September 18, 2012

An incomparable hero of the modern American West

By Brian T. Hodges Senior Attorney

Earlier this year, I wrote about the decades-long battle being waged between Nevada rancher E. Wayne Hage and federal agencies over his property and water rights. After receiving a mixed decision from the Federal Circuit Court of Appeals, Hage’s estate filed a petition for rehearing, demonstrating its commitment to preserving those rights that are essential to ranching and other natural resource industries throughout the western United States. Today, PLF attorneys filed an amicus brief in support of Hage, pointing out the errors and conflicts contained in the Federal Circuit’s decision.

Hage’s story continues to draw attention around the nation. The Washington Examiner recently ran a couple of columns examining this case in more detail (here and here). The articles note that, while Hage and the federal government have certainly traded blows, the litigation has moved the law forward by recognizing that owners of water rights cannot be divested of their right to access and maintain their water.

Although the Federal Circuit Court of Appeals vacated a 2008 decision awarding Hage compensation for the value of water taken by the government, it left his property rights intact—“an odd omission in a property rights case.”

PLF’s amicus brief focuses on that “odd omission.” You see, the trial court determined that Hage had a right to go onto the streams and ditches in which his water flowed to perform ordinary maintenance—to clear vegetation overgrowth and other obstructions. He was not required to apply for a permit every time he needed to maintain his water flow. The federal government did not challenge this determination, and the Federal Circuit did not reverse this conclusion.  Nonetheless, the court of appeals ruled that Hage was required to apply for a permit before he could sue the government for depriving him of his right to access and maintain his water flow. This conclusion merely begs the bigger question whether the government can regulate away a person’s right to access and maintain his or her water rights.

That question has already been decided in Hage’s favor twice. Hage first won this issue in a 2002 decision from the Court of Federal Claims. And, last month, the Federal District Court for the District of Nevada rejected the federal government’s claim that it owned the ditches and streams that transport water to Hage’s ranch. In that case, the judge praised Hage in rather remarkable terms:

If there is one incomparable hero of the modern American West who deserves thanks of the whole nation for his epic struggle upholding the rights of resource providers against federal oppression, it is Nevada-born rancher Wayne Hage.

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