EYE OF THE STORM - RANGE magazine Hage family saga chronicles not ... Moving Into the Eye of the Storm In spring 1978, ... owners of Pine Creek that the BLM and FS

84 • RANGE MAGAZINE • WINTER 2013

“I find specifically that beginning in the late‘70s and ‘80s, first, the Forest Service enteredinto a conspiracy to intentionally deprive thedefendants here of their grazing rights, permitrights, preference rights.”

CHIEF FEDERALDISTRICTCOURT JUDGE

ROBERTC. JONES, JUNE 6, 2012, U.S. V. THE

ESTATE OF E. WAYNEHAGE ANDWAYNEN. HAGE

The following multigenerational, 35-year Hage family saga chronicles notonly unprecedented government

abuse of power but also triumph in the faceof extraordinary adversity. This is a very per-sonal story of my family’s fight for liberty.While American soldiers have paid the ulti-mate price for our liberty with their blood,the courtroom is a different type of battle-ground where freedom from a tyrannicalgovernment must be vigilantly defended byevery generation. And by the grace of God,against all odds, we are prevailing.

In order to fully appreciate the enormityof recent rulings of the parallel Hagecases—the 1991 Hage v. U.S. “takings” casein the U.S. Court of Federal Claims and the2007 U.S. v. Hage “forage right” case in theFederal District Court of Nevada, and in

particular the June 6 preliminary decisionby Judge Robert C. Jones—I must first takeyou back through time to put these deci-sions into context.

Moving Into the Eye of the StormIn spring 1978, my parents Wayne and JeanHage, my sisters Ruth, Margaret and Laura,brother Wayne and I moved from a ranchin the lush Sierra Valley of Northern Cali-fornia to Pine Creek Ranch, headquartered60 miles north of Tonopah, Nev. My fatherhad long dreamed of owning an “openrange” ranch similar to ones he had workedon as a young man in northeastern Nevadaand on the southern Idaho Owyhee Desert.Having harvested hay with mowingmachines pulled by draft horses, and thenpitching the same hay to cattle all winter, hesought the kind of ranch wherein only themilk cow and the saddle horses neededfeeding through the winter.

Such was Pine Creek Ranch. Cattle sum-mered on meadows on the 12,000-footMount Jefferson and 11,000-foot TableMountain. During the fall, they migratedsouth down Monitor Valley to winter on therich browse and desert grasses in Ralston Val-

ley. Best of all, cattle work was accomplishedalmost entirely horseback. The ranch wasstocked with beefmaster cattle bred to climbmountains, travel longer distances from waterin the desert, and deliver their calves withoutassistance. For a young girl who routinelyditched 4-H sewing lessons in order to doanything horseback, Pine Creek was a dreamcome true. That was before we becameacquainted with the U.S. Forest Service (FS)and Bureau of Land Management (BLM).

The ConspiracyWhile Dad had been told by the previousowners of Pine Creek that the BLM and FSwere becoming increasingly difficult to workwith, he confidently believed, based uponpast experience, that he was more than capa-ble of cooperating with the local bureaucrats.But this notion quickly changed that firstyear when the forest ranger issued a manda-tory five-day notice to move cattle while weattended my grandmother’s funeral in Elko.He refused our request for an extension.

Mom and Dad worked endlessly to com-ply with the ever-changing terms and condi-tions of permits, to keep cattle numberswithin permitted limits, and to move on and

EYE OF THE STORMThe Hage family’s fight for liberty. Words by Ramona Hage Morrison. Photos © Jim Keen.

WI13 10.16 to QG_RANGE template.q 10/16/12 11:27 AM Page 84

WINTER 2013 • RANGE MAGAZINE • 85

off allotments at designated times. They did-n’t play fast and loose with the grazing regu-lations. In fact, in order to document thatthey weren’t overgrazing, for years they hiredAl Steninger, a range consultant and formerBLM employee who flew his twin-engineplane to Pine Creek to conduct range studies.His voluminous reports became evidence inthree administrative appeals, all of which wewon, but which ultimately provided no realremedy for the conflict. Mom and Dad spenthundreds of thousands of dollars document-ing our proper range management anddefending administrative appeals of onerousagency decisions. Ranch profits hemor-rhaged accordingly.Government harassment became

