PLC and NCBA ask Supreme Court to settle Hage case

Mar 1, 2013
by WLJ

—Call for a limit on the federal government’s reach.

Public Lands Council (PLC) and the National Cattlemen’s Beef Association (NCBA) are asking the U.S. Supreme Court to take up and settle a decades-long property rights case, Hage v. United States. The high court would determine whether the U.S. Forest Service (USFS) violated the Takings Clause of the U.S. Constitution when it interfered with Nevada ranchers Wayne and Jean Hage’s stock water rights.

In January, the Hage family filed a writ of certiorari with the Supreme Court appealing a claims court judgment that stripped away part of their $14 million award in a suit against USFS over grazing rights in Monitor Valley.

PLC and NCBA were joined by Nevada Cattlemen’s Association, Oregon Cattlemen’s Association and Washington Cattlemen’s Association in their brief of amicus curiae, filed by Western Resources Legal Center (WRLC).

“We believe that the case’s precedent-setting nature and importance to livestock producers’ property rights merits the Supreme Court’s consideration,” said Brice Lee, Colorado rancher and PLC president. “They deserve compensation for what the Forest Service took from them. Ranchers cannot operate without access to the water that is legally theirs.”

USFS had denied the Hage family access to ditches supplying their stock and several meadows with water. The agency demanded that the family file for a permit in order to maintain and use the water. Although a federal claims court decided the Hages were owed compensation by the agency for the water taking, the Federal Circuit Court of Appeals reversed this determination in part.

“This case threatens the ability to carry out livestock activities both on and off federal land,” said WRLC Executive Director and representing Counsel Caroline Lobdell. “The federal agency, in effect, would be armed with the authority to unilaterally determine what constitutes reasonable or routine maintenance, and therefore empowered to subjugate vested 1866 Mining Act rights-of-way in favor of whatever policy rules the day.”

According to NCBA President and Wyoming rancher Scott George, if the agency is allowed to demand a permit for Hage’s ditch right-ofway, county road rights-ofway established under the Mining Act (known as “R.S. 2477 roads”) would also be in jeopardy. This would further threaten ranchers’ ability to stay in business, George said, since they often depend on those roads to access their grazing allotments.

Lee summed up the case’s importance to livestock producers nation-wide. “The implications to livestock producers at-large are undeniable. This case, if not overturned, stands to remove the protective boundaries surrounding what constitutes a property right versus a ‘permitted use.’ It will lay a marker regarding individuals’ right to compensation for government takings.

We strongly encourage the Supreme Court to take up this case.”

Hage, who died in June of 2006, has been hailed as a hero in the public lands arena after suing USFS for $28 million in 1991 when the agency seized 100 head of cattle he was grazing on the Meadow Canyon allotment in the Humboldt-Toiyabe National Forest. According to USFS, Hage was overgrazing the land, causing ecological damage.

U.S. Claims Court Judge Loren Smith awarded Hage a $14 million judgment in 2002 after he found that USFS and government actions prevented the Hage family from accessing their 1866 ditch rights. Smith ruled Hage had a right to let his cattle use the water and forage on the federal land where he held a grazing permit.

Hage’s 1978 Pine Creek ranch in Monitor Valley included 7,000 acres of private land, and he had about 752,000 acres of federal grazing permits.

The U.S. Court of Appeals overturned important parts of the judgment last August. A statement from the Hage family read at the county commissioners’ meeting, noted the appeals court decision occurred on the 146th anniversary of the passage of the 1866 Mining Act, designed to encourage people to move west by protecting their property rights. — Traci Eatherton, WLJ Editor