Hage Set to Appeal Ninth Circuit Ruling in forage Right Case to U.S. Supreme Court; Western Water Law Hangs in the Balance

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Hage
The late Nevada rancher, Wayne Hage Sr.

 

In January, a three-judge panel of the Ninth Circuit Court of Appeals handed down a decision reversing all of the findings of Nevada Federal District Court Chief Judge Robert C. Jones in his 103-page decision in U.S. v. Hage (2007). Judge Jones had found among other things that government officials had “entered into a literal, intentional conspiracy to deprive the Hages not only of their (grazing) permits but also of their vested water rights.” The Court added, “This behavior shocks the conscience of the Court and provides a sufficient basis for a finding of irreparable harm…”

During the trial in the lower court, the Hages were warned by the lead Justice Department attorney that the Ninth Circuit would almost certainly rule in favor of the BLM and USFS. With chilling assurance he said the Justice Department was not concerned how Judge Jones would rule because the DOJ could get any decision they wanted out of the Ninth Circuit Court of Appeals.

Consistent with the Justice Departments’ prediction, the Ninth Circuit panel issued a scathing ruling reversing all of the trial court’s decisions, excoriating Judge Jones for supposed bias against the government Defendants. Wayne N. Hage and the Estate of E. Wayne Hage are appealing the decision to the U.S. Supreme Court.

The ruling from the Ninth Circuit completely overturns 150 years of western water law and precedent as well as the laws governing the infrastructure across federally administered lands in the West. The Ninth Circuit decision, as handed down by the three-judge panel, is also in direct conflict with the Federal Circuit Court of Appeals’ decision in the related case, Hage v. U.S., (1991), (between the same parties regarding the same property). There the Court recognized access as an essential component of a water right. In addition to a conflict between rulings in two different federal courts, due to the appellate panel’s brazen violations of the appellate rules of procedure regarding findings of fact and other procedural errors, analysts believe there is an increased likelihood that the U.S. Supreme Court will review the Ninth Circuit Court’s ruling. (Analysis of U.S. v. Hage and Court Decisions available upon request.)

In order for the Ninth Circuit to overturn the findings of the trial court in U.S. v. Hage, they had no option but to assert Judge Jones had bias against the government Defendants. Under the rules of appellate procedure the Ninth Circuit was bound by Judge Jones’ findings of fact, unless the justices went to the extraordinary measure of finding the judge had bias and had abused his discretion, which they did. Interestingly, Judge Jones was not the only trier of fact to make such findings. Chief Judge Loren Smith, from the U.S. Court of Federal Claims in Washington D.C., after hearing similar testimony during two separate trials in the related case of Hage v. U.S. (1991), made virtually identical findings of fact. Two well respected, experienced jurists, both Chief Judges of their respective courts, separated by the width of the country, separated by decades of hearings, having nothing in common but considering the conduct of the U.S. Forest Service and BLM employees against the Hage family, both reached virtually identical conclusions.

Two generations of the Hage family, beginning during the presidency of Jimmy Carter, have spent nearly 40 years in courts defending their Constitutionally protected property interests in federally administered land and their right to be allowed to graze their livestock around their vested waters as Congress clearly sanctioned. They have prevailed in three administrative appeals. They have successfully litigated three substantial federal court cases at the trial level in two separate federal courts. They have successfully defended their vested water rights against competing claims by the United States in a state water adjudication. The courts in multiple published decisions have repeatedly recognized their vested water rights, easements, rights-of-ways, forage, and improvements on federally administered land. Those rights stand on appeal in the Federal Circuit Court of Appeals.

It is only the Ninth Circuit three judge panel, after a 45 minute hearing, not having listened to live testimony of any witnesses, which is deluded enough to think that they are better arbiters of the truth than the two judges in two separate federal courts who actually saw the evidence and heard witnesses testify over a combined period of 43 trial days. It is for this very reason that the rules of appellate procedure preclude the appellate court from substituting its judgment of the relative credibility of the evidence presented for that of the actual trier of fact. (Analysis of U.S. v. Hage and Court Decisions available upon request.)