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Hages provide solutions to PRFW Couple details property battles with government

By CHRIS MARCHESO June 05, 2006
Fort Morgan Times
Fort Morgan CO
http://www.fortmorgantimes.com/Stories/0,1413,164~8312~3177005,00.html

Ranchers and farmers have been and still are in a war for private property rights throughout the U.S., and Helen Chenoweth-Hage said if the war isn't won, ranchers and farmers face losing as much as if the U.S. would have lost World War II.

Helen and her husband of six years, Wayne Hage, spoke Wednesday at the Country Steak Out, 19592 E. Eighth Ave., to nearly 200 people involved with the Property Rights Foundation of the West, a non-profit organization in Fort Morgan designed to protect and preserve, through information, education, advocacy and support, the individual property rights of farmers and ranchers in the area from state and federal government takings.

Wayne is a rancher in Tonopah, Nev., geographically in the center of the state, and has spent 14 years in federal courts defending his property rights as both the U.S. Forest Service and Bureau of Land Management had continually cited and charged him for various violations. At one point, in a 107-day working season, he received 40 citations and 70 visits from the two agencies.

So Hage, along with his first wife (now deceased) and his five children, waged a war against the federal government and has been in and out of courts for the past 14 years and is still involved with Hage v. United States, a case that is still in litigation and has become influential in the fight for property rights for ranchers and farmers in the U.S.

"A right undefended is a right waived," Wayne said. "We have to get away from just talking about our problems together and start talking about solutions. People who are truly claiming rights are the people government wants to leave alone."

Helen, congresswoman of Idaho from 1994 through 2000, has also been influential in protecting property rights as she served as chairwoman to the House Forestry Sub-Committee in her second term and is currently serving on the Board of Directors of Mountain States' Legal Foundation and Defenders Property Rights. After marrying Wayne in 1999, she returned from Congress with him to his Nevada ranch where took on the role of a rancher's wife and helped to progress Wayne's fight for his property.

"I wanted to get back where the real people and the real life was," Helen said. "And this life is worth fighting for."

Misconceptions

When it comes to property rights cases for ranchers and farmers throughout the U.S., the two most common misconceptions that Nevada rancher Wayne has seen is a misunderstanding of what property really is in property rights cases and knowing what questions to ask in which courts.

One of the primary reasons taking cases are lost is a lack of knowledge as to what property is. The majority of lawyers, as well as farmers and ranchers, say in their cases that the property being taken is what Wayne called the subject, or the physical property like land, wells or water. But what is actually being taken away is the access to the property and being able to make beneficial use of the property, Wayne said, and that is what should be defined as property in a case. The physical property will be there, but government often prevents farmers and ranchers from accessing the subject of property.

"Property and access are synonymous," Wayne said.

Another very significant reason for losing these cases is lawyers taking them to the wrong court. Most of the cases he has seen have been filed in Federal District Court, but this court doesn't have jurisdiction over property valued at $10,000 or more; most takings cases exceed $10,000. Wayne said these types of cases must go to the U.S. Court of Federal Claims and while he has worked to make this known, lawyers are continually told they have "the right question in the wrong court," he said, when they don't take cases to the U.S. Court of Federal Claims.

Wayne said he knows of five lawyers who know how to adequately handle and present these types of cases, but one is now a judge for the U.S. Court of Federal Claims.

"Make sure your lawyer gets the right question in the right court and make sure both he and you understand what property is," Wayne said.

Powerful tools

When taking a case to the state or federal level, Wayne said the most powerful tool a farmer or ranch can have is an exhaustive chain of title. Providing just a title or deed, as well as title insurance, is not enough to show true ownership. These are usually referred to as color of title, basically documents that don't truly state one way or the other who the title really belongs to.

An exhaustive chain of title, which Helen worked diligently to get for Wayne, begins with a title or deed and must be traced back by each change of deed between grantees and grantors back to the first source document when the property was first owned, which Wayne said is usually a patent. Once all certified documents from the respective county can be traced from the original source to the current title or deed, Wayne said any kind of government has no dispute as to the ownership of the property.

Helen said there are incidents when documents can be destroyed or in Wayne's case, his current county used to be part of another county, so Helen had to go to the old county to get documents. All documents can be traced somehow, whether it be through title books, water books, marriage licenses or newspaper accounts, among others.

"If you've done your homework, you can cram that down government's throat," Wayne said.

With an exhaustive chain of title, the property becomes a vested right for the owner and Helen defined a vested right as "absolute, complete and unconditional in itself" and "cannot be taken away unless though due process and just compensation."

Although they want to, Helen said many ranchers and farmers are beginning to not trust their governments.

"The law is on your side," Helen said. "You really have a great case in front of you."

