Replies

The War Against Wayne Hage

by John W. Whitehead 11/15/2004
http://www.rutherford.org/articles_db/commentary.asp?record_id=308

“There is no such thing as civil liberties if you do not have property rights.”
—Wayne Hage

It was once believed that a man’s home was his castle. Yet as our government continues to exercise its right to obtain private property for public use in sometimes questionable circumstances, the domains of hardworking Americans are increasingly coming under siege. Consider the case of Wayne Hage.

Wayne Hage is a self-made man. He started supporting himself at age 15 and paid his way through undergraduate and graduate school, earning a masters degree in organic chemistry. After working several cattle ranches in Nevada as a young teenager, Hage knew that he wanted a place of his own. In 1978, Hage realized his dream when he purchased Pine Creek Ranch in Nye County, Nev., which adjoins the federally administered Toiyabe and Humbolt National Forests and Monitor Valley.

A couple of months after Hage purchased the 752,000 acre ranch, which he and his wife Jean manage, along with their five children, two agents from the National Park Service appeared and informed Hage that they were going to buy his ranch. However, they only offered him about half of what he had just paid. When Hage made it clear that he was not willing to sell, the harassment began.

It started with the U.S. Forest Service and Bureau of Land Management (BLM) filing a claim on the water rights to Hage’s ranch after Forest Service rangers fenced in a critical spring to pipe water into the ranger’s cabin. Since Pine Creek Ranch is comprised of mostly desert terrain, access to water for cattle and wildlife is crucial. Hage’s only recourse was to petition the Nevada State Engineer for a determination of who owned what. This was in October 1981. Adjudication stretched out for 10 years because of numerous delaying tactics used by the Forest Service. The ranger’s fence still stands today.

In the meantime, harassment, taking of cattle and government interference in the daily operations of Hage’s property were driving the ranch to the brink of collapse—not to mention the personal drain of time, money and lost income incurred during the three administrative appeals Hage filed and won. His wife and children were run off the road. His pickup was shot at while Hage was nearby. The Forest Service and BLM, along with various environmentalist groups, were formulating constant changes in regulations, making it increasingly expensive to operate Pine Creek Ranch—the primary reason the well-respected previous owners sold it.

Indeed, over a period of 105 days, Hage received 40 certified letters and more than 70 personal visits, each citing him in violation of a creatively “new” bureaucratic regulation. In one instance, Hage sent a horse and rider to ride a 20-mile fence line to verify a violation, only to find there was one staple missing in the entire fence line, dutifully earmarked with a bright blue flag. Then there were the 45 counts of trespass, charging that Hage’s cattle were grazing in the wrong locations. Yet, on more than one occasion, more than one eyewitness watched the Forest Service move the cattle into a trespass area and then cite Hage for the violation.

Things became even more serious in 1991 when the Forest Service, armed with semi-automatic weapons and wearing bulletproof vests, confiscated some of Hage’s cattle. Hage had previously worked for the Forest Service and BLM and knew that part of their unwritten procedure in dealing with people is to provoke confrontation. In preparing to confiscate Hage’s cattle, the Forest Service repeatedly sent out emails and made phone calls, portraying Hage as one “who can only be dealt with in very extreme measures.”

An aggravated confrontation becomes an easy and lawful way for a federal agency to come after an individual if that citizen reacts and physically threatens the federal agents involved. This was the scenario with the infamous 1992 Ruby Ridge incident where federal agents shot and killed Randy Weaver’s wife and son after Weaver engaged federal agents. In the end, Weaver was found innocent of any charges after standing trial and was eventually awarded a $3.1 million settlement against the federal government.

Amazingly, Hage kept his composure during this ordeal. When he drove to the site where his cattle had been confiscated, he found 30 Forest Service riders, armed with semi-automatic weapons and bulletproof vests. Some were stationed on high points, clearly expecting confrontation. But much to their dismay, Hage had done his homework, was aware of his rights and knew to avoid the mistakes of others. Hage refused to be provoked to violence. Instead, he pulled out a 35-mm camera and said to the agents, “Smile pretty, boys.” After confiscating more than 100 head of Hage’s cattle, the Forest Service handed him a bill for their costs in gathering the cattle. They took the cattle to a sale yard that adamantly refused to auction off stolen cattle and then held their own sale and kept the profits.

