NWV News -- NV. Rancher Awarder Millions in Decades Old Property Rights Dispute

NEV. RANCHER AWARDED MILLIONS IN DECADES OLD PROPERTY RIGHTS DISPUTE

By Sarah Foster
Posted 1:00 AM Eastern
June 17, 2008
NewsWithViews.com

TONOPAH, Nev.: A decades-long battle between an American ranching family and the United States government over water rights and cattle grazing on federal lands appears to have ended June 6, when a D.C.-based federal judge ruled in favor of the family and awarded more than $4.2 million in compensation – plus 17 years of interest and attorney’s fees and costs -- to the estates of the late Nevada rancher and property rights advocate Wayne Hage and his first wife, Jean Nichols Hage.

The total is expected to be about $12.4 million.

Describing the conflict as a “drama worthy of a tragic opera with heroic characters,” U.S. Court of Federal Claims Senior Judge Loren A. Smith, in an 18-page Opinion, ruled the Hages owned the water rights, ditch rights-of-way, and range improvements on the federal grazing allotments for Pine Creek Ranch in central Nevada, they purchased in 1978 – and that by its actions the U.S. Forest Service had indeed “taken” the couple’s constitutionally protected private property rights and they deserved compensation.

“The notion of private property is fundamental to the existence of our Nation,” Smith stated. “It is a fundamental duty to protect, rather than destroy, personal property. … The Founders of our Nation envisioned personal property as a fundamental right. It is part of the trinity of values underlying in our reverence for ‘life, liberty, and property.’”

Furthermore, he wrote: “When a taking has occurred, a plaintiff is entitled to just compensation. The fundamental principle of just compensation is reimbursement to the owner, so that he is put in as good a position pecuniarily as if his property had not been taken.”

“The court finds the government’s actions had a severe economic impact on plaintiffs and the governments’ actions rose to the level of a taking,” Smith said.

The decision is being hailed by property rights advocates as a precedent-setting victory.

“The court made clear that the government has the right to authorize grazing, but does not have the right to prevent the plaintiff from accessing their water rights on federal lands,” said Margaret Hage Byfield – the Hages’ third daughter and executive director of Stewards of the Range, a non-profit organization created in 1992 to support this case and others like it – in a press release.

"This decision is important to every American because it reaffirms our basic right to own property, whether you live in a major US city or rural America," Byfield declared.

Lyman “Ladd” Bedford, one of the attorneys for the Hage family, who was involved in the case from its beginning, commented: “There is now a deterrent to the federal agencies. The federal government has significant exposure by way of having to pay just compensation when they deny ranchers access to their water and range improvements.”

However, the fight may not be over. The government has 30 days from the date of Judge Smith’s ruling to file an appeal, and according to Ed Monnig, supervisor of the Humboldt-Toiyabe National Forest, no decision has been made.

“We’re aware of Friday’s [June 6] court decision and our agency is considering the implications of this ruling and carefully weighing options,” Monnig told the Associated Press.

If the ruling remains unchallenged or is upheld, the case could dramatically impact states’ and federal lands in the West, Hage told the Associated Press in 2004.

It’s the first time in nearly a century that someone has effectively challenged the government over who owns the range rights and water rights out here on these federal lands,” Hage said.

The current opinion -- the latest in a series of four earlier ones, all by Judge Smith – is the culmination of litigation the Hages began in 1991 in response to harassment by the Forest Service and the confiscation of his cattle by gun-toting USFS agents. Hage was cited for “repeatedly trespassing cattle on public lands after being warned to remove them.”

It’s been Hage’s contention that the term “public land” is a misnomer.

“There is no such thing as ‘public’ land,” he explained to Range Magazine in a 2001 interview. “Since at least 1890, it has been established as split-estate federal land. The government retains the mineral rights, but surface property rights to forage and water and access are established in lawfully adjudicated grazing allotments and recorded as state law. It is federal land, but I own the surface property rights.”

Lifetime Opportunity

In an article he wrote for The New American magazine (May 20, 2002), Hage gave some background on his own life and recalled the events that turned him into a champion for property rights.

“Owning a ranch like Pine Creek had been a dream of mine since boyhood,” he said.

Born in Elko, Nev., in 1936, he left high school at age 15 to work on local ranches, promising his parents this would be temporary and he’d return to finish high school. That didn’t happen; he loved range work too much. But he made up for it by passing a G.E.D. test during a four-year stint in the U.S. Air Force. After the service, he returned to ranching, picking up a few college degrees along the way – a B.A. in organic chemistry, a master’s degree in livestock nutrition, with a minor in economics from the University of Nevada. He and his wife Jean were married in 1962 and bought her parent’s ranch, a relatively small operation in northern California, which is where all five of their children were born.

