Legal battle ends with BLM and Forest Service employees facing contempt

Aug 3, 2012

Following 10 weeks of a preliminary bench trial in a Reno, NV, federal courthouse, U.S. District Court Chief District Judge Robert C. Jones ruled June 6 that the U.S. Forest Service and Bureau of Land Management (BLM) engaged in an intentional conspiracy causing irreparable harm to family members and the estate of the late Wayne Hage.

Author of “Storm Over Rangelands,” Hage was a Nevada rancher who gained notoriety fighting the federal agencies over cattle grazing and water rights. He died in 2006 from cancer.

He and his wife, Jean, nearly 35 years ago acquired Pine Creek Ranch in central Nevada, consisting of 7,000 acres used mainly for grazing cattle. He came to epitomize the West’s Sagebrush Rebellion against federal dominance of public lands and resources. The Hages received their first grazing permit in 1978 for six allotments on the Toiyabe National Forest, where they faced a limited water supply. The permit was modified in 1984 and 1991.

They used federal land easements or “ditch rights-of-way” to transport water for irrigation, stock watering and domestic purposes.

In Jones’ preliminary conclusion in this ongoing legal battle, he gave written notice of civil contempt against Tom Seley, a Forest Service ranger, and Steve Williams, a BLM manager, for obstruction of justice and contempt of the court’s processes. He said the two also face potential criminal prosecution for their involvement in the conspiracy.

Despite rulings by three federal courts, “they have continued an attempt to deprive the Hages of their permit rights and their water rights,” Jones said, adding they entered into the conspiracy in violation of the Racketeer Influenced and Corrupt Organization Act, violating mail fraud and fraud provisions. Jones enjoined them from issuing further trespass notices to the Hages or those leasing cattle from them, saying Seley and Williams evidenced no ability to manage the dispute.

Jones also ordered the Forest Service and BLM to act reasonably in granting permits to the Hages and managing grazing preferences.

He said most of the U.S. government’s case against Hage’s estate and his son, Wayne Hage Jr., “was spent in constructing straw men and straw men arguments and then challenging defendants to knock them down.”

Starting in the late 1970s and into the 1980s, “the government entered into a conspiracy to intentionally deprive the defendants here of their grazing rights, permit rights, preference rights,” Jones said, noting it began with the Forest Service and later BLM.

The judge stated: “My finding is that the government entered into an intentional deprivation of Hage’s property rights and privilege rights, preference rights. For whatever motivation, they have demonstrated a repeated and continuing course of conduct and a pattern which demonstrates to the Court that it will continue in the future unless I enjoin it.”

The judge criticized the federal agencies for issuing trespass notices to some engaged in leasing relationships with the Hages and collecting large sums of money from them.

“Especially the collection from innocent others of thousands of dollars for trespass notices is abhorrent to the Court, and I express on the record my offense of my own conscience in that conduct,” Jones stated. “That’s not just simply following the law and pursuing your management right, it evidences an actual intent to destroy their water rights, to get them off the public lands.”

The judge noted that the Forest Service sent 40 letters to the Hages charging them with various violations, paid 70 visits to their property, and filed 22 charges against them in 1983.

“Many of these complaints cited issues of fence maintenance, some of them extremely minor infractions.

In addition, the Forest Service insisted that plaintiffs maintain their 1866 Act ditches with nothing other than hand tools,” Jones stated. “The government threatened to prosecute (the Hages) for trespassing if they entered federal lands to maintain their ditches.”

Meanwhile, willows, other riparian growth and vegetation proliferated upstream from the Hage lands, significantly reducing water flow to their irrigated pastures.

In July 1990, the Forest Service ordered the Hages to remove all cattle from Meadow Canyon by August that year when it sent the Hages a letter asking them to show cause as to why 100 percent of their cattle numbers on the Meadow Canyon allotment should not be canceled.

They did not get the letter until Aug. 20, although it gave them six days from Aug. 17 to comply.

In the fall of 1990, a district ranger notified the Hages that any cattle found in Meadow Canyon were subject to impoundment. In 1991, the Forest Service twice impounded the Hage cattle. When the Hages were unable to redeem the cattle by paying impoundment costs, the Forest Service sold the cattle at auction and kept the $39,150 in proceeds, Jones noted.

The judge found that the foraging right to a water source right is half a mile from a stream on either side and half a mile in radius around a sole point water source. He said he would render a final decision after reviewing briefs.

Reacting to Jones’ conclusions, Ramona Hage Morrison, one of Hage’s daughters, said, “All of our jaws thoroughly dropped.” A Boise defense attorney represented the Hage estate, Hage Jr. represented himself because of his inability to afford a lawyer and Morrison served as a paralegal. Their bare bones legal team consisted of “an attorney, a cowboy and housewife,” she remarked.

Morrison said her family has been enmeshed in court proceedings for 21 years, including 12 weeks of trials, in addition to three administrative appeals, as well as water adjudications, depositions and hearings. “So I guess you could say going forward we will be able to ranch in the future without being molested,” Morrison told the Western Livestock Journal.

Morrison said her father was largely dismissed by livestock producers, ranchers, judges and attorneys “as out to lunch” when he fought the federal government for his property, grazing and water rights, but he extensively documented his case.

He felt some in the Sagebrush Rebellion missed the mark with their legal arguments, she said. After Morrison’s mother died, Hage married Helen Chenoweth, a former Idaho congresswoman whom Morrison praised. Chenoweth-Hage was killed in a traffic accident a few months after Hage died.

“The thing that alarms me personally is how many people have walked away from their grazing allotments and feel no ownership,” Morrison said. “We in the ranching industry commonly have a ‘serf mentality.’ A lot are not even sure they own water rights. To me, that is horrifying.”

In the West, the livestock industry has been devastated and ranchers have been so heavily regulated that they have struggled to keep their cattle operations viable, but Morrison said she is finally optimistic for the industry and sees hope for it.

Morrison said she expects the federal government to appeal the judge’s conclusions. On July 26, in another case, a U.S. Court of Appeals reversed compensation awarded to the Hages and found the Hages presented no evidence that the government took any water that they could have put to beneficial use.

“The two conflicting cases in all likelihood will end up in the U.S. Supreme Court,” Morrison predicted. — Mark Mendiola, WLJ Correspondent