Image via WikipediaThe government has some big advantages over mortal plaintiffs.
For one thing, the government is, for all practical purposes, immortal.
Back in the 1980s, it became an article of faith among well-meaning “environmentalists” without much practical knowledge of the West — and thus for the federal bureaucrats anxious to please that large if remote constituency — that grazing cattle on arid western lands serves to “destroy fragile ecosystems.”
Western ranchers presented evidence that desert plants developed in an ecosystem that needs large ungulate grazers to churn their seeds into the soil, to fertilize wetlands, to carry moisture into arid valleys and thus benefit tortoise populations — which is why more tortoises are found on grazed land than ungrazed.
The ranchers argued that grazing prevents the build-up of excess tinder that can make range fires more frequent and severe — that game species profit from the ranchers’ water improvements and efforts at predator control.
The forces seeking to remove mankind from the land scoffed at such arguments. They cancelled grazing “permits” on the theory that the ranchers had no property right in their ranches — that they were allowed to “trespass” on such “federal lands” (never bought or paid for by the federal government, as required under the Constitution) only with government “permission.”
The Forest Service ordered that Nevada rancher and private property rights advocate Wayne Hage, in one example, could use “only hand tools” to trim back trees clogging the canals that had brought water to his 125-year-old, 700,000-acre Pine Creek Ranch in central Nevada.
In 1991, Wayne Hage sued. On Friday, U.S. Court of Federal Claims Judge Loren A. Smith in Washington, D.C. ruled Hage was right, and the Forest Service was wrong.
The judge awarded more than $4.2 million to the plaintiffs, ruling the U.S. Forest Service committed an unconstitutional “taking” of the Hage family’s water rights during their decades-long dispute over livestock grazing.
Calling the conflict a “drama worthy of a tragic opera and heroic characters,” Judge Smith also ordered the government to pay back interest to the family of a man considered one of the leaders of the 1980s “Sagebrush Rebellion” — an additional $4.4 million. The government is also ordered to pay the Hage family’s legal costs — another $4 million.
“Extensive evidence has convinced the court that but for the government actions plaintiffs would have had the water in which they had a vested right,” the judge wrote.
“The hand tools requirement prevented all effective ditch maintenance, as it cannot be seriously argued that the work normally done by caterpillars and back hoes could be accomplished with hand tools over thousands of acres. With hand tools the task would have taken years or decades and required hundreds of workers.”
The implementation of the hand tools requirement “was based solely on hostility to plaintiffs,” the judge ruled.
“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,” exults Lyman “Ladd” Bedford, a San Francisco-based lawyer who has argued the case since Hage first filed his lawsuit, 17 years ago.
While Judge Smith ruled Friday that “The court finds the government’s actions had a severe economic impact on plaintiffs and the governments’ actions rose to the level of a taking,” the judge also ruled — predictably — that cancellation of Hage’s federal grazing permit did not in itself amount to a “taking” under the Fifth Amendment, since the grazing permit is “a license, not a contract or property interest.”
Now, that may actually turn out to be a good thing, since it acknowledges — albeit in a backhanded way — that the rancher’s property right must rest somewhere else, somewhere not “cancellable” by a federal bureaucrat.
It would be nice to ask Mr. Hage whether he feels vindicated. I can’t, of course. He’s dead.
The 17-year federal lawsuit took longer to prevail than either Mr. Hage — who died in 2006 — or his widow, the late former U.S. Rep. Helen Chenoweth-Hage of Idaho, could wait.
And while $4 million or $8 million sound like a lot of money, they’re notably smaller sums than the $28 million Hage sought — and that was in 1991 dollars.
That leads Cliven Bundy — the last active cattle rancher in Clark County, who has fought his own battles with federal bureaucrats trying to drive him and his cattle off the Mesquite allotment by challenging both his grazing and his water rights — to question just how big a “win” for western ranchers Friday’s ruling really is.
“I don’t think he gained anything there,” said Mr. Bundy Tuesday afternoon. “I think they just stole his water for a cheap price. I mean they gave him a few dollars, but … the way I look at it the government got the water, and if they have the water they’ve got the land, and they got it pretty cheap…. He could have put it on the regular market and got more money than that.”
“I didn’t like the idea that they never paid him for the cattle they took,” Mr. Bundy says. “They never recognized him as having grazing rights, never paid him anything worth much for his improvements on the water. …”
Hage’s daughter, Ramona Morrison, is more optimistic.
“Whether it’s a permanent or a temporary taking is not clear” — a matter that may be cleared up in a post-trial conference Friday, says Mrs. Morrison. “At the time dad was told he was crazy to try and do this, so to come out with this kind of a ruling after all this time, while we were not surprised that there was compensation, is quite remarkable. … Dad plowed a trail through six feet of snow with this case.”
An “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”? That will depend on whether the Hage family is able to maintain their water rights — properly vested in state, not in federal, law — and keep their cattle on the land.
The last time I checked, the Forest Service wasn’t in the habit of selling their big trucks, pawning their sidearms and going about on foot when confronted with a few million dollars in legal fees. In fact, with the Southern Nevada Water Authority having recently spent $100 million buying water rights in central Nevada, “The government is not running out of dollars to buy water rights,” Mrs. Morrison notes.
The government has some big advantages over mortal plaintiffs.