Hage case finally victorious
by Cat Urbigkit, Pinedale Online!
June 13, 2008
A historic decision was issued in the United States Court of Federal Claims late last week. The case is the 17-year old dispute involving the late Wayne Hage and Helen (Chenoweth) Hage.
Friday’s final decision determined that the U.S. Forest Service committed a “taking” of the Hage property with respect to their surface water rights and ditches.
The Wayne and Jean Hages were the owners of the Pine Creek Ranch in Nye County, Nevada (since 1978), consisting of 7,000 acres of patented land used for grazing cattle.
In 1991, the Hages filed a federal claim against the United States, alleging constitutional, contractual and statutory causes of action arising from the suspension and cancellation of their permits to graze cattle on federal lands. The policies promoted by the Forest Service, combined with the Forest Service actively preventing the Hages from accessing and maintaining their water rights, amounted to a taking of their property and required just compensation under the Fifth Amendment.
The decision awarded and $2.8 million for the value of water rights and $1.3 million for the value of improvements (including roads and fences), for a total award of $4.2 million “plus interest from the date of the taking and attorney’s fees and costs.
Here's a press release from Stewards of the Range:
An epic 17-year battle between an American ranching family and the federal government has ended in favor of the family. The estates of Wayne and Jean Hage can finally claim a Fifth Amendment precedent-setting property rights victory.
Loren A. Smith, Senior Judge for the United States Court of Federal Claims issued his final opinion in Hage v. United States (Case No. 91-1470L), ending the decades-long battle by deciding that the federal government indeed took the private property rights of E. Wayne and Jean Hage and awarding them deserved compensation.
The court ruled that the Hages owned the water rights, ditch rights of ways, and range improvements on the federal grazing allotments. The court made clear that the government has the right to authorize grazing, but does not have the right to prevent the plaintiff from accessing their water rights on federal lands. (Case #91-1470L, The Estate of E. Wayne Hage and the Estate of Jean N. Hage v. The United States, June 6, 2008.)
"This decision is important to every American because it reaffirms our basic right to own property, whether you live in a major US city or rural America," commented Margaret Byfield, the Hage's third daughter and executive director of the Stewards of the Range organization which has supported the case since the beginning.
Wayne and Jean Hage filed their takings case in 1991, claiming the U.S. Forest Service had denied their rights to graze their livestock on federal land and actively prevented them from accessing and maintaining their water rights.
The family has endured 17 years of court hearings and trials, and has won at every level, including the final round. "This is clearly a victory for my parents, who never gave up," commented Ruth Agee, the second of the five Hage children. Wayne and Jean are both buried on the private meadows at Pine Creek Ranch, which will remain with the family.
Pine Creek Ranch was established in 1865, and purchased by the Hage family in 1978. The private fee lands encompass 7,000 acres, but as the court points out, "To raise cattle economically in such an arid region, Plaintiffs depend upon access to large quantities of land, including federal land, and to the limited water supply."
In 1979, one year after the family purchased the ranch trouble began with the Forest Service when the USFS allowed the release of non-indigenous elk on the Hage's Table Mountain allotment. The elk began competing with their cattle for forage and water. However, instead of controlling the elk, the Forest Service reduced and ultimately canceled the Hage's grazing permits.
Years of harassment by the federal government followed, including over 70 "visits" from the Forest Service and 40 letters charging them with various violations, which many, the court noted, were "extremely minor infractions." The court further pointed out that the Forest Service made many unreasonable requirements. "In addition, the Forest Service insisted that Plaintiffs maintain their 1866 Act ditches with nothing other than hand tools."
After the Forest Service canceled the remaining grazing permits in 1990, the family was forced to file their takings case known as Hage v. United States.
Ladd Bedford, one of the attorneys for the Hage family, who was involved in the case from its inception, noted the important precedent: "There is now a deterrent to the federal agencies. The federal government has significant exposure by way of having to pay just compensation when they deny ranchers access to their water and range improvements."
"This is an important legal victory," commented Mike Van Zandt, the other attorney who has been involved in the case since the early 1990's. "The agencies have used their regulatory power to drive ranchers out of business with no regard for their property rights, and now the court has set limits on the agency's actions."
Internationally known western artist, Jack Swanson, a long time Hage family friend said; "Two American heroes and the western rancher have been vindicated by this decision." Swanson painted the original oil painting entitled "Stewards of the Range," from which the organization took its name and raised over $100,000 for the case.
"My parents wanted resolution," commented Byfield. "They were told by the agencies that they had no property rights on the federal lands. They pursued this case so that this 60-year conflict between ranchers and agencies could be settled, and future generations of ranchers would have the security of their property rights. They succeeded."
The Court found that regulatory and physical takings occurred, and the government owes the estates of Wayne and Jean Hage $4.2 million in compensation, plus 17 years of interest and attorney's fees."
Read the entire court decision below.