For Land & Liberty
The Story Behind Hage v. United States

by Margaret Hage Byfield

Spanning across the high desert mountains of central Nevada stretches an old cow outfit steeped deep in western tradition – tough horses, good cowhands, and family. Although Pine Creek Ranch is still one of the most remote spots in the nation, it has not escaped the ills of environmentalism. Instead, it has found itself a primary target of their agenda, and the subject of one of the most important cases of our time.

My family purchased Pine Creek Ranch in 1978. It was my father’s dream. He had worked several old-time cow outfits like the PX out of Elko, Nevada as a young teenager and had his eyes set on a place of his own ever since. Dad was self-made. He started earning his own living at the age of 15 and put himself through undergraduate and graduate school. He thrived on subjects like biology, chemistry, history, and law. He earned a masters degree in organic chemistry with honors, which is no small feat for a young cowhand.

My mother came from a well-respected Nevada family. Her father died when she was sixteen leaving her, her two younger brothers and mother to run a small prosperous farm and ranch where Sparks, Nevada now sits. She was raised on hard work but was polished with the best manners of society. I think Grandma always meant for her to marry a preacher. But instead, she had her eye on that self-made young man who walked a different path.

With five young children, the oldest 14 and the youngest four, Wayne and Jean Hage moved into the Tonopah community in the spring of 1978 and began managing the 2000 head operation. The ranch was made up of 7000 private deeded acres, which held most of the productive meadows and hay fields. There were two rugged mountain ranges, Jefferson and Table Mountain, where the cattle summered on the ranches grazing allotments, and a vast desert where the cattle grazed during the winter. The ranch spans 80 miles from North to South and covers over 1100 square miles. It takes a lot of acres to feed a cow in that country which accounts for its size.

The surface and groundwater within the boundaries of Pine Creek belong to the ranch. The mountains are fed by springs and winter snow pack, while the winter range is primarily watered by wells scattered across the Ralston desert. No drop of water is spared in this country. The naturally dry climate makes water as precious as gold.

The property is ideal for a cow-calf operation. The rugged mountains provide ample green feed during the summer. The desert, where the cattle winter, is flush with white sage, shad scale, Indian rice grass and other forage, which is rarely covered by the area’s light snows. The cattle migrate twice a year from end to end. As soon as the desert begins heating up in the spring, the older mother cows move their calves north through Belmont pass into Monitor Valley where they disperse into either the Table Mountain or Jefferson ranges. Monitor Valley sits at 7000 feet elevation while the two mountain ranges reach 11,000 and 12,000 feet respectively. The cold fall air and threats of snow chase the cattle out of the mountains by Thanksgiving, back to the desert. They make a good living at either end.

Working with the seasons, moving the cattle is fairly simple. We did everything horseback covering an average of 25 miles a day. The historical method for moving the cattle from summer to winter ranges allowed the rancher to work with nature and let the changing seasons determine when to migrate. But in our modern day, it is the Forest Service and Bureau of Land Management making these decisions, and unfortunately they do not have as good sense about this as does the cow. As with most western ranchers, we worked hard to make certain the cattle didn’t cross into allotments before the agencies had determined the start and stop dates.

Many things were simpler before the federal land management agencies began implementing the environmental agenda. Over the past 50 years, they have even changed how we think about the western lands. Most Americans would tell you today that the western lands belong to them, they are "public." But the old-timers still alive who came from the families that first settled these lands will tell you a different story. Many of the split estate rights on the federal lands were properly acquired and are privately owned by western landowners. How the West changed from an area governed by state property law to one strangled by federal rules and regulation is a lesson to the rest of America. How the West and America climbs out of this hole, is what Hage v. United States is all about.

The West is ideal for livestock grazing which the early settlers took advantage of. The land disposal laws followed this pattern of settlement. As in the East, western settlers established homesteads of small acreages, which they put to beneficial use. The homesteads were usually established around a fresh water source where settlers cleared the sage and desert forage and irrigated for hay meadows. Before American settlers there was very little green feed or wildlife in the West, as is noted by Lewis and Clark who almost starved to death before reaching California. Congress validated these homestead claims and the settlers owned these portions of land in their entirety. Unlike the East, the homesteads were not productive enough alone to provide for a family. So, settlers made use of the bordering rangelands usually by grazing cattle and sheep. Congress followed with the appropriate disposal laws validating the use of the surface estate but retaining the mineral estate to be disposed of through mining laws. These surface rights were defined by allotment boundaries marking where one settler’s rights ended and another’s begun.

