsites, additions, or subdivisions recorded pursuant to sections 40-50.1-01 through 40-50.1-17 or recorded prior to July 1,1987, under former chapter 40-50, the congressional section lines are considered public roads open for public travel to the width of thirty-three feet [10.06 meters] on each side of the section lines.
‡ ‡ $
Without getting too deep into the merits of plaintiffs’ primary claim of right-of-way, the position of the United States in opposition is twofold. The United States first points out that R.S. 2477, by its very language, does not apply to lands that were reserved for public use and states that some of the section lines at issue lie within or along reserved lands. Second, the United States contends that the grant of right-of-way pursuant to R.S. 2477 was only for highways that were actually constructed and not a present grant of right-of-way for possible future highway construction. Consequently, according to the United States, no right-of-way now exists along the sections lines of unreserved lands if a highway was not actually constructed prior to the repeal of R.S. 2477 in 1976. According to the United States, section lines themselves are not highways, rather they are simply geographic lines, and a mere declaration by a state that they are highways cannot trump what it contends was the clear purpose and meaning of R.S. 2477 any more than if the State had chosen to declare quarter-quarter lines or, perhaps more broadly, township lines as highways.
3. McKenzie County’s additional claims
In addition to this primary claim of “section line” right-of-way, McKenzie County seeks to quiet title to several specific roads within the Forest Service grasslands that do not necessarily follow the section lines. The claims with respect to these roads are based entirely, or in substantial part, on things other than the State’s section line law. And, since McKenzie County has not argued why it needs discovery of the material that is the subject of the motion to compel with respect these claims, they will be ignored for purposes of the decision here.
C. The Motion to Dismiss by the United States
The United States has filed a motion to dismiss, contending that plaintiffs’ complaints are deficient because they fail to describe with particularity the land in question and also that, in any event, plaintiffs’. claims are barred by the 12-year limitation period for commencing an action under the Quiet Title Act (“QTA”), which is jurisdictional. Following the filing of this motion, the parties agreed that discovery limited to the issues raised by the motion to dismiss would be conducted and a briefing schedule was established for supplemental briefing on a renewed motion to dismiss following the completion of discovery.
D. Plaintiffs’ joint motion to compel discovery
Before the court now is a joint motion to compel discovery brought by plaintiffs in both actions (Doc. No. 73). The motion seeks to compel disclosure of two categories of documents that the United States claims are privileged.
The first category are documents that set forth, reference, or otherwise relate to opinions issued by two attorneys within the USDA’s Office of General Counsel— Morris Hankins and James Wood — that relate to R.S. 2477 and/or North Dakota’s section line law. Hankins issued his principal opinion in 1962 and Wood issued his opinions in 1980. More specifically plaintiffs seek an order compelling the following withheld or redacted documents: USA74919, 75171, 76370, 76417, 76422, 76452, 76983, 77004, 77034, 77037, 77038, 77039, 77047, 77050, 77056, 77058, 77064, 77065, 77074, 77078, 77167, and 77170.
The second category of documents that plaintiffs seek are title opinions rendered to the Forest Service that may identify and address the same issues with respect to specific sections lines. The title opinions that plaintiffs seek are: USA75212, 75257, 75265, 75320, 75339, 75379, 75391, 75408, 75447, 75470, 75484, 75507, 75535, 75554, 75586, 75626, 75652, 75658, 75681, 75749, 75907, 75942, 75990, 76102, 76301, 76310, 76327, and 76992.
The United States makes two arguments for why the motion to compel should be denied. First, the United States contends that the documents are irrelevant to the court’s consideration of its motion to dismiss on jurisdictional grounds, ie., that the documents are irrelevant to the complained lack of specificity in the complaints and, more importantly, to whether plaintiffs’ QTA claims are untimely. Hence, the United States urges the court to defer consideration of the motion to compel until after the motion to dismiss is ruled on. Second, the United States argues that the documents need not be disclosed because they are all attorney-client privileged.
After an initial consideration of the motion papers, the court ordered the United States to produce the documents for in camera review. Unfortunately, after a review of all the material, the arguments being made with respect to lack of relevance, whether the attorney-client privilege applies to some or all of the withheld documents, and whether the attorney-client privilege has been waived are all particularly thorny and complex. Recognizing that the decision set forth below may very well not be the last word on the subject, all of the issues will be addressed in turn so that those who may take them up later will have the benefit of the undersigned’s analysis, for whatever that might be worth.
II. THE RELEVANCY OBJECTION
A. Introduction
The court is well aware of the standards for discovery set forth in Fed.R.Civ.P. 26(b)(1) as well as the court’s discretion in terms of the timing of discovery. If the court was to conclude that the withheld documents are irrelevant at this stage, the court would be well within its power to defer consideration of the motion to compel until after the ruling on the motion to. dismiss, despite plaintiffs’ argument to the contrary.
Because the relevancy objection of the United States requires the court to delve into the merits of its statute-of-limitations issue — at least to some extent, it is helpful first to consider the applicable statutes of limitation.
B. The QTA’s statute-of-limitations
The QTA is a limited waiver of the sovereign immunity of the United States from suit. E.g., Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) (“Block ”); Spirit Lake Tribe v. North Dakota, 262 F.3d 732, 737 (8th Cir.2001). For that reason, the prevailing view (including most importantly that of the Eighth Circuit) is that satisfaction of the QTA’s statute of limitations provisions is jurisdictional. Spirit Lake Tribe, 262 F.3d at 738. (“[T]he QTA stat-. ute of limitations acts as a jurisdictional bar unlike most statutes of limitations, which are affirmative defenses.”).
