Restoring American's Property Rights: Hage v. U.S.

Posted 12/21/02

(Note: While this is somewhat dated, it is important in that it tells the
story behind the story of Hage v. U.S. I have been to Pine Creek Ranch, have
seen the topography myself, and know why the Hage family loves it so. It is
truly worth all the years of effort. It is their property. It is their
freedom -- and, beyond all that, it is ours. That is how important this true
story is, no matter where we may live.)

By Margaret Hage Gabbard

Stewards of the Range

707 East United Heritage Court, Suite 150

Meridan, Idaho 83642

1-800-700-5922

Email: stewardsr@aol.com

"Either you have a right to own property, or you are property." - Wayne Hage,
March 1992

Spanning the high desert mountains of central Nevada stretches an old cow
outfit steeped deep in western tradition -- tough horses, good cow hands, and
family. Although Pine Creek Ranch is still one of the most remote spots in
the nation, it has not escaped the ills of environmentalism. Instead, it has
found itself a primary target of their agenda, and the subject of one of the
most important cases of our time.

My family purchased Pine Creek in 1978. It was my father's dream. He had
worked several old-time cow outfits like the PX out of Elko, Nevada as a
young teenager and had his eyes set on a place of his own ever sense. Dad was
self-made. He started earning his own living at the age of 15 and put himself
through undergraduate and graduate school. He thrived on subjects like
biology, chemistry, history, and law. He earned a Masters degree in organic
chemistry with honors -- no small feet for a young cowhand.

My mother came from a well-respected Nevada family. Her father died when she
was sixteen leaving her, her two younger brothers and mother to run a small
prosperous farm and ranch where Sparks, Nevada now sits. She was raised on
hard work but was polished with the best manners of society. I think Grandma
always meant for her to marry a preacher. But instead, she had her eye on
that self-made young man who walked a different path.

With five young children, the oldest 14 and the youngest four, Wayne and Jean
Hage moved into the Tonopah community in the spring of 1978 and began
managing the 2000 head operation. The ranch was made up of 7000 private
deeded acres, which held most of the productive meadows and hay fields. There
were two rugged mountain ranges, Jefferson and Table Mountain, where the
cattle summered on the ranches private grazing allotments, and a vast desert
where the cattle grazed during the winter. The ranch spans 80 miles from
north to south and covers over 1100 square miles. It takes a lot of acres to
feed a cow in that country which accounts for its size.

All of the surface and groundwater within the boundaries of Pine Creek belong
to the ranch. The mountains are fed by springs and winter snow pack, while
the winter range is primarily watered by wells scattered across the Ralston
desert. No drop of water is spared in this country. The naturally dry climate
makes water as precious as gold.

The property is ideal for a cow-calf operation. The rugged mountains provide
ample green feed during the summer. The desert, where the cattle winter, is
flush with white sage, shad scale, Indian rice grass and other forage which
is rarely covered by the areas light snows. The cattle migrate twice a year
from end to end. As soon as the desert begins heating up in the spring, the
older mother cows move their calves north through Belmont pass into Monitor
Valley where they disperse into either the Table Mountain or Jefferson
ranges. Monitor Valley sits at 7000 feet elevation while the two mountain
ranges reach 11,000 and 12,000 feet respectively. The cold fall air and
threats of snow chase the cattle out of the mountains by thanksgiving, back
to the desert. They make a good living at either end.

Working with the seasons, moving the cattle is fairly simple. We did
everything horseback covering an average of 25 miles a day, usually working
the rear of the herd or holding up the lead until the Forest Service and
Bureau of Land Management determined the beginning and end of the grazing
seasons. Before modern bureaucracy, you did not have start and stop dates on
your allotments; you followed the natural cycle governed by the seasons.

