HOME

May/June 2007
Volume I; Issue 2
Special Report:
Conservation Easements

And We Wait
Decision in Hage v. United States still pending

By Fred Kelly Grant

Western ranchers again anxiously await word from Judge Loren Smith in Hage v. United States. Long, long ago, the judge decided that Wayne and Jean Hage held vested water rights on the federal lands they grazed. He held that those rights had been established, and vested, under Nevada state law. He also decided that they had the right to deliver the water through 1866 ditch rights of way, that they held forage rights, and the right to access the water and forage.

The Government contested the existence of such property rights, and invited the judge to rule for the Government in summary judgment proceedings (that is, a decision based on the law without trial of the facts). Judge Smith declined the invitation, presided over hearings where the facts were thoroughly presented, and found as fact and law that the Hages did in fact hold such property rights.

Smith was the Chief Judge of the Court of Claims when he issued this decision. As the case meandered through the procedural maize, Judge Smith reached retirement age, but continued to preside as senior judge. Years ago now, he tried the issue of whether the Government had “taken” Hage’s rights and the issue of the amount of compensation due for such “taking.”

Late last year, the parties were told by the judge to expect a decision no later than January, 2007.

Meanwhile, the case of Colvin v. United States more quickly wound its way to decision. Colvin was filed in the Court of Claims, but not assigned to Judge Smith. The case moved quickly because the assigned judge did not factually try the case. He decided the issues on the bare bones of motions, affidavits and documents. The judge heard no witnesses and had no evidence of a Government run amok as was evidenced in Hage. The judge dismissed Ben Colvin’s complaint, ruling for the Government on all issues.

The Colvin decision was appealed, and, again, without a trial record of testimony and fact regarding a rancher deprived of his rights, the Federal Circuit Court affirmed the dismissal. The Court announced that there was no private property interest in the grazing preference itself. It also announced that even though the rancher had water rights to water livestock on the federal lands included in his ranching operations, the Government’s refusal to allow him to graze those lands did not interfere with his use of his water rights. The Court did not consider the question of “how” the rancher will make meaningful use of his stock water rights if he has no right to reach the water to water his stock.

Counsel for Colvin, who also represent the Hage estate, petitioned for reconsideration and for a new hearing by the full panel of the Federal Circuit Court. That’s where we left the story in the last issue of Standing Ground.

The Federal Circuit Court has now denied the motion for a new hearing and reconsideration by the full panel of judges. So, the decision made by the three-judge panel of that Court stands.

The problem created for the Hage case is that this is the same Circuit Court that will review any decision made by Judge Smith. Just before this story was written, a rancher told me he thought that only the Supreme Court had review over the Court of Claims. Others may have the same misconception, so it may be helpful to lay out the process: Judge Smith is the trial court for the Court of Claims in Hage; his decision may be appealed by either losing party to the Federal Circuit Court which sits in the District of Columbia. That Court reviews the trial court’s decision and either affirms or reverses, and then the losing party may appeal the decision to the United States Supreme Court. From the standpoint of the judicial hierarchy, Judge Smith is at the same level as a District Judge. All who have been victimized by Judge B. Lynn Winmill (U.S. Dist. Idaho) know that his decisions can be appealed to the Ninth Circuit Court of Appeals. A District Judge’s decision is appealed to the Circuit Court of Appeals for the geographic circuit in which the trial court is located. But, all Court of Claims trial decisions are appealed to the Federal Circuit Court in the District of Columbia.

Since the Colvin decision was issued by the very Circuit Court which will review Judge Smith’s decision, counsel has now taken an aggressively strong position to show Judge Smith that he is not bound by Colvin because the facts are totally distinguishable from those which have been determined by trial in Hage. Many of you know through personal judicial experience that a prior decision is not binding precedent if the facts are distinguishable. We have all witnessed courts analyze a prior decision closely to determine whether it is distinguishable on its facts. If so, it does not tie the judge’s hands in the case currently before him. The age old idiom of the law is “different facts call for different law.” It is complemented by other “unwritten” rules that trial lawyers are cognizant of and devoted to: “no facts make bad law,” “bad facts make bad law,” and “good facts lead to good law, sometimes.”

Ladd Bedford and Mike VanZandt have filed a brief with Judge Smith, which calls his attention to the differences between the two cases. They point out that the “taking” actions by the Government proven by facts in evidence in Hage are far different from the taking actions by the Government alleged in Colvin. The core of this argument is that the “circumstances in Colvin, where the grazing lease was cancelled because of Mr. Colvin’s failure to pay the grazing fee” are totally different from the facts in Hage where there is no evidence that, “the Hages failed to pay their grazing fees.”

