12345678910111213141516171819202122232425Wayne Hage (the “Estate”), as well as the Estate’s Counterclaim for declaratory judgment. The
Court has read and considered the post-trial briefings it solicited.
I.PROCEDURAL HISTORYA.The Takings Case
The present case is a civil trespass action by the Government against Wayne N. Hage(“Wayne Jr.”) and the Estate of E. Wayne Hage (“Wayne Sr.”). However, the Court will, for the benefit of the reader, summarize the long history of another case (the “CFC Case”) litigated inthe Court of Federal Claims, the U.S. Court of Appeals for the Federal Circuit, and, pending adecision on a petition for writ of certiorari, potentially the U.S. Supreme Court.
1.The CFC Case
- Pretrial Rulings
In 1991, Wayne Sr. and his wife Jean N. Hage, now also deceased, filed an action in theCourt of Federal Claims due to the United States’ cancellation of their grazing permit.
See Hage I
, 35 Fed. Cl. 147, 156 (Ct. Cl. 1996). Wayne Jr. was not a party to the CFC Case. The courtgranted summary judgment to the United States on the damages claim because the grazing permitwas a license, the revocation of which could not give rise to damages, but the court deniedsummary judgment on the takings claims and the claim for compensation for improvements, because there remained a genuine issue of material fact whether Wayne Sr. had certain water rights, forage rights, and ditch rights of way.
The court first rejected the United States’argument that it lacked jurisdiction over the takings claim because it lacked jurisdiction toadjudicate water rights, ruling that the Tucker Act in fact required the court to exercise jurisdiction, and that the McCarran Amendment did not affect the result.
157–60. Thecourt then rejected the United States’ argument that the takings issue was unripe because anadjudication of water rights (the Monitor Valley adjudication) was pending which might affectCattle formerly belonging to E. Wayne Hage will be identified throughout this Order as
belonging to “the Estate.”Page 2 of 104
Case 2:07-cv-01154-RCJ-VCF Document 415 Filed 05/24/13 Page 2 of 104