Posted on 01/31/2002 2:49:46 PM PST by Carry_Okie
January 31, 2002
FOR IMMEDIATE RELEASE
Major Victory in Hage v. United States
Landmark Takings Case Decided in Favor of Property Rights
The long anticipated final decision on the property rights at issue in Hage v. United States, the takings case filed by Nevada ranchers, the Wayne Hage family, has finally been issued by Senior Judge, Loren A. Smith. On January 29th, Smith ruled Hage owns extensive property rights on his grazing allotments, specifically water rights, 1866 Act ditch rights of way, the right to have their livestock consume the forage adjacent to their waters and ditches and the right of access thereto.
The Hages had filed their takings claim against the US Forest Service and Bureau of Land Management in 1991 after excessive regulations and physical takings of their property had run them out of business. They filed their case in the US Court of Federal Claims in Washington DC, placing the important question before the courts what property rights do ranchers own on their grazing allotments?
"The court specifically rejected the position of the BLM and Forest Service that ranchers have no property rights on their grazing allotments," commented Hage attorney, Ladd Bedford. "The court further stated that if the government's interference with these rights makes it impossible for the rancher to use them, the Government will be required to pay compensation for their loss."
In addressing the issue of the Hage's access to their water rights, Judge Smith's opinion stated the following:
"The Government cannot deny citizens access to their vested water rights without providing a way for them to divert that water to another beneficial purpose if one exists. The Government cannot cancel a grazing permit and then prohibit the plaintiffs from accessing the water to redirect it to another place of valid beneficial use. The plaintiffs have a right to go onto the land and divert the water."
The court did rule against Hage's argument that he owned the surface estate of his allotments, but plaintiffs are not troubled by the courts position.
"When you combine everything the court has ruled that we own in this final decision, it is clear that the key property rights essential to a western livestock grazing operation are recognized," noted plaintiff Wayne Hage.
The court also clarified the relationship between the rancher and the grazing permit system by stating the grazing permit is a license and the government has the authority to exercise reasonable regulations. However, because of this landmark decision, ranchers now may be protected from abusive grazing regulations if they cause the taking of access to the ranchers' 1866 Act ditch rights of ways or water rights.
"For the first time in history, a federal court has defined the balance between the western ranchers property rights and the governments ability to regulate," explained Bedford. "This decision is a major step forward for the security of federal land ranchers."
The court has set up an aggressive briefing schedule to complete the final phase of the case: determining whether the Hage's property rights as determined in the courts Final Decision were taken by the government. If the Hages prevail in this final stage compensation will be awarded to them for the taking of their property, and the rights of every other rancher affirmed in this decision will have the same protection.
"For ten years Stewards and its members have been working towards the protection of ranchers property rights," commented Frank Duran, president of Stewards of the Range. Stewards is the organization that has funded and supported this case since it's filing in 1991. "We now have the most important legal precedent ever set in modern times to protect these rights, and we look forward to wining the next and final round, proving the government must compensate western ranchers when their actions go too far."
Stewards will be providing a decision analysis by the attorneys along with the final decision through their website at www.stewardsoftherange.org
J. Zane Walley, Grantee
The Paragon Foundation 1-877-847-3443
http://www.paragonpowerhouse.org/mission.htm
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But ... Awesome decision!
What great news!
Can you tell us anything about this brave judge?
Thanks for this great news for all Americans not just the Hage family!
The enviral rural cleansers must be feeling like the Talibaners in Afghanistan after this.
Any idea of when the Judge will render a final on compensation? Imagine fighting since 1991 thru the court system.....
I didn't think they would, because they were essentially wanting the court to treat the grazing lease as an actual conveyance of ownership, which it isn't.
But it does set out the principle, apparently, that the government can't unilaterally yank rights granted under the lease, specifically water rights, even though the lease arguably gave them the power to do so.
This sounds like a decision which takes away a great deal of power from the federal government, and that is a great thing.
Alexander Hamilton: "A power over a man's subsistence amounts to a power over his will. Property must be sacred or liberty cannot exist."
James Madison: "Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions", and:
"Government is instituted to protect property of every sort. . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own."
"Government is instituted no less for protection of the property than of the persons of individuals."
John Adams: "[t]he moment that idea is admitted into society that property is not as sacred as the Laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.
Daniel Webster: "No other rights are safe where property is not safe."
An eighteenth century judicial opinion best reflects this concept, wherein the Court noted that "the right of acquiring and possessing property, and having it protected, is one of the natural, inherent and inalienable rights of men.... The preservation of property, then, is a primary object of the social compact." Vanhorne's Lessee v. Dorrance, 2 U.S. 310 (1795).
As we know, early American common law descended from English common law. What did the English think of private property?
Magna Carta: No Freeman shall be taken, or imprisoned, or be disseised [deprived wrongfully of real property] of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. 1297
John Locke: "The great chief end therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property." He also said, "Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience..." --2nd Treatise of Government, 1690 the principal absolute rights which appertain to every Englishman,"
William Blackstone: The principal absolute rights which appertain to every Englishman [are] personal security, personal liberty, and private property.
This is only round one, the appeals will surely follow......
and they have the big bucks(yours) to waste.
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