| Judge hears
arguments in Reno courtroom on Hage’s ‘takings’ case
(Note: The BLM and Forest Service have been long-time bullies and 'domestic terrorists' against the Hage family in rural Nevada, knowing all the while that Hage's property rights were valid.)
June 2004
By Don Bowman [email protected] The Nevada Rancher P.O. Box 620 Lovelock, Nevada 89419 775-273-7245 Fax: 775-273-0500 To submit a Letter to the Editor: [email protected]
It took the first three weeks in May to submit all the evidence and
arguments for the hearing on the takings claims made by Wayne Hage
against the federal government. The case began more than 13 years ago. Hage is asking the court to
award some $28 million in damages from the federal government. Hage said that his attorneys had submitted more than 1,200 exhibits
and the federal attorneys also had submitted an enormous amount of
paperwork. Twenty to 30 boxes of data lined the rails in the courtroom. This second phase of the case was to determine whether the Hage Ranch
or any portion of it was "taken" through regulatory or
physical actions by the U.S. Forest Service or the Bureau of Land
Management. This has become known as a takings claim, where a government
entity is allegedly taking land away from a private owner. Court of Claims Senior Judge Loren Smith, based in Washington D.C.,
said that he brought the case to Reno because most of the witnesses and
testimony would come from people in the West. "We try to
accommodate the people." The gregarious judge made friends with sheriff’s deputies in the
Washoe County Courthouse, where the hearings were held. They presented
him with a poster on the final day when he came through the checkpoint
into the courthouse. Smith was wearing a new cowboy hat and a natty western sport coat
that he purchased from a local store. He said that he enjoyed his stay
in Reno. Smith managed to bring a bit of levity into the tedious hearings from
time to time with his humorous asides. Conversely, he was very attentive
and questioned aspects of the complicated and intensive testimony given
during the trial, making sure he understood the evidence being given. Helen Chenoweth/Hage said that "it took Wayne one week to
present his evidence and the government two weeks." This stage of the case, held in Reno, is still not finished. Both
sides will have to file post trial briefs. Then replies and final oral
arguments are set for sometime in October. Hage was represented by San Francisco attorneys Ladd Bedford and Mike
Van Zandt. Bedford’s wife became ill during the trial, requiring him
to return home, and Van Zandt had to finish out the final week. The federal government had Department of Justice Attorneys Dorothy
Burakreis and David Spohr defending the agencies’ actions. Ramona Morrison, Hage’s daughter, and her siblings are the
beneficiaries of their mother’s estate (Jean Hage), who is a plaintiff
in the case. All the girls were present during the trial, while her
brother Wayne remained home to take care of the ranch. Tom Lustig, attorney for the National Wildlife Federation, said that
he was present to monitor the case for the Nevada Department of Wildlife
(NDOW), to assess any impact a decision will have on elk. Lustig is a member of Range Net, an environmental group that is
striving to remove all grazing from federal lands. Chris Healy, public information officer for NDOW, said that "Lustig
is an unpaid attorney who represents our interests." He said it had
been a long-term relationship established after consulting with the
legislature. "The reason we are a party to this is because we want to
maintain our ability to manage elk on the public lands," Healy
said. Hage has maintained that public lands are defined as lands to which
no other rights are attached and that public land was extinguished when
the ranges were adjudicated. He has also said that elk were consuming
his forage, something for which he should also be compensated. The hearings included many issues, including whether Hage’s
cleaning of the ditches leading onto his ranch was warranted. When his
actions were disputed, Hage hired the hydrology firm of Water Research
and Development to assess the willow encroachment that he said reduced
his water flows. Dr. Don Merritt, U.S. Forest Service biologist and ecologist, refuted
Water Research’s findings that the plants impacted water delivery. He
said that willow removal would provide little if any increase in water
flows. Water Research principal Clare Mahannah said that the agency only
went over five percent of his company’s work. Hage said the argument should have been whether he had the right to
maintain his ditches, not whether willows had an effect on water flow. The court must also determine values of assets allegedly taken, to