When the QTA was enacted in 1972, it contained a 12-year statute of limitations that applied to all QTA actions and read as follows:
Any civil action under this section shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.
Block, 461 U.S. at 275 n. 1, 103 S.Ct. 1811 (quoting Act of Oct. 25, 1972, Pub.L. No. 92-562, 86 Stat. 1176, codified at 28 U.S.C. § 2409a(f)).
In 1983, the Supreme Court held in Block that this limitations period applied even to claims brought by states. • Because of dissatisfaction with this result, Congress amended the QTA in 1986. For claims brought by persons or entities other than states, the limitations period, including when it accrues, remained the same and is presently codified as follows:
Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.
28 U.S.C. § 2409a(g). For claims asserted by states, however, new provisions were added that, among other things, limit the reach of the 12-year limitations period to only certain lands of the United States and, for some types of lands, provide a new test for when a claim accrues.
In terms of this case, to the extent there is now a statute of limitations that applies to North Dakota’s claim, it lies with the following statutory provisions — at least for those claims that accrued after the 1986 amendments became effective:
(i) Any civil action brought by a State under this section with respect to lands, other than tide or submerged lands, on which the United States or its lessee or right-of-way or easement grantee has made substantial improvements or substantial investments or on which the United States has conducted substantial activities pursuant to a management plan such as range improvement, timber harvest, tree planting, mineral activities, farming, wildlife habitat improvement, or other similar activities, shall be barred unless the action is commenced within twelve years after the date the State received notice of the Federal claims to the lands. * * * *
(k) Notice for the purposes of the accrual of an action brought by a State under this section shall be—
(1) by public communications with respect to the claimed lands which are sufficiently specific as to be reasonably calculated to put the claimant on notice of the Federal claim to the lands, or
(2) by the use, occupancy, or improvement of the claimed lands which, in the circumstances, is open and notorious.
28 U.S.C. .§ 2409a(i) & (k).
What appears to have not been definitively decided is what statutory provisions apply to North Dakota’s claim if it accrued prior to the 1986 amendments. The United States takes the position that the old “knew or should havfe known” provisions, which the Supreme Court upheld as to the states in Block, still apply for some older claims by states. For purposes of the present motion to compel, the possibility of there being two tests that may apply to the claim of North Dakota, depending upon when it accrued, has some materiality with respect to the argument by the United States as to lack of relevancy, although it does not change the result.
To the extent the Counties have separate claims in this case (ie., claims not subject to the control of the State), there is authority holding they are subject to the “knew or should have known” standard that applied to all claimants prior to the 1986 amendments and now applies to non-state plaintiffs based on the conclusion that a political subdivision of a state is not a “state” for purposes of the 1986 amendments to the QTA. Calhoun County, Tex. v. United States, 132 F.3d 1100, 1103 (5th Cir.1998).
C. Discussion re the relevancy objection
1. Plaintiffs’ argument that the withheld material is relevant to the issue, of abandonment
Unfortunately, it may not be possible to resolve the question of whether plaintiffs’ lawsuits are timely in complete isolation of all other issues. This is because the Eighth Circuit and some other courts have held that, if the United States at any point “clearly and unequivocally abandons” a property interest which is purportedly in conflict with that claimed by a plaintiff, “the government’s outright abandonment effectively removes the cloud on a plaintiffs title and extinguishes his obligation to 'file a quiet title action within 12 years.” Spirit Lake, 262 F.3d at 739. Then, if the government later reasserts the claim (and putting aside whether any claim could at that point be revived), “the reasserted claim is properly regarded as a new claim and a new 12-year period begins in which a plaintiff may file his QTA action against the government.” Id.
In this case, plaintiffs surmise, based upon what the Unites States has disclosed, that James Wood, an OGC attorney in the Billings regional office, issued one or more opinions in 1980 to the effect that North Dakota’s statutes governing sections lines (as well as its territorial predecessors) constituted a valid acceptance of a § 2477 grant and that, as a consequence, every section line on the bulk of the Forest Service’s lands in question is a public highway, regardless of whether any road has ever been constructed. Plaintiffs further surmise that the Wood opinions were contrary to those that may have been issued earlier by OGC attorney Morris Hankins in the 1960s. Plaintiffs argue that the undisclosed Wood opinions would be evidence of the Forest Service’s abandonment of any claim of full title (i.e., title unburdened by any claim of right-of-way by plaintiffs) or, at the very least, would lead to the discovery of other evidence relevant to an abandonment argument.
In response, the United States contends that .it takes a lot to prove the United States actually abandoned its interest, that plaintiffs have offered nothing to suggest any real possibility of an abandonment, and that there is nothing in the withheld, documents that will get them there. The United States cites to the Eighth Circuit’s decision in Spirit Lake as well as other authority for what it claims is required for an actual abandonment by the. United States of an interest in property. See, e.g., Royal Indem. Co. v. United States, 313 U.S. 289, 294, 61-S.Ct. 995, 85 L.Ed. 1361 (1941) (Subordinate officers of the United States lack the power to dispose of real property belonging to the United States, unless such power “has been conferred upon them by Act of Congress or is to be implied from other powers so granted.”); Cheyenne Arapaho Tribes of Okla. v. United States, 558 F.3d 592, 597-98 (D.C.Cir.2009); Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d 1189, 1199 (9th Cir.2008) (“It is well established that the United States does not abandon its claims to property by inaction.”); Rio Grande Silvery Minnow v. Bureau of Reclamation, 599 F.3d 1165, 1187 (10th Cir.2010) (“Rio Grande ”) (“ ‘[I]ntra-office memoranda,’ and similar intra-governmental communications ‘do not bind the government,’ such that they can effect an abandonment of property and stop the QTA’s limitations clock.”) (quoting Spirit Lake, 262 F.3d at 742); Spirit Lake, 262 F.3d at 739-44.
