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Reversal of fortune

Mar 3, 2017

Pete Crow

The District court of Nevada dealt the final death blow in the long-running Wayne Hage grazing dispute and once again reinforced who owns the federal lands in the West. Last week Chief Judge Gloria Navarro, an Obama appointee, ruled that the Hages were illegally trespassing on what was their grazing allotment, and ordered them to pay $587,000 and to permanently remove all their livestock from public lands within 30 days.

The judge also blocked the estate from allowing any livestock to enter public lands in the future without written authorization. The judge said, “Defendants have no property right on the federal lands at issue. In this case that includes the right to graze livestock on those lands.”

This Hage case seems like a bad dream because it keeps coming back. I admire the Hage family’s resolve. The case goes back to 1979 when Wayne Hage, Sr. realized the BLM and the U.S. Forest Service (USFS )were taking a little too much interest in his ranch operation.

Initially, Hage stumbled into several federal agents who were surveying his grazing allotment for water and were intending to file a water rights claim. Hage had operated the property for years and the water rights were a vested property right on the ranch. The USFS and BLM had filed claims on 160 vested water rights. This forced Hage to file a takings claim against the federal government for the taking of private land, water rights, and irrigation ditch right of way, forage rights, rangeland improvements and cattle. He did prove taking on his water rights and private inholdings, and that he was denied the ability to use them.

Later, the USFS claimed he was overgrazing the allotment and canceled his grazing and water permits for five years; the battle was on. In 1996 the U.S. Court of Federal Claims handed down a ruling that Hage’s taking claim would go to trial. Hage was eventually awarded somewhere around $14 million to settle his takings claim, though he never received the settlement.

The Hages had a friendly judge in the district court that ruled against the government. However, the Ninth Circuit Court of Appeals didn’t like the smell of Judge Jones’ brand of justice and asked that the district court remand the case because the judge was so biased toward the federal agencies.

Realizing they owned the water rights, the Hages continued to graze cattle, without a permit on the right of way on his irrigation ditch. So cattle grazed on both sides of the ditch under the assumption that the federal government couldn’t refuse them the right to use the water. This is where the current trespass claim by the feds comes into play. The Hages also needed a permit for the conveyance of the water in the ditch.

Much of this episode started when Hage didn’t properly fill out his grazing permit, which caused the feds to cancel them. This case is so extensive and intertwined with a series of suits that I’m sure I won’t get it all right. But the way I see it, there was a bad relationship between the federal agencies and the Hages. Hage felt that the land agencies were coming after him and his rights to graze. Both parties are at fault for not working together.

The point is: Hage did have preferential grazing rights ensured by his adjacent private property, land and water. He did have water rights and proved it, but water right doesn’t guarantee your preferential grazing permit although it certainly helps. By going to battle with the federal agencies, the Hages eventually lost their preferential grazing permits. Those preferential permits have a tremendous value when associated with his private inholder property rights and water right. They lost a lot of value in the entire ranch operation.

However, on the other hand, the feds did seem to be aggressive in their own right and a contempt case was also filed. The Hages did endure harassment and were abused by the agency personnel. We hear these stories all the time and they seldom have favorable endings. It is these episodes that have enraged many public land ranchers and has led to the newly created Allotment Owners Association.

But this is a good reason why you should not heed the advice of the Allotment Owners Association. Taking their advice could put you in the same boat as the Hages. As a matter of fact, our friend Angus McIntosh worked closely with the Hages in their quest for Justice on the federal lands. — PETE CROW

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