Many things were simpler before the federal land management agencies began
stretching their authority implementing the environmental agenda. Over the
past 50 years, they have even changed how we think about the western lands.
Most Americans would tell you today that the western lands belong to them,
they are "public." But the old-timers still alive who came from the families
that first settled these lands will tell you a different story. Most of the
surface of these lands are covered by property rights that are entitled to
full protection under the Constitution. How the West changed from an area
governed by state property law to one strangled by federal rules and
regulations is a lesson to the rest of America. How the West and America
climbs out of this hole, is what Hage v. United States is all about.
The West is ideal for livestock grazing which the early settlers took
advantage of. The land disposal laws followed this pattern of settlement. As
in the East, western settlers established homesteads of small acreages, which
they put to beneficial use. The homesteads were usually established around a
fresh water source where settlers cleared the sage and desert forage and
irrigated for hay meadows. Before American settlers came, there was very
little green feed or wildlife in the West, as is noted by Lewis and Clark --
who almost starved to death before reaching California. These homestead
claims were validated by Congress, and the settlers owned these portions of
land in their entirety. Unlike the East, the homesteads were not productive
enough alone to provide for a family. So, settlers made use of the bordering
rangelands usually by grazing cattle and sheep. Congress followed with the
appropriate disposal laws validating the use of the surface estate but
retaining the mineral estate to be disposed of through mining laws. The
surface estate rights that were privatized were predominately water, forage
and access rights, as is the case on Pine Creek Ranch. These rights were
defined by allotment boundaries marking where one settler's rights ended and
another's began.

Pine Creek Ranch is the combination of four original homesteads. The
headquarters are tucked at the base of the Jefferson range next to Pine
Creek, and look across Monitor Valley at Table Mountain, which earned its
name from its deceiving flat appearance. There are no roads, only four cow
trails that wind their way up the rugged mountain and across the twenty-mile
top. If you're not careful you can easily get trapped in the deep canyons and
tangled in the mahogany and aspen groves.
We were a working family. Young and old alike earned his keep. By age twelve
I was cooking for ranch crews of up to 20 and fast becoming a good cowhand,
as it was with my three sisters and brother. There were no weekends, only
occasional trips to town, which was 65 miles away at the end of a long and
dusty road.

We minded our own business, earned a good living, offered jobs to many
people, and at the end of a good year, the ranch would have contributed over
1 million dollars into the local economy.

But even in our remoteness, we were not missed by the rabid environmental
agenda that was spreading across the nation. Two months after we purchased
the ranch, the National Park Service offered to buy it at half of what we had
just paid. One of the reasons the prior owners sold the ranch was because of
the incredible harassment they were getting from the land management
agencies. When we purchased the ranch, the Park Service set their eyes on us.

In the twelve years that followed, we faced relentless harassment from the US
Forest Service and Bureau of Land Management (BLM) encouraged by several
major environmental organizations. They fenced off a major spring from our
cattle and piped our water into their Ranger Station without our permission.
In 1979, over a period of 105 days we received 70 visits and 40 certified
letters from the forest service citing us with various violations, most of
which did not exist or were created by the forest service themselves. I
remember how one of these accused us of not maintaining our drift fences on
Table Mountain. After two days riding the fence, one of our hands found the
forest service flag marking a single missing staple. We were also charged
with over 45 trespass citations where they claimed our cattle were in
locations not permitted. They dropped these charges once they realized we had
eye witnesses watch forest service employees move our cattle into these areas
and then within hours notify us of the alleged offense.

We filed three administrative appeals against the forest service and BLM
during this period and won each case. The problem was that none of these
cases stopped them from finding new ways to harass us. By 1991, they had
canceled, suspended and burdened the grazing permits to the point that we
could no longer economically operate. The forest service had also filed
claims over many of our water rights forcing us to also defend these before
the state water engineer.

