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Hage v. United States
Takings and Liability Trial

May 17, 2004

Reported by Margaret Byfield, Executive Director

Day Eleven

The day began with Mike Van Zandt informing the court that his co-counsel, Ladd
Bedford, was called away for a family emergency, and that he would be continuing the
plaintiff’s case. Ladd’s wife had suffered a seizer and was in intensive care in a San
Francisco hospital. Judge Smith asked Mike to pass on the courts concerns.
Even with half the litigation team missing for the plaintiffs, the government’s table of
five attorneys was still outnumbered. So far, every one of their witnesses had been
discredited in some manner. Looking at the upcoming witnesses, there was no reason to
believe the pattern would change.

Sitting in this courtroom is real experience. Rarely do you have an opportunity to watch
Judges at this level govern a case, but watching Judge Smith gives one renewed faith in
our judicial system. Smith weighs each objection, citing appropriate reasons for his
rulings that causal observers can understand. He often allows witnesses more latitude in
their testimony than would be appropriate for a Jury trial. He attentively listens to each
witness often asking his own questions about the issues discussed and everyone before
him is treated with a warm politeness. But maybe most impressive is how he seems more
interested in getting his rulings right than being right. On one occasion, after plaintiff’s
had read from the court’s rule book arguing against the admission of one of the
government’s documents, the court put off his ruling and said he would review the rule
during the break. Also unique to this Judge are the occasional interruptions of jokes
which have helped keep both parties at ease and the case focused on the important issues
before the court.

The government began the day by calling Dr. Val Anderson to the stand. Anderson is a
Forest Service range technician that was brought in to assess the condition of the
allotments. In his direct testimony he made certain the court understood he grew up on a
ranch and had extensive knowledge of ranching operations. Anderson testified that the
decision to suspend Hage’s permits was necessary to restore the native vegetation. His
opinion was based on one visit to Pine Creek Ranch made in 2003. He determined that
the carrying capacity of the ranch was 220 animal units. The only production studies he
conducted on the ranch were on Hage’s private hay meadows that were receiving water,
where he determined they were producing 6000 pounds per acre.

On cross Mike asked if 6000 pounds per acre was good production for the meadows.
Anderson said it was. He asked if Hage could irrigate all his would the ranch support
2200 au’s? Anderson agreed, if each of the meadows were actually producing 6000
pounds per acre.

Mike asked how he came up with the 220 head and we learned that he did not consider
any of the permitted numbers on the allotments because these had been suspended or
canceled at the time of his visit. He also admitted that he had no knowledge of the
historical grazing practices on the ranch.

Anderson held himself out as an advocate of cattle grazing so Mike asked him if cattle
grazing improved biodiversity. Anderson gave the standard “yes if, and no if,” answer
court watchers were becoming accustomed to when difficult questions were being put to
the government witnesses. In this case Anderson explained there were two theories on
this issue.

Later in his questioning, Mike asked if he was aware the area had been grazed for 150
years or more. He said no. Mike asked how would you know what the native plant
community was if it had been grazed that long. Anderson explained how this information
was obtained from trapper’s journals and other writings of the time. Then Mike asked if
the objective of managing these allotments was to manage for native plant communities,
how can the allotments also be managed to produce forage for livestock grazing? Again,
we heard the double answer. He explained that some native plants grazed properly can
produce good forage, but other grasses can be planted and produce better livestock forage
such as crested wheat. Van Zandt questioned, “that is a management choice?” Anderson
answered, “absolutely.”

He then agreed that one of the tools you could use to encourage native species was
controlled burning. If you did not do some burning shrubs could dominate. When asked
if he was aware that the Forest Service would not allow Hage to do any prescribed
burning, he said he was not. At the end of Van Zandt’s cross he opened this topic up
again and asked if brush management would increase water capacity in riparian areas.
Without saying yes directly, Anderson admitted he would not disagree with this
statement.

However, it was how Anderson did his range study of Pine Creek Ranch that was most
intriguing. He also used the “Ocular Estimation” that we had been hearing so much
about in this trial. In his direct testimony he explained that this was the equivalent of a
rancher driving up in a pick up, looking at the area and deciding it was time to move the
cattle. So on cross Van Zandt asked, “Are you aware of a rancher doing this and
deciding that an area should be rested for 5 years.” Anderson answered, “No I am not.”
Anderson spent considerable time in his direct criticizing the method of plaintiff’s
resource expert, Bob Schweigert. He said the manner in which he set up his plots was
biased. Anderson teaches this method to students and had determined the only way to
eliminate bias was to roll a hoop off your back, and clip from that plot randomly selected.
He also explained that clipping forage from a cage that had been protected from cattle
grazing and comparing it with grazed areas was not an accurate method. Evidently, the
cage itself creates a microclimate that unnaturally changes the grasses within the cage,
therefore the data collected is not a fair representation.

