Federal Court Finds Conspiracy, Orders USFS and BLM to Reinstate Hage Grazing Permits

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Lib­er­ty Scene (Lib­er­ty and Prop­er­ty Rights Coali­tion) reports a land­mark deci­sion for ranch­ers in the Hage law­suit in the fol­low­ing press release.

Liberty Scene




Fed­er­al Court Finds Con­spir­a­cy, Orders FS and BLM to Rein­state Hage Graz­ing Per­mits

(RENO, NV)  Fri­day, Chief Judge Robert C. Jones of the Fed­er­al Dis­trict Court of Neva­da issued a his­toric 104-page rul­ing pro­tect­ing west­ern ranch­ers’ graz­ing pref­er­ences and find­ing con­spir­a­cy by fed­er­al agents to deprive ranch­ers of vest­ed prop­er­ty rights.  The deci­sion stems from a 2007 tres­pass case, U.S. v. Hage,  brought by the U.S. For­est Ser­vice (USFS) and Bureau of Land Man­age­ment (BLM) against embat­tled cen­tral Neva­da ranch­er Wayne N. Hage and the Estate of his father, well-known prop­er­ty rights activist, E. Wayne Hage.

Wayne Hage com­ment­ed from Pine Creek Ranch, “This deci­sions is land­mark for west­ern ranch­ers. I am pleased to announce for the ranch­ers of the West­ern states that it has been proven that a per­mit is not sim­ply a revo­ca­ble priv­i­lege, but rather there is a prop­er­ty inter­est in the per­mit for the pur­pose of the Due Process Clause, both pro­ce­dur­al and sub­stan­tive. This is impor­tant because it will safe­guard rancher’s rights and his­tor­i­cal graz­ing prac­tices.”

Hage added, “More impor­tant­ly we proved a ‘for­age right’.  Ranch­ers in the state of Neva­da are pro­tect­ed from tres­pass with­in a half-mile from a water source.”

Notably, the Court said “the Gov­ern­ment may not abuse its dis­cre­tion in refus­ing to renew, or in revok­ing, a [graz­ing]  priv­i­lege”.  Sig­nif­i­cant­ly, the fam­i­ly will be under per­ma­nent injunc­tive relief and the Gov­ern­ment shall not reduce the Hage’s per­mits by more than 25% for any peri­od of time with­out the Courts’ con­sent, and nev­er per­ma­nent­ly.

Specif­i­cal­ly, the Court found, “The Gov­ern­ment has abused its dis­cre­tion in the present case through a series of actions designed to strip the Estate of its graz­ing per­mits, and ulti­mate­ly to strip Defen­dants of their abil­i­ty to use their water rights…”.  He explained, “Sub­stan­tive due process pro­tects indi­vid­u­als from arbi­trary depri­va­tion of their lib­er­ty by gov­ern­ment.”

The Court fur­ther explained “the Gov­ern­ment can­not with­draw them (graz­ing per­mits) or refuse to renew them vin­dic­tive­ly or for rea­sons total­ly unre­lat­ed to the mer­its of the appli­ca­tion as gov­erned by pub­lished laws and reg­u­la­tions, lest the Gov­ern­ment abuse its exec­u­tive pow­er in a way that shocks the con­science.”

Because of the Government’s refusal to con­sid­er any graz­ing appli­ca­tions from the Hages, the Court found the sub­se­quent “chain of events is the result of the Government’s arbi­trary denial of E. Wayne Hage’s renew­al per­mit for 1993–2003, and the effects of this due process vio­la­tion is con­tin­u­ing.”

The Court found, “In the present case, the Government’s actions over the past two decades shocks the con­science of the Court…”.  This find­ing, cou­pled with the Court’s find­ing that agents of the BLM and the USFS engaged in a con­spir­a­cy to deprive the Hage fam­i­ly of their vest­ed prop­er­ty rights, opens the door to poten­tial law­suits against the indi­vid­ual agents per­son­al­ly for their uncon­sti­tu­tion­al actions.

The rul­ing chron­i­cles the dra­ma of 21-day tri­al in Reno, NV last spring between ranch­er Wayne N. Hage who, unable to afford an attor­ney, rep­re­sent­ed him­self, and Mark Pol­lot, the Estate’s attor­ney, who were defend­ing their case against two fed­er­al agen­cies rep­re­sent­ed by a cadre of attor­neys and staff from the Jus­tice Depart­ment.

The Court not­ed the government’s motive for their pur­suit of the present tres­pass case.  “In 2007…the Gov­ern­ment brought the present civ­il tres­pass action against Hage and the Estate”  because the USFS and BLM were “unsat­is­fied with the out­come” in the ongo­ing relat­ed 1991 Con­sti­tu­tion­al Fifth Amend­ment tak­ings case of Hage v. U.S. before the U.S. Court of Fed­er­al Claims (CFC).

How­ev­er, dur­ing the pen­den­cy of the tres­pass case, the agen­cies pur­sued reme­dies out­side the juris­dic­tion of the Court, lead­ing to a refer­ral to the U.S. Attor­ney for obstruc­tion of jus­tice and find­ings of con­tempt of court.  Specif­i­cal­ly, the BLM invit­ed oth­ers, includ­ing Mr. Gary Snow of Fal­lon, to apply for graz­ing per­mits on allot­ments where the Hages pre­vi­ous­ly had per­mits; the BLM tes­ti­fied they knew Snow’s cat­tle would use Hage waters; the BLM and USFS both applied to the State of Neva­da for stock water­ing rights over Hage waters, even though nei­ther agency owns cat­tle, for the “pur­pose of obtain­ing rights for third par­ties oth­er than Hage in order to inter­fere with Hage’s rights”; and they attempt­ed to intim­i­date wit­ness­es in the tres­pass case by issu­ing tres­pass notices and demands for pay­ments against per­sons who had cat­tle pas­tured at Pine Creek Ranch, despite hav­ing been noti­fied that Hage was respon­si­ble for these cat­tle.

