One chapter of a long-running Sagebrush Rebellion has ended. At least in this portion of the story, the victory goes to the embattled public lands rancher as the court scolds federal agencies for their abusive behavior.
Friday, May 24, a ruling was issued on the U.S. v. Hage trespass case, one among several suits in a long-running conflict between Nevada rancher E. Wayne Hage (Hage Sr.) and his family, and a pair of governmental agencies.
Chief Judge Robert C. Jones of the Federal District Court of Nevada, who oversaw the case, held that while some trespass had occurred, U.S. Forest Service (USFS) and Bureau of Land Management (BLM) officials lacked evidence for many of their claims against the Nevada ranching family and were guilty of shocking misconduct. The ruling also granted a number of protections to the family which set precedents in favor of federal lands ranchers. The ruling has been heralded as a great step forward for cattlemen.
“This decision is landmark for western ranchers,” commented Wayne N. Hage (Hage Jr.), son of Hage Sr. who died in 2006.
“I am pleased to announce for the ranchers of the Western states that it has been proven that a permit is not simply a revocable privilege, but rather there is a property interest in the permit for the purpose of the Due Process Clause, both procedural and substantive. This is important because it will safeguard ranchers’ rights and historical grazing practices.”
Trespass and beyond
The original trespass suit was brought against Hage Jr. and the Hage Estate by USFS and BLM in 2007. It alleged 39 instances of Hage Jr.’s cattle grazing without permit on BLM land. Following a move to dismiss, the suit was amended, detailing 44 instances of trespassing cattle. A chess-like series of claims, counterclaims, ignored movements for dismissal and summary judgment followed leading up to this final ruling.
The trespass suit came in the midst of an on-going and long-running takings case begun in 1991.
For more background information, see the “History” section.
The 104-page decision from Chief Judge Jones on the trespass case did find in favor of the federal agencies on two of the trespass instances. However, it only found Hage Jr. liable for $165.88 in damages for those instances. The court found the federal agencies’ evidence for the majority of its claims of trespass severely lacking.
“Of the approximately fifty instances of trespass alleged in the [First Amended Complaint], the Government presented evidence at trial of seventeen instances,” read the decision. Many of the alleged trespass instances were deemed not trespass supporting punitive damages given their proximity to stock ponds covered by Hage Jr.’s water rights, and “because there is no evidence that Defendants committed the trespasses oppressively, fraudulently, or maliciously,” as required for damages to be awarded to the federal agencies.
The court’s decisions which were not directly in answer to the trespass charges were more interesting however. In one of its injunctions, for instance, the court acknowledged some troubling trends on the part of the government.
“There is a great probability that the Government will continue to cite Defendants and potentially impound Defendants’ cattle in the future in derogation of their water rights and those statutory privileges of which the Government has arbitrarily and vindictively stripped them.”
To this point, the court found that BLM abused its discretion and violated due process in denying Hage Sr.’s grazing permits from 1993-2003. It also noted instances of conspiracy, witness intimidation, interfering with an ongoing trial relative to the other Hage related cases which were ongoing, and possibly obstructing justice by USFS and BLM agents.
In language refreshingly conversational rather than the usual dry “legalese” of court documents, the court decision chided the federal agencies for what it described as shockingly vindictive behavior over the decades-long march of the Hage-related cases.
“The Government cannot withdraw [grazing rights] or refuse to renew them vindictively or for reasons totally unrelated to the merits of the application as governed by published laws and regulations, lest the Government abuse its executive power in a way that shocks the conscience.”
Also, in what is easily the court’s attempt at checking the power of BLM and US- FS, the court stated “the Government is enjoined from issuing trespass or impound notices to Hage [Jr.]… The Government must request permission from this Court to issue such notices until further notice.”
Among the protections afforded to Hage Jr. through the decision, the court detailed what constitutes actual trespass, prohibited a variety of practices BLM and USFS have used in the past to interfere with the Hages’ water rights, and explained a “forage right.”
“It shall not constitute a trespass if cattle graze within half a mile of a water source in which Defendants have stock watering rights… This is the extent of the ‘forage right.’ The ‘forage right’ is not a right to graze qua grazing while cattle are near water sources in which one has stock watering rights but is essentially a defense to a trespass action.”
Other protections included a prohibition on BLM reducing Hage Jr.’s grazing permits by more than 25 percent for any period of time, that no unreasonable restrictions be placed on the grazing allotments or the servicing and maintaining of stock ponds under the Hages’ water rights, and that—after Hage Jr. applies for a grazing permit according to usual procedure—the government be required to grant it.
