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On June 6, 2012, the last day of theHage Forage Rights Trial, Chief U.S.District Judge Robert C. Jones made

preliminary findings of fact and conclusionsof law in the U.S. District Court of Reno,Nev., in U.S. v. Wayne N. Hage and the Estateof E. Wayne Hage (2007). While his findingsare preliminary, subject to posttrial briefing,RANGE can report on what we believe willbecome a historic, game-changing day forthe ranchers who have had their preexistingforage rights and grazing preferences elimi-nated or diminished by BLM and U.S. ForestService policies. We will cover this remark-able decision with in-depth analysis inRANGE after Judge Jones hands down hisfinal published decision. However, the court-room events of June 6 are of such impor-tance that we are compelled to give ourreaders a highlight of what has happenedthus far.The Hage litigation team consisted of

Mark Pollot, attorney for the estate, andWayne Hage Jr., acting as his own attorney.

Those two, along with Wayne’s sister,Ramona Morrison, acting as their paralegal,were up against three government attorneysand a cadre of government officials and para-legals. The judge noted for the record that thefiling of this trespass case was simply anattempt by the government to do an end runon the Hage decisions out of the ClaimsCourt (see Up Front, page 4) by seeking anadverse ruling in this court.After 21 days of trial, Judge Jones

addressed a courtroom packed with bureau-crats and ranchers, explaining first that hehad a very narrow area in which he couldrule since he was bound by the eight previousdecisions in the Hage U.S. Court of FederalClaims “takings” case. Remarkably, he spentthe next three hours reading into the recordthe findings of fact and conclusions of law ofthe decisions of Chief Judge Loren C. Smith.Judge Jones added his own comments, whichamounted to a legal seminar, and he adoptedSmith’s findings as his own.Then Judge Jones made his own findings.

One was that beginning in the late ’70s and’80s, first the Forest Service and then theBLM entered into a conspiracy to intention-ally deprive the Hages of their grazing rights,permit rights, and preference rights. Thejudge held, “For purposes of my holding ofirreparable harm, the intentional conspiracyand acts to deprive the Hages constitutingirreparable harm consisted of the arrest andattempted conviction of Mr. Hage for prac-ticing his property interest right recognizedby the Court of Claims.” He added, “Thesefolks have heard from three federal courtsand in spite of that they [USFS and BLM]have continued an attempt to deprive theHages of the permit rights and their waterrights.”The court referred Tom Seley, BLM field

manager, and Steve Williams, U.S. Forest Ser-vice ranger, to the U.S. attorney for consider-ation of criminal prosecution for contemptof court, but then suggested that the U.S.attorney for the District of Nevada refer thematter to a U.S. attorney from another dis-trict since his office might be a part of theconspiracy. The court also gave written noticeof civil contempt for obstruction of justice. Ahearing for the civil contempt of courtcharges is set for August 27 before JudgeJones. The Hages will have the opportunityto establish damages resulting from theactions of Tom Seley for alleging trespass anddemanding payment from ranchers wholeased their cattle to Wayne N. Hage and theestate. The judge informed Mr. Seley hewould need to bring his personal checkbookbecause he will have to pay all money backwhich he wrongfully demanded, plus dam-ages caused to Wayne and the estate for theduration of the litigation.Seley and Williams were cited on four

grounds for contempt. First, they soughtstockwater rights from the state engineerwith the specific intent to give the Hages’water rights to recipients of their permits.Second, they solicited and granted temporarypermits to others, in particular to Gary Snow,whose name was mentioned many timesthroughout the trial and who the judgebelieves is part of the conspiracy. Seley testi-fied that he knew Snow’s cattle wouldundoubtedly use the waters belonging to theHages, and Gary Snow made Seley aware thathe was going to file on the Hages’ water

Justice for Hage FamilyChief judge refers BLM and U.S. Forest Service employees to the U.S. attorney

for civil and criminal charges in Hage forage rights case. By Julian Stone

Oil painting by Burt Dinius of Wayne Hage doingtypical ranch work at Pine Creek Ranch inMonitor Valley, Nev.

