The Mean Green Machine Part 2: Attack on Liberty
I met property rights activist Wayne Hage when I worked for the Nevada Policy Institute. My assignment for the Nevada Journal, their print outlet, was to interview rancher and property rights activist Wayne Hage and find out what his 'war' with the federal government over grazing and permit rights was really about.
Over a period of time Wayne and I became friends, I visited his beloved Pine Creek Ranch many times and came to know the area in question quite well.
Suffice to say Wayne's problems with the feds began shortly after he bought the property in the 70's. After the purchase of approximately 7000 acres with grazing rights from the previous owner, things began to fall apart.
As reported in the High Country News: ''Wayne Hage and his wife Jean buy the 7,000-acre Pine Creek Ranch, adjacent to the Humboldt-Toiyabe National Forest in central Nevada, for about $2 million. The ranch has roughly 752,000 acres of grazing allotments on public lands, plus water rights predating federal ownership."
I can recall driving with Wayne in his truck over terrain only a billy goat could appreciate, suffice to say it was not an area like Wisconsin with lush grass - it was the high desert and grass was plentiful in certain areas in the spring but by fall there was little to be had. In any event over the years Wayne had improved the property by adding or augumenting water features -- clearing streams and ditches of undergrowth and brush. As it turns out the federal government eventually arrested him for doing just that.
The federal government decided to make a case against Hage regarding over-grazing . .the problem is they used pictures to make the case from November when most grass in most places turns brown. They did not provide the pictures of grass that returned in the spring the following year - or every year.
The entire case against Wayne Hage was not about what was best for the environment - nor was it about over-grazing. It was about driving him and people like him out of business, so assets could be seized and the multiple land use of the West ended.
High Country News recently put up a timeline of events: "80 - 1990 The Forest Service repeatedly asks the Hages to move cattle out of overgrazed areas and fix fences; the agency sends them 40 letters and makes 70 visits to Pine Creek. The feds also prosecute Hage when he removes trees along his ditch right-of-way on public land."
Again, the over-grazing was a figment of their imagination based on pictures taken in winter.
What the feds also never mention and in fact punished him for before them stole them, Hage had developed those water resources through careful management. Once again the case was not about stewardship of the land but about harassment till you get what you want .. in the case of the federal government -- it does not care who dies or is hurt in the process - or whom they have to ruin in order to get what they are after.
The Green Behind the Mean
Researching the Hage story I began to wonder who was really in charge of the harassment -- the Sierra Club and World Wildlife Federation and Nature Conservancy .. .or the government. As it turned out it was a combination of all of them.
As Wayne told me in 1998, the battle between Wayne and the feds really began on a beautiful Nevada day in 1979 the battle lines for Hage’s war were drawn. His first inkling that another "range war" was imminent came when he and his crew were riding in the mountains, rounding up cattle on his government allotment. Coming down the trail towards them were several men from the Forest Service. Hage did not recognize the usual familiar faces he knew from the Tonopah office. These men were strangers and said they were from the Austin office.
When Hage questioned them about what they were doing, the agents explained they were making a survey for water and that the Forest Service was filing a claim on all the water in the Monitor Valley. Hage was astounded because he had operated for years with the understanding that his water rights were vested and part of the ownership of his ranch. Why would the Forest Service be filing on his water rights, he asked. "Because," the agent responded, "that is what we were ordered to do." There were at least 70 visits by the feds in the next 10 years. Then the environmental movement jumped on board and harassment began in earnest in 1991.
Trying to stay within the law, Hage contacted Nevada’s State Engineer who confirmed that the Forest Service and BLM had filed a claim—including claims on about 160 vested water rights of Hage and Pine Creek Ranch. Hage’s only recourse was to petition the State Engineer requesting a determination of who had what rights in the Monitor Valley. This petition was filed on October 15, 1981. Adjudication which should have taken months stretched out to 10 years because the Forest Service used one delaying tactic after another. In this way, it gained time to solidify its power over federal lands and condition people to accepting the new order and the reinterpretation of law in its favor. After years of waiting, Hage found himself on the brink of financial collapse and his operation of the ranch was becoming untenable.
By filing a "takings claim" in the Federal Court of Claims in 1991 Hage sought justice and compensation under the Fifth Amendment to the Constitution. Under this Amendment, the government may not take property without compensation and Hage and others had always believed that their grazing permits and water rights were private property rights. In the suit against the government Hage proposed that there had been a taking of private land, water rights, an irrigation ditch right of way, forage rights, rangeland improvements and cattle by the federal government. Much had happened to Wayne Hage and his family before filing the "takings claim" that changed their lives forever.
