Liberty Matters News Service
January 31, 2002
Major
Victory in Hage v. United Sates
Landmark
Takings Case Decided in Favor of Property Rights
The
long anticipated final decision on the property rights at issue in Hage
v. United States, the takings case filed by Nevada ranchers, the
Wayne Hage family, has finally been issued by Senior Judge, Loren A.
Smith. On January 29th,
Smith ruled Hage owns extensive property rights on his grazing
allotments, specifically water rights, 1866 Act ditch rights of way, the
right to have their livestock consume the forage adjacent to their
waters and ditches and the right of access thereto.
The
Hages had filed their takings claim against the US Forest Service and
Bureau of Land Management in 1991 after excessive regulations and
physical takings of their property had run them out of business.
They filed their case in the US Court of Federal Claims in
Washington DC, placing the important question before the courts what
property rights do ranchers own on their grazing allotments?
“The
court specifically rejected the position of the BLM and Forest Service
that ranchers have no property rights on their grazing allotments,”
commented Hage attorney, Ladd Bedford. “The court further stated that
if the government’s interference with these rights makes it impossible
for the rancher to use them, the Government will be required to pay
compensation for their loss.”
In
addressing the issue of the Hage’s access to their water rights, Judge
Smith’s opinion stated the following:
“The
Government cannot deny citizens access to their vested water rights
without providing a way for them to divert that water to another
beneficial purpose if one exists. The
Government cannot cancel a grazing permit and then prohibit the
plaintiffs from accessing the water to redirect it to another place of
valid beneficial use. The
plaintiffs have a right to go onto the land and divert the water.”
The
court did rule against Hage’s argument that he owned the surface
estate of his allotments, but plaintiffs are not troubled by the courts
position. “When you
combine everything the court has ruled that we own in this final
decision, it is clear that the key property rights essential to a
western livestock grazing operation are recognized,” noted plaintiff
Wayne Hage.
The
court also clarified the relationship between the rancher and the
grazing permit system by stating the grazing permit is a license and the
government has the authority to exercise reasonable regulations. However, because of this landmark decision, ranchers now may
be protected from abusive grazing regulations if they cause the taking
of access to the ranchers’ 1866 Act ditch rights of ways or water
rights.
“For
the first time in history, a federal court has defined the balance
between the western ranchers property rights and the governments ability
to regulate,” explained Bedford.
“This decision is a major step forward for the security of
federal land ranchers.”
The
court has set up an aggressive briefing schedule to complete the final
phase of the case: determining whether the Hage’s property rights as
determined in the courts Final Decision were taken by the government.
If the Hages prevail in this final stage compensation will be
awarded to them for the taking of their property, and the rights of
every other rancher affirmed in this decision will have the same
protection.
“For
ten years Stewards and its members have been working towards the
protection of ranchers property rights,” commented Frank Duran,
president of Stewards of the Range.
Stewards is the organization that has funded and supported this
case since it’s filing in 1991. “We now have the most important
legal precedent ever set in modern times to protect these rights, and we
look forward to wining the next and final round, proving the government
must compensate western ranchers when their actions go too far.”
Stewards
will be providing a decision analysis by the attorneys along with the
final decision through their website at www.stewards.us