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Amicus Curiae Brief of Pacific Legal Foundation and the United States Cattlemen's Association in Support of Petition for Writ of Certiorari, Estate of Hage v. United States, No. 12-918 (Feb. 22, 2013)

Amicus Curiae Brief of Pacific Legal Foundation and the United States Cattlemen's Association in Support of Petition for Writ of Certiorari, Estate of Hage v. United States, No. 12-918 (Feb. 22, 2013)

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Amicus Curiae Brief of Pacific Legal Foundation and the United States Cattlemen's Association in Support of Petition for Writ of Certiorari, Estate of Hage v. United States, No. 12-918 (Feb. 22, 2013)
Amicus Curiae Brief of Pacific Legal Foundation and the United States Cattlemen's Association in Support of Petition for Writ of Certiorari, Estate of Hage v. United States, No. 12-918 (Feb. 22, 2013)

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Published by: robert_thomas_5 on Mar 04, 2013
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07/10/2013

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No. 12-918
In the
Supreme Court of the United States
 
Ë
 
THE ESTATE OF E. WAYNE HAGE and theESTATE OF JEAN N. HAGE,
 Petitioners,
v.UNITED STATES,
Respondent.
 
Ë
 
On Petition for Writ of Certiorarito the United States Court of Appealsfor the Federal Circuit
 
Ë
 
BRIEF AMICUS CURIAE OF PACIFIC LEGALFOUNDATION AND THE UNITED STATESCATTLEMEN’S ASSOCIATION IN SUPPORTOF PETITION FOR WRIT OF CERTIORARI
 
Ë
 
B
RIAN
T.
 
H
ODGES
Counsel of Record
Pacific Legal Foundation10940 33
rd
Pl, Ste 210Bellevue, Washington 98004Telephone: (425) 576-0484Facsimile: (425) 576-9565E-mail: bth@pacificlegal.orgJ
 AMES
S.
 
B
URLING
Pacific Legal Foundation930 G StreetSacramento, California 95814Telephone: (916) 419-7111Facsimile: (916) 419-7747E-mail: jsb@pacificlegal.org
Counsel for Amici Curiae
 
i
QUESTION PRESENTED
Whether the owner of water rights under the priorappropriation doctrine has a protected propertyinterest in the right to access and perform ordinarymaintenance on ditches that carry his water on vestedrights-of-way over federal lands.
 
ii
TABLE OF CONTENTSPage
QUESTION PRESENTED....................iTABLE OF AUTHORITIES..................ivINTEREST OF AMICI CURIAE...............1INTRODUCTION AND SUMMARY OFREASONS FOR GRANTING THE WRIT....2REASONS TO GRANT THE PETITION FORWRIT OF CERTIORARI.................5I.THE FEDERAL CIRCUIT’S DECISION ISINCONSISTENT WITH THE COMMONLAW OF WATER RIGHTS IN THEWESTERN STATES.....................5 A.Water Holders Have a ProtectedInterest in the Continued Flow of Water.............................6B.Water Holders Have a Common LawRight to Maintain Their Ditches to Assure the Continued Flow of Water....8C.The Federal Circuit’s DecisionConflicts With Other Cases HoldingThat an Owner of an 1866 Act Right-of-Way Has a Right to Maintain HisEasement Without Government Approval..........................11II.THE FEDERAL CIRCUIT’S DECISIONRAISES AN IMPORTANT ISSUEBECAUSE IT THREATENS WATERRIGHTS THROUGHOUT THEWESTERN STATES....................16

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