A long road

Both Helen and Wayne said the war has not been easy. At one point, Wayne was put in an ankle bracelet and faced felony charges for "damaging federal property." But Helen said often times, violations and charges he received included things like having trash on the edge of his allotment and when Wayne went to inspect it, it was trash the forestry service had left; he received a fence maintenance violation on his property and after traveling almost a day to get to where the violation was as it was about 4,000 feet higher in elevation than the base of his property, the violation was for one staple that was missing in a fence post, and once when Wayne's cattle had stepped over his property line, the forest service brought in military action, confiscated his cattle and took them to an auction house in Nevada to be sold. When the auction house wouldn't take the cattle for not being properly transferred, the forestry service took them to California to be auctioned and charged Wayne for the confiscation and transfer.

Wayne's five children often received ridicule in school for being a Hage as the family had made a name for itself fighting the government, and Wayne said once someone emerges himself in a case like this, je will most likely be fairly lonely for a while.

"People that used to be your friends and neighbors often turn their heads from you when you become involved and they try to maintain a good relationship with the federal agencies," Wayne said. "You become well-isolated. Just be sure to know what you're doing, why you're doing it and stick to your guns."

Helen said both she and Wayne are hard-headed people who are determined to continue this war.

"It's absolutely amazing that the beautiful state of Colorado is doing what it's doing to your property rights," Helen said. "When we win, they lose. We can do it in the end."

David & Goliath

When Big Brother decided to hold Wayne Hage and his rights hostage, this articulate, tenacious, driven rancher decided to fight back–and he’s winning.

http://www.rangemagazine.com/archives/stories/summer01/david_goliath.htm

Text and photos by Tim Findley

Hage is out there, pretty much alone. But like his Viking ancestors confronting a Celtic stone wall, he is given to storming the issue, no quarter given, none expected. In the West today, if you haven’t heard of Wayne Hage, you haven’t learned to listen.
Truth be known, “Old Yeller” and me don’t get along that well even on the best of days. That truck has a definite ’70s attitude, all consumption and little consideration of others. So, pulling into Tonopah at the start of a high-desert snowstorm, it seemed unlikely that we’d be going much further that day in pursuit of the elusive Wayne Hage.

Local kids had already been given a snow day off by school authorities knowing what was coming on the bus routes out to distant ranches, and plows were ahead of the shovels in piling the slush along the curbs and sidewalks. Only one last warming den I could find on the main drag was even still open, casting out a pale amber welcome in the steadily darkening afternoon. When it’s weather like that, there’s no hope of reaching the Hage ranch by telephone either.

Checking around on one last remote chance of getting lucky, I was told that, no, Hage was not in town. But I was informed and soon confirmed that his wife, former Idaho Congresswoman Helen Chenoweth Hage, was there. At the laundromat.
Put now aside all those pressures for political correctness and your new-age indignation. Helen Chenoweth Hage earned commanding respect in her three terms in Congress, leaving her seat only as she had promised as a self-imposed term limit, and in spite of pleas throughout the West that she at least be

offered a cabinet post. Forget the fact that her political moxie and no-nonsense charm made her probably the most admired, and often most controversial, representative of western rights in Washington, D.C. during all the dim years of Clinton-Babbitt. Put your mind on Tonopah in a snowstorm and know that somebody still has to do the laundry.

It is 60 miles out from Tonopah on roads few tourists travel to the Hage’s Pine Creek Ranch. When there is a blizzard blowing up, it seems a little further. Along with the laundry, I was grateful it was the former congresswoman, and not me, busting her four-wheeler through tracks at first a few inches, then soon a foot or so deep in steady snow that in some places blotted out any trace of road at all. “Can you see it?” she asked, merrily blasting along as if I could.

Wayne Hage and Helen Chenoweth have been married for just about a year-and-a-half now. In the context of whatever you want to call the struggle in the West–Wise Use Movement, Property Rights rebellion, Local Authority, whatever–it is, among the informed and even among some uninformed, the trophy union of the time. Sort of like Hickock and Calamity Jane.

Wayne was waiting at the end of what I could see of the road when we arrived. It would not be his way to admit it, but I had to conclude that he had been watching for quite some time before he spotted the dark form of her S.U.V. at last coming through that sheet of storm.

Hage is a Nordic type, Norwegian by heritage, with a kind of icy intellect that’s not unfriendly, but does expect you to have read the assignment. Like his Viking ancestors confronting a Celtic stone wall, Hage is given to storming the issue, no quarter given, none expected. In the West today, if you haven’t heard of Wayne Hage, you haven’t learned to listen.

If, less than a year after he acquired his 700,000-acre spread in Nevada’s Monitor Valley in 1978, the U.S. Forest Service and federal allies in the environmental movement had not begun their relentless pressure to buy or force him out, Hage might be known today only by his slightly grumpy approach to cowboy poetry. And by something of the same token, if federal marshals had not displayed such murderous intent on Randy Weaver and his family in what would become the Ruby Ridge part of her Congressional District, Helen Chenoweth might have gone on as a highly successful but publicly unnoticed management consultant and sometime lobbyist on western issues.