Plaintiffs suggest in reply that the authority the United States relies upon for its argument of a very high threshold for abandonment only applies when the United States is abandoning its total interest in property and that less is required when the United States is simply giving way to a claim that represents a burden on its interest, such as plaintiffs’ claim of public right-of-way in this case. Plaintiffs cite to Shultz v. United States Dep’t of Army, 886 F.2d 1157, 1161 (9th Cir.1989) and Middle Fork Holding Co., Inc. v. United States, 2010 WL 107380, at *4 (D.Idaho Jan. 7, 2010).
The cases plaintiffs rely upon, however, appear to be distinguishable. Whether the United States could abandon its claim to full title, unburdened by an adverse claim of right-of-way, by not enforcing its rights in full knowledge of activity inconsistent with its claim on a discrete tract of land is not the situation here. Rather, the purported abandonment that plaintiffs are attempting to argue involves the United States giving way to thousands of miles of section line right-of-way affecting tens of thousands of acres of Forest Service land in North Dakota alone. There is nothing in the case law cited by plaintiffs that would suggest that the mid- to lower-level USDA officials involved in the withheld documents in this case had the authority to make such an abandonment.
Also, putting aside the question of authority, there is nothing in the withheld material which would support a “clear and unequivocal” abandonment by the United States to its claim of unfettered title. In fact, what appears clear from both the withheld and the disclosed information is that the Wood opinions were not followed to any significant degree and it was soon decided instead to rely upon older OGC opinions absent clarification from higher-ranking OGC counsel in Washington.
Finally, with respect to any argument that disclosure of the withheld material might lead to the discovery of relevant evidence of abandonment, plaintiffs were aware from what was disclosed by the United States that there may have been differing opinions expressed by OGC counsel at different times with respect to the scope of § 2477 and the application of North Dakota’s section line law. In fact; plaintiffs argued as part of their motion to compel that the United States’s failure to redact information in one or more intra-agency communications suggesting that there was a conflict in the opinions amounted to a waiver of the privilege. Consequently, armed with that knowledge, plaintiffs have been free to pursue discovery -with respect to any claim of abandonment, and there is nothing in the withheld material the court has reviewed that points to other possible relevant evidence of abandonment — much less evidence that could not have been pursued with the knowledge plaintiffs already possessed.
In short, if plaintiffs only need for the withheld material was to support or develop a claim of actual abandonment, the undersigned might be inclined to deny the motion. See Cheyenne Arapaho Tribes of Okla. v. United States, 558 F.3d at 597-98 (affirming denial of continuance to conduct discovery because the materials sought “would not demonstrate abandonment of the United States’ interest in the land”).
2. Relevancy re timeliness of plaintiffs’ QTA claims
a. Introduction
The United States contends that the withheld material is also not relevant with respect to resolving whether plaintiffs’ lawsuits were timely brought with respect to their principal QTA claims. As noted earlier, what triggers the accrual with respect to the State’s claim (at least for a certain part of the period in question), is whether the State received a public communication of the position of the United States or there was some use, occupancy, or improvement by the United States of the property in question adverse to the State’s claims. The United States argues that the withheld material is irrelevant to these elements because obviously there was no communication to the State of the material that has been withheld and that use, occupancy, or improvement are objective actions that were either sufficient on their face to trigger the accrual or were not, and the withheld material would have no bearing with respect to that. And, with respect to the “knew or otherwise should have known” standard that otherwise may apply to the QTA claims of the Counties and possibly also to that of the State depending upon when it accrued, the United States contends that what plaintiffs did not know about likewise would be of no relevance.
Plaintiffs disagree. They contend the withheld documents are relevant in at least two respects. They contend the evidence is necessary and relevant to their being able to rebut the evidence proffered by the United States relating to certain proposed initiatives by the Forest Service for maintaining the pristine character of some of the lands in question by prohibiting new roads and/or vehicular traffic, which, for shorthand reference here, will be referred to collectively as the “roadless” proposals. They also contend the evidence is relevant to whether the United States in fact had any position with respect to their claims of section line rights-of-way during the time periods in question such that plaintiffs knew or should have known that it might contest their claimed rights-of-way. These arguments will be addressed in turn followed by some additional observations regarding relevancy.
b. Relevant to rebutting evidence of “roadless” proposals
The United States contends that the various “roadless” proposals advanced by the Forest Service prior to September 16, 2000 (twelve years prior to the earliest filing; of the two complaints in this action) amounted to a communication of its position that it deemed plaintiffs’ section line right-of-way claims to be without merit if no road had been constructed prior to the repeal of R.S. 2477 as well as evidence of what plaintiffs “knew or should have known” about the position of the United States. Although these “roadless” proposals apparently never explicitly addressed the question of section line rights-of-way, the United States contends this was not necessary for purposes of its statute of limitations arguments because the proposals were so obviously in conflict with plaintiffs’ claims.