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FALL 2012 • RANGE MAGAZINE • 39

rights, which he subsequently did. Third,while the court had jurisdiction of the case,they collected thousands of dollars throughintimidation for unproven trespass allega-tions from third parties whose cattle wereunder the legal possession of Wayne Hage Jr.,wherein the judge stated, “I can only con-clude it was part of an effort and conspiracyto deprive the Hages of their preference per-mit rights and, more importantly, their waterrights and their ditch rights.” And lastly, TomSeley sent a solicitation to numerous Nevadaranchers last January for a 10-year permit forthe Hages’ Ralston allotment.

Judge Jones found the collection of tres-pass fines and damages from innocent third-party ranchers to be “abhorrent to the Courtand I express on the record my offense of myown conscience in that conduct. That’s notjust simply following the law and pursuingyour management right, it evidences an actu-al intent to destroy their water rights, to getthem off the public lands.” He ordered themoneys extracted by this wrongful conductbe repaid and all collection efforts to cease.

The court also suggested that there maybe others higher in the chain of commandwho may be implicated, including the Wash-ington, D.C., Justice Department attorneys.He also made reference to witness intimida-tion, the possibility of RICO or “racketeer-ing” implications, mail and wire fraud, andjust plain fraud.

On the merits of the trespass case, thecourt found the Hages not to be in trespass.Perhaps most importantly, it confirmed theCourt of Federal Claims finding of a forage

right separate from a ditch right, and foundas a matter of law that there is a forage rightto be implicit in a stockwater right in the stateof Nevada. The court determined the forageright to be at least a half-mile around and oneither side of any watersource or stream inci-dental to a stockwater-ing right.

Another very impor-tant ruling was thatJudge Jones found thatthe Hages’ grazing pref-erences had both consti-tutional procedural andsubstantive due processrights attached. Thesubstantive and proce-dural due process rightsare a recognition for thefirst time by a court that there is both a prop-erty and liberty interest in a grazing prefer-ence. It is a recognition of the Hages’property interests which preexisted the 1934Taylor Grazing Act and the establishment ofthe Forest Reserve in 1907, as evidenced by501 exhibits comprising their chain of title.As Judge Jones noted, the various propertyrights established on the range under locallaws and custom and rules of the court,which were acknowledged by Congress, werethe basis upon which ranchers originallyobtained “grazing preferences,” and thosepreferences are a property right that cannotbe taken without procedural and substantivedue process. Going forward, in order for thegovernment to afford a substantive due

process right, there has to be a legitimate gov-ernment purpose, and any proposed regula-tion must actually relate to and promote thatlegitimate government purpose.Permanent injunctive relief was granted to

both parties. Similar to thecivil rights busing cases, thecourt is retaining jurisdic-tion to make sure theinjunctions are followed.Wayne Hage Jr. was orderedto immediately apply for agrazing permit, and the U.S.Forest Service and BLMwere ordered to immediate-ly grant permits at the high-est historical levels. Heinstructed the governmentto inform their employeesthat there would be civil and

criminal penalties imposed by the court forbreaking his injunction. Under the injunc-tion, before the BLM or USFS may issue tres-pass or impoundment notices, they must firstseek approval of the court. The judge addedthat the government couldn’t regulate thegrazing allotments on behalf of environmen-tal groups or hunting groups, limiting regula-tions under his substantive due processfinding specifically to the public purpose asoutlined in the laws of Congress.

This was an incredible win for the ranch-ing industry and it has the potential of beinga truly historic case. ■

Full coverage of this remarkable decision willbe included in the next issue of RANGE.

A Boise lawyer, a cowboy, and a

housewife were up against well-paidand pampered

agents from the Department of

Justice. It was a slap down and the

right guys won.

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