But in perhaps its most positive success of the period, it was the nemesis federal government that brought them together with mutual admiration–two scholarly but savvy people as much alike sometimes as Freud and Fulton.

Wayne will sit you down on the long side from the head of their big table he commands in the ranch house that both are remodeling these days. Hospitality and warm food abounds, but you soon learn to think about the question before you ask it.

“Well, okay,” Hage is likely to begin, “let me explain that to you, and I’ll walk you through it....”

Helen, who happens to think her husband is “the smartest man I’ve ever met,” has also learned to notice the flicker of caged fear in the eyes of guests being invited to “walk through” yet another trek of Hage knowledge stepping off usually from somewhere near the American Revolution.

Wayne Hage, who happens to think his wife is, “the brightest politician I’ve ever met–because she knows how to listen,” can in truth, be tiresome. Even he agrees that probably half the people listening to him and nodding their heads don’t really get it at all, and that another third are just pretending they do. God knows he tries, but it takes a lot of patient comprehension.

If there is only one thing Hage would want understood, it’s this: there is no such thing as “public lands.” The very phrase “public land” should be abolished from the lexicon of people like him who are willing and capable of taking on the issue of “federal lands” in the West. Put on some good shoes, it’s a long walk through it.

When the U.S. Park Service first came to Hage wanting to buy his ranch for a new park, they offered him about half what it is worth. “And when I said ‘What about my grazing allotments,’ they shook their heads and said, ‘Oh, no, that’s public land.’ I already knew better than that, but they didn’t–yet.”

If they couldn’t buy it with their bargain offer, the feds seemed just as determined to snatch Pine Creek and the Monitor Valley some other way. First, incredibly, as a national defense site for the MX missile project, a cold-war fiasco that would have ICBMs running around the

In his federal case,
Hage is not the
defendant. It’s the
U.S. government
that is accused of
taking his property,
and what is clearly
at issue is that it was
and is his property,
on which he pays
his taxes, that the
federal government
is trying to steal.

Pine Creek Ranch runs on 700,000 acres in central Nevada. The ranch house sits at about 5,000 feet but cattle graze in summer up to 11,000 feet. The Hage place is quiet and beautiful...and coveted by the feds.
range on railroad tracks like the rabbit at the dog track. The MX went down in flames of controversy and sinister implications that stretched into some of the best-known names and political careers in the state. Hage didn’t need to look for allies or even lawyers in that fight. They found him.

With the beginning of the Clinton administration, the covetous eyes of federal authority found new focus on the Hage property. Now it was new grazing regulations and claims to water rights covering his allotments they used to turn the ratchet tighter on the stubborn Norwegian with a master’s degree in science and a book full of research on his property rights. When Hage refused to cave in to the ranch-killer pressure, federal authorities confiscated his cattle for illegal grazing on “public” land.

“There is no such thing as ‘public’ land,” says Hage. “Since at least 1890, it has been established as split-estate federal land. The government retains the mineral rights, but surface property rights to forage and water and access are established in lawfully adjudicated grazing allotments and recorded as state law. It is federal land, but I own the surface property rights.”

It is at about that point that many in the long cast of western characters to whom Hage has explained it begin to shuffle a little in their seats. Hage has been singled out in the unprecedented seizure of his cattle and his allotment rights. Even if he might have chosen it that way, he was being forced to go it alone in his stance against a federal taking of his property without compensation.

The second most important thing Hage wants his guests to get is that you do, of course, take the bastards to court–but you take them to the right court.

“The inclination every time is to go to federal district court to defend your rights to justice,” Hage says. “But the federal district can’t decide that. It can’t fix a property rights’ dispute, it’s not their jurisdiction. All it can do is decide on the rules and regulations. The issue is the property–was it yours and did they take it?–and the only court that can decide that is the United States Federal Court of Claims.” In his federal case, Hage is not the defendant. It’s the U.S. government that is accused of taking his property, and what is clearly at issue is that it was and is his property, on which he pays his taxes, that the federal government is trying to steal.

It’s federal, not “public” land–a split estate–and your rights can be confirmed in the federal court of claims. If you get that much, you’ve earned the right to some knowing nods at the long table in the ranch house. But Hage has more, much more. He is, in fact, winning, and it may make a significant difference in western history. “Let me walk you through that,” says Wayne. And Helen has such a pretty smile.

Hage is very aware that other ranchers and property right holders instinctively seek a “silver bullet” solution in some far foreseen U.S. Supreme Court decision. But if that ever comes, it is likely to be a coup de grace to federal authorities already badly wounded by Hage’s victories in the federal court of claims before Judge Loren Smith.

“We have yet to lose on a single issue,” Hage says, “and bit by bit we are breaking down 100 years of federal misinformation on so-called ‘public’ lands.”