Plaintiffs, on the other hand, contend there was no obvious conflict. They argue, among other things, that there never was a realistic possibility the mere existence of the rights to use the section lines for possible construction of roads would actually result in the construction of roads on every mile, in each direction, on the lands subject to the “roadless” proposals given several things. One is that some of the lands are so remote and the areas surrounding them so thinly populated that mere economics would prohibit widespread construction of new roads. In addition, for some of the lands, the terrain is so rugged along the section lines their use for roads is impracticable and, once there would be a need to deviate from the section lines, the United States would be able to exert control as a practical matter. Still another is that the State and Counties likely would agree that some of the lands should remain roadless in order maintain their relatively pristine character and would cooperate with the Forest Service. Viewed from this framework, plaintiffs contend that a realistic and plausible construction of the “roadless” proposals is merely that no roads would be permitted where there were not already established rights to construct roads, including no new roads within the interior of the sections of land in the proposed “road-less” areas.
Turning to the possible relevancy of the withheld evidence, plaintiffs contend the real reason why the “roadless” proposals did not specifically address the question of section line roads was likely because of concerns that plaintiffs’ claims of right-of-way were valid, or at least might be, and not because “roadless” obviously referred to all roads as the United States contends. Plaintiffs contend the withheld evidence could be at least circumstantial evidence of this concern and the reason for silence. If so, plaintiffs contend the withheld evidence would assist in their being able to rebut the argument that the “roadless” proposals were a communication by the United States of its position that plaintiffs’ section line right-of-way claims were without merit as well as what plaintiffs reasonably should have gleaned from the proposals.
While it may very well be that the United States has more than enough evidence demonstrating plaintiffs were aware of its position without having to resort to the “roadless” proposal evidence, the United States has nevertheless offered the evidence and it is only fair that plaintiffs be given the opportunity to fully respond. And, at that this point, the undersigned is not prepared to conclude that the withheld evidence would be of no relevance to rebutting the “roadless” proposal evidence proffered by the United States.
c. Relevant to whether the United States had a position that plaintiffs “knew or should have known” was contrary to their section line right-of-way claims
Plaintiffs’ second and more granular argument is that the withheld evidence is relevant generally to whether it can be demonstrated they “knew or should have known” of the United States’s position. In their brief, plaintiffs frame the argument this way:
[I]t is illogical to demand the Plaintiffs should have known the position of the Defendant if there was no position, or if the position at the time was contrary to what the Defendant now argues Plaintiffs should have understood.
(Doc. No. 78, p. 5).
In the abstract, the logic of this argument seems inescapable. And, if there was conflicting OGC counsel advice with respect to the matters at issue, that might be circumstantial evidence for the lack of a position or there having been a position contrary to what the United States now claims.
That being said, having reviewed the withheld material, the undersigned has substantial doubts as to whether it will be of any practical benefit to plaintiffs in advancing this argument. If anything, it is more likely that the withheld evidence will provide the United States with a more complete explanation for why material that has been disclosed and is likely to be relied upon by plaintiffs may not have the significance they believe it has once it is put in context by the withheld material. Nevertheless, this assessment goes to the weight of the withheld evidence, and the undersigned is not prepared to conclude it is of no relevance to plaintiffs’ second point,
d. Additional observations re relevancy
Further complicating the question of relevancy is the fact the United States is not content to demonstrate that plaintiffs’ claims had accrued as of September 16, 2000, which is twelve years prior to the earliest filing of the two complaints in this action. Rather, the United States is also claiming that plaintiffs’ claims accrued decades earlier. And, with respect to those arguments, the relevance of the withheld evidence must be assessed as of those earlier points in time. So, for example, what was going on in the early 1980s may have been more relevant to whether any of plaintiffs’ claims accrued then as opposed to later, say in the late 1990s and 2000 time frame when what occurred in 1980 may have less relevance. '
Finally, the United States’ lack-of-relevancy arguments ring hollow when the United States has itself affirmatively relied on evidence of the same subject matter as the first category of withheld evidence to prove that plaintiffs had notice of its claims, including particularly the “Gippert memorandum.” This is discussed in more detail later in connection with whether the United States waived its claim of attorney-client privilege as to some of the withheld documents.
III. THE CLAIMS OF ATTORNEY-CLIENT PRIVILEGE
A. Introduction
The United States contends that the withheld material is protected by the attorney-client privilege. Plaintiffs disagree. They contend the withheld material is likely not subject to the privilege based on their limited knowledge of its contents gleaned from the United States’s privilege log. In the alternative, plaintiffs contend the privilege was waived before suit was commenced and again after.
B. Governing law
1. Federal common law governs the claim of privilege in this case
All evidentiary privileges asserted in federal court are governed, in the first instance, by Federal Rule of Evidence 501, which reads as follows:
Rule 501. Privilege in General
The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:
• the United States Constitution;
• a federal statute; or
• rules prescribed by the Supreme Court.
But -in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
In this case, the court will look to federal common law given that the claim of privilege at issue is made by the United States and relates primarily to questions of federal law. See, e.g., In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 915 (8th Cir.1997).
2. The claim of attorney-client privilege by a governmental entity
The attorney client privilege “is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). It exists “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Id. It is “perhaps, the most sacred of all legally recognized privileges, and its preservation is essential to the just and orderly operation of our legal system.” United States v. Bauer, 132 F.3d 504, 510 (9th Cir.1997).