The purpose of Dr. Anderson’s testimony became clear after learning so much about
range science from this expert. Because the Forest Service could not conclude the Pine
Creek Ranch allotments were in bad condition by doing standard resource studies, they
devised their own method to justify their conclusion, and then spent considerable trial
time attempting to convince the court that plaintiff’s studies were in error. From this
spectator’s viewpoint, they did not succeed.

The testimony of Dr. John Tanaka, the governments range management expert, took up
the rest of the day. Tanaka did an economic study of the ranch and determined it was
only profitable 3 of the 13 years reviewed, because of poor management by Hage. He
further determined, however, that the cut in aum’s by the government could actually have
made the ranch more profitable because there could be hay to sell that might bring a
profit where the cattle did not. He also concluded that if Hage did not have a mortgage
on the property, the ranch could have been profitable.

On cross, Mike asked if Hage had ever filed bankruptcy. Tanaka said no. He asked if
Hage was servicing his loans. Tanaka said, “as far as I know.” He asked if the bank ever
foreclosed on him. Tanaka said they did not. He asked if the bank continued to lend
money to Hage for operating expenses during the years Tanaka reviewed. Tanaka said
the bank might have. Then Mike asked, “Isn’t it a fact that really the Forest Service and
BLM were managing the ranch.” Tanaka said, “I don’t believe so.” So Mike questioned,
“Do you agree the Forest Service and BLM were making decisions that affected the
ranch?” Tanaka said he believed they were issuing permits that determined whether there
would be cattle on the ranch.

Tomorrow we would hear from Bill Fisher, the current BLM area manager and the
government’s water expert, Wallie Hajj.

May 18, 2004

Reported by Margaret Byfield, Executive Director

Day Twelve

The government began the day with testimony from Bill Fisher, the current Tonopah area
manager for the BLM. The government’s attorney, Alf Brant began his questions asking about
the dump they recently issued a citation to Hage for. He asked what would happen if someone
removed artifacts from BLM land without a permit. Fisher said they would issue a citation.

Mike Van Zandt objected immediately stating the testimony was not relevant. Brant explained
that in Hage’s direct testimony he mentioned that he removed items that were from the 1800’s.
Alf explained that this was another violation. Judge Smith said the testimony goes towards
whether the government was harassing Hage but removing artifacts had no relevance on the
takings case.

It was almost unbelievable to hear this charge. Thirteen years after this case has been filed,
sitting before the very court that will decide whether or not the government took this man’s
property, the government arrogantly lodges another attack. One thing should be clear to the
court; the government is determined to prosecute Hage at every opportunity.

Fisher then went through the process they use to handle the range improvements when a permit
is issued to a new party. He explained the previous permittees are given an opportunity to
remove the improvements, but if they do not these will eventually be removed by the
government and the items that can be auctioned will be sold. The Judge asked what
improvements would be removed. Fisher answered, fences, stock tanks, wells and other such
items. He explained that the new permittee might have a different way of managing the
allotment and would be responsible for acquiring water rights. Brant asked if they could transfer
the improvements to a new permittee. He said no, not if they own them. He also explained that
they had not yet initiated this process with Hage.

He testified that when they issued the temporary non-renewable permits on Hage’s allotments
since the filing of the case, they required the permittees to haul in water so as not to be using
Hage’s water rights. When asked if there were any springs or surface waters in the areas they
were grazing, Fisher said not that he was aware of.

Then Brant asked if Hage had been attempting to exercise dominion and control over the BLM
lands. Fisher said he believed so, that Hage had been letting his cattle roam the allotments. He
said they had seen Hage’s son and Ben Colvin moving cattle on these allotments. He also said
Hage had threatened his employees and followed them in his vehicles. Then he told a story of
two elderly campers that came to his office complaining that Hage had forced them to leave the
Pine Creek campground saying they were on private land. Hage even showed them his deputy
sheriff’s badge. The BLM told the campers other locations they could camp and gave them the
number of the Nye County Sheriff’s office to complain. Fisher recounted other incidents where
Hage allegedly chased people off the public lands.

