big hit to the federal government’s continuing campaign to nullify the grazing and water rights of Western ranchers emerged from the United States Court of Federal Claims in November.

Less than a month after the first phase of trial ended in Hage vs. United States, Judge Loren Smith, chief justice of the court, issued a preliminary opinion supporting Hage’s positions on all counts.

"We are delighted with the opinion," commented Hage lead attorney Ladd Bedford. "It validates the positions we have taken in this case for seven years."

The opinion came as a result of the October evidentiary hearing in the landmark takings case filed by Wayne and Jean Hage in 1991. During this phase, burden was on the plaintiffs to prove title to key property rights they alleged had been taken by the U.S. Forest Service (USFS) and Bureau of Land Management (BLM)—the water, rights of way and forage. The trial progressed over seven days in the Reno courtroom and included a day-long site visit to the Pine Creek Ranch located near Tonopah.

The opinion came as a surprise to the plaintiffs because many of the supporting documents had not yet even been entered into the record and closing briefs had not been submitted. The judge’s preliminary opinion appears to be an effort to focus the parties on issues not yet determined and move into the takings phase of the case immediately.

The preliminary opinion gives plaintiffs good reason to be optimistic. The court did not make one negative ruling against the Hages. The court even adopted a ruling by the Nevada State Engineer that found the water Hage claimed in Monitor Valley belonged to Hage. It also found that the ditch rights of way belong to Hage and that the forage connected to the ditches and water rights also belonged to Hage.

Specifically on RS2477 ditch rights of way, the court determined the right includes a 50-foot easement on each side of the ditch. Since most rights of way in the west were in existence prior to the 1976 enactment of the Federal Land Policy and Management Act this ruling will have a significant impact on landowners, counties and states holding these tights.

The government contested Hage’s claim that he owned 1866 ditch rights of way and argued that he must have a "special use permit" to maintain the ditches. The court disagreed and ruled instead that "plaintiffs have a ditch right of way on the ground occupied by the water and 50 feet on each side of the original limits of their 1866 ditch."

The court even went further and described the connection between owning a vested water right, ditch right of way and, therefore, the forage appurtenant to those rights:

Concurrent with the accompanying easement to perform ditch maintenance via the right-of-way, the court finds that a limited right to forage is appurtenant to and a component of a vested water right. The court notes the undisputed historical use of the ditches and water at issue for stock watering and livestock maintenance. Persuasive testimony at trial on the nature and intent of the congressional acts dealing with western land management bore out the conclusion that the United States intended to respect and protect the historic and customary usage of the range. To that end, the court finds as a matter of common sense, that implicit in a vested water right based on putting water to beneficial use for livestock purposes was the appurtenant right for those livestock to graze alongside the water.

The court directed plaintiffs to file for summary judgment on the takings issue while instructing both parties to focus their closing briefs on the remaining property rights issue. At the end of his opinion, Smith sets out an aggressive schedule with closing arguments on both issues to be held April 22,1999.

In conclusion, the court noted:

The court is not questioning the government’s authority to issue grazing permits or control access to federal lands. The question before the court and the one the parties should address is: what are the Fifth Amendment consequences of the government’s exercise of their permit authority with regard to vested water rights?
Underlying the dilemma is, what is the meaning of a ‘vested water right’ if the government can deny plaintiffs access and use by merely denying them a grazing permit? Does not the very concept of vested rights embody a recognition of supremacy over all later claimants, and isn’t this the protection explicitly recognized by the Act of July 26,1866?

"The court’s favorable opinion and aggressive schedule is bad news for the federal government," commented Bedford. "They have spent seven years trying to avoid trial, seven days in trial trying to confuse the issues, only to find that after looking at the factual and historical evidence, the court believes that Hage has much more than a privilege. He has a property right."

Judge Smith’s decision has been posted on the Web at the Nevada Policy Research Institute website, http://www.npri.org. To learn more about the case or make a contribution of support, contact Stewards of the Range at (208) 336-5922. NJ

Margaret Gabbard is executive director of Stewards of the Range, a non-profit foundation based in Boise, Idaho.

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