Heavily armed agents also came out to his ranch on several occasions, but Hage again refused to let the confrontations turn violent. Instead, he took the federal government to court, filing a landmark case that placed the practices of federal land management and adjoining agencies set to drive landowners “off the range” on trial. Hage v. United States stands for seeking justice and compensation against the Forest Service under the Fifth Amendment to the U.S. Constitution. Hage cited the taking of private land and cattle, water rights and irrigation ditch right-of-ways by the federal government.

At trial, the court concluded that Hage indeed owned the water on his grazing allotment, ditch right-of-ways and other property rights. However, the federal government continues to argue that this case is not really about personal property rights but responsible grazing. To this day, government agents continue to attempt to enforce rules and regulations they claim Hage broke.

Yet the principles in Hage’s case go far beyond the issue of a man keeping his ranch. “There are no such things as civil liberties if you do not have property rights,” Hage said. “If a person’s cattle, ditches and water, on his own ranch, aren’t safe, any other property you have is not safe—they can take anything they want.”

One of the more alarming developments in recent years is the alignment of the federal government with aggressive environmental groups. Roy Elicker, an attorney for the National Wildlife Federation, revealed their strategy at a seminar designed to teach participants how to eliminate people such as Hage and his livestock from federal lands. It is to make “it so expensive in his operation and mak[e] so many changes for him to continue to run his cattle on the public lands that he goes broke.” Then Elicker continues: “How to win is one at a time, one at a time, he goes out of business, he dies, you wait him out, and you win.”

Wayne Hage understands what he is up against. That is why he argues that property owners need to know their rights and stand up for them, especially as it concerns the attainment of property under the guise of environmentalism. “You either exercise your right to own property, or you yourself are the property of a coercive or tyrannic government.”

Passionate about getting the government “back under control,” Hage has continued his fight over the years, despite pressure from the federal government to drop the case. Moreover, Hage views it as yet another set of circumstances determining the future of our freedom in America. “The broad issue is whether me, my children, my friends, my fellow countrymen are going to be able to see a free society in the future.”

For Hage, the Fifth Amendment, including its relevant clause stating “nor shall private property be taken for public use without just compensation,” was placed in the Constitution because history taught our founders that government, left unchecked, will always become a thief. “But all thieves lose their zeal for stealing when they are required to pay full value for what has been stolen.” No one else, he argues, is going to protect your rights if you are unwilling to defend them yourself.

In August 2004, in the midst of finalizing post-trial briefs of the 13-year-old lawsuit and in a move of apparent direct defiance of all court decisions, the Forest Service and BLM indicated that they were preparing to confiscate the remaining cattle on Hage’s ranch. The federal government claims that BLM can move forward with the confiscation unless they receive a cease and desist order from a federal court.

In a move of desperation on the part of the agencies, the Forest Service and other agencies continue their efforts to create a “confrontation” with Hage. “The government refuses to recognize that I am not a trespasser on my own ranch,” says Hage. Still, Hage remains determined and dedicated to his principles in the fight—that is, the cornerstone of a truly free society is the ownership of private property by the people.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org.

The Jarbidge Rebellion

article from Montana Human Rights Network News, February 2000

http://www.mhrn.org/newsarchive/0200jarbidge.html

A one and a half-mile dirt road in Elko, Nevada, has become the new symbol for America's anti-government movement. Elko County claims it owns the road. The United States Forest Service says the road is part of the Jarbidge wilderness area, giving the forest service jurisdiction. The controversy is so heated it has led to the resignation of a forest supervisor and the convening of a congressional hearing, in addition to dramatic street theater by anti-government and militia groups.

The debate over the road has quite a history. The South Canyon Road near Jarbidge was washed out by a flood in 1995. The forest service decided rebuilding the road was unnecessary and would put the bullhead trout, an endangered species in Jarbidge River, at risk. The Elko County Commission had other plans. In 1998, it voted to reconstruct the road and began work. The federal government intervened and forced the county to halt the project. The forest service then came in and removed sections of the now-altered road that were threatening to dump sediment into the river. The justice department sued Elko County for $40,000, seeking the costs associated with removing the county's road construction. That's when the current controversy began.

Nevada Assemblyman John Carpenter informed the Elko commission that he and two other people, Grant Gerber and O.Q. Johnson, were organizing a work party for October 8-10, 1999. The party would use shovels, wheelbarrows and horse-drawn equipment to rebuild the road. At the last minute, a district judge granted the forest service an injunction forbidding any action by the work party. Seizing on Carpenter's defiance of the federal government, anti-government groups across the country, including the Militia of Montana, began supporting the "Jarbidge Rebellion."

