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

Hage daughter on feds demoting judge

On Friday, I posted US demotes judge who ruled for key rancher against Feds and Ramona Morrison posted the following on Facebook.

Hage ranchers again plan Supreme Court appeal

by THOMAS MITCHELL

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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A look at Western ranchers' issues with the feds

Ranchers' issues with the federal government over land is not a new phenomenon. Many ranchers on Western lands have felt the government's hand has been too heavy for years. KTVB talked to a regional ranching family and their attorney, who have been in and out of the courts for decades, fighting against what they call lawlessness on the part of the feds. Many might recognize the last name, Hage, for their historic case in Nevada highlighting deep-seeded problems in the ranching industry, and for taking on the federal government. The Hage family is still fighting that battle, after decades of trial and tribulation. "It takes an awful lot to force somebody to take that extraordinary step that you saw out there in Oregon- whether we agree with it or not- we need to step back and look at what pushed them to that extent," Ramona Morrison, E. Wayne Hage's daughter, said. What Morrison believes pushed those ranchers to occupy the Malheur National Wildlife Refuge for the last 41 days is the tyranny of federal agencies. "Things were different in Central Nevada and the forest service there really did not like the ranchers," the Hage family attorney, Mark Pollot, told KTVB. Pollot says as soon as the late "Hage Senior" bought his ranch in the 70's, those administrative agencies started to throw every road-block in his way. "They started on a campaign to make it impossible for us to run that ranch through the use of administrative powers," Morrison added. Eventually, the family had to sell their cattle after the government charged them with trespassing by grazing cattle without a permit on BLM and U.S Forest Service land. The family filed a takings lawsuit under the Fifth Amendment, and after 21 days of trial, U.S. District Judge Robert C. Jones said the federal government entered into a conspiracy, and ruled in District Court of Reno, Nevada that the Hages deserved compensation. "Our defense was: we have rights of way, we have easements, we have water rights that are out in the federal lands," Pollot said. But, on appeal to the 9th U.S Circuit, a court reversed that decision. "The sad part of it is these federal agencies are ignoring their own laws," Morrison told KTVB. Morrison says the law requires federal agencies to recognize pre-existing rights of ranchers, like easements, forage rights and vested water rights. So what is the solution? What might fix the underlying issues for ranchers in the West and for the former occupiers in Oregon?...more

Nevada ranching family loses federal lands court case

The 9th U.S. Circuit Court of Appeals has ruled in favor of the federal government in a long-running dispute with the late Nevada rancher Wayne Hage, remanding the case to a new federal judge because of apparent bias on the part of U.S. District Judge Robert Clive Jones. In a separate unpublished memorandum also filed Friday, the panel of the appeals court reversed a finding of contempt against BLM employee Thomas Seley and U.S. Forest Service employee Steven Williams, finding that Jones "grossly abused the power of contempt." In the main opinion, the 9th Circuit, in a ruling written by Judge Susan Graber, granted the request by the U.S. government to reassign the case. "Defendants openly trespassed on federal lands," she said. "Rather than simply resolving the fact-specific inquiries as to when and where the cattle grazed illegally, the district court applied an 'easement by necessity' theory that plainly contravenes the law." "A dispassionate observer would conclude that the district judge harbored animus toward the federal agencies," Graber wrote. "Unfortunately, the judge's bias and prejudgment are a matter of public record. The decades-long dispute centers on the Hage family's Pine Creek Ranch near Tonopah, and is well known in the West and among property rights advocates who charge the government exercises a heavy hand in relations with those who make their livelihood off the land. The ruling is the latest chapter in a feud that dates to the days of the Sagebrush Rebellion. The government charged the Hage family, along with rancher Benjamin Colvin, with trespassing by grazing cattle without a permit on Bureau of Land Management and U.S. Forest Service land. Hage died in 2006 and the fight has been carried on by his family and son Wayne N. Hage Jr. The younger Hage said in a telephone interview Monday that an appeal to the U.S. Supreme Court would be difficult. "I don't know what the future has in store for us," he said. "We have been dealt a lot of ugly over the years. I''m not sure where it's going to go. "It is a big disappointment, not just for my family but for the entire industry," Hage said. "They felt relief at the Jones decision. Ranchers' rights had been upheld but now it has all been overturned. It looks to me like the 9th Circuit just swelled the ranks of the militias." Hage said he is not involved with the militias but that he understands their frustrations with the federal government...more

The Long History of BLM's Aggressive Cattle Seizures

 

by Kerry Picket

    Every month, Raymond Yowell, the 84-year-old former chief of the Shoshone Indian Tribe in northeastern Nevada, has almost $200 garnished from his $1,150 Social Security check, and it all dates back to a 5:00am phone call on a Friday morning in 2002.

    That morning, a government official from the Bureau of Land Management told him to come down to a seizure site where the 132 cattle he owned were about to be impounded.

