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United States v. Estate of Hage, No. 2:07-cv-01154-RCJ-VCF, Findings of Fact, Conclusions of Law, and Injunction (D. Nev. May 24, 2013)

United States v. Estate of Hage, No. 2:07-cv-01154-RCJ-VCF, Findings of Fact, Conclusions of Law, and Injunction (D. Nev. May 24, 2013)

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United States v. Estate of Hage, No. 2:07-cv-01154-RCJ-VCF, Findings of Fact, Conclusions of Law, and Injunction (D. Nev. May 24, 2013)
United States v. Estate of Hage, No. 2:07-cv-01154-RCJ-VCF, Findings of Fact, Conclusions of Law, and Injunction (D. Nev. May 24, 2013)

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Published by: robert_thomas_5 on May 30, 2013
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UNITED STATES OF AMERICA,Plaintiff,vs.ESTATE OF E. WAYNE HAGE et al., Defendants. ))))))))))2:07-cv-01154-RCJ-VCF
The decision following reads like a book. It tells the story of the bench trial in this casefrom beginning to end and contains many of the tentative findings and conclusions reached alongthe way, as supported by particular witness testimony and evidence received during the trial. Theformat is intentional. The impatient reader may be tempted to jump to the summary findings andconclusions at the end, but in so doing will be deprived of the analytical and evidentiary threat patiently perceived and conceived by the Court during the course of the trial.This case arises out of alleged unauthorized grazing of private cattle on federal land.From March 27 to June 6, 2012, the Court held a bench trial on Plaintiff United States of America’s (the “Government”) Complaint for trespass against Defendants Wayne N. Hage(“Hage”) in his individual capacity and Hage in his capacity as administrator of the Estate of E.
Case 2:07-cv-01154-RCJ-VCF Document 415 Filed 05/24/13 Page 1 of 104
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.
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
 Hage I 
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.
See id.
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.
See id.
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
12345678910111213141516171819202122232425title to the water.
See id.
at 160–64 (noting that water rights in Nevada vesting before 1905 areunaffected by later-adopted water law and exist independently of stream adjudications, whichconcern only the scope of such rights). The court also noted that the ditch rights of way wereinherently tied to the water rights, because without the attendant ditch rights of way, the water rights were of no value.
See id.
at 163.After granting summary judgment on the breach of contract claim based on cancellationof the grazing permit, the court addressed the takings claims. First, the court ruled that the Hageshad no property interest in the grazing permit or the federal range land itself.
See id.
at 170.Second, the court denied summary judgment on the takings claim as to the Hages’ water rights,ruling that the Ditch Act and Supreme Court precedent clearly established that a private partymay have water rights in water on federal land, and that priority is in fact determined by locallaw.
See id.
at 172. Third, the court denied summary judgment on the ditch rights of way takingsclaim, because there remained a question of fact whether the Hages had such rights and whether they had exceeded the permitted scope of maintenance of or changes to the ditches.
See id.
at174. Fourth, the court denied summary judgment on the forage takings claim because althoughwater rights did not necessarily include grazing rights under the Ditch Act, it was possible thatunder pre-1907 Nevada law the right to bring cattle to the water and permit them to grazeincidentally near the water source—because it is impossible to stop them as a practicalmatter—were an inextricable part of the water rights themselves if the water had beenappropriated for the purpose of watering livestock.
See id.
174–76. Finally, the court deniedsummary judgment on a cattle-impoundment takings claim and a compensation claim under 43U.S.C. § 1752.
See id.
at 176–80.///Page 3 of 104
Case 2:07-cv-01154-RCJ-VCF Document 415 Filed 05/24/13 Page 3 of 104

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