Posted on 12/23/2002 6:02:32 AM PST by George Frm Br00klyn Park
Elko Daily Free Press
Northern Nevada's News Source Since 1883 - Internet Edition
Feds lose a round in Hage case
By JEFFRY MULLINS, Free Press Editor
ELKO -- Wayne Hage's lack of a grazing permit does not invalidate his claim of access to water and forage on allotments surrounding his central Nevada ranch, a federal judge has decided.
Hage said Senior Judge Loren Smith of the U.S. Court of Federal Claims dismissed the government's motion for partial summary judgment in his case on Dec. 11.
"We were very happy to see that, because the federal government finally put the issue squarely before the court over the grazing permits, and the court just flatly dismissed from the bench," Hage said Friday in a telephone interview.
U.S. Forest Service and Bureau of Land Management officials in Nevada said Friday they were not aware of the latest ruling in the case.
The lawsuit on behalf of Hage and the estate of his late wife, Jean, against the United States of America has been active for more than a decade. Hage has since married former U.S. Rep. Helen Chenoweth of Idaho, and continues scaled-back operations on his ranch in Monitor Valley.
Unlike other lawsuits involving ranchers and their grazing disputes, Hage said his case is based on the taking of property, and property rights are guaranteed under the Constitution. That's why the case is being heard in federal claims court.
In the latest development, Hage said "the government argued that we could not utilize our water rights and our grazing rights on our allotments without a grazing permit. I said, 'I own them. I paid for them.'"
The Hages bought the Pine Creek Ranch in 1978. But a year after writing a book on Western property rights, "Storm Over Rangelands," Hage claimed federal agencies began cutting back his grazing allotments in an attempt to run him out of business.
Hage partially won a final ruling in January that said he owned some vested water rights, along with access to forage within 50 feet of ditches. But the judge ruled he did not have "surface estate" rights.
Instead of moving directly to trial to determine the extent of Hage's property and what -- if anything -- the federal government owed him by way of compensation, Hage's attorneys have been dealing with additional motions filed by the federal government.
The latest challenge claimed that Hage needed a grazing permit in order to be able to make use of the forage and water surrounding his ranch. The government filed a motion for partial summary judgment, seeking to have Hage's grazing access claims dismissed based upon that principle.
"What plaintiffs impermissibly attempt here is to bootstrap a right to forage or an easement to graze onto vested stockwaters on federal lands," the United States' motion said. "All of the many courts which have considered the issue have held that grazing is a revocable privilege and that a water right does not include any appurtenances, such as forage or an easement to graze on federal lands, or the means to make beneficial use."
The government argued that the Hages could "continue to enjoy the use of their water rights on their base private property." But, "Plaintiffs have no need to use their stockwaters on federal lands unless they are authorized to graze their cattle on the allotments."
Hage said the court rejected that argument, as it has done in previous attempts to derail the case.
"In fact, they've come back four times, total," he said. "Every time, in every stage of this, the court's finally recognized that, yes, we did own water rights and forage rights."
Hage, now in his mid-60s, has spent more than $1.5 million on the lawsuit. But the value of what he believes has been taken from him is much higher.
"We've been actively ranching on a much-reduced scale for all these 11 years," Hage said. "But we're only operating at about 12 percent of our capacity." That will continue until the dispute over the allotments is finally resolved.
"That means either the United States gets off my back, or the United States pays me for the ranch," he said.
Barring any further delays in the case, Hage said it may go to trial by next fall.
THIS article at The Elko Daily
Hage, now in his mid-60s, has spent more than $1.5 million on the lawsuit. But the value of what he believes has been taken from him is much higher.
Holiday Wishes!
Nevada Live Stock Association
P.O. Box 639
Hawthorne, Nevada 89415
For Immediate Release:
Wednesday, December 18, 2002
JUDGE RULES HAGE DOESN'T NEED GRAZING PERMIT
In a hearing before the United States Court of Federal Claims, Washington, D.C., on December 11, 2002, Senior Judge Loren Smith ruled that Tonopah, Nevada, rancher Wayne Hage, did not need a grazing permit to access his water rights and forage on his grazing allotments. "This is another landmark decision for us, long in coming," said Wayne Hage from Pine Creek Ranch.
Judge Smith ruled on a Motion for Summary Judgment brought by the United States on behalf of the United States Forest Service and the Bureau of Land Management. The Motion placed the issue of a mandatory grazing permit squarely before the Court. The Court dismissed the motion, in Hage's favor, as a matter of law. "We now know, as I have said for years, that ranchers do not need a grazing permit to use our water and forage," said Hage.
Other issues of the litigation discussed in the hearing were discovery, deposition lists for the 'taking' phase, and compensation. "Considerable discussion was given in the hearing to the question of how to place a value on the compensation owed by the United States for the taking of my property. Instead of denying we own anything, it's nice to hear them ask how much they owe us," said Hage.
The litigation, Hage v. U.S. was originally filed in 1991 when the U.S. Forest Service attempted to take Hage's water rights and grazing allotments by canceling his grazing permit. Hage has argued that his property rights in water and forage are not dependent on a federal grazing permit. Judge Smith has now settled this matter.
In January, the same court, in a Final Decision and Finding of Fact, found that Hage's water rights were vested and that the allotments themselves were "fee lands" to which Hage had title. The court found that, based on his vested water rights, Hage had an inheritable right to use the lands of the United States for livestock grazing. Fee is defined as an estate in inheritance without condition, belonging to the owner in perpetuity
(See Black's Law Dictionary). The Decision said that Hage owned the "fee" while the underlying naked title to the land and minerals remained in the United States.
For further information contact: Wayne Hage 775-482-4817 or Ramona Morrison, Secretary, Nevada Live Stock Association, 775-424-0570.
Unless you have a personal vested interest, please don't hassle either of these good people with a congratulatory phone call. They understand the importance of this judicial decision to all property owning Americans. This gave the land rights takers a solid kick in the head. BLM will be eating mud for Christmas! Hurrah! Now the question is will they use our money to appeal Judge Smith's decision. My guess is,"Of course they will. What do they have to lose? It's not their money that they're spending."
Another big win for the Hages...congratulations.
Without doubt the BLM will appeal...they have to, they have a lot of 'splainin to do if they lose. They have been pushing ranchers around for too many years and can't afford to lose this thing.
I am wondering how this will effect the Cliff Gardner case. Basically, this is another water rights case where the Feds stomped and old man and his wondeful wife into the ground with their presumed authority.
Now that's a thought. You'd have to do it over Karl Rove's dead twitching body though. Look what he did to Simon, Schundler, Salmon...
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