Hage
Set to Appeal Ninth Circuit Ruling in Forage Right
Case
to U.S. Supreme Court;
Western Water Law
Hangs in the Balance
In
January, a three-judge panel of the Ninth Circuit Court of Appeals, Susan P.
Graber, Kim McLane Wardlaw, and Mary H. Murguia, Circuit Judges, in an opinion
by Judge Graber, handed down a decision reversing all of the findings of Nevada
Federal District Court Chief Judge Robert C. Jones in his 103-page decision in U.S.
v. Hage (2007). Judge Jones had found among other things that
government officials had “entered into a literal, intentional
conspiracy to deprive the Hages not only of their (grazing) permits but also of
their vested water rights.” The Court added, “This behavior shocks the
conscience of the Court and provides a sufficient basis for a finding of
irreparable harm…”
During the 21-day trial in 2012, the lead Justice Department attorney assured Wayne Hage
and the Estate’s attorney that the Ninth Circuit would almost certainly rule in
favor of the BLM and USFS. He
said the United States government was not concerned if Judge Jones ruled
against them because the DOJ could get any decision
they wanted out of the Ninth Circuit Court of Appeals.
Consistent
with the Justice Department’s prediction, the Ninth Circuit panel issued a
scathing ruling reversing all of the trial court’s decisions, excoriating Judge
Jones for supposed bias against the government Defendants. Wayne N. Hage
and the Estate of E. Wayne Hage are appealing the decision to the U.S. Supreme
Court.
The ruling from the
Ninth Circuit runs contrary to 150 years
of western water law and precedent as well as the laws governing the
infrastructure across federally administered lands in the West. It denies that there is right of access to
vested livestock watering rights. The
Ninth Circuit decision, as handed down by the three-judge panel, is also in
direct conflict with the Federal Circuit Court of Appeals’ decision in the
related case, Hage v. U.S., (1991), (between the same parties regarding
the same property). There the Court
recognized access as an essential component of a water right. If a right to access to a vested water right
can be subject to a government bureaucrats will, either in its use or its
maintenance, then you have no water right.
A person’s ownership of water becomes a mirage. State law no longer controls the time, place,
or manner of use of water. A federal
agency, and more particularly a federal bureaucrat, would now control the
access to that water.
In addition to a conflict between rulings in two different federal
courts, due to the appellate panel’s brazen violations of the appellate rules
of procedure regarding findings of fact and other procedural errors, analysts
believe there is an increased likelihood that the U.S. Supreme Court will
review the Ninth Circuit Court’s ruling.
(Analysis of U.S. v. Hage and Court
Decisions are available upon request.)
In order for the
Ninth Circuit to overturn the findings of the trial court in U.S. v. Hage,
they had no option but to assert Judge Jones had bias against the government
Defendants. Under the rules of appellate procedure the Ninth Circuit was bound by
Judge Jones’ findings of fact, unless the justices went to the extraordinary
measure of finding the judge had bias and had abused his discretion, which they
did. Interestingly, Judge Jones was
not the only trier of fact to make such findings. Chief Judge Loren Smith, from the U.S. Court
of Federal Claims in Washington D.C., after hearing similar testimony during
two separate trials in the related case of Hage v. U.S. (1991), made
virtually identical findings of fact. Two well respected, experienced jurists, both
Chief Judges of their respective courts, separated by the width of the country,
separated by decades of hearings, having nothing in common but considering the
conduct of the U.S. Forest Service and BLM employees against the Hage family,
both reached virtually identical conclusions.
Two generations of
the Hage family, beginning during the presidency of Jimmy Carter, have spent
nearly 40 years in courts defending their Constitutionally protected property
interests in federally administered land and their right to be allowed to graze
their livestock around their vested waters as Congress clearly sanctioned. They have prevailed in three administrative
appeals. They have successfully
litigated three substantial federal court cases at the trial level in two
separate federal courts. They have
successfully defended their vested water rights against competing claims by the
United States in a state water adjudication.
The courts in multiple published decisions have repeatedly recognized
their vested water rights, easements, rights-of-ways, forage, and improvements
on federally administered land. Those
rights stand on appeal in the Federal Circuit Court of Appeals.
It is only the Ninth Circuit three-judge panel, after a 45 minute
hearing, which determined that they are better arbiters of the truth than the
two judges from two separate federal courts who actually saw the evidence and
heard witnesses testify over a combined period of 43 trial days. The Ninth Circuit panel, in reaching their
desired outcome in U.S. v. Hage has managed to significantly diminish
western water law and the laws governing rights of ways for roads, ditches and
canals across federally administered lands, leaving the Hages no choice but to
seek relief at the U.S. Supreme Court. (Analysis
of U.S. v. Hage and Court Decisions are available upon request.)
# # # # #
For those who support the Hages and
their efforts to protect western water rights and ranching, donations to help
fund the Supreme Court appeal would be greatly appreciated. Tax-deductible donations are being accepted
and earmarked for U.S. v. Hage by:
Protect the Harvest
480
Southpoint Circle
Brownsburg,
IN 46112
(Please identify as being for “U.S.
v. Hage”)
Direct
contributions can also be sent directly to:
Wayne
N. Hage
P.O.
Box 513
Tonopah,
NV 89049
Analysis of U.S. v. Hage and Court Decisions available upon
request. Also, for those interested in filing Amicus or Friend of the Court
Briefs, contact:
Ramona Hage Morrison
(775) 722-2517
Mark Pollot, Esq.
(208) 867-8389
For a Summary
of Hage saga:
FOX NEWS SPECIAL, “Enemies of the State”
“Enemies of the State” (shorter version)
Range
Magazine Article and Winner of the “Freedom of the Press Award”
Click on
article in red titled, “Eye of the Storm”
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