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Water rights fight won’t end soon

RENO — It took 17 years for the late rancher Wayne Hage to win a lawsuit against the U.S. Forest Service in a long-running dispute over property rights, water rights and grazing on federal land.

A federal judge finally ruled last month that the government had engaged in an unconstitutional “taking” of Hage’s water rights and awarded more than $4 million to Hage’s estate. His family and supporters, while relishing the victory, fear the fight is far from won.

“What happened to us in the 1980s and 1990s is now happening across the West, so it is going to be vitally important for Western ranchers to understand what they own and how to defend it,” said Ramona Morrison, one of Hage’s daughters.

A member of the Nevada State Agriculture Board, she was a freshman in high school when the dispute began.

“We could have a classic case here in some sense of laws working at cross purposes,” said Ed Monnig, U.S. Forest Service supervisor of the Humboldt-Toiyable National Forest where Hage once grazed his cattle in central Nevada.

Federal Claims Court Judge Loren Smith, based in Washington D.C., ruled that government restrictions severely reducing water flows to the Hage family’s land “deprived them of the water they needed for irrigation, making the ranch unviable.”

Like judges before him, Smith said the cancellation of Hage’s grazing permit as a result of overgrazing and trespassing did not constitute a “taking” prohibited under the Fifth Amendment to the Constitution, because a grazing permit is “a license, not a contract or property interest,” he said.

But he concluded the government committed a taking when the Forest Service, apparently motivated by “hostility” toward Hage, made it impossible for him to maintain irrigation ditches.

“It doesn’t do you a lot of good to own that water if you really, effectively can’t use it,” said Lyman Bedford, a San Francisco-based lawyer who has argued the case since Hage filed a lawsuit against the U.S. Forest Service in 1991.

Morrison said the federal agency continually harassed her father. Once a leader of the Western movement for more local control of public land, called the “Sagebrush Rebellion,” Wayne Hage wrote a 1989 book, “Storm Over Rangelands: Private Rights in Federal Lands.”

“They had put my family through sheer hell with various trespass notices, visits, demands and so forth, culminating when they confiscated 100 head of our cattle,” Morrison said, recalling federal agents rounding up the animals.

“They were fully armed. They pointed a gun at my brother when he threw a rock at a dog that belonged to the government. We were darn lucky we didn’t have a Ruby Ridge situation,” she said, referring to a 1992 standoff with U.S. marshals that resulted in three deaths in a shootout at the Idaho home of Randy Weaver.

“This is really a vindication for what were considered radical ideas in 1989 when dad wrote his book,” Morrison said, adding she wished her parents had lived to enjoy the victory.

Her mother, Jean Hage, died in 1996. Wayne Hage remarried ex-U.S. Rep. Helen Chenoweth, R-Idaho, before he died in June 2006. She died four months later in a car accident.

Hage purchased the ranch north of Tonopah in 1978 and began feuding with the Forest Service almost immediately.

At issue, according to Smith’s ruling, is that the Forest Service prohibited the Hages from using motorized equipment to clear irrigation ditches on national forest land that sent water to the ranch.

“It cannot be seriously argued that the work normally done by Caterpillars and back hoes could be accomplished with hand tools over thousands of acres. With hand tools the task would have taken years or decades and required hundreds of workers,” the judge wrote.

The ditches were regulated under the 1866 Ditch Act, which was enacted one year after the Pine Creek Ranch was established, two years after President Lincoln admitted Nevada as a state in 1864.

“The 1866 ditch laws and other laws were really part of that free enterprise period in American history where Congress was trying to encourage Western settlement and protect private property rights of Western settlers,” said Chuck Cushman, executive director of the American Land Rights Association based in Battle Ground, Wash.

“Nobody would go back to somebody who homesteaded a parcel of land in the 1870s and try to take that land away from them today. And as a result of this case, I think all ranchers with grazing permits have solidified their private property rights on federal lands,” Cushman said.

“He is a Western hero in my mind,” he said of Hage.

Monnig said it’s more complicated than simply upholding a 142-year-old law, because the Ditch Act must be balanced against other laws that have since been passed.

For example, he said, Congress enacted the 1964 Wilderness Act “recognizing we have this potential to basically modify and adapt every square inch on the face of the earth,” Monnig said.

“They said we want to set some land aside untrammeled by man as wilderness areas — some areas where earth will be untrammeled by man, where man is a visitor and does not remain.”

Justice Department lawyers say they haven’t decided whether to appeal, but Bedford expects they will.

John Echeverria, a lawyer at the Georgetown University Law Center’s Environmental Law and Policy Institute who had filed friend-of-the-court briefs backing the government’s position, expects the ruling will be overturned.

“Over the last decade there has been a spate of litigation over this basic issue, and the litigation has pretty generally gone against the ranchers, in favor of the public,” Echeverria said.

“The plaintiffs and their allies have put out lot of materials saying it is a great victory for public land grazers. But while this decision is troubling and wrong and will almost certainly be reversed on appeal, it is a relatively narrow decision.”

The judge said Hage “offered ample evidence that the Forest Service had engaged in harassment … enough to suggest that the implementation of the hand tools requirement was based solely on hostility to plaintiffs,” Echeverria said Hage himself is to blame.

The Forest Service routinely requires ranchers to apply for a special-use permit to use machinery on national forest land, Echeverria said.

“After Hage wrote his book, he wrote a letter to the Forest Service that said, ‘I own this land. You can’t tell me what to do.'”

Morrison said she’s proud that her father has been vindicated, but she doesn’t expect to receive payment for damages anytime soon because of the possibility of appeals.

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