Feds’ war on Western ranchers’ water rights takes a body blow
LAS VEGAS — Out in the American West, it’s not hard to find ranchers who’ll tell you that federal land agencies and U.S. Justice Department lawyers have in recent decades been working to destroy family ranching as a way of life.
Late last month, however, those ranchers — ignored and discounted though they’ve generally been — got, for their argument, some very high-powered ammunition.
Naturally enough, it came right out of the heart of the decades-long, high-profile litigation between the U.S. government and the family of the late E. Wayne Hage, author and property-rights advocate.
In findings of fact and conclusions of law published May 24, Robert C. Jones — chief judge of the United States District Court for the District of Nevada — determined that officials of the U.S. Forest Service and the Bureau of Land Management had entered into a “literal, intentional conspiracy to deprive the Hages not only of their [grazing] permits but also of their vested water rights” — without which no ranch can exist.
Moreover, said Jones, after the agencies brought a weak and largely undocumented 2007 “cow trespass” case against the Hage estate and its executor, Wayne N. Hage, agency officials had maneuvered to damage the Hage legal defense in that case.
“After the filing of this action,” wrote the judge, “the Government sent trespass notices to people who leased or sold cattle to the Hages … in order to pressure other parties not to do business with the Hages, and even to discourage or punish testimony in the present case.”
“For this reason,” continued Jones, “the Court has held certain government officials in contempt and referred the matter to the U.S. Attorney’s Office.” A three-day hearing on the contempt matter had followed the end of the grazing-trespass trial.
Thomas J. Seley, field manager of the BLM Tonopah field office, was one of the officials found in contempt of court and referred for possible criminal prosecution.
“Mr. Seley,” wrote Jones in the recently published findings, “after the filing of the present case and with knowledge of the case and the separate civil case pending before the [Court of Federal Claims], took actions to interfere with the defense of the present trespass action by intimidating witnesses via trespass notices and demands for payment in cases where he knew Mr. Hage had control of those witnesses’ cattle.”
Also found in contempt of court and referred to the U.S. Attorney’s office for possible criminal prosecution for his role in the asserted conspiracy was USFS District Ranger Steven Williams, assigned to the Austin and Tonopah districts of the Humboldt-Toiyabe National Forest.
Jones found little to respect in the government’s cattle-trespass case brought against Hage estate executor Wayne N. Hage.
“Most of the plaintiff’s case and most of their closing argument,” said the judge, “was spent in constructing straw men and straw men arguments and then challenging defendants to knock them down.”
The testimony by government witnesses about cows observed on non-approved USFS allotments produced only a $165.88 judgment against Wayne N. Hage.
At the same time, Jones found that the government “has not proved trespass by a preponderance of the evidence in the remaining instances alleged” in its amended complaint. He also ruled that the defendant Hages “are not liable for those remaining alleged trespasses, and [that] the Court hereby enters judgment in favor of Defendants and against the United States as to all other claims of trespass made in the First Amended Complaint.” (Emphasis in the original.)
On June 6, 2012, Jones candidly addressed the conspiracy question during an oral review from the bench. He detailed all phases of the Hage family difficulties with the federal land agencies, from 1978 to the present.
A transcript of that hearing quotes him as saying:
I find specifically that beginning in the late ’70s and ’80s, first, the Forest Service entered into a conspiracy to intentionally deprive the defendants here of their grazing rights, permit rights, preference rights.
I can utter no finding as to [the USFS] motivation. It could have been for a variety of motivations. Maybe they wanted to protect the conservation interests, maybe they wanted to recognize the contemporaneous rights of the hunters, or the state’s rights to regulate wildlife. But for whatever reason, they intentionally entered into a conspiracy to deprive the Hages of their water right[s] — [and] of their grazing permit preference rights.
The main evidence of that — and it’s also … the reason for asking the local U.S. Attorney to attend — the main basis for that finding is … the conduct of the Forest Service first and later the BLM.
I’ve already cited these bases in a separate transcript as a basis for criminal reference of Mr. Seley, and I’m adding Mr. Williams, to the U.S. Attorney for potential consideration of criminal prosecution for the conspiracy.
The chief judge of the District of Nevada also questioned whether the office of the U.S. Attorney for Nevada, itself, has a bias problem:
I’m not sure how the U.S. Attorney is going to handle [its responsibility to consider criminal prosecution]. I don’t think the local U.S. Attorney could handle it because of the conflict of interest. They’re the ones who introduced Washington counsel and asked that they be admitted.