The militia perspective on the Jarbidge Rebellion was more than local versus federal control. It interjected a conspiratorial view. One note sent over the Militia of Montana's e-mail list stated, "The Feds, in collaboration with global elitists (the New World Order), are pushing for total control from Washington D.C., imposing their ever-increasing bureaucratic legislations (under the guise of Îenvironmental protection.')" Vin Suprynowicz, writing for The Libertarian, echoed this statement, saying, "It's now obvious to all that federal Îland managers' are involved in an organized campaign to systematically sweep the rural West of humans."

The level of hostility toward the federal government and its employees continued to rise. Out of concern for the safety of her employees, Gloria Flora, supervisor of the Humboldt-Toiyabe Forest, resigned her post last November to call attention to the extreme anti-government atmosphere they faced. Her resignation stated, "Fed bashing is a sport here and I refuse to sit by quietly and let it happen as many others do." She said federal employees were being harassed and intimidated to the point that they are refused service in restaurants and kicked out of motels because they work for the government. She hoped the media spotlight created by her resignation would help get something done. "They [anti-government activists] have many slogans, like ÎRemember Waco,'" she said during a speech in Helena. "The last time a person said that, 168 people died in Oklahoma City." Flora wanted to speak out before a similar act occurred.

Congressional Hearing or Conflict of Interest

On the heels of Flora's resignation, Rep. Helen Chenoweth-Hage (R÷ID), chair of the House and Resource Subcommittee on Forests convened a hearing on November 13, 1999, to examine the jurisdictional issues surrounding South Canyon Road.

Helen Chenoweth-Hage has been a controversial figure since taking office in 1996 because of her close connections to anti-government activists. She's brought the militia movement's issues to the floors of Congress, including its paranoia of black helicopters. This alone would make her a poor choice to look into a controversy between the federal government and anti-government activists. On top of that, Chenoweth-Hage is now married to wise-use icon Wayne Hage. The conflict of interest is evident.

Wayne Hage is a rancher in Nye County, Nevada. He first gained attention during the Sagebrush Rebellion which favored turning all federal lands over to the state. He helped form the National Federal Lands Conference (NFLC) that created the wise use movement. He and the group have many connections to Montana. In 1993, the NFLC held a meeting in Jordan, Montana, featuring tax protestor and anti-Semite Red Beckman. In 1996, Hage was a featured speaker at the right-wing Freedom Rendezvous held in Missoula. Other speakers included militia activist Jack McLamb and Larry Pratt, director of Gun Owners of America. Currently, Hage is continuing an eight-year lawsuit in which he is suing the forest service for $26 million over grazing rights.

Chenoweth-Hage's hearing included testimony by Assemblyman Carpenter who compared the Jarbidge Rebellion to the American Revolution. He said, "If the Feds do not change their ways and begin to listen to the local people, there is going to be a lot more tea thrown overboard." Commissioner Tony Lesperance added, "We will rebuild that road, come hell or high water."

With Flora gone, Intermountain Forester Jack Blackwell appeared before Chenoweth-Hage but refused to answer her questions. He said a justice department attorney had recommended he not comment on the Jarbidge situation because of pending legal action related to the injunction filed against the work party. Upon completing the hearing, Chenoweth-Hage said she believed the road is owned by the county.

The Rebellion Continues

Chenoweth-Hage said she plans to hold another hearing into the Jarbidge Rebellion later this year in Washington D.C. Meanwhile, the forest service and Elko County continue trying to resolve the issue through mediation. Assemblyman Carpenter is planing another work party for July 4th. He plans to use shovels delivered by Jim Hurst, owner of a timber mill in Eureka, Montana. Hurst delivered his shovels to Elko on January 29, and they were used in the "Shovel Brigade Parade" that attracted 3,500 people. Jarbidge River's South Canyon Road is now just a symbol of the larger battle between wise use activists and the federal government. "We've [the forest service] tried over the years to give several roads to the county, but they didn't want them. They couldn't make political hay with those roads," Flora said. "The issue here is serious anger toward the federal government."

Huge Win for Property Owners

Unbeknownst even to most legal experts, Wayne Hage has scored a major victory (in Hage v. United States) for ranchers, farmers, and all property owners.

http://www.azanderson.org/anderson_report_environmental_issues.htm

In the May 20, 2002 issue of The New American reported on one of the most high-profile takings cases to go before the courts in recent years.