decide whether it is a total or partial takings case. This is a
complicated job for an appraiser because most ranches are valued as a
whole. Hage’s appraiser, Duane Webb of Arizona, appraised the ranch for
the family. Hage also hired Dr. Angus MacIntosh from New Mexico State
University. He submitted a breakdown of components that affect ranch
value. MacIntosh reviewed the various rights established under state and
federal law, and those he said belonged to Hage. Webb said that MacIntosh did an admirable job and that the government
did not cross-examine MacIntosh’s work to great lengths. Utah appraiser Paul Meiling performed an appraisal for the
government. His appraisal came up with a smaller carrying capacity than
Webb’s. He said that he was instructed to value the ranch with and
without a grazing permit. Meiling testified that he did not take into consideration the value
of the stock-water rights when he valued the ranch without a grazing
permit. "You assumed that the forage rights and water rights were
worthless without the permits," Van Zandt said. Meiling said that it was difficult to value water rights when you did
not have a means to use them. He said that state law said you owned the
water but that without a means of using the stock water i.e. a grazing
permit, it was hard to place value on them. Morrison said that Van Zandt allowed Hage to make a final statement.
"There wasn't a dry eye in the house." Hage’s daughter told the judge, "You either need to get these
guys off my back or pay me." Morrison said that Hage went on to say that he was targeted by the
Forest Service, first for writing the book, "Storm over
Rangelands," then because he spoke out against a former Forest
Service employee. She said the ranch was basically put out of business
for 13 years. Morrison said, "I'm paraphrasing: ‘Dad said this court came
down in 2002 and said I had title to the fee lands. Then, this court
came down in 2003 and said I didn't have to have a grazing permit. If I
died tomorrow, my children would have to pay taxes on those
lands.’" Morrison added that "we already (had to) pay an inheritance tax
on our portion of those lands when my mother died...The government can't
have it both ways, tax your holdings, then say you don't own them." Morrison said that she believed the government would want to settle,
even though it seemed to have gotten boxed in on what rights existed.
"I think they would be more inclined to settle, if we hadn't been
doing these seminars." In those seminars, Hage tells ranchers that the fee lands are
"an inheritable right to use." He once said that the fee
interest is more like owning a grazing easement, rather than outright
ownership of the land. He said his claim is to the forage, not the
underlying title. In March of 2003, 24-year veteran attorney for the federal government
Burt Stanley, now retired, said that he was not going to pick a winner
but understood where Judge Smith was coming from. Stanley, former regional solicitor and chief lawyer for the BLM, said
that "the judge has an interesting theory there." He said that
the historical support for the concept came from England, which has fee
interests of a similar nature. Individuals do not own property in England. Land is owned by the
crown, while persons with fee interest have the inheritable right to use
the land. Stanley said that the concept was not taught in schools, but has been
around for a couple of centuries. "The way I see it, because of his
(Hage’s) water rights, he gets the use of the fee by virtue of his
ownership of the water." The attorney said that the judge does not limit the amount of land
taken, and that it seemed to be how far a cow ranges from the water
source. In 2003, the federal attorneys asked Judge Smith to place Hage under
a gag order to prevent him from putting on the seminars and telling
people they did not need a grazing permit. The judge ignored the
request. Morrison said there will be many similar cases filed in the Court of
Claims. She said some ranchers are conducting their own research on
chain of title to prove what rights had been perfected by their
predecessors, while others were hiring her and her sister to do the work
for them. She said that Van Zandt is working on five other takings
filings at this time. Morrison said that the judge said that since there was so much
interest in the case, he would attempt to rent a larger courtroom for
the final arguments, which are scheduled for October. Both sides will submit post trial briefs in the interim. She said that the judge urged the parties to settle, because it would take four years to get the case to the Supreme Court.
Copyright 2004, The Nevada Rancher. |