We knew we were out of business. In the spring of 1991 we began gathering and
shipping our entire herd as soon as they migrated into Monitor Valley. In
July of 1991, the forest service brought in over 30 riders and gathered every
cow they could find, which only amounted to 104 head after two separate
gatherings. Fully half the riders were armed with semi-automatic rifles and
wearing bulletproof vests. Clearly unskilled at handling wild cattle, they
ran a bull and cow to death. They contained the cattle on our private
meadows, and when finished handed my father a bill for their confiscation
expenses.

They believed they had seen the last of Wayne Hage. They were mistaken.

On September 26, 1991, we filed a takings case in the United States Court of
Federal Claims in Washington, D.C., with the help of a small circle of
friends and neighbors who believed this case could change regulatory land use
policy. That small circle shortly thereafter founded the organization,
Stewards of the Range, with the primary task of ensuring the case was
supported through the courts.

Hage v. United States is important to American landowners because it strikes
at the heart and core of the environmental movement. The founders of America
meant for us to secure our property rights against all causes. If the public
believed there was a cause worth confiscating property, then the government
would have to pay. That was our safeguard against the government getting too
ambitious at stealing.
When we filed the case in the Claims Court, we forced them into a court they
fear, defending an issue on which they are desperately weak - property rights.

But this case is about more than just property rights. It is also about
government accountability. The land management agencies have gone virtually
untouched even though they violate laws daily. The employees know that before
a landowner can file any substantive action against the agency, they will
most likely be transferred to another area and never be affected by the
outcome. However, one of the advantages of filing in the Claims Court is the
ability to depose, under oath, the individuals involved in the action. And as
we found in our case, once this happens, it becomes a feeding frenzy as
bureaucrats scurry for cover, pointing at someone lower on the food chain,
which -- for once -- was not us.

After filing the case, we were immediately met with a motion to intervene by
the Sierra Club, Natural Resources Defense Council, National Wildlife
Federation and others. Their motion was denied since they did not own any
property at issue in the case. They were allowed only amicus curie status.

Four months after the filing of the case, the forest service filed two felony
charges against my father and one of our employees for cleaning trash Juniper
out of a ditch right of way. The action they cited took place a year earlier
and was already a part of our takings compliant as an example of how the
government had denied the use of our property. The forest service filed the
felony charges in an effort to side step the Claims Court and force us into
Federal District Court where the odds favored their position. We lost at jury
trial, but the 9th Circuit Court unanimously reversed the decision on appeal.

The government soon filed a summary judgment motion and on March 8, 1996, the
court issued a 41-page decision in our favor. The decision is landmark in
many respects, and true to Chief Judge Loren Smith's style -- it is as much a
lesson on property rights and constitutional principles as it is on federal
lands issues. Since then, the government has tried five additional summary
judgment attempts and failed.

My mother passed away shortly after we received the summary judgment victory.
The stress of carrying the case had long before taken its toll on her. She
had suffered a heart attack and stroke at the height of the battle with the
forest service. It was a second stroke the ultimately ended her life, but
thankfully, she died knowing that the stand she had taken for constitutional
principles would continue and very likely prevail.

Trial is scheduled to take place less than three months away on September 28,
1998, in Reno, Nevada. The court will examine three questions: is there
property involved; did the government take it; and if so, how much is it
worth?

If we prevail, we fully expect to fight appeals all the way to the Supreme
Court, and vice versa if we lose. A win will send a resounding message and
set powerful court precedent that the environmental agenda is no longer
exempt from Fifth Amendment review, the supremacy of state property law will
be restored, and landowners will have a clear path of recourse in the event
they find themselves in the same position. Also, westerners will finally have
the answer to a debate between property rights and privilege that is almost
as old as the West itself.

One thing is certain. If Americans are to survive the rabid environmental
agenda, we must protect property rights. Americans across this nation need to
make environmentalists pay for what they take. We must make certain not one
acre, not one parcel of American soil is available to steal.

When I hear people ask if this is a case about grazing, I always have to
chuckle. It is about grazing as much as environmentalism is about protecting
the environment. There is a much larger precedent involved. Hage v. United
States is about Americans regaining control of their government.