Newspaper column: One judge’s bias is another’s hard-earned experience

Wayne Hage in 1997 AP file photo via R-J

Earlier this month a three-judge panel of the 9th U.S. Circuit Court of Appeals printed out for the various federal public land agencies in the West a license to steal.

The court kicked the quarter-century-old fight between the Pine Creek Ranch near Tonopah and federal land managers back to the federal court in Nevada, ordering the court to assess damages against the ranch for allowing its cattle to trespass on federal land and ordering the judge who sided with the ranch owners two years ago to be removed from the case, claiming he was biased. It also threw out contempt citations the judge had handed two federal employees.

At one point the Hage family, which owns the ranch, was awarded $14 million by a federal judge because the government actions amounted to a “taking” of the value of the ranch’s grazing and water rights, but an appellate court said the case was “not ripe” because the family had not exhausted all administrative appeals. In a sort of Catch 22, the 9th Circuit said the statute of limitations had run out on such claims.

In a scathing opinion, Circuit Court Judge Susan Graber accused Nevada federal court Judge Robert Jones of bias against the federal agencies.

Graber wrote that Jones harbored animus toward the federal agencies. As evidence of this she quoted him as saying during a hearing, “In my opinion, not only in this case but in many cases, the government has been all too ready to — in the name of revoking or suspending or limiting grazing licenses, the government has been all too ready in the history of Nevada to impair otherwise suspected and substantiated rights of landowners.”

One person’s alleged bias is another’s expression of hard-earned experience. As can be attested to by many ranchers across Nevada, that is precisely how many agents of the Bureau of Land Management and the U.S. Forest Service too often behave.

In 1978, E. Wayne Hage bought the Pine Creek Ranch and its 7,000 acres of private land and grazing permits for 752,000 acres of federal public land, as well as water rights. His clash with the federal agencies soon began. In 1983 alone he received 40 letters from and 70 visits by the U.S. Forest Service alleging violations of grazing permits. One notice gave the family five days to replace a single fence post staple on a mountain a 20-mile horseback ride away.

Hage died in 2006 and his son now runs the ranch and continues the legal battle.

Hage was criminally convicted for damaging and removing government owned trees while repairing his water channels, but the conviction was overturned by the 9th Circuit. Twice the feds fenced off the ranch’s water sources, and twice confiscated and sold Hage’s cattle.

In a 104-page ruling Judge Jones accused government officials of entering into “a literal, intentional conspiracy to deprive the Hages not only of their permits but also of their vested water rights. This behavior shocks the conscience …”

He further stated that the government had interfered in the case by urging others to apply for Hage’s grazing permits, by applying themselves for Hage’s water rights and by issuing trespass notices against witnesses soon after they had testified.

The appellate court shrugged off this behavior by saying the agents “took lawful actions, within the scope of their statutory and regulatory obligations, that had no effect whatsoever on the case before the court.”

Jones had ruled that the ranch had a right to allow its cattle to access its water rights and that grazing near the water was incidental, awarding damages to the government for that grazing of $165.88.

In the 2013 trial a forest ranger actually testified in his deposition that despite the right to use water, there was no right to access it. He said someone with water rights but no grazing permit would have to lower a cow from the air to drink the water.

The San Francisco-based judges dismissed any notion that the Hage family had any right to access their own water, if while en route they graze. You can lead a cow to water but you can’t let it graze.

an attorney for the Hage estate, has said he plans to challenge the decision, either by asking for a rehearing by a larger panel of the 9th Circuit or by seeking a U.S. Supreme Court review.

Perhaps the Nevada federal judge who next handles this hot potato should award the government their $165.88 in damages.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.