Appeals court sides with government in Nev. grazing fight

By Jeremy P. Jacobs | 01/18/2016 01:04 PM EST

Federal judges sharply rebuked a Nevada rancher Friday over his three-decade-long battle with the federal government over grazing his cattle on public land without a permit.

At issue: E. Wayne Hage and his approximately 7,000 acres that adjoin federal tracts in Nevada.

Hage repeatedly clashed with the Forest Service and Interior Department, claiming he didn’t need grazing permits to take his cattle to water on the neighboring public lands.


In years of enforcement, federal regulators reduced Hage’s access to the water and, later, impounded some of his cattle and sold them.

The dispute has led to several lawsuits. Hage has since died, but his son, Wayne N. Hage, has continued to pursue the litigation.

The most notable development came from a U.S. District Court judge in Nevada in 2013 who issued a blistering 100-page opinion slamming federal land managers and siding with the Hages on several points — including holding two federal employees in contempt.

On Friday, the San Francisco-based 9th U.S. Circuit Court of Appeals sharply reversed that ruling.

At issue in this stage of the lawsuit was whether Hage intentionally grazed his cattle on federal lands between 2004 and 2008 without permits. Hage contended that he held a water right that superseded his need for a grazing permit. The Nevada judge, Robert Jones, ruled that he did.

The 9th Circuit soundly rejected that logic in a 26-page opinion.

"In sum, an owner of water rights has special privileges when applying for a grazing permit and has a right to access federal lands for the sole purpose of diverting the water," Judge Susan Graber wrote.

"But an owner of water rights — like all other persons — may graze cattle on federal land only if he or she has obtained a grazing permit or other grazing authorization. Water rights are irrelevant to that basic requirement."

The court sharply criticized Jones, the lower court judge, throughout the opinion.

"[T]he judge’s bias and prejudgement are a matter of public record," Graber wrote.

She noted that Jones virtually instructed Hage to file a counter-lawsuit claiming his due process rights were violated by the government. Jones then ruled in favor of Hage on the issue.

The 9th Circuit also reversed Jones’ decision on the contempt ruling, holding that the judge "grossly abused the power of contempt."

The judges may have been influenced by recent standoffs over federal land policy, including the current occupation of the Malheur National Wildlife Refuge in southeastern Oregon by Ammon Bundy and his supporters. Ammon’s father, Cliven, was embroiled in a similar grazing dispute that led to an earlier revolt two years ago.

Graber’s opinion was released about a month after the panel heard oral arguments in the case — an unusually fast turnaround.

John Echeverria, a Vermont Law School professor who filed a brief in the case on behalf of environmental groups, said the ruling should put to rest the lower court’s reasoning of an "easement by necessity" for water rights.

"The court," he said, "addressed at great length the underlying claim: that because [the Hages] held water rights they had an entitlement to be on the public lands. The court said no."

Click here for opinion on grazing permits.

Click here for the ruling on contempt.