When Pine Creek Ranch in the Monitor Valley came on the market, Hage saw it as “the opportunity of a lifetime” and bought it in June 1978. The sprawling, 700,000-acre ranch had been established in 1865, and included 7,000 acres of privately deeded “fee land” -- plus the use of many thousands of adjoining acres within the national forest with abundant water and grazing rights. It was a magnificent spread.

“These private grazing allotments were initially acquired by the pioneers who harnessed the resources and later transferred as deeded property to those who own them today,” Hage wrote. “In 1866, Congress recognized western water rights previously established under local law and custom on the federal lands. Numerous state laws and court cases extended and solidified those rights.”

Within two months of his purchase, the National Park Service contacted him, anxious to buy the ranch but willing to pay only half what the Hages had paid. The reason: NPS was interested in purchasing the 7,000 acres of base fee lands only. Its position was that the federal government (though the U.S. Forest Service and Bureau of Land Management) already owned most of the ranch and the Hages had no rights whatsoever in connection with that adjoining land and certainly couldn’t expect any monetary compensation.

During a meeting, Hage asked the NPS agents about the “almost two hundred springs, creek wells, and other water sources on those grazing allotments that were clearly owned by me as well as the right to graze those lands. Their answer remained the same. According to them, the United States could extinguish at will my vested water rights on the grazing allotments.”

Hage told them to research the topic. “If it turned out that my grazing allotments were public lands, we would talk their price. If it turned out that my grazing allotments were not public land, we would talk about my price. They never contacted me again.”

Hage reckoned that was the end of the matter. It was just the beginning.

Seismic Shift

What the Hages and hundreds of ranching families across the 17 western states had yet to come to grips with was that under pressure from environmental groups there had been a seismic shift in philosophy and policy at the major federal land agencies – the Forest Service, Park Service, and the Bureau of Land Management. Cattle grazing, mining, and timber cutting were “out.” Hunting, fishing, hiking and assorted recreational uses were “in”. This translated into a concerted effort by the rank and file within those agencies to end such economic activities as ranching and mining and logging. In this they were aided and abetted by various environmental groups – the National Wildlife Federation, Sierra Club and the like.

Judge Smith noted this shift in his recent ruling.

“As government seeks to change its policies concerning the purpose and use of public lands, private landowners have a valid claim to preserve their vested rights,” he declared. “Because of historic water law many of those vested rights affect and are affected by government policies. This produces a sometimes emotional conflict between deeply held and cherished values of those who have farmed and ranched for generations and those who wish to change the direction of public policy.”

Unfortunately, the ranchers had no say in whether they approved of this change in the direction of public policy – nor were they informed them directly that their way of life was being fast-tracked for oblivion. But it didn’t take long for them to catch on.

By the 1990s, the drive to oust cattle from federal lands was in full swing, culminating in the famous “No more moo in ‘92” and “Cattle free by ‘93” campaigns – but that was yet to come. In 1979 Hage and his family were unaware of the jihad about to be lodged against them.

Feds say: ‘This Land is Our Land’

Since 2005 Roy Elicker has headed the Oregon Dept. of Fish and Wildlife, an agency he's worked for since 1993. But in 1991 he was a council for the National Wildlife Federation, one of the largest and most powerful, non-profit environmental organizations in the world – with a developed agenda to get rid of ranchers like Wayne Hage.

On Mar. 10, 1991, Elicker participated in a panel at the Public Interest Law Conference at the University of Oregon, where he spoke quite frankly the organization’s political strategy that was being used to end livestock grazing on federal lands. The panel was titled “Public Lands Grazing: This Land is Our Land.” Here are a few excerpts from his talk:

"What everyone likes is the Big Victory. You load them cattle trucks for the last time and they go driving off into the sunset and they never come back."

"But you can win a lot more victories than that ultimate one, you can win a lot more victories by making him (the rancher) pay for what he does out there and by making it so expensive in his operation and making so many changes for him to continue to run his cattle on the public lands that he goes broke, he can't do it, he has to come up with other ways to be a rancher."

"When you get right down to it, the boots and the hat, boy for them guys, it’s a way of life."

"The ultimate picture is, of course, the last cattle truck driving off into the sunset, but that's not how you win."

"How you win is one at a time, one at a time, he goes out of business, he dies, you wait him out, but you win."

That was the mindset of Forest Service employees and their friends in the environmental movement Hage was up against. He learned from researching the situation “that it was actually the National Wildlife Federation that controlled what the Forest Service did, and the political agenda of the National Wildlife Federation was to drive the rancher off the range.”

But that eye-opener came later. In 1978, shortly after telling the NPS guys to do their research, he found himself attacked by two other federal agencies – and he didn’t know why.

“The U.S. Forest Service laid claim to the bulk of my water rights by filing claims on them through the Nevada State Water Engineer,” Hage writes. “Both the USFS and the BLM engaged in a systematic effort of harassment designed to drive me out of business.”