intense. In one 105-day grazing season myparents were visited 70 times, usually by anarmed employee, and received an additional40 certified letters containing various cita-tions and notices. One such five-day noticedemanded we replace one missing fence sta-ple on Table Mountain which could only bereached by a 20-mile horseback ride.Finally, in 1991, the Forest Service, in

what might be characterized as a set-up, cutthe Meadow Canyon Allotment first by 35percent, and then 100 percent for five years,allegedly to allow the range to “recover.” Infact, it was a clear attempt to force us toabandon our water rights. The statutoryrequirement for abandonment of a waterright is five years of nonuse. That allotmentshared 25 miles of unfenced boundary withour Monitor Valley Allotment, managed bythe BLM. Native cattle that, like salmon, wereused to returning to the same mountain pas-tures every summer were repeatedly movedoff the allotment by us. Even though mybrother Wayne Jr. and our employees rodeevery other day to keep cattle from trespass-ing, FS ranger Dave Greider orchestrated twoarmed raids and confiscated over 100 head ofcattle. Those cattle were subsequently sold atprivate auction and the proceeds kept to payfor their extravagant paramilitary actions. The Fifth Amendment of the U.S. Con-

stitution says, “No person shall be...deprivedof life, liberty, or property, without dueprocess of law; nor shall private property betaken for public use, without just compensa-tion.” Mom and Dad were never afforded theconstitutional protection of due process oflaw before their livelihood was hauled away incattle trucks. Rapists and murderers, as amatter of law, receive more due process thanmy parents did as law-abiding, taxpaying cit-

izens of the United States. The ranch’s 2,000remaining cows were quickly gathered andsold at fire-sale prices to prevent further theftby the Forest Service. The ranch was for allpractical purposes shut down. The mostheartbreaking image I have from that periodis of the two-foot-tall weeds growing in thecorrals across from the ranch house. The question then became, do we own

property in the nature of vested and certifi-cated water rights, easements, right-of-ways,forage and improvementson our range allotments,or are we merely serfs,grazing by permission ofthe U.S. government?These are rights whichDad documented in hisbook, “Storm OverRangelands” (1989), butwhich, until recently,ranchers and attorneysviewed with great skepti-cism as being somethingthat could be defended incourt. Nonetheless, theU.S. Supreme Courtordered eight copies of thebook for its law library.Mom and Dad decided toput that question beforethe U.S. Court of Federal Claims (USCFC)in Washington, D.C., in a Fifth Amendmenttaking of property case in 1991, Hage v. U.S.

Court, Court, and More CourtThe Hage rulings are the result of an incredi-ble amount of litigation on the part of onefamily—not a corporation, not a state or fed-eral agency—attempting to defend their con-stitutionally guaranteed property rights. Four months after filing the landmark

Hage v. U.S. “takings” case in 1991, my fatherWayne Sr. was indicted for maintaining his1866 Mining Act ditch right-of-ways. Aweeklong criminal trial ensued with NevadaFederal District Court Judge Howard Mc -Kibbon presiding. Dad was convicted ofdestruction of government property totalingless than $100. He was then subjected todrug testing, house arrest, and searches by afederal probation officer. The 9th CircuitCourt of Appeals overturned that appallingconviction.In 1997, a two-week water adjudication

for the Southern Monitor Valley was con-ducted at Dad’s request. He successfullydefended Pine Creek’s vested and certificated

water rights against the FS attempt to claim-jump the same waters. The state engineer’sruling was upheld by the 5th Judicial DistrictCourt of Nevada. The USCFC takings case finally went to

trial in 1998. Chief Judge Loren E. Smith firstpresided over a two-week trial to determinethe property interests belonging to PineCreek Ranch. In 2004, a second three-weektrial was commenced to determine whichproperty had been taken and its value. The

family was ultimatelyawarded a $14 million judg-ment. In total, Judge Smithissued an unprecedentedeight published decisions.Those trials occurred dur-ing my father’s lifetime. My mother Jean suffered

a fatal stroke during surgeryin 1996 at age 54, attribut-able to the enormous stressunder which she had livedsince we bought the ranch.Based on her title research ofPine Creek, she believed thatwe owned property interestsin our grazing allotments,and was determined to pro-tect those rights for the nextgeneration—her five chil-