After Hage’s permits were canceled in 1991, government documents show that District Forest Ranger David Grider sent a copy of the cancellation notice to the attorney for the National Federation of Wildlife, Roy Elcker, and thanked him for NFW’s lobbying efforts in Congress on behalf of an increased Forest Service budget. NFW’s policy has always been aimed at ending all grazing and agricultural water use on "public land." During a lecture before other environmentalists Elcker declared, "How you win is one at a time, he (the rancher) goes out of business, he dies, you wait him out—but you win." The Forest Service and the environmentalists were past masters in the art of "making it so expensive to operate and make so many changes for him...to run his cattle on public lands...he goes broke....". That is exactly what happened to Wayne Hage.
Part II - Wayne Hage and the Mean Green Machine
As reported in the Nevada Journal, Wayne Hage's War:
That same summer of 1991, not long before the Senate vote on the question of raising grazing fees, Hage received a call from an official of the nearby Toiyabe National Forest telling him some of his cattle were trespassing on government land. In the process of moving 2,000 head of cattle from winter to summer pasture through an area of unfenced boundaries, it is not unusual for cattle to stray.
Hage drove to the site to survey what needed to be done and found himself surrounded by 20 to 30 federal agents armed with semi-automatic weapons and garbed in flak jackets. Some of them were stationed on high points expecting a confrontation. Hage got out of his vehicle, reached under his jacket and pulled out a 35 mm camera, pointed it at some of the Forest Service swat team and told them, "Smile pretty, boys." To the chagrin of the agents, there was no violent confrontation. The only "violence" was in the heart and mind of Hage who wondered at the lengths his government would go to get what it wanted—namely property rights which belonged to him.
On two later occasions heavily armed agents came out to his former allotment and prevented Hage’s employees from moving cattle off the closed allotment. During these intrusions by federal agents 104 cattle were confiscated and subsequently sold at auction with the profits remaining with the Forest Service. Twisting the knife in Hage a little deeper, agents sent him a bill for the costs of confiscating the cattle. The cattle didn’t recognize they had over-stepped their boundaries—and apparently the federal government didn’t recognize that Uncle Sam had overstepped some boundaries as well.
Wayne Hage became a legal expert on land laws and the problematical history of the West and it's relationship with the federal government. In order to become a State . various Western states had to cede much of it's own land to the federal government. That is the real core of the problem. The federal government becomes the tool of powerful interests to take without compensation or with compensation. As Hage and others have discovered over the years, the federal government does not play fair nor does it really care about property rights if that property and those rights get in its way or the way of those who currently have influence.
High Country News:
"1991 The Forest Service cancels some of the Hages' grazing permits, and impounds and auctions off more than 100 cows. The Hages file a lawsuit asking for $28 million to compensate for federal "taking" of their property. They argue that government actions kept them from using their water and forage rights and the improvements they'd built, such as corrals, spring boxes and fences, and destroyed the economic value of their ranch."
On September 26, 1991 Hage filed his "takings claim" against the Forest Service in the U.S. Court of Claims. The suit alleged that the United States had taken Hage’s livestock, grazing rights and stock water rights on range lands. The government countered by charging Hage and wood cutter Lloyd Seamans with a felony for taking government property by cutting and removing brush from an irrigation ditch. In the government suit against Hage all felony charges were thrown out of court and the U.S. Attorney who brought the charges was nearly sanctioned for filing the charge at all.
Immediately after Hage filed his suit with the claims court, the Sierra Club, the National Wildlife Federation and the Natural Resources Defense Council filed for status as "intervenors," saying that ranchers should receive no compensation for losing their water and grazing permits on federal land. Jumping on the litigation bandwagon was one of the strangest participants of all—Nevada Attorney General Frankie Sue Del Papa. According to Nevada law and an 1866 Act of Congress, Nevada owned all the water and delegated its use to individuals. Curiously, Del Papa hired a staff lawyer from the National Wildlife Federation to argue in favor of the legitimacy of federal authority over Nevada’s water and against Hage’s "takings claim." The U.S. Claims Court denied both the environmental groups’ and Del Papa’s motions to intervene.
