Wayne Hage's War

How the Monitor Valley
Adjudication Came to Be

by Diane Alden

he problem and the scary thing is the lack of understanding of the American people as a whole, notes rancher Wayne Hage: " I look at my country today and say if they just understood it...our grandparents understood ... that if the government takes, they have to pay."

Hage’s heartfelt belief is that if the American people understood what has happened to him over the last 20 years at the hands of the federal government they would be outraged.

His experiences with federal agencies, their bureaucrats and allies is not unique in American history. Hage’s War has consisted of a long, disheartening struggle with the U.S. Forest Service, the Bureau of Land Management and powerful and politically influential environmental groups including the Sierra Club, the National Wildlife Federation and the Natural Resource Defense Council.

Up until the late 1970’s life on Hage’s Pine Creek Ranch had been uneventful except for the usual problems associated with ranching. Hage’s property adjoins the federally administered Toiyabe and Humbolt National forests and Monitor Valley. The care of the land had always been a cherished responsibility to the Hage family. Along with ownership of the ranch came vested water and grazing rights passed down to him in a line of succession since the mid-1800s. These vested rights were on federal lands and—in common law and according to various acts of Congress—were considered a private property right subject to taxation by the IRS. Traditionally, the law and the government of the United States had accepted this situation until certain agencies of the government and its allies in the environmental movement decided to reinterpret federal land management— as well as property law and water rights and their adjudication. Decisions made in distant Washington, D.C. were about to drastically impact the Hage family and change their lives forever.

DECLARATION OF WAR

On a beautiful Nevada day in 1979 the battle lines for Hage’s war were drawn. His first inkling that another "range war" was imminent came when he and his crew were riding in the mountains, rounding up cattle on his government allotment. Coming down the trail towards them were several men from the Forest Service. Hage did not recognize the usual familiar faces he knew from the Tonopah office. These men were strangers and said they were from the Austin office. When Hage questioned them about what they were doing, the agents explained they were making a survey for water and that the Forest Service was filing a claim on all the water in the Monitor Valley. Hage was astounded because he had operated for years with the understanding that his water rights were vested and part of the ownership of his ranch. Why would the Forest Service be filing on his water rights, he asked. "Because," the agent responded, "that is what we were ordered to do."

Trying to stay within the law, Hage contacted Nevada’s State Engineer who confirmed that the Forest Service and BLM had filed a claim—including claims on about 160 vested water rights of Hage and Pine Creek Ranch. Hage’s only recourse was to petition the State Engineer requesting a determination of who had what rights in the Monitor Valley. This petition was filed on October 15, 1981. Adjudication which should have taken months stretched out to 10 years because the Forest Service used one delaying tactic after another. In this way, it gained time to solidify its power over federal lands and condition people to accepting the new order and the reinterpretation of law in its favor. After years of waiting, Hage found himself on the brink of financial collapse and his operation of the ranch was becoming untenable.

By filing a "takings claim" in the Federal Court of Claims in 1991 Hage sought justice and compensation under the Fifth Amendment to the Constitution. Under this Amendment, the government may not take property without compensation and Hage and others had always believed that their grazing permits and water rights were private property rights. In the suit against the government Hage proposed that there had been a taking of private land, water rights, an irrigation ditch right of way, forage rights, rangeland improvements and cattle by the federal government. Much had happened to Wayne Hage and his family before filing the "takings claim" that changed their lives forever.

CONCERTED ATTACK

The first shots fired in the new range war were pictures taken by the Forest Service which it claimed showed over-grazing on Hage’s allotment. Pictures taken in November at the end of the growing season at a high altitude showed very little grass and plenty of bare ground. Using the pictures as ammunition, the Forest Service canceled Hage’s grazing and water permits for five years, effectively shutting him down. Range regulations say that permits are transferred to the next claimant if they are not used for five years.

The next claimant, of course, was the federal government, specifically the Forest Service. When Forest Service permits are canceled, BLM permits are also terminated. Between a rock and the federal government Hage decided to fight back and filed his complaint.

After Hage’s permits were canceled government documents show that District Forest Ranger David Grider sent a copy of the cancellation notice to the attorney for the National Federation of Wildlife, Roy Elcker, and thanked him for NFW’s lobbying efforts in Congress on behalf of an increased Forest Service budget. NFW’s policy has always been aimed at ending all grazing and agricultural water use on "public land." During a lecture before other environmentalists Elcker declared, "How you win is one at a time, he (the rancher) goes out of business, he dies, you wait him out—but you win." The Forest Service and the environmentalists were past masters in the art of "making it so expensive to operate and make so many changes for him...to run his cattle on public lands...he goes broke....". That is exactly what happened to Wayne Hage.

The spring of 1991, Hage went out to the area which the Forest Service said had been overgrazed. Something wonderful had happened as it does every spring in the Monitor Valley: the grass came back. Hage called the District Ranger to come see the area and took a picture of him standing in knee high lush grass. The Ranger responded, "But it’s the wrong kind of grass." The "wrong kind" of grass had been coming up there for decades.