So far, the court has found for Hage in concluding that the United States Forest Service did take his property and did set out to destroy the economic viability of his ranch. His allotments, covering some 600,000 acres, are part of his property, the court has said, and there has been preliminary agreement that Hage owns the water, forage and access rights to that property, although the scope and extent of those rights remain at some issue.

The stage is thus set for the key decision that could open up a whole new vista on the issue of western property rights. Hage doesn’t deny that the U.S. Constitution permits the federal government to seize his property, but not, under terms of the fifth amendment, without just compensation. The key decision expected from the court this year is how was the property taken and what is its value?

Already, Hage confides, there have been subtle, second-hand attempts to settle the matter in figures that bounce heavily around $20 million. Even for an interim taking that would cover the nine or 10 years that Hage has been deprived of his ranch’s productive capacity, the amount might exceed that, and a more punishing ruling on a full taking could double it. Hage stands to win. Big time.

He’s no Viking dummy ready to start the feast, however. Hage and his lawyers know the case will go on in political as well as legal arenas as environmentalists especially attempt to drum up hysteria over the “loss of public lands.”

“Johanna Wald of Natural Resources Defense Council has been quoted as saying, ‘We know we’re going to have to buy these allotments,’” Hage points out, and similar buy-out, force-out strategies were produced at this year’s green-fed RangeNet 2000 symposium against grazing, oddly in a way acknowledging the truth to Hage’s position on split-estate property.

But for those in the western property rights’ movement willing to listen, Hage advises persistent patience along with careful planning. “A right undefended is a right waived,” he says. “The protection of property rights is fundamentally the preservation of civil liberties.”

Only, don’t go beating your shields at the wrong time or in the wrong place, Hage advises. Some ranchers have already waited past the six-year statute of limitations on takings cases. Others persist in trying their luck hopelessly in federal district courts.

“It’s like if you have an ignition problem with your car and you take it to the transmission shop,” Hage begins. “That’s the wrong place. They can’t fix it. Let me walk you through this....” It is no easy stroll from there into what Hage ultimately sees as an attempt to create a Treasury-saving corporate state covering federal land. But two points a night–the federal split estate and the U.S. Court of Claims–are fair achievements in following Wayne Hage. And besides, Helen at that point kindly offers a glass of wine to finish the evening.

It has stopped snowing by morning in the Toiyabes and across Monitor Valley, where from the crest of Table Mountain one of Hage’s kids once called it “the edge of the world.” Two feet of a silent white blanket spread as far as the eye could see up to the distant peaks still embraced by clouds. The vision part of the view.

Though they grudgingly acknowledge his intellect, the usually liberal press continue to cast Wayne Hage as part of the “Sagebrush Rebellion,” something they imagine as a kind of horse-barn conference meant to stampede across the “public” lands. It wasn’t, and Hage never was part of that privatization attempt anyway. They don’t quite understand Hage, and though they think they do, they don’t quite understand his wife either. Helen Chenoweth was an attractive single lady when she served her state in Washington, D.C. Among other unfair characterizations, the media there once called her, “The Poster Girl for the Militia Movement,” which she definitely was not.

Together now they work with Hage’s Stewards of the Range foundation, carrying on a struggle Hage sees as nowhere near over. They commute as much between Idaho and Nevada as more ordinary folks might between home and the supermarket. Neither Wayne nor Helen play upon the celebrity status they’ve earned. Talk between them is more often over picking up more one-by-eights for bookshelves to finish the remodeling project.

But strolling out hand in hand after breakfast through the fresh snow along the corrals, they do seem a legendary pair. Like Hickock and Calamity Jane.

And, whaddya know, it is Valentine’s Day.

Old Yeller had developed an attitude after being left in Tonopah all night and refused to start. Helen offered to push but Tim convinced her that it was strictly between him and “that damn truck alone.” He won, eventually.

Hage v. US Comes to a Close
10/28/04

Liberty Matters News Service

http://www.citizenreviewonline.org/oct2004/27/hage.htm

Nye County, Nevada - It's been nearly fourteen years since Nevada rancher, Wayne Hage and his late wife, Jean, filed their takings case against the United States.

On Thursday, October 21, 2004, ranchers from at least five states crowded into the small courtroom and spilled out into the hallway to hear the closing arguments in this landmark case being heard by Judge Loren Smith of the U.S. Court of Federal Claims.

From the time Hage purchased Pine Creek Ranch in 1978 until he filed the takings case in 1991, Hage spent countless hours fighting the BLM and the Forest Service over his water rights and grazing allotments.

The mission of the government agencies was clearly to reclaim the use of the federal lands where Hage held grazing permits and owned the water and ditch rights of ways, by whatever means necessary, including fencing off Hage's springs and the eventual confiscation of his cattle.