dren. So far, the courts have agreed with her.In 1999, Dad married Idaho CongresswomanHelen Chenoweth, who fully backed myfather in his epic battle with the U.S. govern-ment. Dad passed away from cancer at 69 in2006, and Helen died tragically in a car crashfour months later on their seventh weddinganniversary. My generation’s battle began a year later

when the FS and BLM filed a Federal Dis-trict Court lawsuit in 2007, U.S. v. Estate ofE. Wayne Hage and Wayne N. Hage,attempting to gain an adverse ruling toundermine the USCFC takings case. Theyalleged we were trespassing on government-managed lands. A 22-day trial spanned fromMarch 27 to June 6 of this year with ChiefJudge Robert C. Jones presiding. Wayne Jr., arancher representing himself pro se, attor-ney Mark Pollot, and myself as paralegalwere up against a team of three Departmentof Justice attorneys, agency attorneys, para-legals and their staffs. Instead of its intendedresult, the forage right trial resulted in,among other things, Judge Jones findingcriminal and civil contempt of court andobstruction of justice against BLM and FS

Wayne Jr., Yelena and Bryan Hage.LEFT:Wayne Jr. has been checkingcattle at the home ranch. He reststhe land one year out of seven,letting native grasses thrive.



employees. He ordered a civil show-causehearing for the last week of August.

During the trial in Reno, we recessed totravel to Washington, D.C., to attend a 30-minute appeal hearing April 2 before theFederal Circuit Court of Appeals in the now22-year-old takings case of Hage v. U.S. Itsdecision was issued July 26, and will be dis-cussed below.

The 13 trial weeks and multiple courtrulings in which we prevailed do not countprevious administrative appeals, all ofwhich we won, but received no relief frombureaucratic harassment. It doesn’t countthe 100-plus depositions of bureaucrats andexperts, motion and status hearings, writingor reviewing briefs, document production,and trial preparation. In preparation for ourforage right trial this spring, unable toafford a legal staff, we copied 30 of the 50case file boxes from the USCFC takingscase. We also sent 47,000 pages of produc-tion documents to the government andprepared 1,230 trial exhibits, including 501ranch title exhibits.

Wayne Jr. has carried on where Dad leftoff. While he manages Dad’s estate as execu-tor, he is also in charge of the estate’s litiga-tion, pursuant to Dad’s instructions beforehis death. Running the ranch since graduat-ing from Hillsdale College, Wayne workedclosely with my father developing long-termplans for the ranch and litigation.

Judge Jones Makes Historical Ruling Protecting Rangeland Grazing

For more than a century the courts havewrestled with the issue of livestock grazingon federally managed lands, mostly to thedetriment of the western rancher. Most ofthe adverse case law, however, is the resultof rulings from cases which were lost pro-cedurally. They never went to trial whereactual evidence was heard. The Hage casesare unique and the only ones in 100 yearswhere 501 title exhibits were broughtbefore the court proving our preexistingrights to use the range and waters. The evi-dence establishing our rights was createdunder local laws and customs and courtrulings beginning in the 1860s, long beforethe creation of either the BLM or FS. Thoserights were preserved in every land lawpassed by Congress, including the 1934Taylor Grazing Act and the omnibus 1976Federal Land Policy & Management Act.

In his June 6 preliminary ruling in theforage right case, U.S. v. Hage, Judge Jones setthe stage for his historic decision for westernranchers. In an unprecedented use of courttime, he spent three hours reading into therecord the published decisions from theUSCFC takings case and adopting JudgeSmith’s findings as his own. He explained tothe packed courtroom: “You’ll have to havepatience and listen for quite a while for thefollowing reason. Most of this case has

already been resolved by prior litigation, so Iam doing that both for the purpose ofadopting Judge Smith’s findings and conclu-sions, which I am bound to, as well as mak-ing it clear what things Judge Smith ruledupon and what few remaining items I haveto rule upon. So you will bear with me whilewe undertake that. I understand from a lay-man’s perspective a lot of this will be sleepingmaterial. Not so to the attorneys. They willunderstand and the appellate court willunderstand clearly what Judge Smithresolved and, therefore, what’s left for me toresolve, and the basis of the legal rulings onwhich I predicate findings and further legalconclusions.”

