Well, this is going to make the self-styled militia ranchers of Nevada, who want to graze cattle on public land for free, pretty unhappy.
The 9th U.S. Circuit Court of Appeals on Friday held that rancher Wayne Hage, and his father before him, had no right to bolster a water rights claim on federal land into the right to graze cattle on that federal land. The opinion overturned a Nevada judge’s earlier order.
The appellate decision reinstates the government’s claims that Hage and his father “openly trespassed” on federal land between 2004 and 2008 in remote Monitor Valley, 200 miles north of Las Vegas. After Hage senior died in 2006 his estate was replaced as a defendant. The appeals court ordered the case back to Nevada with instructions to hold Hage liable for trespass on federal land for the grazing of his cattle and calculate the appropriate damages and bar him from repeating the practice.
In a rare move, the appeals court found U.S. District Judge Robert Jones of Reno so biased against the out-of-state lawyers representing the government that the panel ordered the case taken away from him and given to a new judge.
Jones had ruled that the Hages’ water rights gave them the additional right to graze cattle within a half-mile of the water source, a position the appeals court rejected. But Jones didn’t stop at the water rights ruling, he head two federal agents in contempt of court for continuing to pursue trespass claims against Hage and others not charged in the case.
The actions of agents Thomas Seley and Steven Williams “come nowhere near meeting the correct legal standard for contempt,” Graber wrote. “A dispassionate observe would conclude that the district judge harbored animus toward the federal agencies,” she said.
The panel vacated the contempt order in a non-precedential memorandum.
A rancher who holds water rights on federal land is not entitled to an easement to graze livestock within those federal lands, the appeals court held. The court also rejected Hage’s claim that the Bureau of Land Management’s denial of a grazing permit in 1993 violated federal rules. A challenge to that 18-year-old action is 12 years too late, the court said.
Prior to 1934, ranchers had traditionally grazed cattle on public land, but that year Congress passed the Taylor Grazing Act, which began requiring grazing permits. The 9th Circuit has long held that a grazing permit “has always been a revocable privilege” and is not a property right.
In 1950, Congress expanded the authority to require permits giving the same power to the Secretary of Agriculture to cover national forest land. In 1976, Congress passed a federal land management law that created a more detailed grazing permit system.
Nothing is simple, however. In 2008, a Washington, D.C. judge in the Court of Federal Claims ruled the federal government had deprived the Hages of water rights and awarded $4.2 million in compensation plus 17 years worth of interest, making it likely the award would hit $12 million. The opinion stated the Hages were not allowed on the federal land to maintain the ditches under terms of their water rights. Federal agents impounded their cattle and auctioned them when Hage could not pay a $39,000 impoundment fee. This case did not address permits for grazing. The government appealed and won a reversal. Hage took the case the U.S. Supreme Court and in 2013 the high court refused to hear it, in effect disallowing the $12 million award.
The 9th Circuit ruling comes at a time when the politics of Western grazing rights have made national news. Last year, Nevada rancher Cliven Bundy led a ragtag band of cowboy militiamen in an attempt to fend off federal agents who tried to seize cattle grazing on public lands without permits.
Earlier this year, militant cowboys took over a rural federal building at the Malheur National Wildlife Refuge near Burns, Oregon, in what they claimed was a protest about grazing rights. They remain at the refuge and used a bulldozer to tear down a fence dividing private ranchland and the federal preserve.
Case: U.S. v. Hage, 13-16974
Court of Federal Claims: Estate of Wayne Hage, 91-1470L