During the three week takings trial held in Reno last May, the Judge heard how the government's actions harassed and interfered with Hage to the point at which this profitable ranch was no longer a viable economic operation. Now that all the briefs have been filed and closing arguments have been made, the Court must decide whether the government took the property rights from Hage it had previously ruled he owned, and if so, how much compensation Hage is due for the takings.

RELATED STORY:

The Finish Line - Closing Arguments in the Takings and Valuation Phase of Hage v. United States

By Fred Kelly Grant
Stewards of the Grange

10/28/04

The finish line in Hage v. United States is in sight. The track has been long and arduous but, finally, closing arguments were advanced by counsel in an all-day court session on October 21, 2004. Judge Loren Smith of the U.S. Court of Federal Claims then took the case under advisement. No date for issuance of a final decision is known, or can be predicted. The winning purse will be adequate compensation for property taken by the Government from Wayne Hage.

After conclusion of the arguments, the parties and counsel have only one more opportunity to influence the final decision. Judge Smith admonished counsel to explore “any and all common ground” upon which settlement could be reached. Citing Justice Scalia of the United States Supreme Court, Judge Smith said he would neither make policy nor create new law, but would apply existing constitutional and statutory law to the facts in reaching his decision. Warning that it would be easier to end the case by settlement, he scheduled a telephone settlement status conference for November 18, 2004. If that conference concludes with no settlement discussions in the offing, the long awaited result of this litigation will be solely in the hands of Judge Smith.

Leading up to this point, the Court previously found and decided that Hage has private property rights in water, ditch rights of way, forage adjoining the ditches and other rights. Based on the acknowledgement of these rights, the Court set a trial to determine whether the Government has taken the rights and, if so, what valuation should be placed on the rights taken. Compensation for the taken property would be based upon that valuation.

During the “takings” three week trial in Reno in May, 2004, the history and chronological development of, operations of, and eventual destruction of, Hage’s Pine Creek Ranch in Nevada was presented from the witness stand and through documents. Judge Smith heard how property rights were purchased by Hage when he bought the ranch, and how he created additional property rights through range improvements. The evidence proved that Hage had the following property rights: (1) patented parcels of land totaling about 7,000 acres, (2) water rights in 7 streams confirmed by the Nevada state engineer and courts and recognized and declared in an earlier portion of the current case by Judge Smith, (3) underground water located all over the ranch, (4) 1866 ditch rights of way which were purchased with the ranch for conveyance of water for irrigation and stock, and (5) range improvements in the form of water tanks, pipes and troughs, 30 stockwater wells, 298 miles of fence, spring improvements, 92 ditches, corrals, cow camps, and 634 miles of roads and trails.

Throughout the trial, the Judge heard how the Government’s actions harassed and interfered with Hage to the point at which this profitable ranch was no longer a viable economic operation. Hage was forced to liquidate the livestock which the Government did not confiscate.

With the trial completed, the spotlight now turned on Hage’s attorneys, Ladd Bedford and Mike Van Zandt, to skillfully summarize the evidence and persuade the Judge to rule that the Government has taken property from Hage without compensation. Closing arguments cannot be effective unless the attorneys have been successful in getting into the record evidence sufficient to satisfy the Court of the merit of their case. But, many consider closing arguments to be the real test of a trial lawyer’s skill. These are the arguments where counsel must link the evidence to the points of law supporting the theory of their case and persuade the Court on any point of fact or law that the court might still find troublesome.

Sitting beneath the Great Seal of the State of Nevada, in a court room packed to overflow by ranchers and supporters of private property rights, Judge Smith heard the closing arguments presented by counsel for Hage, the Government, and the State of Nevada Department of Wildlife and National Wildlife Federation. Plaintiff in any “takings” case normally has an uphill battle, and here, where no rancher has ever before successfully reached this stage of such a takings case, the burden is especially tough. Ladd Bedford and Mike Van Zandt proved again in closing arguments that they are more than “up to the challenge” they face. Both articulately presented their summaries of the evidence and applicable law. Then, in rebuttal arguments, passionately emphasized the importance of holding the Government responsible for compensating Hage.

Bedford spoke first, presenting the plaintiff’s theory of why the story told at trial constituted a “taking” by the Government. He emphasized that when Hage purchased the ranch, there were no elk present. In 1979, without consulting with Hage, the Forest Service and Nevada Department of Wildlife introduced elk on the Table Mountain allotment, and from that time on, the elk interfered with Hage’s ability to operate a viable ranching business. The elk tore down fences, and the hunting seasons which resulted from introducing the elk into that particular allotment interfered with Hage’s ability to remove his cattle at the end of the grazing season.

