Editorial: One person’s bias is another’s fact-based judgment

Walker Lake (BLM photo)

Walker Lake (BLM photo)

Fair treatment looks like bias to those who are accustomed to being shown obsequious deference.

Once again federal lawyers who have been handed a rejection of their legal arguments by a federal judge are claiming that their case was not weak but that the judge is biased.

After having their case summarily thrown out in the 92-year-old lawsuit, U.S. v. Walker River Irrigation District, federal lawyers are asking that the judge in the case be recused, alleging he is biased against the federal government, according to an account in the Mineral County Independent-News. (motion-to-recuse)

The case involves a question of which party has the rights to certain waters in the Walker River basin. U.S. District Judge Robert Jones sided with the irrigation district.

In January, federal lawyers managed to get the 9th U.S. Circuit Court of Appeals to toss Judge Jones off the 25-year-old land and water rights case involving the Hage ranching family of Nevada by using a bias claim.

A longtime Nevada practitioner before the 9th Circuit said, “The Circuit’s action in Hage was highly unusual. The 9th Circuit often reverses district courts, and occasionally reassigns cases, but it is rare for them to make a finding of actual bias.”

Rare but perhaps not rare enough.

Apparently a judge’s hard-earned, keen-eyed experience constitutes bias to the appellate court. All Judge Jones did was accuse 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 ruled 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. All in a day’s work for a federal bureaucrat in the eyes of the appellate court?

In the Walker River case the feds found evidence of bias in the fact that Judge Jones had stated, “I believe in constitutional rights. I believe in protecting the rights of the Native Americans and in property rights that have been recognized over time, I believe in that and that’s my agenda.”

Then, according to federal lawyers, there is this damning comment from the judge, “[E]ven though the government in many cases didn’t have the right to insist upon a permit … nevertheless, the government in many cases has insisted upon it. … I don’t like and never have liked the BLM’s or Forest Service’s arrogant presumption that they could assess to people for … trespass, their own travel costs, office costs, sitting in their big chair already paid for by the American taxpayer.”

How dare he show prejudice against bureaucrats hell bent on running rough shod over the rights of the serfs! Who does he think he is, a federal judge?

The prosecutors also took issue with how the judge ruled against them, saying, “In ruling on the motions to dismiss, Judge Jones determined, sua sponte, that all of the water right claims of the United States were barred by res judicata or, in the alternative, laches. Yet, no motion to dismiss was based on either res judicata or laches and the United States never had the opportunity to substantively address the legal and factual merits of any such claims.”

Sua sponte is legalese for acting on his own accord, while res judicata means the matter has already been settled by the courts and laches means time has run out — after only 92 years?

In fact, the U.S. Supreme Court has said that it is a “long-recognized inherent power of Federal District Courts, acting on their own initiative, to dismiss cases that have remained dormant because of the inaction or dilatoriness of the parties …”

Knowing the track record of the uber-liberal 9th Circuit, we suspect Judge Jones will get the boot again and this case will drag on for another century or so, but, if justice is ever to be served, things need to change.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

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.