Pine Creek Ranch is the combination of four original homesteads. The headquarters are tucked at the base of the Jefferson range next to Pine Creek, and looks across Monitor Valley at Table Mountain, which earned its name from its deceiving flat appearance. There are no roads on this mountain only four cow trails that wind their way up the rugged face and across the twenty-mile top. If you’re not careful you can easily get trapped in the deep canyons and boxed in the mahogany and aspen groves.

We were a working family. Young and old alike earned his keep. By age twelve I was cooking for ranch crews of up to 20 and fast becoming a good cowhand as it was with my three sisters and brother: Ramona, Ruth, Laura and Wayne. There were no weekends, only occasional trips to town, which was 65 miles away at the end of a long and dusty road.

We minded our own business, earned a good living, offered jobs to many people, and at the end of a good year, the ranch would have contributed over 1 million dollars into the local economy.

But even in our remoteness, we were not missed by the rabid environmental agenda that was spreading across the nation. Two months after we purchased the ranch, the National Park Service offered to buy it at half of what we had just paid. One of the reasons the prior owners sold the ranch was because of the incredible harassment they were getting from the land management agencies. When we purchased the ranch, the Park Service set their eyes on us.

In the twelve years that followed, we faced relentless harassment from the US Forest Service and Bureau of Land Management (BLM) encouraged by several major environmental organizations. They fenced off a major spring from our cattle and piped our water into their Ranger Station without our permission. In 1979, over a period of 105 days we received 70 visits and 40 certified letters from the Forest Service citing us with various violations, most of which did not exist or were created by the Forest Service themselves. I remember how one of these accused us of not maintaining our drift fences on Table Mountain. After two days riding the fence, one of our hands found the Forest Service flag marking a single missing staple. We were also charged with over 45 trespass citations where they claimed our cattle were in locations not permitted. They dropped these charges once they realized we had eyewitnesses watch Forest Service employees move our cattle into these areas and then within hours notify us of the alleged offense.

We filed three administrative appeals against the Forest Service and BLM during this period and won each case. The problem was that none of these cases stopped them from finding new ways to harass us. By 1991, they had cancelled, suspended and burdened the grazing permits to the point that we could no longer economically use our allotments and therefore our ranch. The Forest Service had also filed claims over many of our water rights forcing us to also defend these before the state water engineer.

We knew we were out of business. In the spring of 1991 we began gathering and shipping our entire herd as soon as they migrated into Monitor Valley. In July of 1991, the Forest Service brought in over 30 riders and gathered every cow they could find, which only amounted to 104 head after two separate gatherings. Half the riders were armed with semi-automatic rifles and wearing bulletproof vests. Clearly unskilled at handling wild cattle, they ran a bull and cow to death. They contained the cattle on our private meadows and when finished handed my father a bill for their confiscation expense.

They believed they had seen the last of Wayne and Jean Hage. They were mistaken.

On September 26, 1991, we filed a takings case in the United States Court of Federal Claims in Washington D.C. with the help of a small circle of friends and neighbors who believed this case could change western land use policy. That small circle shortly thereafter founded the organization, Stewards of the Range, with the primary task of ensuring the case was supported through the courts, and therefore comprehensively defining the property rights on federal lands that were privately owned by the ranchers.

Hage v. United States is important to American landowners not only because of its role in western land law, but also because it strikes at the heart and core of the environmental movement. The founders of America meant for us to secure our property rights against all causes. If the public believed there was a cause worth confiscating property, then the government would have to pay. That was our safeguard against the government getting too ambitious at stealing.

When we filed the case in the Claims Court, we forced them into a court they fear, defending an issue on which they are desperately weak – property rights.

But this case is about more than just property rights. It is also about government accountability. The land management agencies have gone virtually untouched even though they violate laws daily. The employees know that before a landowner can file any substantive action against the agency, they will most likely be transferred to another area and never be affected by the outcome. However, one of the advantages of filing in the Claims Court is the ability to depose, under oath, the individuals involved in the action. And as we found in our case, once this happens it becomes a feeding frenzy as bureaucrats scurry for cover pointing at someone lower on the food chain, which for once was not us.

After filing the case, we were immediately met with a motion to intervene by the Sierra Club, Natural Resources Defense Council, National Wildlife Federation and others. Their motion was denied since they did not own any property at issue in the case. They were allowed only amicus curie status.

Four months after the filing of the case, the Forest Service filed two felony charges against my father and one of our employees for cleaning trash Juniper out of a ditch right of way. The action they cited took place a year earlier and was already a part of our takings compliant as an example of how the government had denied the use of our property. The Forest Service filed the felony charges in an effort to side step the Claims Court and force us into Federal District Court where the odds favored their position. We lost at jury trial, but the 9th Circuit Court unanimously reversed the decision on appeal.