Judge Smith is what trial lawyers often refer to as a “busy” or “active” judge, meaning that he actively engages in the closing arguments by asking a question in order to clarify a point, and then aggressively pursuing a response to his question. He posed the following question to Bedford: If there was no law prohibiting the Government from putting elk on the allotment, if the Government had the right to put the elk on the allotment, then how could there be a “taking” because of damage done by the elk who were rightfully placed? Bedford responded that the elk damage made the Table Mountain allotment unusable. Judge Smith persisted: But, if the Government had the right to put the elk on the allotment, and if grazing on the allotment was by permit, then what constitutes the base for a taking? Bedford emphasized that Hage had private property rights on the allotment in the form of water rights and range improvements, and the Government’s action in placing the elk there actually prevented Hage from using the water and range improvements, thus making it impossible for him to use his property rights. Nodding his head affirmatively, Judge Smith then allowed him to proceed to his next point.

Bedford recounted the testimony of witnesses who specified the damage done by elk, and then pointed out that the Forest Service used that damage as a base for charges against Hage. The Forest Service filed charges linked to fence damage done by the elk, and ultimately cancelled 25% of the number of livestock allowed on Table Mountain allotment and suspended 20% of the number allowed for a period of two years. Bedford emphasized the testimony of David Grider, the Forest Service District Ranger, admitting that the cancellation and suspension was designed to punish Wayne Hage, not to protect the resource.

Turning his focus to the 1866 ditch right of way issue, Bedford pointed out that when Hage tried to cut down Pinion pine and juniper trees along one of his ditches so that he could maintain the ditch, he was charged with a criminal offense by the Government. (Hage was convicted by a jury, but the conviction was later overturned by the 9th Circuit of Appeals because the Government failed to prove that the trees had a value sufficient to establish the felony with which he was charged.) Bedford pointed out that Hage’s investment backed expectations in his property rights included the use of the ditch and the ability to maintain it so that it could be effectively used to convey water. This Government interference was emphasized as an example of the type of harassment and interference used by the Government to interfere with Hage’s profitable ranch operation.

Bedford pointed out that by the end of 1990, when Table Mountain allotment had been overrun by elk and allotment numbers had been cancelled and suspended to the point at which the allotment was unusable for a viable economic operation, the Government also interfered with the operation of the Meadow Canyon allotment. The Forest Service cancelled 38% of the livestock numbers, suspended use for 5 years and served notice of impoundment of cattle. Wayne Hage knew that when he brought his cattle out of Ralston Valley, he could not keep them out of Meadow Canyon and avoid trespass actions. Twice cattle were impounded and sold. So, the Government had rendered the ranch operation so unusable that Hage was forced to liquidate his herd and get out of a business which had yielded $300,000 a year from cattle sales. From the years 1992 to 2002, Hage could run just a few head of cattle on his patented land, averaging sales of only $6700 a year.

Judge Smith, reacting to the argument that Hage had been cut away from the use of his water rights by being forced out of business, asked what the reduction of water had been on a yearly basis. Bedford responded that the state engineer’s report showed that water in Pasco Creek irrigated 80 acres, and none were irrigated in 2003; water in Pine Creek irrigated 1,156 acres, and none were irrigated in 2003; water in Andrews Creek irrigated 1,051 acres, but water in the creek didn’t even reach the pastures in 2003; water in Barley Creek irrigated 951 acres, but water in the creek didn’t come to within 2 miles of the pastures and water in Mosquito Creek irrigated 2,377 acres, but irrigated barely 100 acres in 2003. As a result, Hage is unable to use enough of his water rights to put the pastures to viable economic use.

Bedford concluded by emphasizing that Hage can’t use his ranch to gain a viable economic return and he can’t borrow against it. So, he cannot make a living from the ranch operation. He isn’t even able to rent or lease the ranch because of the Government’s interference in his business. This entire loss results from the Forest Service’s policy, the interference with and harassment of Wayne Hage’s operation by Forest Service officials. The Forest Service cannot base its actions driving Hage out of business on resource damage. Private range experts produced evidence that there was no range condition which would have justified any cancellation or suspension. When the Forest Service referred to the Meadow Canyon’s allotment as a “dust bowl,” a renowned private range expert said there was “excellent” forage production in the area. Bedford concluded his opening portion of the argument by pointing out that the prime use of the ranch in 1990 was livestock grazing, and now the ranch has been converted to other public interests such as recreation, wildlife and grass bank use.

Mike Van Zandt completed the main closing argument for Hage by summarizing the evidence as to valuation, and moving to persuade Judge Smith to establish compensation based on that valuation. When Judge Smith questioned a distinction between regulatory taking and physical taking, Van Zandt responded that the key question was whether the owner was deprived of the ability to use the components of his property rights. He urged that when use of the ranch was prevented, the ranch was gone.