The importance of this distinction is more critical than it might at first glance seem. Failure to pay the grazing fee put the Colvin case into a category in which the Government could resort to specific rules, which prohibit grazing without a permit or lease. Non-payment of the fee was the route used by the BLM to cancel the Colvin permit and issue trespass decisions and assess trespass damages.

Wayne and Jean Hage had made sure that such route was not available to the Government in their case. As counsel point out to Judge Smith, “there were numerous acts of both regulatory and physical takings, which resulted in the Hages’ loss of their property rights.” In Hage, the fees were paid in an effort to comply with all agency regulations. The Hage evidence showed that the Government fenced off water, preventing Hage from getting his cattle to water to which he had the right, and to use forage along the water to which he had the right, that the Government allowed proliferation of willows and other growth to block water flow through steams and ditches owned by Hage; then criminally charged Hage when he tried to clear the growth to maintain stream and ditch flow; suspended and cancelled cattle numbers on one allotment for the admitted reason of punishing Hage; introduced non-indigenous elk on one allotment which prevented Hage from getting his cattle to water and adjacent forage to which he had a right; and, then continued one allotment at a time to reduce herd numbers, confiscate some of the herd, and then penalize Hage for not grazing enough cattle on the allotments when the Government itself had prevented grazing by adequate numbers. None of these facts were present in the Colvin case.

Counsel has acted with forceful language to convince Judge Smith that Colvin is distinguishable from Hage where a long, hard road of proven facts show that the Government set out to get Wayne Hage off the land and take control of his land and water. On that basis, they ask Judge Smith to make his decision on the basis of the facts proven at trial, not on rigid compliance with a distinguishable case.

Once Colvin was decided by the Federal Circuit, the Government was quick to point out the decision to Judge Smith, hoping that he will look at it as a block to a favorable decision in Hage. Amici Curiae (“friends” of the court) the Nevada Department of Wildlife, the National and Nevada Wildlife Federations, the Natural Resources Defense Council, and the Toiyabe Chapter of the Sierra Club quickly joined the Government, filing motions and briefs calling for Judge Smith to dismiss Hage.

The Amici contended that the following statement from the Colvin decision bars any other decision by Smith: “The United States can prohibit absolutely or fix the terms on which its property may be used.” Thus, argue the amici, there is no merit to the position that the Government was obliged to allow the flow of water by either maintaining or permitting Hage to maintain the ditches and to avoid ruining a ranch operation by reducing or eliminating grazing.

Hage counsel point out that the facts in Hage cry out for a different legal result. Hage proved vested property rights to the water under Nevada law, which rights were confirmed by the Mining Act of 1866. The Hage water rights, established before the Mining Act of 1866 was passed, were appurtenant to his ranching operation and thus no longer public lands which can be regulated “at will” by the Government. Counsel again cite to Judge Smith the case decision in Bardon v. Northern Pacific R. Co., 145 US 535 (1982) which states that public lands do not include land to which property claims or rights of others have attached.

Counsel point out to Judge Smith that Colvin is also distinguishable from Hage because, “there was no irrigation water issues in Colvin” as there are in Hage. They point Judge Smith to the fact that the concept that the Government can do as it wants with its own property has no applicability to delivery of water to irrigate private lands.

Counsel for Hage urge Judge Smith to freely make his decision on the facts, which he tried, and not consider himself “bound by Colvin.” In their brief, they address each of the points of the Colvin decision, which on their face might seem to prevent Judge Smith from deciding in favor of the Hage estate. Of course, all government agencies and the amici organizations hopefully see a potential impasse for Judge Smith. But, if he continues the careful scrutiny of fact and law which lead him through the morass of motions to the actual takings trial, he will see the distinguishing factors between Colvin and Hage, and make his decision based on the Hage facts.

For now, we wait, again! Another major obstacle must be overcome for a decision, which will acknowledge private property rights in western ranch operations. Our ancestors settled the arid west at the invitation of, upon incentives provided by, and with the blessings of the Government. They acquired rights under the custom and culture, which lead to development of state property law. Now that urbanization and growth make different demands on politicians, the Government wants back the land and water. A favorable decision for ranchers in the Hage case is all that stands in the way of the Government taking both back without compensation.