By Thomas Mitchell
It is like fighting the Hydra, cut off one head and two grow back.
But the federal government is no myth. It is immortal. It has the power to print money and hire an army of attorneys whose job security depends on ceaseless litigation with no risk to themselves or their livelihoods.
The first generation of Hage family ranchers has died off while fighting in the courts for their rights, but the current generation vows to press on to the U.S. Supreme Court.
In 1978, E. Wayne Hage bought the Pine Creek Ranch near Tonopah. It included 7,000 acres of private land and grazing permits for 752,000 acres of federal public land, as well as water rights. The very next year he clashed with the Forest Service when it agreed to a plan to stock elk on Table Mountain.
Hage complained that the elk would drink his water and eat his grass.
According to court records, the relationship between the rancher and federal land agents deteriorated from there.
“In 1983, Plaintiffs received 40 letters from the Forest Service charging them with various violations,” wrote U.S. Court of Federal Claims Judge Loren Smith in 2008. “In the same year, the Forest Service paid 70 visits to Plaintiffs. Following the 40 letters and 70 visits, the Forest Service filed 22 charges against Plaintiffs. Many of these complaints cited issues of fence maintenance, some of them extremely minor infractions. (One was a loose staple in a fence post.) In addition, the Forest Service insisted that Plaintiffs maintain their 1866 Act ditches with nothing other than hand tools.”
Judge Smith — citing the Fifth Amendment prohibition against “taking” private property without just compensation — awarded the Hage estate $4,220,431.20, plus interest and attorney’s fees and costs. The total has long since topped $14 million, but the Hages have not seen a dime as various appeals courts have ducked and remanded and dismissed.
Though turned down once by the Supreme Court, Hage’s son Wayne N. Hage and daughter Ramona Hage Morrison say they plan to appeal one of their cases to the high court.
The latest litigation setback came in January when the 9th U.S. Circuit Court of Appeals tossed out a Nevada federal judge’s ruling in their favor. In a 104-page opinion Judge Robert Jones accused government officials of entering into “a literal, intentional conspiracy to deprive the Hages not only of their permits but also of their vested water rights. This behavior shocks the conscience …”
The appeals court accused Judge Jones of being biased against the federal land agents and took him off the case, even though Judge Smith had reached similar conclusions about the conduct of the federal agents, calling their behavior harassment and hostility.
“First, Plaintiffs had a significant investment-backed expectation in the ditches, as these were the primary means for conveyance of water for irrigating the Ranch. The ditches were rights purchased along with the Ranch,” Judge Smith wrote. “Second, Plaintiffs offered ample evidence that the Forest Service had engaged in harassment towards Plaintiffs, enough to suggest that the implementation of the hand tools requirement was based solely on hostility to Plaintiffs. Third, the economic impact of this regulation was considerable; it would have been economically impractical for Plaintiffs to hire enough men with hand tools to perform any sort of substantial work clearing the ditches.”
Judge Smith ruled the Hage ranch had a right to access its vested water rights, but the 9th Circuit basically ruled the ranch had no right to let cattle graze while getting to that water.
According to a Hage family press release posted by Range magazine, the family sees the conflict in rulings as something the Supreme Court needs to resolve.
“It is only the Ninth Circuit three-judge panel, after a 45 minute hearing, which determined that they are better arbiters of the truth than the two judges from two separate federal courts who actually saw the evidence and heard witnesses testify over a combined period of 43 trial days,” the press release states. “The Ninth Circuit panel, in reaching their desired outcome in U.S. v. Hage has managed to significantly diminish western water law and the laws governing rights of ways for roads, ditches and canals across federally administered lands, leaving the Hages no choice but to seek relief at the U.S. Supreme Court.”
The Hages are asking for donations to help defray the cost of continued litigation.