He pointed out that the Government’s evidence as to valuation contained major inconsistencies which attacked credibility. Pointing to the Government’s theory that the valuation be set at approximately 1.5 million dollars, Van Zandt set forth the evidence regarding the 17,000 acre feet of water which the Government would get with this ranch. Based upon Nevada comparable sales, the water alone would be valued at $12 million dollars. So, the Government’s proposal to get the ranch for 1.5 million dollars would acquire for the Government $12 million dollars in water rights plus range improvements.

Van Zandt concluded his portion of the arguments with emphasis on the evidence which showed that the valuation of the property taken by the Government is $10,453,000.00 just for agricultural value, and is $23,979,000.00 at the highest and best use valuation.

The Government’s attorney spent considerable time emphasizing his position that Hage has no property right to graze on the federal lands. His opening theme was that since Hage has no such right, it is irrelevant that the Government made it difficult for him to graze. He argued that Hage’s attorneys have tried to “backdoor” a grazing right from the existence of water rights. He said that Judge Smith had already ruled that Hage had no such grazing property right, and that he should not allow Hage to create such a right from the mere existence of his water rights. Again, he emphasized that Hage has no direct or indirect grazing right, that there never was such grazing rights either before, during or after existence of water rights. He characterized the Hage argument as being a plea that Congress should have granted the grazing right, pointedly emphasizing that Congress did not do so.

Several times, Government counsel focused their argument on the issue of Hage’s ditch rights of way maintenance. Judge Smith interrupted the government’s argument for the first of many times with a question: Was not the Government’s charging Wayne Hage with a criminal offense for maintaining his ditch right of way a major restriction on his access to his water? Judge Smith elaborated by asking whether a reasonable person would be reluctant to maintain his ditches if faced with arrest and chance of conviction for performing the maintenance work. Government counsel responded that the Judge had previously ruled that the 1866 ditch right of way was subject to reasonable regulation such as a special use permit. But the response prompted a second question---one that was never clearly answered throughout the arguments: Is there a specific regulation that requires a special use permit to perform the type of tree clearing maintenance which Hage performed? The Government simply cited the regulations upon which it relied in its brief, and Judge Smith pursued the question by pointing out that if there is no clearly defined rule, thus allowing such maintenance only under the naked discretion of the agency, due process might not be satisfied. Again he asked, “Is there a regulation that says that a special use permit is needed if the maintenance is to be done with anything other than hand tools?” Government counsel admitted that he knew of no such specific regulation. Judge Smith concluded this first series of due process questions by pointing out that ditch maintenance issues go to the question of whether interference with maintenance reduced the water right by interfering with access to the water.

Government counsel seemed relieved to move from the ditch maintenance issue to his next point that Hage had failed to prove that any actual property right had been taken. He contended that any taking of forage rights adjacent to the ditches was of minimal value. As to water rights, he argued that Hage’s counsel was incorrect, factually and legally, in contending that Hage should be excused from any requirement for a special use permit to clear trees from his ditch because the Forest Service would not have granted such permit. He contended that Hage’s clearance of trees was simply a theft from the Government. By taking this position, he opened the opportunity for Judge Smith to return to his pointed questions regarding the maintenance. He reminded counsel that the Forest Service witness at the trial called the trees that had been cleared “trash trees.” He then asked how Hage’s action could have been a crime if the trees clearly had no value. Counsel’s answer was that the trees were Government property and any taking of them was a crime. Judge Smith turned to the Administrative Procedure Act, pointing out that when a person acts without requesting a permit, the test for whether the Government’s response is arbitrary and capricious is whether there is a clear standard by which one can determine whether a permit would have been issued or denied, if requested. In other words, is there any standard, which clearly governs the Government’s response, or is it left to the naked discretion of the Government? Counsel’s response was the same as before, he knew of no such clear regulation.

As to valuation, the Government contended again, that Hage had shown no actual property loss, but only a loss of rights “on pape.” This lead to a series of questions from Judge Smith, which focused on what would be included in the deal if a buyer were considering a purchase of the water rights. Would the buyer expect to be purchasing the water rights as decreed on paper, or would he be speculating on what amount of water could actually be delivered, for example, in a drought year? The Government responded that Hage had failed to delineate between any loss of water, which might have occurred from drought and that which might have occurred because of restrictions on ditch maintenance.

Government counsel then returned to the position that Hage is contending that because he has a stock water right, he has the right to graze. The Government’s position is that the plaintiff has a right to access to the water and to the use of it, if he is able to use it. But, the Government contends there is no taking simply because the plaintiff is not able to use the water---for whatever reason. The contention is that there is no taking when the Government simply destroys what it creates: in other words, since the Government permits the rancher to graze, there is no taking when it ceases to permit the grazing. Judge Smith asked whether there would be a taking if he decided that the Government’s actions which caused the loss of grazing also interfered with the use of water rights. The Government’s answer was that since there is no property right to graze, there can be no taking simply because the Government interfered with, or destroyed, the grazing operation. Judge Smith then pursued this point with several other questions related to a government official deliberately interfering with grazing, thus interfering with the ability to use water, and the relevance of that interference as the proximate cause for the property loss. The Government simply returned each time to its position that there is no grazing right, and any action by the Government regarding the grazing could not be the basis for a taking.

