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Hage Case goes back to Claims Court

Posted July 30, 2013

News & Updates | June 20, 2013

Monday, June 17th, the U.S. Supreme Court denied the petition to hear the Hage v. United States takings case overturned, in part, by the U.S. Court of Appeals for the Federal Circuit in 2012 (Appellate Court).

The case, originally filed in 1991, by Wayne and Jean Hage, claimed the United States Forest Service and Bureau of Land Management caused the taking of their ranch through regulations and physical confiscations of property. They received a landmark judgment that, with interest, totaled $14 million, plus attorney fees from the U.S. Court of Federal Claims in 2008 (Claims Court). The court awarded the Hages compensation for the taking of their range improvements, ditch rights-of-ways and the water that flowed from the federal lands to their private lands. The case was the first ever filed asserting the taking of private property rights on federal grazing allotments.

The U.S. Government appealed the decision to the Appellate Court and was successful in overturning parts of the case. The Appellate Court also remanded the case back to the Claims Court “for further proceedings consistent with this opinion.” (Estate of Hage v. United States, 697 F.3rd 1281, 1292 (2012)).

Now that a hearing by the U.S. Supreme Court has been denied, the case moves back to the Claims Court for final resolution. The Hage Estate has argued that the Appellate Court’s reversal was very narrow; particularly those issues not reversed, and discussed these in their Supreme Court Petition.

For example, the Appeals Court found that compensation for the range improvements owned by the Hages was not ripe, and therefore denied compensation for these property rights. Executors for the Hage Estate opted not to contest this ruling, because in a separate, but related case, United States v. Hage, the U.S. District Court in Nevada has required the government to reinstate the cooperative agreements it cancelled, which authorize the use of the range improvements owned by the Hages.

The District Court also ordered the government to reissue the grazing permits it cancelled and ordered Wayne Hage, Jr. to sign these permits to authorize grazing on the federal lands. This action, in effect, prevents the agencies from barring access to the Hage’s water and ditch rights-of-way. The Claims Court found that these rights were owned by the Hages and in the Supreme Court brief the Estate argues that the Appellate Court did not reverse these findings.

The other key issue raised by the Appellate Court was whether a taking of the ditch rights-of-way occurred because the Hages failed to apply for a special use permit. The Claims Court found that a special use permit was not required to maintain an Act of 1866 ditch right-of-way and additionally in this case that seeking a permit was futile because of the longstanding conflict between the agencies and the Hages. The Appellate Court did not overturn the factual finding that a permit was not required, but found that the action of seeking the permit to be futile was not sufficient grounds to assert the government had taken the property.

In the Supreme Court brief the Estate argues that in essence, the Appeals Court overturned the “regulatory” finding by the Claims Court for the ditch rights-of-way, but, did not overturn the Claims Court’s “physical” taking finding, therefore leaving this portion of the takings decision intact.

Ultimately, since the Appeals Court directed the Claims Court to reconsider its original ruling in light of their findings, the case is once again in the hands of the Claims Court and Judge Smith for final resolution.

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