The United States, through its Department of Agriculture, Forest Service, Department of Interior, and Bureau of Land Management, had attempted to reclassify the Pine Creek Ranch in central Nevada as public land, and thereby take the ranch without compensation to the owner, Wayne Hage. The result was the filing in 1991 of the case Hage v. United States before the U.S. Court of Federal Claims. This court has issued three published opinions on the case since 1996, all extremely favorable to Hage and property owners in general. Once again, The New American visits with Wayne Hage about the current status of the case and what the future may hold.

The New American: Wayne, why did the United States attempt to reclassify your ranch as public land?

Wayne Hage: The answer to that question really comes down to a failure or unwillingness on the part of the federal government to understand that private property in the West developed under an entirely different doctrine than did property in those states east of the 100th meridian.

TNA: Can you briefly explain the difference between these two property doctrines you mentioned?

Hage: The eastern states, up to the 100th meridian, that's basically the line between Kansas and Colorado, were settled under the concept of the Riparian Water Doctrine. The Riparian Doctrine, which has roots in Anglo Saxon law, says in simple terms that if a person acquires lawful title to a parcel of land he has the exclusive right to the utilization of the water and vegetation on the land. The Riparian Doctrine had historically applied to areas of adequate or excess rainfall.

TNA: How does this Riparian Water Doctrine, as you call it, differ from the doctrine of land ownership in the West?

Hage: The 17 western states fall almost entirely under the Prior Appropriation Water Doctrine. Under that doctrine, the person who acquires title to the water has a right to acquire the use of as much land as is necessary to put the water to beneficial use. This water doctrine developed anciently in the desert regions of the old world. It came down to us through Las Siete Partidas, the Great Law Code of Spain, and Mestas Ordinanzas of Spain and Mexico, which established the land-use law that governs in the western United States today.

TNA: If I understand you, would it be correct to say that under the Riparian Doctrine of the East, control of the land conveys the control of the water on the land?

Hage: That is an excellent way to simplify it.

TNA: Then under the Prior Appropriation Water Doctrine, control of the water allows one to control the land necessary to properly use that water?

Hage: Again, that is an excellent way to simplify it.

TNA: How did the United States end up with two separate land settlement patterns which are so different from each other?

Hage: There are two basic answers. For one thing, the difference in rainfall patterns between East and West demanded it, and the Prior Appropriation Water Doctrine of land settlement was already well established in the southwestern part of the present United States long before there was a United States of America. Congress and the executive wisely recognized this long-established law when they approved the Treaty of Guadalupe-Hidalgo in 1848. The United States wisely chose not to disturb a system of property law which predated the establishment of the United States and chose instead to adopt the principles of Prior Appropriation as U.S. Law with the Act of July 26, 1866.

TNA: This raises another question. Why are vast segments of the West designated "public lands"?

Hage: You are referring to what I often call the public lands myth. On much of the western land area, particularly the vast western range lands, the underlying land itself, the mineral estate, is held by the United States just as it had previously been held by the King of Spain and later by the Mexican government. What the rancher acquired were grazing easements over the lands of the government. These were inheritable rights. An inheritable right is known as a Fee. The lands covered by these grazing easements, called grazing allotments, are in fact held by the United States, but are referred to properly as Fee Lands because the fee, the inheritable right to use, is owned separately from the underlying lands.

The term "public lands" has been erroneously applied to these lands. I say erroneously because the United States Supreme Court held in Bardon v. Northern Pacific Railway Company that "lands to which rights and claims of another attach do not fall within the classification of public lands." Rights and claims of ranchers to water rights and grazing easements (range rights) cover virtually all these lands. According to the U.S. Supreme Court, the ranchers' grazing allotments cannot be public lands....

To continue reading the complete article, place an online order for a PDF version of the March 20th issue of The New American, and get instant access to the full-text of this article along with the full-text of all the other articles in the same issue. Similarly, if you place an online order for one or more copies of the print version of the March 20th issue, you'll receive a complimentary link to the PDF version of that issue, also giving you instant access to the full-text of the "Huge Win for Property Owners" article and all of the other articles in that issue.

Interview of Wayne Hage by William F. Jasper; March 20, 2006 http://www.thenewamerican.com/artman/publish/article_3518.shtml

Very good news that is not well publicized.