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....
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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.