"1994 More of Hage's grazing permits are cancelled. Hage writes a book criticizing government management of public grazing lands, called Storm over Rangelands: Private Rights in Federal Lands; it inspires three other ranchers who lost grazing permits to file lawsuits. All fail."
The Last Man Standing
When I met Wayne in 1998, he was preparing for a hearing in September of 1998 before Chief Justuce Loren Smith of the US Court of Federal Claims. During those hearings I got to see the testimony of Forest Service and Bureau of Land Management pesonnel who had been part of the effort to shut Hage down and make a precedent for further action against other ranchers and resource users. My feeling, and that is all it was, you know when someone is lying or dissembling, and most of these guys were doing that. Judge Smith seemed to recognize that as well, simply by his demeanor and the questions he asked it was obvious he had little regard for the testimony of the officials. .
In any event, Hage's court battles went on for some years even after I left Nevada.
"IIn 2002 Judge Loren Smith, appointed by President Reagan (a Sagebrush Rebellion champion) to the U.S. Court of Federal Claims in 1985, rejects Hage's claims that he owns the surface estate on his grazing allotments, but rules that Hage owns private-property rights to water and forage, and that he doesn't need a grazing permit to use those rights."
In 2006, Wayne died of cancer. But the fight did not end with Wayne's death. He was vindicated in 2008. After two trials and several hearings, Judge Smith ruled that the feds owe $4.2 million, plus attorneys' fees and interest, to the Hages' estate for taking their property rights. The government appealed to reduce the amount.
As HCN reports: "Judge Smith increases the award by $152,000 to compensate for some ditches and pipelines. "It sends a pretty important message to the government that if you screw with a small ranching family and put them out of business, you have to pay big bucks," Ladd Bedford, a San Francisco lawyer representing Hage, tells the Associated Press. The government appeals again."
Wayne once told me, the government never lets up, 'they out litigate you until they break you or they wait for you to die.' I can remember that statement very well. As it turned out, in Wayne's case - it was true. In 2012, the supposedly FINAL version of the court litigation that had gone on for nearly 20 years came to an end. Another court over turned the previous ruling,
In July 26, 2012 The U.S. Court of Appeals for the Federal Circuit overturns the award, ruling that the Hages didn't prove they owned range improvements, and that their water rights weren't taken. The family vows to file for rehearing, but some experts say there's no basis for it. "When this case started it had enormously expansive claims that fundamentally threatened the concept of public ownership of public lands," says John Echevarria, who represented environmental groups that joined the case and is now a Vermont Law School professor. "Its final resolution vindicates that public lands should be managed for the benefit of the public as a whole.''
HCN: "Aug. 31, 2012 Federal judge Robert C. Jones in Reno rules against the feds in a related court battle that began in 2007, when the BLM and Forest Service sued Hage's estate and his son, Wayne N. Hage, claiming the ranch had run cattle without a permit. Judge Jones cites a BLM manager and a Forest Service ranger for contempt of court, saying they improperly carried out enforcement actions against the Hages while the court battle was proceeding, and threatens to order them to pay damages. Expect an appeal by the government."
And so it goes. I remember Wayne Hage as a very brilliant man. Tough but with the biggest most courageous heart, Wayne was a life force. With a degree in biochemistry, having done a tour in the US Air Force, Wayne had started off life as a cowboy at age 15 working various ranches in the West. After his wife died, he married former Congressman Helen Chenoweth Hage in 2000. I knew both of them, and can not say enough good things about them. After his marriage to Helen, the pair continued to fight for property rights and for the right of the individual to keep what belongs to them. When government gets involved and when big money special interests get involved, individual rights mean nothing to them - nothing.
I suspect Wayne Hage's War will continue - it must continue or this country is done for. I am not all that encouraged in any event by the direction it has taken. Government being in bed with one interest or another at the expense of natural rights, that is what governments do. It is up to us to stop it and take it back and I am not sure there is still time to do that.
I remember Nevada with great fondness and love. A place and people out of time, an area of great beauty and a quiet big country feel to it.
One of his first comments when I interviewed him:
"The problem and the scary thing is the lack of understanding of the American people as a whole, notes rancher Wayne Hage: " I look at my country today and say if they just understood it...our grandparents understood ... that if the government takes, they have to pay."
The other thing he said to me before I took my leave:
"This fight may go on long after I am dead - don't forget - never give up - when you do - the bad guys win."