The Judge asked if they were threatened? Fisher said yes, they thought Hage could throw them in
jail. So the Judge asked did they fear he would pull a gun. Fisher said no, not that. Then he told
another story of how the permittees grazing Hage’s allotments were sent affidavits by Hage
claiming they were consuming his forage and water. Fisher assured them they had every right to
be out there.

Brant made another attempt to get recent trespass issues into the record. He asked Fisher if he
had seen any of Hage’s cattle on the allotments. Fisher said just this year they had verified that
Wayne’s son and Ben Colvin’s cattle were on the allotment. Van Zandt objected because these
were not Wayne Hage’s cattle and had no relevance on the case. Brant argued that the parties
were connected to Hage, Wayne N. Hage was the manager of the cattle and Ben Colvin was
another rancher in trespass with the BLM. Van Zandt again objected. After Brant made more
arguments, the court ruled that a legal connection with Colvin had not been made and struck that
part of the testimony.

So Brant looked around the courtroom and saw Wayne N. Hage sitting in the audience. He told
the court they could clear this up by interrupting the present testimony and having Wayne’s son
testify to lay the foundation. After several minutes of arguments between the parties, the court
determined that the government did not anticipating this line of questioning was not a good
reason. They did not designate Wayne N. Hage as one of their witnesses, so the pretrial rules
prohibited them from calling him now. He also explained that the hearsay rules would not allow
the current testimony. But the court took a short recess to allow the governments counsel time to
confer and determine if there were any other arguments they could present that would convince
the court otherwise.

When court resumed, Brant continued to press the issue, but offered no new reasoning that
convinced the court he should allow the testimony. Still, Brant continued to press the issue of
the recent trespass issues. Van Zandt again objected saying the issue was not relevant to the case.
Judge Smith agreed and said Hage could have cattle grazing on the Washington Mall in D.C. and
it still would have no relevance to this case. The Judge asked Van Zandt if the plaintiffs were
arguing that the BLM trespass notices were a part of the takings claim. Van Zandt said they
were not.

Then Brant explained that the testimony was important because Hage was claiming that this
court had ruled the BLM lands were his fee lands. The Judge explained that if he trespassed on
these lands it doesn’t prove anything except that he is advocating he owns something. Any new
charges the government wanted to bring might cause a new action, but had no relevance on this
case. Brant asked that all references of Hage saying he owned more than 50 feet on either side of
the ditches be stricken from the record. The court denied this again explaining all the evidence
Brant was trying to put forward showed Hage acted in accordance to his beliefs, and that these
issues had no relevance to the case before the court.

But Brant was not giving up. He began asking Fisher if he had seen Hage’s cattle in the
Montezuma allotment. Van Zandt objected and explained to the court that this allotment was not
even a part of Pine Creek Ranch. Brant quickly explained that this was Ben Colvin’s allotment
and that they were trying to establish the connection between Hage and Colvin. This was
another example that Hage was exercising dominion and control over BLM lands. Judge Smith
once again explained it had no relevance on this case, but in sharper terms this time. He
explained that Hage was claiming he has rights, not dominion and control. Hage could say he
owns a national park, and that would have zero relevance in this case.
With just a few more questions, Brant finished his direct.

On cross, Van Zandt clarified several issues. He asked if the BLM is responsible for
administering the ditch rights of way’s. Fisher said yes, if they show up on the master plat.
Mike asked if he was aware that the BLM is requiring that 1866 ditch rights of way be
maintained with hand tools. Fisher was not aware.

Mike moved to questions on Hage’s ability to use his property rights. “Is it your testimony that
Mr. Hage cannot access his water rights?” Fisher stated Hage could not graze livestock because
he does not have a permit. Then Mike asked, “Is it the BLM’s position that he cannot trail his
cattle from one allotment to another without a permit?” Fisher said, “That is correct.”

He asked about the dump the BLM had issued the citation on, whether Fisher had any evidence
today that would conflict with Mr. Hage’s claim that the dump was there prior to Mr. Hage.

Fisher said that the construction of it was appeared to be done with heavy equipment so it must
be a recent site. Mike followed this by saying, “You don’t have any knowledge that this area
was not being used by Pine Creek Ranch or its predecessors over 100 years ago?” Fisher said,
“No I don’t.”

