Wayne Hage in Federal Claims Court:
'Most Significant Win in 105 Years'

  copyright 1996, Electric Nevada

For more than a century, the U.S. Forest Service has been trying to avoid recognition of Nevada ranchers' range rights, says author and Nye County rancher Wayne Hage.
But that federal pretense has become a lot more difficult to sustain, he says, after a March 8 ruling of the United States Court of Federal Claims in Washington, D.C.
"We had a very, very resounding win on a government motion for summary judgment," says Hage.
"And that was very significant because now the court has come out and clearly stated that those grazing rights certainly can exist and they are compensable."
At the time, confident federal lawyers had asked Chief Judge Loren Smith for a summary judgment -- that is, a ruling that plaintiff Hage, under the relevant law, had no case.
However, Smith found that the federal government was wrong on the law when it asked the court to rule "that even if plaintiffs [Hage and owners of the adjoining RO ranch] owned property rights dating from the 1800s, such water and ditch rights have no relevance today because of state administrative proceedings and the application of federal law."
"Contrary to defendant's [i.e., the government's] position," wrote Judge Smith in an order, a copy of which was secured by Electric Nevada, "this court concludes that if plaintiff's predecessors in interest had property rights in the 1880s, the rights presumptively still exist."
Announcing "that a limited evidentiary hearing is necessary to the court's analysis" of the Hage taking claims, Smith said the court will now proceed to the factual questions of when the Hage property's water rights were vested, and when federal government rights, if any, were vested on the Hage property. Dates for the hearings have not yet been set.
"Our thrust now in the case is to prove title to the grazing rights," said Hage. "And that's what we're in the process of doing now; that's the next stage."
One source familiar with the case told Electric Nevada that federal lawyers are now very much in a bind on the Hage case. Because it was the government that requested the summary judgment, they cannot -- under procedures governing the Court of Federal Claims -- now file an appeal against Smith's ruling. EN has not yet been able to reach attorneys on both sides of the case.
Hage said that even though the March 8 ruling "is the most significant victory to come down on these federal lands in a 106 years, the mainstream press just totally ignored it."
However, he says, there was lots of coverage -- all negative -- in September, 1991, when he first filed his takings claim against the Forest Service.
"There were all kinds of press releases put out by environmental groups, the Forest Service, etc., about how our case had no merit, how, on the issues involved, the courts had done away with those issues a long time ago," he says.
"Well, the thing of it is, the question had never been asked of the court. So we were just getting bombarded with magazine articles, national magazine articles, [and] major newspaper articles all over the country, about what a crazy approach this was..."
"We've just had to kind of keep our heads down and proceed along the proper course of litigation, and interestingly enough, we've won every round."
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Hage says the reason the victory in the court of federal claims seems surprising to many people is that the public has been subjected to a generations-long campaign of disinformation about the Western lands administered by the Forest Service and the Bureau of Land Management.
"The topic isn't all that complicated, once you get down to what the real issues are," he says.
"But there's been such a massive smokescreen laid for 60 years, over what this issue really is, and there's been so much propaganda put out there."
The main propaganda tool, he says, has been propagandistic manipulation of the phrase "the public lands."
Hage cites as an example a 1993 conference of environmental grantmakers.
"The top thing they said they had to do, was get the people back to using the term 'public lands' rather than 'federal lands.' because ... then the urban public would be thinking that this was something that partially belonged to them.
"What they don't want out of the bag," says Hage, "is the fact that, by law, the surface estate was passed a long time ago, in accordance with the contract that the federal government had with the states under the [Constitution's] disclaimer clause."
"All of the laws are on the books, [and] it's very, very detailed. The problem with the laws, is that we've had agencies that have been operating, for years, in defiance of those -- and a massive effort, through the environmental movement, to confuse the issue."
"All of these grazing lands are in the form of allotments, and 'allotment' is a legal term," argues Hage.
The West's grazing allotments, he says, resulted from the same process as other property recognitions: the government recognized the prior appropriation settlers had made by beneficial use and issued licenses.
"The Supreme Court acknowledged that license had been created relative to grazing clear back in February, 1890," says Hage.
"The next process after that [was] the classification of the lands ...done basically through the act of June 25, 1910, and the act of Dec. 29, 1916 [for] the lands in the forest reserves, later called national forests."
When the forest lands underwent classification, says Hage, grazing allotments were created in those lands in accord with prior beneficial use.
Then in 1934 the same process was followed on the rest of the open lands in the West. Grazing allotments were created on the non-Forest Service lands under the Grazing Service, later renamed the Bureau of Land Management.
"So wherever a grazing allotment exists," says Hage, "the United States was disposing of these lands" in what, legally, is called the 'split estate.'
"The United States was holding onto the mineral estate [which] was to be disposed of separate from the surface estate. [And] with the creation of grazing allotments, the surface estate was conveyed by the government into private hands."

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