Chenoweth-Hage Guest Opinion: Issue Challenge With $1,000.00 Reward Re: Hage Decision
February 26, 2005
For Immediate Release
There has been much speculation and misunderstanding surrounding the Hage decision since it was issued and published by the U.S. Court of Federal Claims in January 2002.
Wayne Hage of Tonopah, Nevada, filed his suit for a temporary takings in 1991 after to the U.S. Forest Service confiscated his cattle in a paramilitary action, sold his cattle and kept the proceeds from the sale.
The temporary taking affords Hage not only the ability to keep the ranch, but also be paid for the period of time (11 years) that the United States prevented him from making a living on his ranch.
The January 2002 Final Decision and Finding of Fact was the third major decision published in just the property phase of the case.
The dispute was, in part, over who actually owned the property rights within the allotments -- those lands the government called “public lands”.
The Court first decided what property rights existed on the allotments -- and who owned them -- before it decided whether the government had temporarily taken the Hage’s ranch operations, and what compensation was due him.
Recently published articles have indicated that the only property rights awarded Hage in this ruling were vested water rights and forage confined to within 50 feet on each side of his 1866 irrigation ditches.
To end this controversy and confusion among Hage supporters, I offer this challenge: I'm willing to pay anyone $1,000.00 if they can show me where Judge Smith ruled that Hage’s forage rights were confined merely to 50 feet on each side of his irrigation ditches.
In addition, and with all due respect and affection, I'm willing to go anywhere and appear in any setting to openly discuss and debate these decisions with those who've published conflicting opinions. If one should doubt my offer, those who know me know I keep my promises. This is a promise.
The fact is that the 1866 ditches on the Hage ranch comprise only .001 percent of the water sources of the ranch. If the interpretation that Hage was awarded the minuscule amount of forage were correct, Hage would have long ago folded his tent and left Pine Creek Ranch to the government.
The reality is that -- based on the proper interpretation of the ruling -- Hage’s cattle are now grazing on the allotments that were previously forbidden by the U.S. Government, and they are doing so without a grazing permit.
How could this happen in this climate of strict regulatory controls? The reason is that -- while the Court of Claims devoted much dicta to the issue of the 1866 ditches in its Final Decision and Finding of Fact -- this part of the decision is significant only because Hage had previously been indicted and convicted in the Federal District Court for ridding an 1866 ditch of water-clogging forage.
The government claimed that the forage on the ditches was government property and that Hage had no right to remove it without a permit.
However, the 9th Circuit Court of Appeals properly overturned that decision, and the U.S. Court of Federal Claims recognized Hage’s private property use rights -- including water, forage and range rights on all the allotments -- not just the 1866 ditches.
Judge Loren Smith, in his Final Decision and Finding of Fact, characterized these ownership rights on the allotments in the context of fee lands -- to which Hage has title.
A study of the word 'fee' reveals that it means the highest form of ownership in an estate that exists and carries with it all rights of survivorship (the inheritable right to use).
In separate rulings, the Court made it clear that access to Hage’s property rights -- forage, water, ditches, etc. -- may not be denied for lack of a grazing permit.
These decisions have been hailed by academia as the only decisions in 118 years that clearly delineate the rancher’s rights on grazing allotments.
The federal government, [which] is now trying to minimize [its] losses in this case, interprets the Court’s decisions as Hage’s forage rights being confined to within 50 feet of his 1866 irrigation ditches. Others have added to the confusion by weighing in on the U.S. Government’s side.
Perhaps the head notes published with the decision -- which leave out most of the Court’s findings -- may have misled them.
However, it must be realized that head notes are not written by the Court, but usually by senior law students -- who have a penchant for reading and applying their interpretation to the Court’s opinion for the sole purpose of subject matter reference.
Head notes bear no authority whatsoever.
In contrast, a published opinion is binding on the parties to the action, until it is upheld or reversed in whole or in part by the higher courts.
A finding of fact may not be reversed in the higher courts unless fraud was used in the gathering or presentation of the facts.
The Court ruled on Hage’s title to his fee lands on the allotments in a finding of fact.
And finally, confusion may have been caused by the ruling that the entry and homestead laws -- [which were] used, in part, to support Hage’s argument in a surface estate right -- were denied by the Court. Judge Smith was absolutely right in denying this argument. Entry and homestead laws only granted access for settlers to go on the land and create property rights by putting the water to beneficial use. In and of themselves, these settlement laws did not -- and could not -- create property rights.
Hage argued that, even if he didn't have a “surface estate” under the laws cited, he was certain he had private property rights on his allotments -- in that the federal government imposes estate taxes on those rights on the allotments.
Indeed, in a Finding of Fact -- which may not be overturned on the appellate level -- the court found that Hage indeed had title to the fee on all the allotments that his predecessors-in-interest had acquired in the years after settlement.
Thus the total 752,000 acres making up Pine Creek ranch was assimilated by purchase of smaller parcels and their appurtenances [that had been] homesteaded in the past.
While we've been content to wait until the Court issues the Final Judgment on the Compensation phase of the case, it may take three more years for that decision to come down. It was necessary to offer this discourse to avoid the hopelessness and confusion resulting from three more years of conflicting opinions among Hage supporters.
In reality, the federal government seizes the advantage when people fail to defend their property rights, simply because they are confused and feel the fight is hopeless. This climate only fuels the rapacious appetite of the federal government in [its] quest to seize our longstanding property rights on the western range.
Wayne Hage, my husband, is fond of saying that a right undefended is a right waived. We cannot wait another three years to begin defending our rights on the western rangeland. At the end of that time, we may have few rights left to defend. We must never, never give these rights up because of confusion or the sense we cannot win. We can win, and together we will win.
To those of you who have faithfully supported the Hage case with your time, effort and resources, the family speaks with one voice of great gratitude. We fully recognize that this case would still be at Square One, without the ability to move forward that your support has provided.
Quite simply, thank you.
Joined by Ramona Morrison
(Mrs. Chenoweth-Hage is the wife of Wayne Hage and the former Congressman from the 1st District of Idaho. She resides with her Husband at Pine Creek Ranch in Nevada)
(Ramona Morrison is the daughter of Wayne Hage. She resides with her husband and two children in Reno, Nevada)