“Generally we see this ruling as positive for the public lands ranchers,” said Dustin Van Liew, National Cattlemen’s Beef Association director of Federal Lands and executive director of Public Lands Council (PLC). He pointed out that the specifics of the takings issue, water rights and the connections to the Fifth Amendment make for a very convoluted legal situation.
“The crux of this whole issue was the government was denying Hage access to his water,” he said, also explaining that Nevada has a beneficial use rule whereby (very generally speaking) the state can take back a water right that is not being put to beneficial use in the watering of livestock.
“The federal government was effectively taking his water rights because they weren’t letting him use it.”
Van Liew called some of the judge’s actions unprecedented, specifically the efforts at oversight of the two federal agencies some of the court orders represent. In requiring that USFS and BLM seek the Federal District Court of Nevada’s approval before issuing any more trespass notices to Hage Jr., the judge has tried to retain control of the situation more than is often seen.
“The most important element of the ruling was [the judge] in fact recognized there is a property interest in a grazing permit for the purposes of the Due Process Clause,” said Van Liew in closing. The Constitutional Resource Center, which released a response to the ruling shortly after it was issued, agreed with Van Leiw’s perspective, saying it set a valuable precedent for public lands ranchers.
“The decision… recognized that there is in fact a property right in grazing permits entitled to significant protection under the Constitution’s Fifth Amendment due process clause.”
Despite the warm welcome the ruling has received, given the history of the related Hage cases and the extensive control the ruling hopes to exert over the future actions of USFS and BLM, the possibility of appeal is likely.
Hage Jr., who represented himself in the trespass proceedings, however, said the effort was worth it. “No longer are we subject to the arbitrary and vindictive rule of man—we now have the protection of the rule of law. This decision restores my family’s grazing permits which the court found were arbitrarily denied my parents in 1993. But more importantly, the court has ruled they can never take our grazing permits again simply because they want to.”
Though the ruling is the most recent event in this long-running tale, the backdrop for it is a storied one.
Back in 1978, Hage Sr. and his wife Jean acquired the Pine Creek Ranch—a large private ranch numbering 7,000 acres—in central Nevada and had grazing permits for hundreds of thousands of adjoining federal lands. The land had a limited water supply and this came to be the central point in the Hage saga.
In 1979, Hage Sr. encountered federal agents on his grazing allotments. The agents were reportedly surveying the area so USFS could file a water rights claim against water rights held by the ranch since the end of the Civil War. Following years of letters, visits, charges of numerous violations, and what has been characterized as harassment, the Hages filed a takings case against the government in 1991.
The Hages asserted that the actions of USFS—which included erecting fences to prevent the Hages’ cattle from accessing their water, threatened and intimidated the Hages and those working with them, preventing access to the Hages’ ditch right-of-way, offering the Hages’ water rights to others, and the eventual canceling of their grazing permits—constituted an unlawful taking.
After Hage Sr. died in 2006, USFS and BLM brought a new and related suit up against his son for trespass in 2007 as U.S. v. Hage. This was the case on which Jones ruled on most recently and has been reported above.
In 2008, a U.S. Court of Federal Claims’ judge found in favor of the Hages in their 1991 takings case and awarded damages plus interest, attorney fees and costs. The U.S. government appealed the decision and the Federal Circuit Court of Appeals issued a ruling reversing the decision in July 2012. The reversal has been appealed to the Supreme Court by the Estate. The case is slated for a June 18 conference in the Supreme Court to determine if the court will grant the appeal.
“We believe that the case’s precedent-setting nature and importance to livestock producers’ property rights merits the Supreme Court’s consideration,” Brice Lee, Colorado rancher and PLC president, told WLJ back in early March following the appeal filed in February 2013.
“They deserve compensation for what the Forest Service took from them. Ranchers cannot operate without access to the water that is legally theirs.”
“The Supreme Court should grant review of this case,” agreed Pacific Legal Foundation (PLF) attorney, Brian T. Hodges. PLF and the U.S. Cattlemen’s Association filed an amicus brief with the Supreme Court on behalf of the Hages when the appeal was filed.
“The Federal Circuit’s decision threatens to undermine the right to water— one of the most fundamental and valuable rights known to the law. Review by the Supreme Court is essential to assure that a person’s rights in his or her water will be protected by Takings Clause of the U.S. Constitution.” — Kerry Halladay, WLJ Editor