The government soon filed a summary judgment motion and on March 8, 1996 the court issued a 41-page decision in our favor. The decision is landmark in many respects and true to Chief Judge Loren Smith’s style — it is as much a lesson on property rights and constitutional principles as it is on federal lands issues. Since then, the government has tried five additional summary judgment attempts and failed.

My mother passed away shortly after we received the summary judgment victory. The stress of carrying the case had long before taken its toll on her. She had suffered a heart attack and stroke at the height of the battle with the Forest Service. Although one would never guess of her health problems after witnessing her vitality and drive to pursue this case, it was a second stroke that ultimately ended her life. Thankfully, she died knowing that the stand she had taken for constitutional principles would continue and very likely prevail.

Trial on the ownership of the property rights took place October of 1998 in Reno, Nevada. After four days of arguments and testimony, the court toured Pine Creek Ranch in order to better survey the issues at stake. Three weeks later, the court issued a preliminary decision, which was to guide both parties as to the court’s thinking before issuing its final decision. It was the second major ruling in our favor.

In this preliminary ruling, the court concluded that contrary to the government’s arguments, we owned the water as defined within the Monitor Valley Water Adjudication, the rights of ways and other surface estate rights on the grazing allotments, along with the base property originally homesteaded. Left to be decided was the extent and scope of the forage rights on the allotments.

Recognizing the devastating blow this case would have on the environmental agenda, the government turned its efforts towards reversing the Nevada State Water Engineers ruling in favor of our ownership of the water rights on Pine Creek Ranch through the Nevada State Courts. Presumably, they believed that if they could overturn this decision, it would undermine the Claims Court’s decision. They filed an appeal in Nevada State Court, and once again, we were forced to defend these rights in a new court. But their efforts were to no avail. With only a few minor differences, the State Court upheld our ownership of the water rights.

Several more years passed as we waited for the Claims Court’s final decision on our property rights. In the interim, life for my father changed. He fell in love with retired Congressman, Helen Chenoweth and married her in October of 1999. Helen had long earned a reputation as a champion of private property rights. Together the two have spent many hours traveling the nation in their efforts to help landowners defend property rights.

January 29, 2002, after ten long years in court, Judge Smith issued his Final Decision: Findings of Fact, on phase one of the case – the determination of property rights. He reaffirmed parts of his preliminary ruling and concluded that plaintiffs owned extensive property rights on the grazing allotments, specifically water rights, 1866 Act ditch rights of ways, the right to have their livestock consume the forage adjacent to their waters and ditches and the right of access thereto.

Without a doubt, Judge Smith handed down one of the most important property rights decisions ever issued by a federal court regarding the law specifically applicable to the Western lands. And in this decision, he said the gold in the West – the water – belongs to the private citizen.

The Court rejected the government’s and environmentalists’ arguments that western ranchers have no property rights on the federal lands, which make up their grazing allotments. Because of this critical ruling, western ranchers can now stand and defend their private property rights on their base land and grazing allotments.

This is a tremendous victory for American landowners, and a staggering defeat for the environmentalists’ agenda. These organizations have understood for a long time that control of the water in the West brings with it control of the land. They have recognized that to enforce their agenda, and eliminate ranching and the natural resource industries on the federal lands, they would have to win control of the water. The Government has been their tool in trying to gain this control. And now, they have lost this pivotal battle.

Phase two of the case now begins, where the court will determine if enforcement of the environmental regulations took the property rights owned by Hage. This phase is as critical as the first, as it will help define the boundaries when environmental regulations go too far under the Fifth Amendment of the United States Constitution.

Landowners across America are under attack, trying to defend their property from ever increasing environmental policies. Whether these polices be endangered species, wetlands, grazing or other issues, Hage v. United States is now poised to bring forward the egregious behavior of federal agencies that went too far, offering the court an opportunity to set the limits of regulatory power, and restore the protection of private property in America as envisioned by the framers of the constitution.

If we prevail, we fully expect to fight appeals all the way to the Supreme Court, and vice versa if we lose. A win will send a resounding message and set powerful court precedent that the environmental agenda is no longer exempt from Fifth Amendment review, the supremacy of state property law will be restored, and landowners will have a clear path of recourse in the event they find themselves in the same position. Also, westerners will finally have the answer to a debate between property rights and privilege that is almost as old as the West itself.

When I hear people ask if this is a case about grazing, I always have to chuckle. It is about grazing as much as environmentalism is about protecting the environment. There is a much larger precedent involved. Hage v. United States is about Americans regaining control of their land and liberty.