ELKO — A federal district judge has ruled that federal employees “entered into a literal, intentional conspiracy” in a decision related to a cattle trespassing lawsuit.
In 2007, the U.S. government filed a civil suit for trespass damages against the estate of the late Nevada rancher E. Wayne Hage. The complaint claimed the Hage family allowed cattle to trespass on Bureau of Land Management and U.S. Forest Service land in the Battle Mountain District and Tonopah Ranger District, respectively.
The document reports between January 2003 and August 2007, cattle — at times more than 100 head — were observed 52 times on federally managed land.
The federal government argued its case last spring in a bench trial before U.S. District Judge Robert C. Jones in Reno, which included testimony from witnesses who documented unauthorized livestock on BLM or Forest Service land.
In Jones’ 104-page decision issued Friday, he noted that none of the witnesses testified to seeing cows eating grass on federal land, but he also said it was an “unavoidable inference that the cattle grazed in the area where they were observed.” However, unless the cattle wandered more than half a mile from a water source in which the defendant had a water right, it didn’t constitute trespassing.
Only two of the many claims met that criteria. Jones granted damages for trespassing on Jan. 5, 2004, for $40.04 and Jan. 13, 2004, for $125.84.
“Basically, the judge said, ‘Yes, there was some trespass. It was a small amount. Here’s your money, government,’” said Mark Pollot, attorney for the Hage estate.
No punitive damages were awarded because the instances of cattle trespass weren’t carried out “oppressively, fraudulently or maliciously,” the judge wrote.
Judge chastises government
The judge wasn’t as quick to dismiss animosity from federal employees, however. In the decision, Jones reprimanded those who perpetually battled with the Hages, and accused them of conspiring against the ranchers.
“The Government sent trespass notices to people who leased or sold cattle to the Hages, notwithstanding the Hages’ admitted and known control over that cattle, in order to pressure other parties not to do business with the Hages, and even to discourage or punish testimony in the present case,” the decision states.
Jones said the government invited other ranchers to apply for permits on land the Hage Estate had previously grazed, and tried to transfer water rights owned by the Hages.
“For this reason, the Court has held certain government officials in contempt and referred the matter to the U.S. Attorney’s Office.
“... This behavior shocks the conscience of the Court,” it states.
The Hage family has a lengthy history of disputes with the federal government dating back to a 1991 lawsuit filed by the Hages against the federal government for canceling grazing permits.
The family has cited grievances against agencies related to taking claims of water rights and cattle impoundment.
Local rancher and Elko County Commissioner Demar Dahl has followed the Hage case, and said this decision should send a message to frustrated agency staff who might be tempted to use their federal clout for personal ends.
“I think this should send a strong message to the agencies and any rogue employees of the agencies that seem to want to take the law into their own hands and not comply with what their rules say,” he said.
“This has been a long, drawn out deal,” he added. “But I was pleased to hear (the result).”
Dahl also suggested public land disputes would best be resolved with a transfer of management from federal to state government.
Pollot said the Hages were simultaneously arguing that the government erroneously denied the family grazing renewals between 1993 to 2003.
“Their claim was, ‘You were trespassing and you won’t stop,’ so they issued an order telling (the Hages) to stop doing that,” Pollot said. “We, on the other hand, said ‘Look, you’ve engaged in a practice intended to violate our due process, violating our constitutional rights, interfering with our legitimate business. We want an injunction stopping the government from doing that.”
The judge wrote that going forward, he didn’t expect the two sides would discontinue the same actions that instigated the lawsuit.
“There is a great probability that the Government will continue to cite Defendants and potentially impound Defendants’ cattle in the future in derogation of their water rights and those statutory privileges of which the Government has arbitrarily and vindictively stripped them,” the decision states.
“There is also a probability that Defendants will continue to permit their cattle to graze in excess of the incidental grazing permitted during stock watering that cannot reasonably be prevented.”
Jones issued an order for the Hages to apply for grazing permits, which he also ordered the agencies to accept. The applications aren’t to deviate from any other grazing application.
Major changes to the grazing permit will require Jones’ approval.
Wayne N. Hage, son of E. Wayne Hage, called the judge’s ruling a landmark decision.
“I am pleased to announce for the ranchers of the Western states that it has been proven that a permit is not simply a revocable privilege, but rather there is a property interest in the permit for the purpose of the Due Process Clause, both procedural and substantive,” he said in a statement. “This is important because it will safeguard ranchers’ rights and historical grazing practices.”
A separate case involving the Hages and the federal government is slated for a mid-June conference in the U.S. Supreme Court, according to a release issued by the Hage family. At that time, the Supreme Court will decide if it wants to take the Hage case.
Representatives from the BLM and Forest Service referred all inquiries about the case to a Department of Justice spokesperson, who hadn’t returned a call by press time.