The U.S. Court of Federal Claims issued a landmark decision in favor of a rancher’s right to access water and forage on grazing allotments, even if the rancher does not hold a grazing permit. This court decision settles a Motion for Summary Judgement brought by the U.S. on behalf of the U.S. Forest Service (USFS) and the Bureau of Land Management (BLM), and requires the federal government to compensate ranchers for losses.
Over a decade ago, Wayne Hage from Pine Creek Ranch in Tonopah, NV, filed the property rights case, Hage v. U.S., against the BLM and USFS after they imposed excessive regulations and canceled his grazing permit. By the cancellation of his permit, Hage was told he no longer had water rights or a place to graze cattle. These actions were considered by the Hage family as a physical “taking” of their property since it put them out of business. Therefore, Hage said he filed the litigation to attempt to open the court’s eyes to the abusive actions of the federal land agencies and secure a day in court for landowners before the nation’s highly respected Claims Court.
“Over the past 50 years, the government has successfully convinced Westerners we are privileged to make a living off the ‘public’s’ resources and we have no property rights on federal lands,” said Margaret Hage Gabbard, daughter of Wayne Hage and executive director of Stewards of the Range. The question the Hages say they wanted the court to answer is, “What property rights do ranchers have regarding their grazing allotments?” Hage has argued his property rights for water and forage are not dependent on a federal grazing permit.
In 1995, Hage won a summary judgement opinion, wherein the court decided the Hages potentially had some major property rights. This preliminary decision concluded the Hages owned the water rights and ditch rights. Then last January, the Claims Court, which just issued the latest ruling, determined Hage’s water rights were vested and the allotments themselves were “fee lands” to which Hage had title. “Fee” is defined by Black’s Law Dictionary as an estate in inheritance without condition, belonging to the owner in perpetuity. The judge in both cases, Senior Judge Loren Smith, found that based on his vested water rights, Hage had an inheritable right to use U.S. lands for livestock grazing. The decision did, however, say the underlying naked title to the land and minerals remained in the U.S., but Hage does own the “fee.”
The water rights found to be owned by the Hages amount to more than 20,000 acre-feet, and are located in virtually all parts of the five allotments the Hages grazed prior to their permit cancellation in 1991.
In addition to water rights, Judge Smith found the Hages are the owners of 10 1866 Act ditch rights of way. Judge Smith found the scope of these 1866 Act ditches was 50 feet on either side of the ditch, and the Hages’ livestock had the right to use the forage adjacent to these ditch rights of way. Another defining part of that ruling was the USFS could not require the Hages to obtain a special permit to maintain their 1866 Act ditches.
This latest decision, which completes the first phase, or property rights phase, of the final three phases in the case, further clarifies the relationship between the rancher and the grazing permit system by saying a rancher doesn’t need a grazing permit to access water and forage. “This is another landmark decision for us, long in coming,” said Hage. “We now know, as I’ve said for years, ranchers do not need a grazing permit to use our water and forage.”
Not only did this decision articulate who the right belonged to, but it also determined the government will be required to pay ranchers for the “taking” of their property, since the government’s actions made it impossible for ranchers to use them. “Considerable discussion was given in the hearing to the question of how to place a value on the compensation owed by the U.S. for the taking of my property,” said Hage. “Instead of denying we own anything, it’s nice to hear them ask how much they owe us.”
Consequently, every other rancher affirmed in this decision should have the same entitlements. Ben Colvin of Goldfield, NV, was involved in a similar case with the BLM. The BLM cancelled his grazing permit and impounded and sold his cattle because he continued to graze them on the land which he said was lawfully adjudicated to him with private rights to the water and the forage. “Once this range has been adjudicated, it’s out of the government’s jurisdiction,” said Colvin. “The court has said this and now all they need to do is uphold the law.” Colvin believes this case will give him legal precedence to settle the BLM’s taking of his 50 cows and 12 calves in August 2001.
The amount owed to the Hage’s has not yet been established. However, the next two phases of this case will determine the value. The court will have to determine what it was the government “took” and then decide its value. The date for that has not yet been set. — Sarah L. Roen, WLJ Associate Editor