That being said, until perhaps more recently, there has been some question as to when the privilege can be claimed by a governmental entity given the competing desires for open, accessible, transparent, and honest government. See, e.g., In re County of Erie, 473 F.3d 413, 418-19 (2d Cir.2007); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 917-21 (8th Cir.1997). In the case of a governmental entity, these competing values are in addition to that of the public’s right to “every man’s evidence,” which is compromised anytime a claim for privilege is honored. See, e.g., Jaffee v. Redmond, 518 U.S. 1, 9, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996).
Despite the additional considerations that arguably come into play when a governmental entity claims the attorney-client privilege, the Supreme Court recently suggested in United States v. Jicarilla Apache Nation, — U.S. -, 131 S.Ct. 2313, 180 L.Ed.2d 187 (2011) (“Jicarilla”} that a governmental entity enjoys the same attorney-client privilege in civil litigation as private litigants. In particular, the Court stated:
The objectives of the attorney-client privilege apply to governmental clients. “The privilege aids government entities and employees in obtaining legal advice founded on a complete and accurate factual picture.” 1 Restatement (Third) of the Law Governing Lawyers § 74, Comment b, pp. 573-574 (1998). Unless applicable law provides otherwise, the Government may invoke the attorney-client privilege in civil litigation to protect confidential communications between Government officials and Government attorneys. Id., at 574 (“[Governmental agencies and employees enjoy the same privilege as nongovernmental counterparts”).
Prior to Jicarilla, the Second Circuit had staked out the same position and elaborated more fully upon the reasons why as follows:
The attorney-client privilege accommodates competing values; the competítion is sharpened when the privilege is asserted by a government. On the one hand, non-disclosure impinges on open and accessible government. See Reed v. Baxter, 134 F.3d 351, 356-57 (6th Cir.1998). On the other hand, public officials are duty-bound to understand and respect constitutional, judicial and statutory limitations on their authority; thus, their access to candid legal advice directly and significantly serves the public interest:
We believe that, if anything, the traditional rationale for the [attorney-client] privilege applies with special force in the government context. It is crucial that government officials, who are expected to uphold and execute the law and who may face criminal prosecution for failing to do so, be encouraged to seek out and receive fully informed legal advice. Upholding the privilege furthers a culture in which consultation with government lawyers is accepted as a normal, desirable, and even indispensable part of conducting public business. Abrogating the privilege undermines that culture and thereby impairs the public interest.
In re Grand Jury Investigation, 399 F.3d at 534. Access to legal advice by officials responsible for formulating, implementing and monitoring governmental policy is fundamental to “promoting] broader public interests in the observance of law and administration of justice,” Upjohn, 449 U.S. at 389, 101 S.Ct. 677. At least in civil litigation between a government agency and private litigants, the government’s claim to the protections of the attorney-client privilege is on a par with the claim of an individual or a corporate entity.
In re County of Erie, 473 F.3d at 418-19. Likewise, the American Law Institute in its Restatement (Third) of the Law Governing Lawyers (which the Supreme Court relied upon in Jicarilla) essentially took the same position in § 74, stating as its rationale for doing so:
b. Rationale. The objectives of the attorney-client privilege (see § 68, Comment c), including the special objectives relevant to organizational clients (see § 73, Comment b), apply in general to governmental clients. The privilege aids government entities and employees in obtaining legal advice founded on a complete and accurate factual picture. Communications from such persons should be correspondingly privileged'.
A narrower privilege for governmental clients may be warranted by particular statutory formulations. Open-meeting and open-files statutes reflect a public policy against secrecy in many areas of governmental activity. Moreover, unlike persons in private life, a public agency or employee has no autonomous right of confidentiality in communications relating to governmental business.
Nonetheless, the legal system has recognized the strategic concerns of a public agency or officer in establishing and asserting public legal rights. Even public legal rights are contingent at their boundaries and subject to argumentation and dispute as to their precise extent. Members of the public who assert legal interests against a public agency or officer act not in the general public interest but in their private interest or in what they assert is the public interest. The public acting through its public agencies is entitled to resist claims and contentions that the agency considers legally or factually unwarranted. To that end, a public agency or employee is entitled to engage in confidential communications with counsel to establish and maintain legal positions. Accordingly, courts generally have construed open-meeting, open-files, whistle-blower, and similar statutes as subject to the attorney-client privilege, recognizing that otherwise governments would be at unfair disadvantage in litigation, in handling claims and in negotiations.
A privilege that would cover only litigation, including claims or investigations, would be a plausible alternative. Rule 502(d)(6) of the Revised Uniform Rules of Evidence proposed a governmental-client privilege thus limited, but most states rejected that limitation. Another alternative would be a general but qualified privilege protecting confidential communications unless a tribunal found good cause to require disclosure. The privilege for the government could also be limited to a stated period of time (compare § 77, Reporter’s Note to Comment c). More particularized rules may be necessary where one agency of government claims the privilege in resisting a demand for information by another. Such rules should take account of the complex considerations of governmental structure, tradition, and regulation that are involved.
This Section, however, states the generally prevailing rule that governmental agencies and employees enjoy the same privilege as nongovernmental counterparts. In any event, information covered by the privilege would, in some situations, be protected from disclosure by such rules as executive privilege or state secrets. Of course, a legislative determination of a need for less confidentiality, for example in a statute that limits attorney-client confidentiality in areas outside of litigation, would prevail over the common-law rule stated in this Section.
Restatement (Third) of the Law Governing Lawyers § 74, comment b (2000) (“Rest.3d Law Gov. Lawyers ”).
