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Hage v. United States

Takings and Liability Trial

May 13, 2004

Reported by Margaret Byfield, Executive Director

Day Nine

After cross-examination of David Grider ended yesterday afternoon, the government questioned their second witness, Curtis Johnson. Mr. Johnson was the USDA range management program leader and one of the two range consultants who determined Hage’s Meadow Canyon Allotments were so overgrazed that they would have to be rested for five years.

Mr. Johnson testified he made four visits to Meadow Canyon, the first in 1990 when he recommended that allotment be rested, then subsequent visits in 1994, 1996 and 2001. He explained that in 1990 he looked at the vegetation, plant composition, vigor or health, utilization, composition of plants along the streams, compaction, ground cover, soils deterioration and fence maintenance. They determined that all of these areas needed improvement. The follow up visits were to determine if the allotment had recovered enough to resume cattle grazing.

Then to illustrate how beneficial the rest from grazing was, Mr. Johnson narrated a series of photo’s taken in the same locations over the four visits. The 1990 photo’s showed matted, dry brown vegetation. The 1994 photo’s showed upright, yellow-brown vegetation. The 2001 photo’s showed green, healthy vegetation.

On cross-examination, Ladd Bedford asked Johnson a series of questions of how they did their studies. We learned that they did not do a production study where they clipped and weighed the vegetation. The only measurements they took was of the forage held in the hands of another forest service employee in one of the photo’s. No measurements were taken of forage in the ground. They did not review the utilization studies done in 1986, 87, 88, or 89. They did not do a complete study the diversity of species, but determined that the area was becoming encroached with non-native species such as Kentucky Blue Grass. When asked if cattle grazed on this grass, Johnson responded that he did not know.

Then Bedford turned to the photo’s Johnson had identified. He asked when the 1990 photo’s were taken. Johnson said between October 23rd and 25th. He asked when the 1994 pictures were taken, and Johnson explained they were taken in late August, the 23rd and 24th. Bedford then asked about the 2001 pictures which were labeled August. “In fact you were there in July of 2001,” Bedford asked? “Correct,” Johnson answered. It became clear that the distinction between the color and vigor of the vegetation pictured had more to do with the time of season the pictures were taken than with cattle grazing.

With this, day eight ended, and Day nine began with Steve Dodds, the USDA land surveyor who testified as to the location of the 1866 Act ditches in the property rights phase of trial. Those who followed the first trial might remember he testified that the present White Sage Ditch was not in its historical location. It turned out that where he determined the ditch was originally located would have meant the water traveled up hill in one portion.

Mr. Dodds was assigned to survey all of the 1866 act ditches recognized by the court as belonging to Hage. He then calculated the acreage within the 100 foot easement of all of the ditches. On cross-examination, Mike Van Zandt asked him several questions about ditches that were in the State of Nevada’s Water Rights Determination Order, which Dodds said he could not locate on the ground. Mr. Dodds referred to these as abandoned, but on objection, the court stuck all such references reasoning that the condition of the ditches after the alleged taking in 1991 had no relevancy on the case.

After lunch, the government brought in James Lusk, retired wildlife biologist for the State of Nevada Department of Wildlife. Lusk was the official in charge of the introduction of Elk on Table Mountain the year after Hage purchased the ranch. He testified that 50 head of Elk were introduced, although they were not native to this range, in 1979 after the department had spent several years studying the site to make sure it was compatible with the Elk and would not be competitive with other animals. They entered into a memorandum of understanding with the Forest Service where they agreed to limit the number of Elk to 300 head.

He testified that he was not aware of any problems the Elk caused Hage’s livestock operation. He explained that their grazing patterns were quite different, they do not like to get their feet wet and do not graze one area day after day, but eat while moving. He said they were very good jumpers and would only damage fences if they were in a “panic” situation.

He also explained that because of the complaints by Hage, they tried to work with the Forest Service to change the hunting season so that the cow and bull hunts did not happen at the same time. They also tried to reduce the overlap with the bow and arrow and riffle hunts of the deer and the sage grouse season. They tried not to create “hunter congestion.” He noted that by 1991, they were giving out 10 bull tags and 30 cow tags for the Elk, and that each tag meant there were at least 2 to 3 additional riders. He also testified that there were approximately 400 head of Elk on the mountain by the time he retired in 2002.

On cross-examination, Ladd Bedford asked Lusk to explain what the hunting season was like by 1990. Lusk said the bull hunt ended in September and the cow hunt went through October.

Bedford asked if it was true that the bull and cow hunts overlapped in the last two weeks of September. Lusk said they did. This was the same period when Hage was required to remove his livestock off the Table Mountain allotment.

Bedford then asked him questions about an interagency memo where it discussed how the Elk herd was growing rapidly and some of the noted problems with the herd. In the memo it said that little fence damage has been noticed, but that frightening Elk would increase the damage.

Bedford inquired what they meant by that. Lusk did not know. Bedford asked could it be disarming a firearm? Lusk said “Certainly.”

Next up was Ted Angle, the BLM’s Area Manager for Tonopah beginning in 1987. Prior to Angles tenure, Hage was involved in the “Stewardship Program,” an experimental program authorized by Congress giving the rancher less regulatory restrictions as long as his range was in excellent condition and continued to remain in such condition. Angle explained that he had heard there were conflicts with Hage’s grazing practices and range improvements before moving to Tonopah.

He immediately characterized Hage as confrontational. He described his first allotment meeting with Hage and neighboring ranchers. Hage put a tape recorder on his desk before the meeting began to record the discussion. Angle said he was surprised because it felt like Hage did not trust him.

He went on to explain that after reviewing the resource studies done on Hage’s allotment he determined the range had been overused and issued a decision to suspend some of Hage’s aum’s (animal unit months). Angle said Hage protested the decision and filed an appeal along with other neighbors. He said he decided to step back from the opinion because and Administrative Judge suggested they try and settle.

Then he described how they put together a resource management plan with public involvement. At one of the hearings, they were surprised because approximately 50 people attended, and normally these meetings were poorly attended. Hage was the first to speak. He made comments that were negative towards the program and set a very negative tone. Then throughout the meeting he would make eye contact with people in the audience who would get up and make additional negative comments. “He pretty much orchestrated the meeting,” Angle commented.

This comment was one of the few moments of laughter in the courtroom as supporters of Hage’s tried to imagine him orchestrating a public meeting as such.

He then explained how Hage refused to do many of the range improvements required. He commented on how Hage let the cattle congregate too long in areas of the winter range. The government attorney asked him how he moved his cattle from the winter range to the summer range. Angle said for the most part there was very little riding and that in the springtime the cattle would move north on their own. Hage would turn off a well so they would move to the next water up the valley. The livestock moved themselves. The government attorney asked, “So, there were no cowboys to move the cattle?” Angle said, “That is correct.”

At the end of his direct testimony he was asked if he coordinated his decisions with the Forest Service. He said he did not.

Cross-examination of Ted Angle would begin tomorrow.