http://www.capitalpress.com/mp-rancher-rights-compensation

Hage estate wins again

Settlement increased for case from 1970s' 'Sagebrush Rebellion'

By MATEUSZ PERKOWSKI Capital Press 11/21/09

A federal judge has added $150,000 to the original $4.22 million judgment won by the estate of rancher Wayne Hage in a years-long battle over property rights.

The federal government had asked Senior Judge Loren Smith to throw out the judgment. Instead, he increased it.

Hage, a leader of the "Sagebrush Rebellion" against federal control of land, was the husband of former Rep. Helen Chenoweth-Hage, R-Idaho. They both died in 2006.

The order is the most recent victory in a legal dispute that stretches back to 1991, when Hage filed suit against the government for taking his private property without just compensation.

In a previous court decision, Smith referred to the well-publicized lawsuit as "a drama worthy of a tragic opera with heroic characters."

Hage's 7,000-acre ranch in Nye County, Nev., bordered several allotments in the Toiyabe National Forest on which he built fences, corrals, water facilities and other rangeland improvements for cattle grazing.

Tensions began to mount between the rancher and the U.S. Forest Service in the late 1970s, when the agency permitted the introduction of elk to the national forest, resulting in damaged fences and scattered cattle, according to court records.

Over the next decade, other incidents aggravated the strain and eventually led to the lawsuit.

According to court documents, the Forest Service excluded Hage's cattle from forage and water in certain allotments, impounded animals that entered those allotments and prevented him from maintaining ditches needed to exercise his water rights.

In his legal complaint, Hage claimed the agency had breached its contractual obligations and violated his constitutional rights.

During the course of litigation, the U.S. Court of Federal Claims decided the Forest Service could legally prohibit grazing on the allotments without compensating Hage, since grazing permits are licenses and not contracts.

As such, the impoundment of cattle was not an unconstitutional taking because the cattle had trespassed on government land, the court said.

However, the court ruled that the agency had taken Hage's water rights, ditch rights-of-way, roads, water facilities and other structures without just compensation and in 2008 ordered the government to pay him $4.22 million.

The federal government asked the court to change or set aside the financial compensation, alleging there's no evidence Hage actually built hundreds of miles of fences, trails, ditches and pipelines on the allotments.

Under the law, Hage would qualify for compensation only if he had built the structures, the government said.

Because his grazing permits only authorized Hage to maintain the structures, he was not entitled to their full value, the government said.

The judge disagreed.

In the context of the grazing permits, "maintenance" included placing or construction, he said in the most recent ruling.

The government's argument "cannot be squared with the language of the statute and the reality of range work and construction," Smith said.

In adding more than $150,000 to the award, the judge ruled that his previous decision had mistakenly omitted the value of ditches and pipelines taken by the government.