Judge Jones rea­soned the tres­pass notices and demands for pay­ment were meant “to pres­sure oth­er par­ties not to do busi­ness with the Hages, and even to dis­cour­age or pun­ish tes­ti­mo­ny in the present case.”  The Court not­ed such demands for pay­ment were even issued to “wit­ness­es soon after they tes­ti­fied in this case.”

Tonopah BLM Man­ag­er, Tom Seley and For­est Ranger, Steve Williams were both found to be in con­tempt of court, and were referred to the U.S. Attor­ney for pos­si­ble pros­e­cu­tion for crim­i­nal obstruc­tion of jus­tice.  Not­ing that Seley and Williams knew of ongo­ing lit­i­ga­tion between the par­ties in this court and the CFC, they “took actions to inter­fere with the defense of the present tres­pass action by intim­i­dat­ing wit­ness­es.”  A writ­ten order is pend­ing from the sep­a­rate August 2012 con­tempt hear­ing.

The Court stat­ed, “In sum­ma­ry, the gov­ern­ment offi­cials, and per­haps also Mr. Snow, entered into a lit­er­al, inten­tion­al con­spir­a­cy to deprive the Hages not only of their per­mits but also their vest­ed water rights.  This behav­ior shocks the con­science of the Court and pro­vides a suf­fi­cient basis for a find­ing of irrepara­ble harm” to sup­port per­ma­nent injunc­tive relief.

The Court did find instances where Hage will­ful­ly per­mit­ted cat­tle to wan­der onto USFS and BLM lands more than a half mile from Hage water sources, but deter­mined under state law the dam­ages result­ing from those tres­pass­es only amount­ed to $165.88.

The Court refused to award puni­tive dam­ages for tres­pass under state law, because there “is not ‘clear and con­vinc­ing’ evi­dence of ‘oppres­sion, fraud, or mal­ice, express or implied’ on behalf of Defen­dants.  Defen­dants clear­ly had a good faith belief in their right to use the land as they did and had no inten­tion to dis­re­gard the right of oth­ers.  This does not pre­vent a tres­pass claim, but it does pre­vent puni­tive dam­ages.”

A per­ma­nent injunc­tion was grant­ed to both the Gov­ern­ment, to pre­vent ongo­ing tres­pass, and to the Hages.  The court not­ed, “There is great prob­a­bil­i­ty that the Gov­ern­ment will con­tin­ue to cite Defen­dants and poten­tial­ly impound Defendant’s cat­tle in the future in dero­ga­tion of their water rights and those statu­to­ry priv­i­leges of which the Gov­ern­ment has arbi­trar­i­ly and vin­dic­tive­ly stripped them.”

The Court will require Hage to apply for a per­mit, but will also require the Gov­ern­ment to grant it.  The Gov­ern­ment is enjoined from issu­ing tres­pass or impound notices to Hage or any­one leas­ing cat­tle to him; the gov­ern­ment must request per­mis­sion from the Court to issue such notices.

The Court added, “The government’s nor­mal dis­cre­tion is restrict­ed under the present injunc­tion, an injunc­tion required in this extreme case because of the con­spir­a­cy not­ed and the his­to­ry of vio­la­tions of the Hages’ due process rights in their per­mits and vest­ed prop­er­ty rights in the use of water, and the obvi­ous con­tin­u­ing ani­mus against Hage by the gov­ern­ment offi­cials charged with admin­is­ter­ing his per­mits.”

Although Hage not­ed defend­ing this case cre­at­ed a tremen­dous per­son­al hard­ship, “I hold the suc­cess­ful defense of my family’s rights, par­tic­u­lar­ly for the ben­e­fi­cia­ries of the Estates,  the most impor­tant part of this deci­sion and worth all the time and work that went into this case.  No longer are we sub­ject to the arbi­trary and vin­dic­tive rule of man—we now have the pro­tec­tion of the rule of law.”

The relat­ed Hage v. U.S. tak­ings case has been appealed by the Hages to the U.S. Supreme Court on the nar­row issue of whether or not a per­mit is required for nor­mal main­te­nance of a his­toric 1866 Min­ing Act ditch right-of-way.  That case is slat­ed for a June 18 con­fer­ence in the U.S. Supreme Court to deter­mine if the Court will grant the Hage’s appeal.  A sim­i­lar right-of-way case from the City of Tomb­stone, AZ is also on appeal to the USSC.


U.S. v. Hage Deci­sion (2:07-cv-01154-RCJ-VCF).

Mark Pol­lot, Attor­ney for Estate of E. Wayne Hage, Con­sti­tu­tion­al Resource Cen­ter.

Ramona Mor­ri­son, Exec­u­tive Direc­tor, Lib­er­ty and Prop­er­ty Rights Coali­tion.

The Lib­er­ty and Prop­er­ty Rights Coali­tion is com­mit­ted to pro­mot­ing and pre­serv­ing Con­sti­tu­tion­al rights to lib­er­ty and prop­er­ty in pub­lic pol­i­cy and the law.