Hage case’s impact on minor roads raises red flags

Wayne Hage

By Mark Waite

    The Hage family last Thursday filed a writ of certiorari with the U.S. Supreme Court, appealing a claims court judgment that stripped away part of their $14 million award in a suit against the U.S. Forest Service over grazing rights in Monitor Valley.
    Nye County Commissioner Lorinda Wichman said Tuesday she’s afraid the ruling by a court of appeals for the federal circuit overturning part of the judgment in the Wayne Hage case — that only hand tools are allowed to be used to maintain roads in the national forest — could jeopardize the $250,000 the county spent on the minor road inventory. The county inventoried more than 3,000 miles of minor roads to establish the public rights to use them.
    District Attorney Brian Kunzi said he would file a friend of the court brief in support of the family of Wayne Hage, who died in June 2006.
    Hage was a hero of the public lands movement who sued the forest service for $28 million in 1991 after the agency seized 100 head of cattle he was grazing on the Meadow Canyon allotment in the Humboldt-Toiyabe National Forest. The forest service said the land was overgrazed, causing ecological damage. Hage authored a book called “Storm over Rangelands.”
    U.S. Claims Court Judge Loren Smith awarded Hage a $14 million judgment in 2002 after he found government actions prevented the Hage family from accessing their 1866 ditch rights, amounting to a physical taking. Smith ruled Hage had a right to let his cattle use the water and forage on at least some of the federal land where he held a grazing permit.
    Hage acquired the Pine Creek ranch in 1978 in Monitor Valley, which included 7,000 acres of private land; he also used about 752,000 acres of federal land under grazing permits. But trouble began after the forest service allowed the Nevada Department of Wildlife to release elk into the Table Mountain allotment in 1979.
    The U.S. Court of Appeals last August overturned important parts of the judgment. A statement from the Hage family Wichman 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.
    In the Hage case, Wichman said the appeals court reversal allowed the forest service to demand the Hages seek permission before they could access and maintain their rights of way unless they limited themselves to the use of hand tools.
    “The Federal Circuit Court of Appeals overlooked well more than 100 years of local customs, laws and court decisions, including a 2005 decision by the 10th Circuit Court of Appeals and the claims court that recognized that no such permit could be required,” Wichman said reading the statement.
    “This is not just a fight between solitary ranchers and the government. The ruling, if it stands, may impact virtually every major highway and water system in the West,” the statement read.
    Wichman said Nye County used the 1866 Mining Law as a basis in asserting the publics right to use the minor roads in compiling the county inventory.
    “We have claimed jurisdiction on all those roads that have existed prior to the reserve of the forest service and BLM. To do that we basically used the 1866 Mining Law, which gave express jurisdiction to those people that are using the roads. So how it threatens it is, if that judge has determined that the forest service can tell you that all you can do in the forest is to work with hand tools, those roads are maintained by use, which is ordinarily motorized vehicles,” Wichman said Tuesday.
    “What happens to those roads if you cannot take machinery down the road? If you cannot drive a vehicle down the road, you cannot maintain those roads because that’s what keeps the roads open,” she said.
    Wichman, who has made the minor road inventory her pet project, said all the minor county roads in the national forest in Nye County have been inventoried and all roads in areas managed by the U.S. Bureau of Land Management south of Beatty. On the Tuesday county commission agenda, the Board of Road Commissioners accepted another 17 minor county roads.
    Each road acceptance includes photos of the road, a topographical map, a legal description with township and range, the length and width of the road.

From the 1/25/2013 Pahrump Valley Times