On the other hand, there are cases where courts have rejected or 'narrowly applied a claim of privilege by a governmental entity in part because of the competing values that are unique to a claim of privilege by a governmental entity. See generally RestJd Law Gov. Lawyers § 74, Reporter’s Notes to comment b. The court will return to this subject more specifically later since plaintiffs in this case rely upon several of these cases.
C. Plaintiffs’ argument that the claims of attorney-client privilege fail because the withheld documents do not directly or indirectly reveal any confidential communications to defendant’s attorneys
Plaintiffs contend that it is unlikely that any confidential agency information was communicated (1) to OGC attorneys Han-kins and Wood when their opinions were sought regarding the meaning of R.S. 2477 and North Dakota’s section line statute with respect to the first category of withheld documents, or (2) to the attorneys who prepared the title opinions that are the subject of the second category of withheld documents. But, even if confidential information was communicated to Han-kins, Wood, or the title attorneys, plaintiffs contend that the withheld documents are unlikely to disclose either directly or indirectly what any such client confidential communication may have been. Plaintiffs argue that, if the court concludes either of these are the case after an in camera review, the documents are not subject to the attorney-client privilege. In support, plaintiffs cite to cases that take a narrow approach to the attorney-client privilege as it pertains to attorney opinions and com.munications by the attorney to the client.
1. The differing approaches to attorney opinions and communications
If the only justification for the attorney-client privilege is to encourage full disclosure of information by the client to the attorney as some have suggested, an argument could be made that only what is communicated by the client in confidence to the attorney should be treated as privileged and not vice-versa. See, e.g., 1 McCormick on Evidence § 89 (5th ed.1999). However, today most courts would consider privileged at least some communications from an attorney to a client with the principal disagreement being over to what extent. It has been suggested that the cases addressing this subject have taken one of three approaches:
• The most narrow approach is that communications from the attorney to the client are privileged only if they reveal a confidential communication from the client to the attorney or, slightly more broadly, do so circumstantially. An example of a case discussing this approach is United States v. Silverman, 430 F.2d 106 (2d Cir.1970), where the Second Circuit stated:
The privilege as commonly formulated refers to a confidential communication from the client to the attorney. 8 Wigmore, Evidence § 2292 (McNaughton rev. ed.1961); compare Uniform Rule of Evidence 26 (‘befiveen lawyer and his client’). Wigmore states that the reason for bringing communications from the attorney to the client within the privilege is to prevent adopted admissions or inferences of the tenor of the client’s communication. 8 Wigmore, Evidence 2320 (McNaughton rev. ed.1961). The purpose of the privilege, the encouragement of full disclosure to the attorney in procuring legal advice, implies that a communication from , an attorney is not privileged unless it has the effect of revealing a confidential communication from . the client to the attorney.
Id. at 122.
• Another approach, which is deemed by some to be an “intermediate” one, is that attorney communications are privileged if they are based on confidential information provided by the client. A case often cited for this approach is Schlefer v. United States, 702 F.2d 233 (D.C.Cir.1983), where the court stated:
The attorney-client privilege in federal courts protects communications from attorney to client to avoid the risk of inadvertent, indirect disclosure of the client’s confidences. Mead Data [Central, Inc. v. United States Dept. of Air Force], supra, 566 F.2d [242] at 254 n. 25 [ (D.C.Cir.1977) ]. The privilege operates when 1) the communication from attorney to client is confidential, and 2) the communication is based on confidential information provided by the client. Id. at 254.
Id. at 245 (footnote omitted); see also State of Maine v. United States Dept. of Interior, 298 F.3d 60, 70-72 (1st Cir.2002). While this approach does not require that the attorney communication disclose or tend to disclose a confidential client communication to be privileged, it arguably adds a new point of emphasis in terms of its requirement that “confidential information” must have been provided to the attorney and not just a “confidential communication.” See, e.g., Yankee Atomic Electric Co. v. United States, 54 Fed.Cl. 306, 313-16 (Ct.Fed.Cl.2002) (discussing the difference).
• The broadest approach is that attorney opinions and communications are privileged if made or rendered during the course of giving legal advice, irrespective of any relationship to a confidential communication by the client or the client having provided confidential information. A case frequently cited for a discussion of this approach is the Third Circuit’s decision in United States v. Amerada Hess Corp., 619 F.2d 980 (3d Cir.1980). In that case, the Third Circuit stated:
Legal advice or opinion from an attorney to his client, individual or corporate, has consistently been held by the federal courts to be within the protection of the attorney-client privilege, [citations omitted], Two reasons have been advanced in support of the two-way application of the privilege. The first is the necessity of preventing the use of an attorney’s advice to support inferences as to the content of confidential communications by the client to the attorney. 8 Wig-more on Evidence s 2320 (McNaughton Rev.1961). The second is that, independent of the content of any client communication, legal advice given to the client should remain confidential, [citation omitted]. To the extent that the trial court predicated its ruling on the general inapplicability of the privilege to communications from the attorney to the client we disapprove of it.
See, e.g., Stovall v. United States, 85 Fed. Cl. 810, 814-15 (Ct.Fed.Cl.2009) (“Stovall ”) (discussing the three approaches); Potts v. Allis-Chalmers Corp., 118 F.R.D. 597, 602-03 (N.D.Ind.1987); Federal Testimonial Privileges § 2:13 (2d ed. Westlaw database updated Nov. 2014) (same); C. Wright & K. Graham, 24 Federal Practice and Procedure: Evidence § 5491 (1986) (“Wright & Graham ”) (discussing the three approaches but cautioning that the opinions are more diverse than this categorization suggests); Edna Epstein, The Attorney-Client Privilege and the Work-Product Doctrine pp. 76-86 (5th ed.2007) (“Epstein”) (discussing the narrower and broader approaches).
