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Mountain States Legal Foundation: Supreme Court Must Hear Western “Takings Clause” Case

   By William Perry Pendley, President and Chief Operating Officer of Mountain States Legal Foundation

A western, nonprofit, public-interest legal foundation with decades of experience defending the rights of westerners against the federal government has urged the Supreme Court of the United States to hear a case from Nevada in which actions of the U.S. Forest Service caused the taking of private property without compensation.  Mountain States Legal Foundation (MSLF), in a powerful friend of the court brief, urged the Court to hear the landmark and long-enduring litigation.  The first lawsuit in the case, which involves Forest Service managed lands used by the family for cattle grazing and the family's private water rights, was filed in 1991.

The U.S. Court of Federal Claims ruled the agency's actions had result in a taking per se as well as a regulatory taking and awarded the Estate of Wayne and Jean Hage "just compensation."  The U.S. Court of Appeals for the Federal Circuit reversed by holding that the lawsuit was not timely and then refused to grant the Estate's motion for a rehearing en banc.

"Every western rancher and owner of private water rights knows of Wayne Hage's courageous lawsuit against the Forest Service," said William Perry Pendley of MSLF.  "The Forest Service prevented the exercise of and interfered with the water rights of the Hage family; that is a 'taking'."

In addition to 7,000 acres of private land owned by the Pine Creek Ranch, established in 1865 and purchased by the Hages in 1978, the Ranch includes rights-of-way, or easements on federal land to transport water for irrigation, as to which the Hages made significant expenditures to improve and maintain the rights-of-way, that is, rights under the Act of July 26, 1866.

The Hages and the Forest Service had a long history of disputes, which began when the Forest Service put non-indigenous elk on the Hages' grazing area, which interfered with cattle grazing and consumed Hages' water.  Then the agency erected fences barring cattle from meadows and water sources.

The Forest Service harassed the Hages and treated them with hostility by sending 40 letters to them in one year and by visiting them 70 times over the same period.  The Forest Service filed 22 charges against them, told them they could use only hand tools to maintain their 1866 Act ditches, and filed felony charges against Mr. Hage when he cleared trees that significantly reduced water flow to his pastures.  His felony conviction was overturned.

The Court of Federal Claims held that the Forest Service caused both a physical taking and regulatory taking of the Hages' property.  The appeals court reversed holding the case not ripe.  At issue are whether interference with a water right is a taking per se and whether federal agencies may impose permitting requirements on a congressionally granted water right.

Mountain States Legal Foundation, created in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

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