    When he arrived, men brandishing handguns told him he couldn't get any closer than 250 yards from his cattle. He watched from a distance as the government loaded the livestock onto stock trailers.

    Within a week, the cattle had been sold at a private auction – for what Yowell estimated to be a quarter of their market price. The proceeds belonged to BLM, officials told him, paying a portion of the grazing fees he suddenly owed. It wasn't enough to cover the full debt, and BLM sent Yowell a bill for $180,000.

    Yowell has been fighting the BLM in court ever since, but while the case moves its way through the system, his Social Security check takes a hit every month.

    The story, ranchers in Nevada say, is far from unique. Beginning in the late 1980s, BLM adopted aggressive tactics in the West, leading to large-scale cattle seizures and a disruption of life for ranchers that had utilized public lands for decades prior.

    While the press has showered attention on Cliven Bundy, a polarizing man who prompted a tense standoff between Bundy's well-armed militia supporters and federal police, the struggle between ranchers and the BLM is much broader. 

    ...Idaho Republican Congresswoman Helen Chenoweth-Hage and her husband Wayne Hage, lost their grazing permit on their Nevada ranch property for federal lands in 1991, when the federal government refused to renew it. This incident started a 20-year battle with the BLM. The government also denied access to the Hage family’s water rights, which pre-dated the implementation of the 1934 Taylor Act’s grazing permit requirement, by not allowing access to streams and wells. Eventually, the agency built fences around any water source, so the cattle could not drink. The BLM seized Hage’s cattle and filed a civil trespass action against Hage.

    A little over twenty years later, however, seven years after Hage and his wife died, Hage’s children, Wayne Jr. and Ramona Morrison Hage won a victory for the family in court.

     Last May, U.S. District Court Judge Robert C. Jones ruled that “the government and the agents of the government in that locale, sometime in the ’70s and ’80s, entered into a conspiracy, a literal, intentional conspiracy, to deprive the Hages of not only their permit grazing rights, for whatever reason, but also to deprive them of their vested property rights under the takings clause, and I find that that’s a sufficient basis to hold that there is irreparable harm if I don’t … restrain the government from continuing in that conduct.”

    Judge Jones found the government’s demand for trespass fines and damages from innocent ranchers to be “abhorrent to the Court and I express on the record my offense of my own conscience in that conduct. That’s not just simply following the law and pursuing your management right, it evidences an actual intent to destroy their water rights, to get them off the public lands.”

    Jones went further and accused federal government personnel of racketeering under the federal RICO (Racketeer Influenced and Corruption Organizations) statute, and accused them of extortion, mail fraud, and fraud, in an attempt “to kill the business of Mr. Hage.”

    Morrison Hage, a member of the Nevada Agriculture Board, told Breitbart News that “In the west our governors almost conduct themselves as if they’re a colonial governor and as if they’re only governor over the private land, adding “They take their hands off the steering wheel even though all state power emerge from the state. They take their hands off the steering whenever there’s anything to do with federal land management.”

    Harvey Frank Robbins became a Wyoming dude ranch owner in 1994, after buying a piece of land in the state, but Robbins troubles began soon after his purchase. He told Live Stock Weekly, "The government — the Forest Service, the BLM and the Wyoming Game and Fish Department — were trying to buy the ranch," he explains. "They had these plans of grandeur of having this sanctuary of elk and trout fishing and all the things they could do. Then this guy from Alabama comes in at the last minute, not knowing any of this, and buys this ranch."

    Robbins accused BLM employees of trying to force him to renew an easement to the point of almost putting him out of business. When Robbins refused to do so, according to his lawyer, Karen Budd Falen, BLM employees broke into his house and demanded to be allowed on to his property without a court order, among other things. While Robbins won victories in lower courts, a RICO case against the BLM employees eventually went before the Supreme Court in 2006, where the majority ruled the BLM agents were not liable for the alleged actions against Robbins. 

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Fox News Reporting Enemies Of The State - The Sagebrush Rebellion

For those who missed it:

http://youtu.be/67yR-Gj5u70 Part 1



http://youtu.be/4Fk9ZIiYUHM Part 2, starts at 5:30

Correction in the Hage Case

On Thursday I published Hage Takings Case Denied Hearing by Claims Court which was a press release from American Stewards

Ramona Hage Morrison sent along the following correction from attorney Mark Pollot: 

The case is not closed.  We never received notice of the trial court’s denial of the motion for reconsideration because the Clerk’s Office failed to provide it.  A motion is pending before the trial court for relief under the FRCP which, if denied, is itself appealable.  This case is not a done deal.  The trial court has not ruled on our motion and, if it denies it, it will be appealed.  The last chapter has not been written.

Having worked with Wayne & Helen Hage and being an admirer of both, it was with deep disappointment and a terrible sinking feeling that I published the release.  This corrected info gives us all hope that justice still may be done.

And don't forget to watch Fox News tonight!