Nevada ranching family loses federal lands court case

CARSON CITY — The 9th U.S. Circuit Court of Appeals has ruled in favor of the federal government in a long-running dispute with the late Nevada rancher Wayne Hage, remanding the case to a new federal judge because of apparent bias on the part of U.S. District Judge Robert Clive Jones.

In a separate unpublished memorandum also filed Friday, the panel of the appeals court reversed a finding of contempt against BLM employee Thomas Seley and U.S. Forest Service employee Steven Williams, finding that Jones "grossly abused the power of contempt."

In the main opinion, the 9th Circuit, in a ruling written by Judge Susan Graber, granted the request by the U.S. government to reassign the case.

"Defendants openly trespassed on federal lands," she said. "Rather than simply resolving the fact-specific inquiries as to when and where the cattle grazed illegally, the district court applied an 'easement by necessity' theory that plainly contravenes the law."

"A dispassionate observer would conclude that the district judge harbored animus toward the federal agencies," Graber wrote. "Unfortunately, the judge's bias and prejudgment are a matter of public record."

On the first day of the 21-day trial in 2012, Jones said the BLM came to the court "with the standard arrogant, arbitrary, capricious attitude that I recognize in many of these cases."

The decades-long dispute centers on the Hage family's Pine Creek Ranch near Tonopah, and is well known in the West and among property rights advocates who charge the government exercises a heavy hand in relations with those who make their livelihood off the land.

The ruling is the latest chapter in a feud that dates to the days of the Sagebrush Rebellion. The government charged the Hage family, along with rancher Benjamin Colvin, with trespassing by grazing cattle without a permit on Bureau of Land Management and U.S. Forest Service land.

Hage died in 2006 and the fight has been carried on by his family and son Wayne N. Hage Jr.

The younger Hage said in a telephone interview Monday that an appeal to the U.S. Supreme Court would be difficult.

"I don't know what the future has in store for us," he said. "We have been dealt a lot of ugly over the years. I''m not sure where it's going to go.

"It is a big disappointment, not just for my family but for the entire industry," Hage said. "They felt relief at the Jones decision. Ranchers' rights had been upheld but now it has all been overturned. It looks to me like the 9th Circuit just swelled the ranks of the militias."

Hage said he is not involved with the militias but that he understands their frustrations with the federal government.

The court victory for the Hages came on May 24, 2013, when Jones issued a 104-page opinion detailing what he called the federal government's vindictive actions against the ranching family.

"The government's actions over the past two decades shocks the conscience of the court," Jones wrote in his opinion.

But on appeal to the 9th Circuit, the court found in favor of the government claims that Hage was trespassing on public lands by grazing cattle without a permit.

While Jones made a similar finding, he ruled against the government by finding that the Hages' water rights provided a defense to the government's claims of trespass.

The U.S. government filed suit in U.S. District Court in Las Vegas, alleging that between 2004 and 2008, the Hages grazed cattle on federal land without a permit.

The 9th Circuit said that ownership of water rights has no effect on the requirement that a rancher obtain a grazing permit.

The appeals court directed the district court to enter judgment for the government on all claims supported by the record and calculate appropriate damages.

"We encourage the parties and the court to bring this litigation — unnecessarily protracted by the district court — to a speedy and just resolution," the court said.

The Hage case preceded the more recent confrontation between federal agencies and Bunkerville rancher Cliven Bundy. The BLM's efforts to round up cattle belonging to Bundy in 2014 resulted in an armed confrontation between federal agents and Bundy supporters that ultimately ended peacefully.

In the latest battle against the federal government over land issues, the Bundy sons and supporters occupied a federal wildlife refuge in Oregon. That occupation, which started Jan. 2, was still underway Monday.

Jones has had his share of conflict with the 9th Circuit Court.

His rejection of same-sex marriage in Nevada in 2012 was overturned by the appeals court in 2014. So was his 2012 effort to pull "None of These Candidates" off Nevada's ballots. More recently, Jones was overturned in September 2015 when the 9th Circuit revived a lawsuit against the Nevada Health and Human Services Department over the issue of disenfranchising potential low-income and disabled voters.

Contact Sean Whaley at swhaley@reviewjournal.com or 775-687-3900. Find him on Twitter: @seanw801