March 5, 2013

PLF asks Supreme Court to protect western water rights

By Brian T. Hodges Senior Attorney

Last week, PLF attorneys filed an amicus brief with the U.S. Supreme Court in support of the estates of Nevada ranchers, E. Wayne and Jane Hage. The Hages, and their children, have been fighting for over twenty years to preserve their water rights from federal agencies.

Water rights, like those owned by the Hages, are essential to ranching and other natural resource industries throughout the western United States. In their case, a federal agency interfered with the Hages’ rights to access and maintain the flow of water to their ranch. The U.S. Claims Court determined that the agency’s actions resulted in physical and regulatory takings of their water rights. The Federal Circuit Court of Appeals, however, reversed the trial court’s conclusion without addressing the merits of their claims.  The court held that the Hages’ case—which arose nearly a quarter century ago—is premature!

PLF’s amicus brief focuses on the nature of water rights in the West.  The Hages, as owners of water rights, had a right to go onto the streams and ditches in which their water flowed to perform ordinary maintenance necessary to assure that the water would continue to reach their ranch.  That meant that they had a right to clear vegetation overgrowth and other obstructions that blocked the flow of water. The Hages did not need to apply for a permit every time they needed to maintain their water flow. Nonetheless, the court of appeals ruled that the Hages were required to apply for a permit before they could sue the government for depriving them of their right to access and maintain the water flow. That conclusion, however, merely begs the bigger question whether the government can regulate away one’s right to access and maintain his or her water rights in the first place—an important question that we hope the U.S. Supreme Court will answer.

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