WAYNE HAGE/US COURT OF FEDERAL CLAIMS

Final battle in the war for the West?

The little-known U.S. Court of Federal Claims has set up shop in Reno, Nev., to hear what may be the final phase of a 13-year legal battle between Wayne Hage and the federal government, the result of which will either send seismic shockwaves through the government and the environmental community or signal the end of ranching and other resource use on federal land.

Much to the chagrin of federal agencies and the environmental community, Presiding Judge Loren Smith already ruled on Jan. 29, 2002, that Hage does, indeed, have a "vested water right" and title to certain "fee lands" adjacent to the water on his Pine Creek Ranch in Nevada.

Hage has been denied the use of his private property since 1991, when the federal government confiscated his cattle because, according to David Spohr, the government's attorney, "[Hage] continually broke the law, repeatedly trespassing cattle on public lands after being warned to remove them."

Hage has contended that the government had no power to require him to remove his cattle, since he owned the water rights and title to adjacent "fee lands."

Judge Smith told both sides: "We're not here to question whether the government could do what it did. The question is, can the government do what it did without compensation?"

If the court rules the government's denial of use of Hage's private property constitutes a "taking," then the government will be required to pay "just compensation" as required by the Fifth Amendment.

The budget-busting implications of this ruling has federal bureaucrats biting their nails. Hage believes compensation is due and that compensation must be paid on the basis of highest and best use of the resource. Since his property rights were denied in 1991, water has become an extremely valuable commodity, especially for drought-stricken urban areas such as Las Vegas and Reno. Should the government have to pay compensation for lost water sales, to which the judge has already ruled that Hage has exclusive rights, the size of the award could be staggering....