Subsequently the Forest Service began a propaganda barrage and mail-in campaign targeting sympathetic members of Congress like Bruce Vento and Mike Synar. Assisted by environmental groups, they painted Hage as a violent extremist who should be dealt with in an extreme manner. The stage was being set for confrontation.

CONFRONTATION

That same summer of 1991, not long before the Senate vote on the question of raising grazing fees, Hage received a call from an official of the nearby Toiyabe National Forest telling him some of his cattle were trespassing on government land. In the process of moving 2,000 head of cattle from winter to summer pasture through an area of unfenced boundaries, it is not unusual for cattle to stray.

Hage drove to the site to survey what needed to be done and found himself surrounded by 20 to 30 federal agents armed with semi-automatic weapons and garbed in flak jackets. Some of them were stationed on high points expecting a confrontation. Hage got out of his vehicle, reached under his jacket and pulled out a 35 mm camera, pointed it at some of the Forest Service swat team and told them, "Smile pretty, boys." To the chagrin of the agents, there was no violent confrontation. The only "violence" was in the heart and mind of Hage who wondered at the lengths his government would go to get what it wanted—namely property rights which belonged to him.

On two later occasions heavily armed agents came out to his former allotment and prevented Hage’s employees from moving cattle off the closed allotment. During these intrusions by federal agents 104 cattle were confiscated and subsequently sold at auction with the profits remaining with the Forest Service. Twisting the knife in Hage a little deeper, agents sent him a bill for the costs of confiscating the cattle. The cattle didn’t recognize they had over-stepped their boundaries—and apparently the federal government didn’t recognize that Uncle Sam had overstepped some boundaries as well.

THE BEST DEFENSE IS A COUNTER- OFFENSE

On September 26, 1991 Hage filed his "takings claim" against the Forest Service in the U.S. Court of Claims. The suit alleged that the United States had taken Hage’s livestock, grazing rights and stock water rights on range lands. The government countered by charging Hage and wood cutter Lloyd Seamans with a felony for taking government property by cutting and removing brush from an irrigation ditch. In the government suit against Hage all felony charges were thrown out of court and the U.S. Attorney who brought the charges was nearly sanctioned for filing the charge at all.

Immediately after Hage filed his suit with the claims court, the Sierra Club, the National Wildlife Federation and the Natural Resources Defense Council filed for status as "intervenors," saying that ranchers should receive no compensation for losing their water and grazing permits on federal land. Jumping on the litigation bandwagon was one of the strangest participants of all—Nevada Attorney General Frankie Sue Del Papa. According to Nevada law and an 1866 Act of Congress, Nevada owned all the water and delegated its use to individuals. Curiously, Del Papa hired a staff lawyer from the National Wildlife Federation to argue in favor of the legitimacy of federal authority over Nevada’s water and against Hage’s "takings claim." The U.S. Claims Court denied both the environmental groups’ and Del Papa’s motions to intervene.

Active in environmental circles for years, Del Papa was, at the time, an advisory board member of the Trust for Public Lands which is associated with the Sierra Club. The tangled web of government connections with the powerful environmental movement becomes frighteningly clear. Litigation over rights previously decided by common sense and a century-old covenant established between the government and ranchers and farmers, is part of the campaign to change the law by using regulations and political allies to make land "cow free" as soon as possible.

WHAT COMES NEXT

It ain’t over till the last bureaucrat sings—and the concert begins soon. In a landmark decision on March 8, 1996, Judge Loren Smith of the U.S. Court of Federal Claims handed down a key ruling against the U.S. government which allowed Hage’s "takings claim" to proceed to trial.

The trial is set for September 28 and will decide if there was a property right involved in Hage’s case, whether or not property was taken by government regulations, and finally how much that property is worth. Regardless of the outcome, both sides expect the decision to be appealed and eventually make its way to the Supreme Court.

Acclaimed legal scholar Phillip Howard observed in his book, The Death of Common Sense, "Coercion by government, the main fear of our founding fathers, is now a common attribute. But it was not imposed to advance some group’s selfish purpose...the idea of a rule detailing everything has had the effect of reversing the rule of law. We now have a government of laws against men."

The actions of the federal government through the U.S. Forest Service and allies in the environmental movement prove the validity of Howard’s observation. Soon the Monitor Valley will come alive with a thousand shades of color and the warm winds of spring will renew the spirit. Wayne Hage will enjoy the beauty of the land but he will miss the sight of his cattle grazing peacefully on the hillsides and the feeling of security he once enjoyed.

He appreciates the help of many friends, family, groups and others who have supported him through his ordeal, and he is hopeful that Cigna, his mortgage holder, will not foreclose on Pine Creek Ranch until he has his next day in court. Wayne Hage’s War cost him nearly everything important to him, both personally and financially. His war rages on in the name of principles he believes in. u

Diane Alden is a Contributing Editor of Nevada Journal.


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