Nevada rancher and "War on the West" poster boy Wayne Hage married Rep. Helen Chenoweth (R-Idaho) Saturday. If he's lucky, he could get a big wedding present from Loren Smith, chief judge of the U.S. Court of Federal Claims.
It's been nearly a decade since the U.S. Forest Service, fed up with Hage's treatment of 240,000 acres of federal grazing land in the Toiyabe National Forest, confiscated his cattle and threw him off his grazing allotments. It's been about eight years since Hage, in response, filed a lawsuit against the federal government, alleging that land managers had so constrained his cattle grazing that it represented a "taking" under the Fifth Amendment.
Now, it appears that the claims court chief judge is nearing a decision on Hage's $34 million suit, and federal land managers in the Forest Service and Bureau of Land Management--overseeing 260 million acres of grazing land in the West--are waiting anxiously for the ruling.
They have good reason to be anxious. Not only does Smith have something of a track record of favoring plaintiffs in takings cases, but in a preliminary opinion in the Hage case issued last year, he tilted Hage's way.
Over the years, Hage's lawsuit has evolved. Three years ago, the claims court ruled that Hage--author of "Storm Over Rangelands" and a symbol of western defiance--has no property interest in the grazing permits issued by the BLM and Forest Service. That was consistent with decades of federal case law that ranching on federal lands is a privilege, not a right, and that the government can limit or even revoke permits as it sees fit without having to pay compensation.
What remains before the court is Hage's claim that in revoking his grazing privileges the federal government has "taken" his state-authorized water rights and now owes him compensation under the Fifth Amendment.
"It's a piggyback argument," said John Echeverria, director of the environmental policy project at the Georgetown University Law Center. "It's a creative effort to get around overwhelming precedent."
In his preliminary opinion last year, Smith seemed to at least partially accept Hage's argument that along with his water rights went a right to graze his cattle. "[T]he court finds as a matter of common sense," wrote Smith, "that implicit in a vested water right based on putting water to beneficial use for livestock purposes was the appurtenant right for those livestock to graze alongside the water."
If that kind of thinking prevails, say environmentalists, it will essentially force the government to relinquish control of its western rangelands to the ranching industry.
"What's at stake is really who owns and controls the federal rangeland," said Joseph Feller, an Arizona State University law professor who has helped craft briefs for environmental groups intervening in the suit. "The case law says a rancher can be kicked off of federal land and he's not entitled to compensation. They are saying if he's kicked off of federal land then he can no longer use his water so he's entitled to compensation for loss of his water rights. It involves the tail wagging the dog."
But Hage's attorneys say control is not the issue. "We're not saying the government can't regulate the range," said Lad Bedford, one of Hage's lawyers. "They can. But there are property rights out there and if it gets to the point where the government takes those rights, a person deserves to be compensated."
Environmentalists are confident that even if Smith and the claims court side with Hage, they will prevail on appeal. Earlier this year, the 10th Circuit Court of Appeals ruled against a New Mexico rancher making similar arguments based on water rights, according to Natural Resources Defense Council lawyer Johanna Wald.
But "it may cause havoc in the meantime," Feller said. "Every rancher out there could file like Wayne Hage did."