In Sedco International, S.A. v. Cory, 683 F.2d 1201 (8th Cir.1982)(“Redco ”), the Eighth Circuit observed the tension in the cases when it remarked:
Legal advice is clearly privileged to some degree. Compare 8 J. Wigmore, Wigmore on Evidence s 2320 (McNaughton ed.1961) and Fed.R.Evid. 503 advisory committee note (full privilege) with In re Fischel, 557 F.2d 209, 211 (9th Cir.1977) and United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D.Mass.1956[1950]) (privileged to extent necessary to prevent disclosure of client’s confidential communication).
Id. at 1205. Then, without adopting a particular approach, the Eighth Circuit concluded in Sedeo that the trial court had not erred in upholding the privilege since the advice given by counsel in that case might have tended to reveal the client’s confidential communications. Id. at 1206-07.
The parties have not cited to an Eighth Circuit case expressly adopting one of the three approaches. However, as discussed later, it appears the Eighth Circuit has at least implicitly adopted the broadest approach.
2. The materiality of plaintiffs’ argument as to the scope of the privilege as it pertains to attorney communications
As already alluded to, plaintiffs have urged the court to follow one of the narrower approaches to attorney communications and reject the claims of privilege made by the United States. In this case, the differences in approach could be material to what attorney opinions and communications are subject to the privilege, keeping in mind that the mere request for an opinion and the general purpose for the request may not be confidential in many instances. See, e.g., Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 603 (8th Cir.1977); Colton v. United States, 306 F.2d 633, 636 (2d Cir.1962); 7 Rest.3d Law Gov. Lawyers § 69, comment g.
More particularly, it may be a close question whether disclosure of one or more of the 1962 and 1980 OGC opinions would tend to disclose any client communication that would be considered confidential. The opinions themselves appear to be based upon the wording of the relevant statutes and, to a certain extent, prior administrative and court decisions and not upon any confidential information that was communicated by the agency to the attorneys.
The same may also very well be true for some or all of the title opinions. The United States contends that the title opinions are based on confidential client communications because the attorneys issuing the opinions were provided with (1) title insurance commitments or final title policies, which the United States contends are confidential, and (2) agency staffs views regarding exceptions to title listed in the title insurance documents as well as other issues of title that may not have been identified in the public records. While it may be that documents expressing agency staffs views about certain title matters may fall with the scope of a confidential client communication, it does not appear from what the court has reviewed that this sort of communication exists for very many of the title opinions at issue, much less whether such communications were ever intended to confidential. The court is also skeptical that title insurance commitments and final policies are confidential for purposes of the attorney-client privilege since they involve a commercial transaction with a third party title insurer.
Because of the conclusion set forth below that the broadest approach to the privilege applies, the court need not undertake a detailed analysis for each of the attorney opinions at issue whether the disclosure of the opinion would tend to reveal any client communication that truly was confidential or whether it based on confidential client information.
3. The broadest approach likely now applies as a matter of federal common law for purposes of Rule 501
It appears the Eighth Circuit and, more importantly the United States Supreme Court, would follow the broadest approach to the attorney-client privilege— if they have not done so already. In other words, they would treat confidential communications from an attorney as privileged if made for the purpose of rendering legal advice, regardless of whether they would tend to reveal a confidential communication from the client to the attorney and regardless of whether they were “based upon” a such communication of confidential information. The court reaches this conclusion for a number of reasons. .
First, the broadest approach is by no means new and appears to have been the approach taken by Wigmore. J. Wigmore, 8 Wigmore on Evidence § 2320 (McNaughton rev.1961); see 24 Wright & Graham at § 5491 (discussing Wigmore’s approach); Rest.3d Law Gov. Lawyers § 69, Reporters Notes to comment i (same).
Second, the broadest approach has gaining in acceptance. Notably, it has been adopted by the Uniform Rules of Evidence, the American Law Institute in its Third Restatement of the Law Governing Lawyers, and a number of state evidence codes. See Rest. 3d Law Gov. Lawyers § 69, comment i and accompanying Reporter’s Notes. This is relevant given that the Supreme Court in Jaffee held that Congress’s adoption of Fed.R.Evid. 501 did not freeze the law governing privileges to the time of its adoption or to any earlier time. The Court stated:
Rule 501 of the Federal Rules of Evidence authorizes federal courts to define new privileges by interpreting “common law principles ... in the light of reason and experience.” The authors of the Rule borrowed this phrase from our opinion in Wolfle v. United States, 291 U.S. 7, 12, 54 S.Ct. 279, 280, 78 L.Ed. 617 (1934), which in turn referred to the oft-repeated observation that “the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.” Funk v. United States, 290 U.S. 371, 383, 54 S.Ct. 212, 216, 78 L.Ed. 369 (1933). See also Hawkins v. United States, 358 U.S. 74, 79, 79 S.Ct. 136, 139, 3 L.Ed.2d 125 (1958) changes in privileges may be “dictated by ‘reason and experience’ ”). The Senate Report accompanying the 1975 adoption of the Rules indicates that Rule 501 “should be understood as reflecting the view that the recognition of a privilege based on a confidential relationship ... should be determined on a case-by-case basis.” S.Rep.. No. 93-1277, p. 13 (1974) U.S.Code Cong. & Admin.News 1974, pp. 7051, 7059. The Rule thus did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather directed federal courts to “continue the evolutionary development of testimonial privileges.” Trammel v. United States, 445 U.S. 40, 47, 100 S.Ct. 906, 910, 63 L.Ed.2d 186 (1980); see also University of Pennsylvania v. EEOC, 493 U.S. 182, 189, 110 S.Ct. 577, 582, 107 L.Ed.2d 571 (1990).