For the first time in history a court hasprotected the historical property interestsranchers own on western rangelands. It didso in two ways. First, the court found thatboth constitutional Fifth Amendment sub-stantive due process and procedural dueprocess rights attach to grazing preferences.The judge explained during trial that Con-gress intended to protect ranchers’ preexist-ing rights by issuing grazing preferences onlyto the established ranchers who could provehistorical use of the range and ownership ofwater rights under local law and custom. Thefinding of a substantive due process right tograzing preferences in practical terms greatlylimits the government’s ability to simply takegrazing permits as it did in our case, or even

The northern winter range in the Ralston Valley viewed from the Silver Creek drainage. Historically, this country also ran a lot of sheep.


WINTER 2013 • RANGE MAGAZINE • 87

reduce livestock below the historical permit-ted numbers. And perhaps most important-ly, it prevents the government from using theadministrative appeals process as a weaponto tie ranchers up in endless futile appeals.

Second, Judge Jones found that based onevidence presented at trial, we had a half-mile forage right around and adjacent to allof our waters, attendant to our stock water-ing rights. Livestock could not be found intrespass in those areas.

Addressing the government’s case alleg-ing trespass of livestock on federally man-aged lands, Judge Jones found the cattlebelonging to Wayne, or leased by him, notto be in trespass. Most of the trespass allega-tions were determined to be near or at thewaters belonging to the Hage estate, and thegovernment’s method of documenting theallegations were deemed unreliable. At onepoint forest ranger Steve Williams suggestedthe only way we could access our stockwa-ters without being deemed to be in trespassby him was to lower cows to our water byhelicopter.

Going forward, the court placed myfamily under the permanent injunctive reliefof this court, similar to the civil rights bus-ing cases. Wayne was ordered to immediate-ly apply for grazing permits and thegovernment was ordered to issue permits atthe highest historical numbers of our prede-cessors. Judge Jones said he did not trust theBLM and FS to act within their discretion.Therefore, grazing permit levels can only becut up to 25 percent for legitimate manage-ment purposes such as drought, and neverpermanently. But court approval must besought for cuts over 25 percent, or to issuetrespass or impoundment notices. We cannow ranch unmolested for the first time in35 years.

Government’s Attempt to End-Run Hage v. U.S. Turns Into

Justice Department Train WreckThe advantage of 22 years of successful litiga-tion is that it functions as a judicial hedge ofprotection from bureaucrats seeking revengethrough the courts. The mistake made byboth the FS and BLM and their legal counselis that they repeatedly ignored eight pub-lished decisions from USCFC, the waterdecree, and criminal case—a fact not lost onJudge Jones. While bureaucrats and theirattorneys live off the taxpayer and China,using government money to plot the eradi-cation of western ranchers, in this case they

seem to have been caught in a web of theirown making.

During the five-year U.S. v. Hage forageright case, a counterclaim was filed by MarkPollot for the estate which alleged the UnitedStates, through its agencies, agents, depart-ments and employees, infringed upon anddeprived the estate of its constitutionally pro-tected property and other rights. Based onevidence at trial, the court found: “[S]ome-time in the ‘70s and ‘80s, the Forest Servicefirst and then BLM entered into a conspiracy,a literal, intentional conspiracy, to deprive theHages of not only their permit grazing rights,for whatever reason, but also to deprive themof their vested prop-erty rights under thetakings clause, and Ifind that that’s a suf-ficient basis to holdthat there isirreparable harm.”Judge Jones added:“For hundreds ofthousands of dollarsthey purchased theranch with recog-nized value in theforage rights, letalone the waterrights, and at somepoint in time duringthat period the For-est Service—I don’tknow, maybe it wasfor their private useso that they wouldhave a privatedomain of the forester.... But the intent todeprive them of their preference is abhorrentand shocks the conscience of the court andconstitutes a basis for an irreparable harmfinding.”

He then referred BLM manager TomSeley and forest ranger Steve Williams to theU.S. Attorney, “for potential considerationfor prosecution for the conspiracy,” requiringthe U.S. Attorney’s office to report back in sixmonths as to any action it’s taken. He alsogave Seley and Williams notice to appear fora show-cause hearing for civil contempt ofcourt.