In short, the Government rested its complete argument as to the taking of water rights and the taking of 1866 ditch rights of way on its position that there is no right to graze, so any interference by the Government with the grazing operation cannot stand as the base for a taking of the related rights. That position was used to explain away the placement of elk on the allotment which resulted in loss of the viable use of the allotment: The Government had the right to put the elk on federal lands because “multiple use” has been made a part of every grazing permit issued to Hage, so the result of the exercise of that right by the Government could not be a taking. Judge Smith then asked what the result would be if the Government put wild lions in the area and the lions caused damage and injury. Would the Government have any liability? This question and a series of comments about wild animals caused a relief to the intensity of the courtroom, culminating with the Judge telling an anecdote about his wife spraying coyote urine around the base of their house to keep the raccoons out of the crawl space. Once again, Judge Smith demonstrated a sense of humor that must benefit him as he works through some of the most important property rights cases ever decided by an American court. When the levity ended, the Government’s answer to the question was that the elk are native, not wild, animals, and that Hage cannot complain about the interference with grazing because he had no right to graze.

Amicus (friend of the court) arguments were presented in behalf of the State of Nevada Department of Wildlife and national wildlife organizations such as the National Wildlife Federation. Counsels’ arguments centered on the Government’s theme that simple interference with grazing cannot be used as a base for taking a water right. Since the Government has the right to permit or not permit grazing, it has the right to totally end it, and the impact on a water right is irrelevant. Counsel urged that there is no takings case which holds that diminishing a water right by denial of use of public property is a taking. Counsel reviewed a series of cases standing for the proposition that in a takings case the harmed person can only get the value of his private land, and that damages cannot be enhanced by the loss of use of public land or public property.

On rebuttal, Ladd Bedford pointed out the fallacy of the Government and amicus arguments regarding the placement of elk on the allotment. He emphasized that the Table Mountain allotment was designated by the Forest Service as a livestock grazing allotment, for cattle and horses, not for elk. On this livestock grazing allotment the Forest Service placed the elk, and, as a result, Hage could no longer use his private property water right and range improvements. The elk were not managed so as to be compatible with livestock grazing for which the allotment was designated. The elk were put on the allotment for the benefit of hunters. The activities of hunters caused cattle to scatter, and at the end of the grazing season removal of cattle was made virtually impossible because of hunters moving along the narrow trails used for driving the cattle.

Bedford also pointed out that the Forest Service suspensions of grazing had now matured into 13 years of suspension and were in reality, cancellations which resulted in Hage’s private property rights becoming economically useless. Van Zandt presented an emotionally charged rebuttal. He pointed out that Hage’s clearance of trees along his ditch right of way was an exercise of the historic law of the west: a ditch right of way includes the natural channel above the point of diversion which means that an owner of water rights can go upstream and clear away obstructions to the natural and free flow of water. He dramatically emphasized that this case is not as characterized by the Government and amicus; it is a case about water rights. In this case, the court has found that water rights and 1866 ditch rights of way exist. Van Zandt asked, “Can the Government put up road blocks to the plaintiff’s use of his water rights, even if the blocks are on Government property?” He quickly answered, “Yes, the Government as sovereign can do so.” “But,” he continued, “and this is the key of the case, when it does so, it must pay Hage for the loss.” Otherwise the 1866 Mining Act would be meaningless; the Taylor Grazing Act would be meaningless; all the countless times that Congress has acknowledged the existence of property rights would be meaningless.”

Rebuttals by the Government and amicus added no new twist to their prior arguments, and with the conclusion of their rebuttals, Judge Smith took the case under advisement.
At that point, however, he delivered what he called an “admonition” to counsel to seek any possibility of settlement. He said that if there was any basis for settlement, it should be explored “one last time.” The settlement status telephone conference was scheduled for November 18, 2004. Presumably, if there is no settlement to be announced, or if counsel cannot report any real possibility of settlement, Judge Smith will then begin to put together his decision in this most historic of cases.

Many in the audience tried to read from the Judge’s questions how he might be leaning on the issues. But, those with long trial experience warn that in closing arguments as well as in appellate arguments, it can be misleading to try to predict a decision from the court’s questions. The issues in this case are clear cut. The Government contends that there is no right to graze, thus any interference with grazing cannot be used as the base for a taking of water rights and ditch rights of way. They contend that this is a case about “takings” of a grazing right, which does not exist. Hage contends that this is in fact a classic case of “taking” a water right and ditch rights of way. When the Government interferes with those rights to the point at which the ranch ceases to be a viable economic operation, there is a taking. Judge Smith holds the “finish flag” and will decide the issue.