Judges suggests government cannot deny Hage access to his water right
May 7, 2018
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 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 the Bureau of Land Management and U.S. Forest Service officials had told Hage that they would not allow him to cross federal land in order to use his water, after the court two years prior had said 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 they didn't know how to pronounce Mr. Hage's name, were soon encouraging him to file a suit against the government.
The court had ruled in 2016 that the Hage family cannot use incidental forage rights while utilizing their proven water rights. In other words, they are not allowed to let their cattle graze BLM or USFS 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," Hage said 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 that case the Hage family would have standing for a takings suit, he believed, a thought that has lain in the back of Hage's mind until the April discussions took an unexpected turn.
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"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),'" the panel of judges said in the 2016 ruling. The judge also references the "construction of ditches and canals" that is allowed by the act.
But Hage had 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.
Even though he didn't believe he needed their approval, Hage said he asked the BLM and USFS if they would prosecute him if he were to remove water from the source. A pipeline or ditch would have to cross federal land to get to his private property.
He was told three different times that they would indeed prosecute him for such an activity.
Probably 90 of the 135 stockwater sources are in Wilderness Areas, Hage said. "So that is what they said, I can't take the water off those Wilderness Areas," he said of his conversation with the BLM and USFS.
An earlier case that the three judges referenced on April 13 is referred to as the "Hunter case" in which the Hunter family had been refused the right to directly utilize water in Death Valley, Calif., because they did not have a current grazing permit, but were given the go-ahead to remove the water from the source.
When Hunter vs. the United States was tried in 1967, the verdict seemed useless to the Hunter family, Hage said.
"The court said they can't deny the Hunters access to the water so they can go ahead and pipe it out of there. The Hunters were looking at that in the 1960s saying 'that is ridiculous.'"
Hage said the Hunter case has actually been cited in many court cases since, including the 2016 ruling on his ranch, as an example showing that a rancher can't utilize "incidental forage rights" along with established water rights, but that he or she must have a grazing permit in order for their livestock to access forage on federal lands whilst using water from a source that the rancher has the right to.
"The comical thing is that the Hunter case is the one they always used to beat the rancher up with. The government lawyers would say 'look at the Hunter case. You have to have a permit.' Now the Hunter case isn't helping the government. The ranchers says 'Thank you very much. I have this right to take water and I'm going to take my property and go home with it.'"
While Hage's intent with the appeal hearing was to prove that the government has misrepresented the number of cattle he owns and failed to prove their accusations in previous court proceedings, (wherein he was charged over half a million dollars for "repeated willful unauthorized grazing") the discussion took a turn when one of the judges unexpectedly asked Hage about some previous testimony in which he said that the agency had refused three times to allow him to remove water from the water source he has rights to.
"That strikes me as really important. How come it's not in the testimony or anywhere in the record?" asked the judge in the hearing.
"Because the trial was already over," Hage said. "It happened after the trial in remand."
"The United States had refused to grant me a permit to allow access to have the cattle physically go to the water. So I asked, 'If you are going to refuse that access in that manner, then can we transport the water to the patented ground?'" Hage said.
Hage also said the government told him they would allow him to walk in with a 5-gallon bucket and carry the bucket the 60 miles to water his cattle.
Hage said during depositions that he asked the government, "If I can't take the cow to the water, then how am I going to be able to use this water without a grazing permit, especially if they decide to revoke the permit for some reason?"
Steven Williams, speaking for the government, responded by testifying that Hage could fly a helicopter over the water, drop a cow in the water, as long as she didn't touch the ground, and then fly her out, Hage remembered.
"It sounds to me as if you may have a fairly good lawsuit for an injunction on this point," one of the judges said. "And I may be misunderstanding some of the details, but it sounds to me as though this may be a separate claim and it may be a fairly good one."
The government has just consistently refused your potential claim of right to dig a ditch or use another device, such as a pipe, from your water rights to your ranch? another judge asked.
"Yes," Hage said.
The judges then suggested mediation, to which Hage responded that he would be willing to sit down and talk with the government about the issue of removal of the water from its source.
The lawyer representing the federal government, Elizabeth Peterson, told the judges during the hearing that she was not aware of Hage asking to remove the water.
"Would the government let them dig a ditch from their water right to their ranch?" a judge asked.
"It's a far more complicated question than I think it's being given credit for," Peterson said.
Peterson then went on to say that the state water rights are complicated and that Hage "might" be able to get permission.
"If and only if the state water right includes the right to use stockwater on grazing lands by diverting it to other lands, he might be able to get permission from the state engineer to…"
"Didn't we say exactly that in the previous Hage case as well as Hunter? You call it an 'if,' but…" the judge said.
