One Sagebrush Rebellion flickers out -- or does it?
by Jodi Peterson
"No thief who has to pay for what he steals will steal for long."
-- Nevada rancher Wayne Hage, explaining to High Country News in 1995 why he had filed a lawsuit against the federal government over restrictions on his livestock grazing.
That landmark Sagebrush Rebellion lawsuit, hailed as protecting the rights of Western ranchers on public land, ground through the courts for 21 years. Early victories, including a multimillion-dollar award, caused anti-government advocates to hail Hage as a hero. But Hage died in 2006, and in late July this year, a three-judge federal appeals court panel overturned the award. "The court case is over," says Karen Budd-Falen, a prominent Wyoming property-rights attorney. "But the conversation will go on. What (the Hage case) did was make people in the West, and in the federal land agencies, think about what kinds of rights they have and what kinds of responsibilities."
1978 Wayne Hage and his wife Jean buy the 7,000-acre Pine Creek Ranch, adjacent to the Humboldt-Toiyabe National Forest in central Nevada, for about $2 million. The ranch has roughly 752,000 acres of grazing allotments on public lands, plus water rights predating federal ownership.
1979 The first of the Hages' myriad conflicts with the government begins when the Forest Service lets the state release non-native elk on their allotments, which compete with their cattle for grass and water, and damage fences.
1980 - 1990 The Forest Service repeatedly asks the Hages to move cattle out of overgrazed areas and fix fences; the agency sends them 40 letters and makes 70 visits to Pine Creek. The feds also prosecute Hage when he removes trees along his ditch right-of-way on public land.
1991 The Forest Service cancels some of the Hages' grazing permits, and impounds and auctions off more than 100 cows. The Hages file a lawsuit asking for $28 million to compensate for federal "taking" of their property. They argue that government actions kept them from using their water and forage rights and the improvements they'd built, such as corrals, spring boxes and fences, and destroyed the economic value of their ranch.
1994 More of Hage's grazing permits are cancelled. Hage writes a book criticizing government management of public grazing lands, called Storm over Rangelands: Private Rights in Federal Lands; it inspires three other ranchers who lost grazing permits to file lawsuits. All fail.
2002 Judge Loren Smith, appointed by President Reagan (a Sagebrush Rebellion champion) to the U.S. Court of Federal Claims in 1985, rejects Hage's claims that he owns the surface estate on his grazing allotments, but rules that Hage owns private-property rights to water and forage, and that he doesn't need a grazing permit to use those rights.
2006 Wayne Hage dies at the age of 69 from cancer (Jean died in 1996).
2008 After two trials and several hearings, Judge Smith rules that the feds owe $4.2 million, plus attorneys' fees and interest, to the Hages' estate for taking their property rights. The government appeals to reduce the amount.
2010 Judge Smith increases the award by $152,000 to compensate for some ditches and pipelines. "It sends a pretty important message to the government that if you screw with a small ranching family and put them out of business, you have to pay big bucks," Ladd Bedford, a San Francisco lawyer representing Hage, tells the Associated Press. The government appeals again.
July 26, 2012 The U.S. Court of Appeals for the Federal Circuit overturns the award, ruling that the Hages didn't prove they owned range improvements, and that their water rights weren't taken. The family vows to file for rehearing, but some experts say there's no basis for it. "When this case started it had enormously expansive claims that fundamentally threatened the concept of public ownership of public lands," says John Echevarria, who represented environmental groups that joined the case and is now a Vermont Law School professor. "Its final resolution vindicates that public lands should be managed for the benefit of the public as a whole."
Aug. 31, 2012 Federal judge Robert C. Jones in Reno rules against the feds in a related court battle that began in 2007, when the BLM and Forest Service sued Hage's estate and his son, Wayne N. Hage, claiming the ranch had run cattle without a permit. Judge Jones cites a BLM manager and a Forest Service ranger for contempt of court, saying they improperly carried out enforcement actions against the Hages while the court battle was proceeding, and threatens to order them to pay damages. Expect an appeal by the government.© High Country News