518 U.S. at 8-9, 116 S.Ct. 1923 (footnotes omitted).
Third, as observed by the Eighth Circuit in Sedeo, the broadest approach was the one taken by the Proposed Fed.R.Evid. 503, which the Supreme Court approved and submitted to Congress for approval in 1972 along with rules addressing other testimonial privileges. And, while acknowledging that the proposed rules are not binding since they were never adopted, the Eighth Circuit, as well as other federal courts, have looked to the proposed rules for guidance as to what the federal common law is or should be on the subject. See, e.g., United States v. Ghane, 673 F.3d 771, 782 (8th Cir.2012) (The proposed rules are a useful starting point since “the Supreme Court, and this court, too, has looked to these proposed standards to inform the definition of the federal common law of privileges, despite the failure of Congress to enact such a detailed article on privileges.”); In re Grand Jury Investigation, 399 F.3d 527, 532 (2d Cir.2005) (same); In re Grand Jury Investigation, 918 F.2d 374, 380 (3d Cir.1990) (same); In re Bieter Co., 16 F.3d 929, 935 (8th Cir.1994) (Rule 503 is “ ‘an accurate definition of the federal common law of attorney-client privilege.’ ”) (quoting 2 Jack Weinstein, et al., Weinstein’s Evidence ¶ 503[02], at 503-17 (1975)).
Fourth, while the Supreme Court may not have addressed the issue explicitly, what the Court had to say about the privilege in Upjohn supports an argument that it has already recognized the broadest approach, consistent with its earlier approval of the Proposed Rule 503. This includes the following sentence from the Court’s discussion in Upjohn where it rejected the view that the attorney-client privilege should only extend to communications from an attorney to the “control group” of a corporation:
Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.
449 Ú.S. at 390, 101 S.Ct. 677; see Stovall, 85 Fed.Cl. at 815 n. 6 (stating that the broadest approach finds support in the above passage from Upjohn); Epstein at 82-83 (quoting this passage from Upjohn as reflective of the broadest approach).
Likewise, for many of the same reasons, it can be argued that the Eighth Circuit has implicitly adopted the broadest approach since it has not suggested any limitation on the privilege as it applies to attorney communications in the opinions where such communications have been referenced. See, e.g., PaineWebber Group, Inc. v. Zinsmeyer Trusts Partnership, 187 F.3d 988 (8th Cir.1999) (“PaineWebber”); In re Bieter Co., 16 F.3d 929 (8th Cir.1994). For example, the court stated the following in PaineWebber:
The Supreme Court confirmed that the privilege applies broadly to communications made by corporate employees to counsel to secure legal advice from counsel. Id. at 394, 101 S.Ct. 677. We have likewise applied the privilege to communications to and from corporate attorneys investigating their client’s possible violations of federal securities law. See Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 600-01 (8th Cir.1977), followed in In re Bieter Co., 16 F.3d 929, 935-36 (8th Cir.1994). These cases confirm that Paine Webber had a reasonable basis for asserting that the attorney/client privilege, and perhaps the work product doctrine, protected from discovery in the arbitration at least some internal communications to and from the PaineWebber attorneys who conducted the investigation of Reik’s trading activities.
Fifth, the reasons for adopting the broadest approach are persuasive and include the following:
• The broadest approach may be somewhat easier to administer. See, e.g., Epstein at 81 (“In practice, the theoretical separation alluded. to by the strict-construction line of cases between those attorney communications that do and those that do not reveal the confidential confidence, is hard to maintain.”); Wright & Graham at § 5491 n. 46 (“Unless the court is going to take the lawyer’s word for it, it is hard to see how the court can determine whether revelation of the lawyer’s advice would be a revelation of client communications without looking at all of the communications between them. If the test is whether the lawyer’s,advice is “based on” the client’s communication, this will either leave a large element of subjectivity in trial court rulings or require the development of some standards for making this determination.”).
• Arguably, the broadest approach is also more predictable for the participants when, like here, an organization is involved, because it does not require that the participants be aware of the full scope of the communications by agency personnel to the attorney to be able to judge whether a particular attorney communication will be privileged. The Supreme Court in Jaffee reinforced the importance of predictability when it stated:
As we explained in Upjohn, if the purpose of the privilege is to be served, the participants in the confidential conversation “must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.” 449 U.S., at 393, 101 S.Ct., at 684.
518 U.S. at 17-18,116 S.Ct. 1923.
• The communication by the attorney to the client can often be manipulated to invoke the narrower approaches by structuring the communication to reflect an underlying request for legal advice based on purported client confidential information. “The fact that such artificial manipulations are possible or necessary, however, calls into question the validity of the narrow view of the privilege.” Epstein at p. . 82.
• Finally, and most importantly, there are sound policy reasons for the broadest approach. Wigmore believed the mere uncertainty as to whether an attorney’s advice might be revealed would inhibit clients from speaking freely. Wright & Graham, at § 5491. In addition, the broadest approach “provides assurance to lawyers to be forthcoming in giving candid advice.” Rest.3d Law Gov. Law yers at § 69 Reporter’s Notes to comment i. Elaborating more on this point, one leading author on the subject has stated:
The broader appl