The first act the court recognized as con-stituting irreparable harm consisted of the“arrest and attempted conviction of Mr.Hage for practicing his property interestright recognized by the Court of Claims.”Judge Jones added, “These folks have heard

from three federal courts, and in spite of thatthey have continued an attempt to deprivethe Hages of their permit rights and theirwater rights.”

The four grounds for irreparable harmwere: (1) that the BLM and FS sought stock-water rights with the specific intent to “givethe water rights belonging to the Hages toothers”; (2) they solicited and granted per-mits to others, namely Gary Snow of Fallon,Nev., and testified they knew Snow’s cattlewould use Hage waters; (3) the issuance oftrespass notices to third parties whose cattlewere under legal possession of Wayne Jr.; and(4) the recent solicitation sent to 75 ranchers

for term grazing permit applications for theHages’ Ralston Allotment.

The court specifically mentioned, “Snowis probably part of the conspiracy, but cer-tainly the agency principals...and probablythe U.S. Attorney out of Washington advis-ing them was probably part of the conspira-cy.” The judge emphasized: “Especially thecollection from innocent others of thou-sands of dollars for trespass notices is abhor-rent to the court, and I express on the recordmy offense of my own conscience in thatconduct. That’s not just simply following thelaw and pursuing your management right, itevidences an actual intent to destroy theirwater rights, to get them off the publiclands.”

The judge made a finding of RICO[Racketeer Influenced and Corrupt Organi-zations], or “racketeering,” noting that RICO

The Hages in 2006 at Pine Creek Ranch in Monitor Valley, Nev. From left: Young Wayne with wife Yelena, Margaret Hage Byfield, DanByfield, Helen Chenoweth Hage, David Perkins, Laura Hage Perkins, JimMorrison, Ramona Hage Morrison, Jace Agee, Ruth Hage Agee.

© C

.J. H

ADLE

Y



doesn’t have to benefit the participant butthat it can be for the benefit of the enterprise.He said: “But you still have entered into aconspiracy for RICO purposes. And it cer-tainly was in violation of mail fraud andfraud provisions to the contrary.”

Finally, as if the Justice Department was-n’t having enough troubles of its own mak-ing, on June 6 the judge revoked automaticadmission status to all Washington, D.C.-based Justice Department attorneys. He toldthe packed courtroom he had been “turnedaround” in four cases including ours andthey would not be readmitted into his court-room unless they could prove in a hearingthat they could follow the rules of ethics andlocal rules of the court.

Hage “Takings” Case Suffers Narrow Setback at Fed Circuit

On July 26, the three-judge panel of the Fed-eral Circuit Court of Appeals handed downits decision in the 22-year-old Hage v. U.S.takings case. Most of the findings by JudgeSmith regarding the Hage property interestswere not overturned, including a finding of aphysical taking of waters in the ditches. AsJudge Jones observed, the three-judge panelexpressly said the Hages have “an accessright” to their waters. Finally, the portion ofthe takings judgment that was overturnedwas on the basis that the claims were notripe, not because the government was actingcorrectly. We have filed a petition for rehear-ing en banc before the full Federal Circuitpanel and have already determined to pursuea petition for certiorari with the SupremeCourt should we not receive satisfaction atthe Federal Circuit.

Agency Brass Defend Agency Actions Leading to Contempt of Court

On Friday, August 31, a separate weeklongshow-cause hearing ended with Judge Jonesfinding Tonopah BLM manager Tom Seleyand Humboldt-Toiyabe forest ranger SteveWilliams in contempt of court. The con-tempt, including witness intimidation,occurred during the pendency of the five-year-old forage right case mentioned above.

Seley was specifically found having intentto destroy the Hages’ property and businessinterests. “Mr. Seley can no longer be anadministrator in this BLM district. I don’ttrust him to be unbiased. Nor can he super-vise anybody in this district,” the judge statedin his order from the bench.

The contempt finding was the result of

the FS and BLM having filed the 2007 suitagainst Wayne Jr. and the estate of E. WayneHage, but also seeking alternative remedieswhile the case was pending in derogation ofthe court’s jurisdiction.

