Appeals Court Tosses Out Hage Judgment

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A fed­er­al appeals court has thrown out a $4.4 mil­lion legal judg­ment that deceased ranch­er and Sage­brush Rebel­lion icon Wayne Hage had pre­vi­ous­ly won from the fed­er­al government.

The U.S. Court of Appeals for the Fed­er­al Cir­cuit has reversed an ear­li­er court deci­sion that ordered the U.S. For­est Ser­vice to com­pen­sate Hage for infring­ing on his prop­er­ty rights.

The descen­dants of Hage won a legal vic­to­ry in the case in 2008, two years after his death and 17 years after the law­suit was ini­tial­ly filed.

The judge ruled that the agency deprived Hage of his water rights by build­ing fences that pre­vent­ed him from access­ing streams in the Toiyabe Nation­al For­est in Nevada.

Hage owned ease­ments that allowed him to trans­port the water over fed­er­al land through ditch­es, which he claimed the For­est Ser­vice pre­vent­ed him from maintaining.

The law­suit also sought com­pen­sa­tion for the fences, roads and improve­ments to water sources that Hage built on fed­er­al land before his graz­ing per­mit was revoked.

After years of lit­i­ga­tion, a fed­er­al judge agreed with the com­plain­t’s argu­ments and award­ed Hage’s estate rough­ly $2.9 mil­lion for his water rights and $1.5 mil­lion for the val­ue of improvements.

The gov­ern­ment chal­lenged that rul­ing, which a three-judge appel­late pan­el has now reversed on sev­er­al grounds.

Hage could have applied for a spe­cial per­mit to main­tain the ditch­es that con­veyed his water, so the claim that the gov­ern­ment pre­vent­ed him from doing so isn’t “ripe” for fed­er­al court, the most recent rul­ing said.

Build­ing fences around streams also isn’t a phys­i­cal tak­ing of prop­er­ty, because Hage has­n’t demon­strat­ed that he could put the stream water to ben­e­fi­cial use, the appeals court said.

Water rights only allow the own­er to use water that he can put to ben­e­fi­cial use, but the Hage fam­i­ly has­n’t shown “there was insuf­fi­cient water for their cat­tle on the allot­ments or that they could have put more water to use,” the rul­ing said.

The appel­late court also over­turned the award for range­land improve­ments, rul­ing that Hage could have sought com­pen­sa­tion direct­ly from the agency instead of in fed­er­al court.

Aside from vacat­ing the finan­cial award to Hage’s fam­i­ly, the most recent rul­ing has caused uncer­tain­ty about legal prin­ci­ples in such con­flicts, said Bri­an Hodges, an attor­ney for the Pacif­ic Legal Foun­da­tion prop­er­ty rights group who mon­i­tored the case.

The deci­sion rais­es more ques­tions than it answers,” Hodges said.

For exam­ple, the appel­late judges did not resolve the key issue of whether the gov­ern­ment even had the right to reg­u­late Hage’s ditch­es, he said.

Hage claimed the For­est Ser­vice did not because his water rights pre­dat­ed the agen­cy’s author­i­ty over the land.

It’s unsat­is­fy­ing the court assumed the fed­er­al reg­u­la­tions were valid with­out first deter­min­ing whether water rights hold­ers like Hage have a right that is supe­ri­or to the reg­u­la­tions,” Hodges said.

The Hage estate can still ask for recon­sid­er­a­tion from a broad­er “en banc” pan­el of appel­late judges, or request the U.S. Supreme Court to review the case, he said.

Hage’s bat­tle with the For­est Ser­vice is one of the sparks that start­ed the “Sage­brush Rebel­lion” of pop­u­lar resis­tance to changes in fed­er­al land pol­i­cy, Hodges said.

This case exem­pli­fies the abus­es the West­ern ranch­ers and nat­ur­al resource indus­tries suf­fered at the hands of the fed­er­al gov­ern­ment,” he said.


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