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Opinion: Columnists

Ranching family's court slapdown not total defeat after all

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Consider two recent headlines: One gloats: "Central 'sagebrush rebellion' case suffers defeat." Another rejoices: "Major court victory for ranching family."

Those who knew the late Nevada rancher E. Wayne Hage, and who know his son Wayne N. Hage, weren't mystified; the family's 21-year-old challenge to the government has invited many such contentious interpretations. But these contrary headlines announced two separate cases in the Hages' epic battle to protect their water and grazing rights from government obliteration.

The victory came in June 2012. Nevada District federal Judge Robert C. Jones ruled against a five-year-old US Forest Service and Bureau of Land Management lawsuit to strip the Hages of their grazing and water rights. As I wrote in a previous column, Jones was so appalled at the government's skullduggery -- revealed by evidence presented at trial -- that he not only affirmed the family's property rights, but sent two federal officials to the Justice Department for possible criminal prosecution.

The defeat: In July 2012, Judge Loren Smith's landmark federal claims court decision of 2008 -- which awarded the Hages compensation for takings of their water and grazing rights -- was reversed by a three-judge panel of the District of Columbia federal appeals court.

The reversal was only partial, though this was not completely clear from the written opinion. Although his compensation was disallowed, most of Hage's basic property rights remain intact -- an odd omission in a property rights case.

The court of appeals said it vacated the claims court's award of damages because Hage's claim is "not ripe" -- meaning he failed to do something he needs to do in order to get into court. Namely, he didn't get a permit to cross federal lands so he could cut brush -- which was protected by the government -- that was stopping the water flow in his stock watering ditches. It seems wacky that this game-changing case could hinge on such an everyday rancher's job as clearing the brush out of ditches.

Hage didn't get a permit, but he crossed federal lands and cut the brush anyway. So the government convicted him of felony trespass, put him under house arrest (reversed on appeal) and built fences to keep his cattle from the water.

So how did he win in claims court and lose on appeal? I asked Brian Hodges, managing attorney of the Pacific Legal Foundation's Pacific Northwest Center -- and author of PLF's amicus curiae appeal brief in support of Hage -- to explain this mess. "This is a frustrating question," he told me. "Mr. Hage didn't need a permit. In the Ditch Act of 1866, Congress specifically granted a permanent 100-foot right of way -- 50 feet from both sides of the ditch -- to any rancher who owned prior appropriated water rights for his ditches. The Hage family's unbroken chain of title to the water goes back decades before there was a Forest Service or BLM."

"The appeals court acknowledged that prior appropriated water rights are not subject to permitting," Hodges continued. "They acknowledged that 'the government did not present evidence that [a permit] was even necessary to maintain an 1866 Act ditch that preexisted the Forest Service.'

"The question is, does Hage's right to maintain his waterway supersede the government's policy of letting brush grow in ditch rights of way? The appeals court raised it, but never answered it."

Hundreds, if not thousands, of American ranching families want that question answered. They may get it. Wayne N. Hage told me that this week, the family requested a rehearing en banc (before all 13 judges in the federal appeals court).

It's not over yet.

Examiner Columnist Ron Arnold is executive vice president of the Center for the Defense of Free Enterprise.

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Ron Arnold

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The Washington Examiner