It is like fighting the Hydra, cut off one head and two grow back.
But
the federal government is no myth. It is immortal. It has the power to
print money and hire an army of attorneys whose job security depends on
ceaseless litigation with no risk to themselves or their livelihoods.
The
first generation of Hage family ranchers has died off while fighting in
the courts for their rights, but the current generation vows to press
on to the U.S. Supreme Court.
...The latest litigation setback came in
January when the 9th U.S. Circuit Court of Appeals tossed out a Nevada
federal judge’s ruling in their favor. In a 104-page opinion Judge
Robert Jones accused government officials of entering into “a literal,
intentional conspiracy to deprive the Hages not only of their permits
but also of their vested water rights. This behavior shocks the
conscience …”
The appeals court accused Judge
Jones of being biased against the federal land agents and took him off
the case, even though Judge Smith had reached similar conclusions about
the conduct of the federal agents, calling their behavior harassment and
hostility.
“First, Plaintiffs
had a significant investment-backed expectation in the ditches, as these
were the primary means for conveyance of water for irrigating the
Ranch. The ditches were rights purchased along with the Ranch,” Judge
Smith wrote. “Second, Plaintiffs offered ample evidence that the Forest
Service had engaged in harassment towards Plaintiffs, enough to suggest
that the implementation of the hand tools requirement was based solely
on hostility to Plaintiffs. Third, the economic impact of this
regulation was considerable; it would have been economically impractical
for Plaintiffs to hire enough men with hand tools to perform any sort
of substantial work clearing the ditches.”
Judge
Smith ruled the Hage ranch had a right to access its vested water
rights, but the 9th Circuit basically ruled the ranch had no right to
let cattle graze while getting to that water.
According
to a Hage family press release posted by Range magazine, the family
sees the conflict in rulings as something the Supreme Court needs to
resolve.
“It is only the Ninth
Circuit three-judge panel, after a 45 minute hearing, which determined
that they are better arbiters of the truth than the two judges from two
separate federal courts who actually saw the evidence and heard
witnesses testify over a combined period of 43 trial days,” the press
release states. “The Ninth Circuit panel, in reaching their desired
outcome in U.S. v. Hage has managed to significantly diminish western
water law and the laws governing rights of ways for roads, ditches and
canals across federally administered lands, leaving the Hages no choice
but to seek relief at the U.S. Supreme Court.”
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