Hage Takings Case Denied Hearing by Claims Court

By Margaret Hage Byfield

Story Featured on Fox News this Weekend 

The historic Hage v. United States takings case is finally coming to a close after 23 years in court. The award of compensation for the taking of the Hage’s water, rights-of-way and range improvements was reversed by the U.S. Court of Appeals for the Federal Circuit in 2012 (Appellate Court). Now it appears that the United States Court of Federal Claims (Claims Court) will not be granting the Plaintiffs a hearing to allow them to argue that only parts of the compensation claim were reversed. 

Plaintiffs asked for the hearing in the Claims Court to allow them to argue that the Appellate Court reversed part, but not all, of the Claims Court decision, which originally awarded compensation for $14.4 million dollars as well as attorney fees. In a November 4, 2013 decision, the Claims Court denied a hearing finding that the Appeals Court did in fact reverse the entire compensation award. Plaintiffs have submitted additional motions, but a hearing appears unlikely. 

The case was originally filed in 1991 by Wayne and Jean Hage, two Nevada ranchers whose story is well known in the West. In fact, Fox News will be airing their story in a special report this Saturday, April 5, 2014 at 10 P.M. EST and again on Sunday, April 6th at 9 P.M. EST. The program is titled “Enemies of the State.” 

Wayne and Jean Hage purchased Pine Creek Ranch in 1978, a large cow-calf operation in Central Nevada comprised of 7,000 private deeded acres and 752,000 acres of federal grazing lands. They owned all the water on the ranch, adjudicated by the State of Nevada, for livestock grazing. Immediately after purchasing the property, their ranching operation became a target of the federal agencies. The water, while not very valuable for livestock grazing, is gravity flow to Los Angeles, California and Las Vegas, Nevada.

Within a short time of owning the ranch, the U.S. Forest Service filed claim to the Hage’s water rights, fenced off critical springs, and eventually canceled their grazing permits.

In their first 105 day summer grazing season, the Hages were issued 45 citations and received 70 face-to-face visits from Forest Service agents informing them of numerous alleged violations of their grazing permits. One of these violations was for “not maintaining fences,” which turned out to be one missing staple in a 25-mile stretch of fence across the top of Table Mountain, elevation 11,000 feet.

The Hages were cited with having trespass cattle on allotments, not having enough cattle on allotments and not properly informing the agency they were taking “non-use” for an allotment. Ultimately, one of their key summer grazing allotments was canceled for five years based on a photograph taken in November after several freezes, but submitted as if it was taken during the growing season. The very next spring, standing in the same spot, knee high in grass, the Forest Service was asked to explain their decision. They determined that although the allotment was healthy and covered in spring grasses, it was the wrong kind of grass. The five-year suspension was implemented. 

Finally, in 1991, after the U.S. Forest Service confiscated over 100 head of the Hage’s cattle (half of the riders armed with semi-automatic weapons), the Hage’s had finally had enough. They took their case to the United States Court of Federal Claims alleging the taking of their property under the Fifth Amendment of the U.S. Constitution. 

The case was the first federal lands grazing case to be filed in this Court. For the first time in the history of western land disputes, Wayne and Jean were determined to resolve whether or not they held property rights on the federal lands and whether or not the federal government could regulate them out of business without compensation. 

Their cause became the rallying cry for western ranchers facing the same federal abuse. People across the nation began supporting their case. Wayne and Jean always knew they would have never been able to pursue the case through the courts without the help of so many great friends, members and often complete strangers who did everything they could to stand with them. 

Jean died in 1996, with the case still unresolved, but knowing they were on their way to vindication as the Court had made some early key decisions in their favor.

However, it wasn’t until 2002 that the Court issued the first truly landmark ruling in the case. The Court determined that despite the government’s argument that the Hage’s had no property rights in the federal lands, the Court found they owned the water on the federal lands that flowed to their private lands, they owned the ditch rights-of-way that transported that water (and 50 feet on either side), and the range improvements. The decision had a chilling effect on the federal agencies.

Wayne died in 2006 knowing he and Jean had won big for western ranchers, but still without seeing any of the awards. 

In 2008, the Claims Court issued a second landmark ruling by finding that the actions of the government agencies to prevent the Hage’s from using their property was a taking under the Fifth Amendment of the U.S. Constitution. Ultimately, they were awarded $14.4 million, plus attorney fees. 

In the interim, the government brought trespass charges against Wayne Hage, Jr. and the Estate of Wayne and Jean Hage for having cattle on the federal allotments. The dispute ended up in District Court, separate and apart from the Takings case. This court issued the third historic ruling in the Hage saga, ordering the federal agencies to reinstate the Hage’s grazing permit and ordering Wayne Hage, Jr. to sign the permit. In making this decision the court admonished the federal agencies for using the power of the federal government to target and attempt to destroy what was left of the Hage’s livestock operation. 

It wasn’t until the federal government challenged the award of compensation in the Appellate Court that they were able to erode the Claims Courts decision. In 2012, they successfully overturned the compensation award based primarily on the ripeness of the claim and failure to apply for a special use permit to maintain the ditches. Their arguments did not take on any of the major issues in the case, such as whether their regulatory actions went too far and caused a taking, but relied on minor elements. The result was the Appellate court awarded no costs. 

The Plaintiffs, now the Estate of Wayne and Jean Hage, asked for a hearing from the Claims Court to argue that the Appellate court decision did not overturn all of the takings compensation award. However, it appears the court has accepted the higher courts decision to mean that no costs will be awarded. 

What still stands as a result of Hage v. United States, is the decision that western ranchers own their water and right’s-of-way on the federal lands. However, determining what will trigger a compensation claim for these rights under the Fifth Amendment is the unanswered question. The bar is set high at the Appellate court. Still, maybe a case in the future with the right set of facts can cross this hurdle successfully. But that baton will need to be passed to a new generation of ranchers.

What Wayne and Jean withstood to bring us this far is phenomenal. Although they did not live to see how the story ends, they did leave us with their very best effort to protect private property rights for future generations. I know how thankful they were to have so many good Americans stand with them. It is what fueled them to finish the race. 

I also know they would have wanted to secure a decision that awarded compensation, not for themselves, but for the precedent and protection it would provide to every American. Although that is not how the final chapter will end, their contribution to this nation cannot be diminished. 

Thanks, Mom and Dad.

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