In regards to Hage’s range improvements on the allotments the BLM was authorizing others to
graze, Mike asked if they were still there and being used. Fisher said the other grazers were
required to haul in their own water. Mike asked specifically about the fences and cattle guards.
Fisher said they were still there. Then he asked if he was aware that the BLM allowed Gary
Snow to tear down Hage’s existing corrals and erect his own fences. Fisher was not aware.
During direct, Fisher testified that he was not aware of any improvement Hage called Winter
Camp. This was a remarkable statement because the camp had been there for many years. It
could be seen from the highway, had a house that could sleep four ranch hands, several holding
facilities, and other outbuildings necessary to run the ranch during the winter. The facilities were
burnt down after the filing of the case and shortly thereafter, Snow erected his own corrals.

In his direct questioning, Brant had asked a series of questions on the area where Hage claimed a
stock driveway. The driveway goes through the Baker property. Baker had recently purchased
the property evidently unaware of the stock driveway. Fisher testified that they were contacted
by Baker and asked if he could erect a fence to keep Hage’s cattle out. Fisher explained that
Nevada was a fence out state and it would be Baker’s responsibility to erect a fence. During this
testimony, Fisher pointed to Baker’s property on a map.

When cross-examined by Van Zandt, he was again asked to point out the property. Van Zandt
asked for Judicial notice that part of the property he was pointing to was the Graham homestead,
owned by Mr. Hage. Fisher explained he relied on his staff to give him the proper description of
the property.

Then Van Zandt turned to the incident of the campers that were chased out of the campground by
Hage. Mike asked if he could point to the campground on the map. Fisher said he could not, he
did not know where it was. So Mike points it out on the map for him and then shows him a 40
acre parcel of private land next to the campground. He asked if he was aware of this parcel of
private land. Fisher was not. He explained it was a Forest Service campground so he had no
knowledge of this.

Van Zandt’s last questions were on an article printed in the Nevada Rancher where Fisher had
been quoted extensively. He asked if he remembered giving the interview. Fisher remembered
talking with the reporter, Don Bowman. Mike read a quote from the article. “The fee land claim
is a myth according to Fisher. ‘That’s a crock, Hage is flat out lying, there is no such thing as fee
lands.’” Fisher couldn’t recall saying that.

On re-direct, Brant tried and failed one more time to get information in about the recent trespass
situation. It was obvious to everyone but him; he was beating a dead horse.

After lunch, testimony of Wallie Hajj began. Hajj is a water resource engineer who has
considerable experience in Colorado conducting changes of use of water rights for quasimunicipal
use. Mike asked him several questions about his experience in Nevada and his
understanding of Nevada water law before this witness was qualified. He asked him how many
cases he had worked on in Nevada. This was his first. He asked if he believed it was important
for him to understand Nevada water law to do the assessment of water in this case. Hajj said it
was which is why he consulted with many experts prior and also attended seminars where
experts addressed Nevada water law. He explained that Nevada water law and Colorado water
law were very similar.

Van Zandt told the court he believed Hajj was qualified to testify on much of what was in his
report but questioned whether he was an expert in Nevada water law. He suggested that he ask
those questions as they came up in the testimony. The court felt that was reasonable and
qualified Hajj as a water resource engineer and other related areas.

Questioned by Dorothy Burakreis, Hajj explained that the focus of his work in this case was to
look at the transferability of Hage’s water from agriculture use to quasi-municipal use, quantify
that amount, do historical analysis, and determine the volume of water that would be available on
an annual basis. After visiting the ranch in 2003, reviewing the applicable water decrees, aerial
photo’s, researching transfer cases in Nevada, and meeting with prospective purchasers of the
water, he concluded the total amount that could be transferred was 3378 acre feet.

This is considerable less that what the State of Nevada Decreed to Hage. The state found Hage
owned 17,000 acre feet in the Monitor basin alone. Hajj explained that after viewing the ranch,
very little water was actually getting to the meadows, and therefore, the number of irrigable acres
was quite a bit less than the State of Nevada found. Once he considered all of the other
elements, such as ditch loss and irrigation efficiency, he concluded that only 3378 acre feet was
available to transport, which converted into a water duty of 1.06 feet per acre as opposed to the 3
acre feet the State of Nevada determined.

After visiting with potential water buyers such as the Southern Nevada Water Authority which
purchases water for the city of Las Vegas, he determined the cost of building a pipeline to
transport the water was too high to make it worthwhile for such a small amount of water. He
determined the highest and best use for the water was agriculture.

Tomorrow cross-examination of Hajj will begin. We are looking forward to Hajj arguing
Nevada state water law with Mike Van Zandt, one of the most well respected authorities on these
issues.

 

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