The court noted: “You got a randomdraw of a judge. You submitted to this civilprocess.” Then Seley and Williams pursuedtheir own remedies by trying to extortmoney out of third-party ranchers who hadleased cattle to Wayne Jr. They issued trespassnotices, demands for payments, their ownjudgments, and in one instance coerced a$15,000 settlement. All of this was done dur-ing the time the court had jurisdiction overthese issues.

The hearing began Monday, August 27,with a cadre of agency heads from Washing-ton, D.C., regional and state offices turningup at the Reno courthouse to defend theirpolicies and employees. After intense ques-tioning by the court, Judge Jones made wit-ness credibility findings in which FS Region4 Director Harv Forsgren was found lying tothe court.

In his bench ruling, Judge Jones stated:“The most persuasive testimony of anybodywas Mr. Forsgren. I asked him, has there beena decline in AUMs [animal unit months/live-stock numbers] in the West. Then I askedhim, has there been a decline in the region, orthis district. He said he doesn’t know. He wasprevaricating. His answer speaks volumesabout his intent and his directives to Mr.Williams.” The court noted that anybody whois school age or older knows “the history ofthe Forest Service in seeking reductions inAUMs and even an elimination of cattle graz-ing during the last four decades. Not so muchwith the BLM—they have learned that in thelast two decades.”

In his findings of witness intimidation,Judge Jones noted: “Their threats were notidle. They threatened one witness’ father’s[grazing] allotment.” The judge referencedtestimony wherein Steve Williams deliveredtrespass notices accompanied by an armedemployee. In one instance the armed mansnuck up behind one of the witnesses withhis hands ready to draw his guns. “Packing agun shows intent,” the court noted.

Seley and Williams were held personallyliable for damages totaling over $33,000should the BLM and FS fail to fund the lossesto Hage and third parties. In addition, JudgeJones imposed an injunction wherein theBLM and FS are prevented from interferingwith third-party leasing relationships when

the livestock are in the clear operational con-trol of Wayne Jr.

The Next StepsThe government is expected to appeal theJones decision to the 9th Circuit Court ofAppeals, where it assumes it will face a morefavorable court. In the meantime, the crimi-nal investigation is ongoing. The Hage familywill be considering further legal actions as aresult of the conspiracy findings of the court.It is likely these two conflicting cases, Hage v.U.S. and U.S. v. Hage, are headed for the U.S.Supreme Court.

My mother and father’s dream of seeingthe property rights protected for the nextgeneration paved the way for the landmarkcourt decisions we have today. However,never during all those weeks in court did weanticipate the tables would be so dramatical-ly turned as they were in the forage right trialthis spring.

In 1991, Dad was charged criminally bythe FS for lawfully maintaining his ditchright-of-way. In 2012, on day 19 of the trial,the government began its cross-examinationof Danny Berg, a rancher who had leasedcattle to Wayne Jr. Evidence was presented ina letter from Tom Seley where Mr. Berg’sfather had been threatened that his allotmentwould be affected if Danny didn’t immedi-ately remove his cattle from Pine Creek.

The judge’s reaction says it all: “So thethreat in the prior letter is an abomination,and the threat here is an abomination, andespecially tying it to a threat against thefather’s allotment is a total twice abomina-tion.... And Mr. Seley will stand before thiscourt for contempt with his checkbook inhand and potentially, as I give judgment, andpotentially risk imprisonment as well. That’sthe clear notice. He’ll need to hire a criminalattorney.” ■

Ramona Hage Morrison, the oldest of the fiveHage children, researched the Forest Servicerecords at the National Archives for “StormOver Rangelands” while working in Washing-ton, D.C., for Rep. Pashayan. She worked forthe Nevada Mining Association for five yearsand has worked on extensive title research jobsfor ranchers across the West. She testified fornearly three days in the recent forage-righttrial on the Pine Creek title exhibits first com-piled by her mother. She also serves on theNevada Board of Agriculture. Ramona liveswith her family in Spanish Springs, Nev.For more information, contact her [email protected] or 775.722.2517.

To comment on this issue, “like” us on Facebook!


Documents

EYE OF THE STORM - RANGE magazine Hage family saga chronicles not ... Moving Into the Eye of the Storm In spring 1978, ... owners of Pine Creek that the BLM and FS