"The court said the right includes that," Peterson said. "The state will have some say in it. It's not entirely up to the federal government."
A judge then asked, that if the state water right included the right to transport the water to the source of the ranch, would the federal government oppose?
Peterson said the lands must be regulated for multiple uses, and it isn't entirely the authorization of the U.S. to allow it. "If you aren't going to allow it, don't you have to condemn the water rights and pay the damages for the water and also for all of the dead cows?" the judge asked.
Peterson said the government would not be liable for dead cattle because the right to use the water depends on the right to use the land, if Hage were denied the right to dig a ditch across these lands.
A judge then commented that the 1866 Mining Act was interpreted in the Hunter case as saying "an owner of water rights possessed a right of way over federal lands for the purpose of diverting water by the construction of ditches and canals." The judge said that meant the Hages, based on that ruling, have the right to do just that.
Peterson said that issue was not in front of the court in the last hearing. "The question was, whether Hage was trespassing on federal lands."
"We know it wasn't before the court at that time. We know that it hasn't been adjudicated. I think what we're exploring is, is there any point to mediation or is the government just going to say 'no' or stall until everyone including the cattle are dead? … or is the government going to work something out in a court with what we held the Hages have a right to?"
Peterson said the U.S. is willing to talk, and that mediation would be vastly preferable to the incessant litigation.
"It's not entirely clear that they can make beneficial use of additional water piped in from federal land on their private pastures and the state engineer would take that into account in determining whether a change of use could be granted," Peterson said.
"It would potentially destroy the value of the forage on the federal lands without benefiting private pasture lands," Peterson said.
"We're not in a position to judge that," responded the judge.
The water would have to travel 90 miles in order to be used by livestock on their home ranch, Hage said. He added that often times when a water right isn't utilized for five years, it is considered abandoned. He doesn't want this to happen, so he continues to access his water in whatever ways he can.
The Hunter family, whose court case was cited in the Hage hearing, still owns their water rights, but have not used them for decades, Hage said. Much of the land that was once their grazing land became a national park, and the family was then denied grazing access.
"The 9th Circuit knew they couldn't take all use and access to the water, or it would be declared a taking, so their solution was to allow Hunter to take water off the land. In the 1960s, that was a way for the government to take the right and not pay anything for it," Hage said. "The government is screwing them around more and more all of the time. These are some of the most valuable water rights in the United States (located in Death Valley, California) and they are offering pennies. They are forcing the Hunters to look for a buyer (for the water right) outside of the United States."
Ranchers in his part of the country battle the BLM and USFS regularly, he said, and cattle numbers are dwindling. "We don't worry about China or North Korea. The two major threats to our freedom are the BLM and U.S. Forest Service."
Hage said that because his family's rights were established before the BLM or USFS, that he doesn't need permission from them to access his water.
The Hages' rights pre-date the BLM and USFS, Hage said. "When you read the law that made the BLM, you see that any pre-existing rights are outside of their jurisdiction. How can you create an agency and say that they can regulate you out of business?"
In January 2016, three 9th District Court judges determined that the judge in an earlier ruling was biased. Judge Jones had earlier ruled that the Hages were not trespassing on federal range land, but were making incidental use of forage while using their water rights.
Susan Graber and the other district court judges, in 2016, determined that the judge had been biased when ruling against the federal government, and his bias caused him to hold the BLM and USFS head in contempt and to rule that the two agencies had entered a literal conspiracy to take away the Hages' water and forage rights. The panel of three called for a remand under a new judge.
In late February 2017, federal district court judge Gloria Navarro (the same judge that oversaw the Bundy standoff trial proceedings) ordered the Hages to pay $587,294 for "repeated willful unauthorized grazing" and ordered the Hages to remove the cattle by March of 2017.
Last week, the 9th circuit withdrew the case from submission and has asked the parties to mediate. Hages have agreed but the government has not yet responded.
"Anyone who owns a stockwater right can essentially dig a ditch in the ground right now without any BLM or Forest Service decisions and take it straight to the ranch," he said. In the state of Nevada, a stockwater right can be changed to a municipal right with the stroke of a pen, he said, and the water could be sold to a local town or city.
The Hage family cattle are currently all grazing on private land. The home ranch, the Pine Creek Ranch, is about 27 different homesteads gradually added together. Hage doesn't employ any full-time hired men, and he said his place is "kind of a family outfit," which relies heavily on neighbors for spring and fall work.
Wayne Hage, Jr. is the son of Wayne Hage, the author of Storm over the Rangelands and well-known property rights defender, who died in 2006.
Wayne Hage, Sr. filed a takings case against the government when they cancelled his grazing permits, impounded some of his cattle and prosecuted him for cleaning one of his private irrigation ditches in 1991. ❖