Perhaps, mused Jones, the Nevada U.S. Attorney’s office might be able to deal with its conflict-of-interest problem by inviting in “an Assistant U.S. Attorney from a nearby district, California or Arkansas or Kansas. They’ll have to resolve that for themselves.”
But, he said, “I’m sure they could not cover it by invitation of a U.S. Attorney out of Washington, D.C.”
Later, Jones added that “the U.S. Attorney out of Washington [D.C.] advising [the land agency principals] was probably part of the conspiracy,”
At the center of the federal conspiracy, suggested Jones, was a repeated unwillingness by the agencies and the U.S. Department of Justice to simply acknowledge and obey long-established water-rights law.
He noted that U.S. Court of Federal Claims Chief Judge Loren A. Smith — who for years heard Fifth Amendment takings cases against the federal government brought first by E. Wayne Hage and later the Hage Estate — had repeatedly ruled against federal legal suppositions on the basis of which the government attempted to deny the Hages access to their vested water rights.
“These folks have heard from three federal courts,” he said from the bench, “and in spite of that they have continued an attempt to deprive the Hages of the permit rights and their water rights.”
“They heard from the Ninth Circuit where the conviction on Mr. [E. Wayne] Hage for criminal conduct was reversed.
“They heard from the Court of Claims starting … in 1996, in the denial of motion for summary judgment to the government.
“They heard from the Court of Claims in 1996 … and in 1998 … and in 2002 … and in … 2008.
“In spite of that … they sought from the State Engineer water rights on their own behalf, the government’s behalf, not for … road maintenance, fire protection, et cetera, but, in addition, for public livestock water with the admission from their own agents here on the stand that they had no cattle, no sheep to water. The specific intent for seeking that water right filing was to give the water rights belonging to the Hages to others.” (Emphasis added.)
Given the decades of bad blood between the federal land agencies and the Hages, Jones placed both parties to the disputes under his injunction — requiring the Hages to apply again for grazing permits the agencies had taken away and then denied the family, and requiring the USFS and BLM to grant those permits.
The judge said he would maintain jurisdiction over the case for years to come:
These parties over two decades of time have been unable to resolve their differences so I’ll resolve their differences for them. I’m going to mandate that they get back in the system, apply for the permits, and comply with the management discretionary decisions of the BLM and the Forest Service, and I’m going to mandate that the BLM and Forest Service act reasonably in granting the permits and managing the grazing preference.
He explained it as, “just like I would take control of a busing decree for two decades, three decades, four decades, whatever it takes.
“Maybe it’s until after Mr. Williams and Mr. Seley move on. You’ll tell me when. ‘You need to terminate this judgment, Judge, because, you know, we’ve had good relations now for a decade.’ You’ll tell me when. Until then, I’ll manage the dispute for you because you have evidenced no ability to do so.”
Ramona Hage Morrison, like her father a property-rights advocate, told Nevada Journal that Jones’ published ruling was “a significant milestone because the court has basically restored our ranching operation.
“His findings with regard to grazing preferences will be beneficial to all Nevada rangeland ranchers who are having similar troubles with the BLM and FS.
“The conspiracy finding and findings necessary to bring forward a Bivins complaint against individual bureaucrats are landmark.”
A Bivins Claim is a judicially created constitutional claim for damages named after the decision in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 423 (U.S. 1971).
The Department of Justice is expected to appeal Jones’ findings and rulings to the Ninth Circuit Court of Appeals. When asked for comment, the Nevada U.S. Attorney’s Office declined, saying “the matter is still in litigation.”
Nevada Journal also asked the U.S. Justice Department in Washington, D.C., for comment, but no response had been received by publication time.
In an email, Morrison noted the parallel between Judge Jones’ findings and current news reports of apparently politicized activities by other federal agencies, such as the Internal Revenue Service, OSHA, the ATF and the FBI.
“We see in today’s headlines how federal agencies have become weapons deployed against political enemies,” she said. “However, the underlying problem — which has been that they are basically lawless — has been evident for many years, 35 in our case.
“It really doesn’t matter who is president. The bureaucracies are so protected from accountability that they act with impunity and with little oversight. Some of the worst things that happened to us happened under the two Bush administrations.”
The State of Nevada’s public officials are generally not much help, she added.
“From governors to the county commissioners, they’ll give enormous deference to the lowest ranking federal employee, basically bowing and scraping to their edicts — without recognizing that they, as state officials, are abdicating all powers not enumerated in the constitution to the federal government at the expense of the state’s citizens.”
Steven Miller is the managing editor of Nevada Journal, a publication of the Nevada Policy Research Institute. For more in-depth reporting, visit http://nevadajournal.com/ and http://npri.org/.