Ninth Circuit encourages Wayne Hage, Jr. to remove water from source

Carrie Stadheim

When Wayne Hage Jr. stepped in to the 9th Federal Circuit courtroom on April 13, he didn't expect anything out of the ordinary. He had grown accustomed to the courts ruling on the side of their fellow employer – the federal government – in the decades-long tug-of-war between his family and U.S. land management agencies over forage and water rights. But something different happened that day. The three judges, Richard Tallman, William A. Fletcher and Andrew Kleinfeld had done their homework. They had read about a ruling two years ago that outlined the Hage family's right to utilize over 130 water sources on federal land that his family had ranched for decades. They were displeased that BLM and USFS officials had told Hage that they would not allow him to cross federal land in order to use of his water, after the court two years prior had said that he could dig a ditch to access his water, as long as he didn't graze government land without a permit. The judges, who introduced the hearing by saying that they didn't know how to pronounce Mr. Hage's name, were soon encouraging him to file a suit against the government. The court two years ago ruled that the Hage family can not use incidental forage rights while utilizing their proven water rights – in other words, they are not allowed to let their cattle graze Bureau of Land Management or U.S. Forest Service forage that happens to be under the feet of cattle drinking Hage water. But the Hages' actual water rights are not in question. "The court ruled that the water right is a standalone right," said Hage of the earlier case. "There is a water right out there and the government cannot deny you access to that water right. If they deny you access, they've denied you a property right," he said. In which case the Hage family would have standing for a takings suit, he believes, a thought that has lain in the back of Hage's mind until the April discussions took an unexpected turn. "Accordingly, we held that the rancher 'is not entitled to an easement to graze livestock on the lands within the boundaries of the [federal lands]' but that 'he should be allowed a right of way over those lands to divert the water by one of the methods contemplated by the [Mining Act of 1866.]'" said the panel of judges in the 2016 ruling. The judge also references the "construction of ditches and canals" that is allowed by the Act. But Hage has been told by government land management agencies that he is not allowed to cross BLM or USFS land with a pipeline or a ditch that would allow him to divert water from the source to his private land...MORE

There is much more to the article and you should read it in its entirety. I've embedded the 2016 decision referred to below. See especially the language on grazing rights appurtenant to water rights and the language on accessing water rights for diversion. Although it was mostly thrown out by the superior courts, it is fun to read the 2013 Judge Jones decision. It is 104 pages and can be viewed here.

https://law.justia.com/cases/federal/appellate-courts/ca9/13-17039/13-17039-2016-01-15.html