In 1979, one year after the family purchased the ranch, the Forest Service allowed the release of non-indigenous elk on one of the allotments. The elk competed with the cattle for forage and water and broke down fences. However, instead of controlling the elk, the Forest Service fined Hage for not maintaining the fences and reduced the number of cattle he was allowed.

The harrassment intensified. The Forest Service used helicopters to scatter the cattle, making it impossible for Hage to collect them in time to avoid a trespassing penalty. He was cited (and fined) for “maintenance failure” when he missed a single staple along hundreds of miles of barbed wire fence.

In one 105-day period in the early ‘80s, the Forest Service sent Hage 40 certified letters and personally visited him 70 times, citing him each time as being in violation of a bureaucratic regulation.

Perhaps the most capricious action was to demand the Hages maintain the irrigation ditches with nothing but hand tools.

“The hand tools requirement prevented all effective ditch maintenance, as it cannot be seriously argued that the work normally done by caterpillars and back hoes could be accomplished with hand tools over thousands of acres,” Judge Smith wrote in his recent ruling.

Such a requirement, he declared, “was based solely on hostility to Plaintiffs.”

Fighting harassment didn’t come cheap or easy. With every citation the tab increased, raising the price of cattle production and cutting profits. Hage was forced to file numerous administrative appeals with the federal agencies between 1978 and 1990 – each appeal costing thousands of dollars. And eventually the Hages were facing bankruptcy.

The situation came to a head in Feb., 1991, when David Grider, Humboldt-Toiyabe National Forest district ranger, canceled Hage’s livestock grazing permit altogether on fabricated charges of overgrazing and “trespassing cattle on public lands.”

Driven into the ground financially, his grazing permits cancelled, Hage had no choice “but to sell the cattle and the land for whatever I could and hope that I could get out of there with the shirt on my back.”

SWAT Those Cowboys!

That July the Forest Service brought in the big guns – literally.

While Hage and his work crew (which included 15-year-old Wayne, Jr.), were out on the range rounding up cattle, “the USFS came in: automatic weapons, flack jackets, snipers – the whole works – as if we were dangerous criminals. The USFS confiscated over a hundred head of my cattle at gun point. But when they tried to sell them, no one in Nevada would buy them because they knew they were stolen. The Forest Service, a federal agency, was engaged in cattle rustling! They had stolen my cattle and were trying to steal my land as well.”

On Sept. 26, 1991, the Hages filed a “taking” case in the U.S. Court of Federal Claims, demanding just compensation for the property taken, as provided by the Fifth Amendment to the U.S. Constitution.

“Now the court was going to have to answer the question plaguing the western livestock industry for over a century,” he said. “Does the rancher actually own the water, forage and access rights in his grazing allotments? Or, does the rancher only a conditional privilege to graze public lands, a privilege that can be terminated by the U.S. government without compensation?”

Those are the issues.

In January, 2002, Judge Smith handed down a 35-page Final Opinion, holding that Hage “by the preponderance of evidence” had demonstrated that he had vested water rights for livestock grazing on his allotments and these were compensable property rights under the Fifth Amendment of the U.S. Constitution. Moreover, any attempt by the federal government to block access to the use of that property means the U.S. must give just compensation for the taking.

Six years later, the final phase of litigation has been completed. The judge determined that several “takings” had occurred and calculated how much is owed to the Plaintiffs – or, rather, to their estates.

Sadly, because the 17-year lawsuit dragged on so long, neither Hage, nor two other leading participants in the ongoing battle, are able to taste the fruits of victory. The rancher who had fought so long and hard, died at his home at Pine Creek Ranch, exactly two years ago to the day – on June 5, 2006 -- from a sudden recurrence of the cancer which he thought he had overcome. His first wife Jean, who fought at his side from the very beginning, suffered a fatal heart attack and stroke in 1996, brought on by the stress of the case.

Hage’s second wife – former U.S. Representative Helen Chenoweth-Hage, R-Idaho, a property rights champion -- whom he married in 1999, perished tragically in a single-car accident in October 2006, just four months after the death of her husband.

“My parents wanted resolution,” commented Byfield. “They were told by the agencies that they had no property rights on the federal lands. They pursued this case so that this 60-year conflict between ranchers and agencies could be settled, and future generations of ranchers would have the security of their property rights. They succeeded.”

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A wealth of information, including legal documents, on this landmark case -- Hage v United States -- is archived at the Stewards of the Range website:

For legal briefs, opinions, orders, etc..

For a Timeline from 1990 through April 2003. (Includes the remarks by Roy Elicker)

Wayne Hage is author of the pathbreaking book: Storm over Rangelands: Private Rights in Federal Lands (1989).