June 11, 2008

EDITORIAL: At the time, they said he was crazy

Government loses case involving late Nevada rancher

Las Vegas Review-Journal

Wayne Hage and his wife, former U.S. Rep. Helen Chenoweth-Hage of Idaho

Back in the 1980s, it became an article of faith among well-meaning "environmentalists" that grazing cattle on arid Western lands serves to "destroy fragile ecosystems."

Western ranchers presented evidence that desert plants developed in an ecosystem that needs large ungulate grazers to churn their seeds into the soil, to fertilize wetlands, to carry moisture into arid valleys and thus benefit tortoise populations -- which is why more tortoises are found on grazed land than ungrazed.

The ranchers argued that grazing prevents the buildup of excess tinder that can make range fires more frequent and severe, that game species profit from the ranchers' water improvements and efforts at predator control.

The forces seeking to remove mankind from the land scoffed at such arguments. They canceled grazing "permits" left and right.

The U.S. Forest Service ordered that Nevada rancher and private property rights advocate Wayne Hage, in one example, could use "only hand tools" to trim back trees clogging the canals that had brought water to his 125-year-old, 700,000-acre Pine Creek Ranch in central Nevada.

In 1991, Wayne Hage sued. On Friday, U.S. Court of Federal Claims Judge Loren A. Smith ruled Mr. Hage was right, and the Forest Service was wrong.

The judge awarded more than $4.2 million to the plaintiffs, ruling the U.S. Forest Service committed an unconstitutional "taking" of his water rights during their decades-long dispute over livestock grazing.

Judge Smith also ordered the government to pay back interest to the family of a man considered one of the leaders of the 1980s "Sagebrush Rebellion" -- an additional $4.4 million. And the government is also ordered to pay the Hage family's legal costs -- another $4 million.

"The hand tools requirement prevented all effective ditch maintenance, as it cannot be seriously argued that the work normally done by caterpillars and back hoes could be accomplished with hand tools over thousands of acres," the judge wrote. The implementation of the hand tools requirement "was based solely on hostility to plaintiffs," the judge ruled.

"It sends a pretty important message to the government that if you screw with a small ranching family and put them out of business, you have to pay big bucks," exults Lyman "Ladd" Bedford, a San Francisco-based lawyer who has argued the case since Hage first filed his lawsuit, 17 years ago.

Does it?

It would be nice to ask Mr. Hage whether he feels vindicated. We can't. He's dead.

The 17-year federal lawsuit took longer to prevail than either Mr. Hage -- who died in 2006 -- or his widow, the late former U.S. Rep. Helen Chenoweth-Hage of Idaho, could wait.

And while $4 million or $8 million sounds like a lot of money, they're notably smaller sums than that $28 million Mr. Hage sought -- and that was in 1991 dollars.

That leads Cliven Bundy -- the last active cattle rancher in Clark County, who has fought his own battles with federal bureaucrats trying to drive him and his cattle off the Mesquite allotment by challenging both his grazing and his water rights -- to question just how big a "win" Friday's ruling really is.

"I don't think he gained anything there," said Mr. Bundy Tuesday afternoon. "I think they just stole his water for a cheap price."

Mr. Hage's daughter, Ramona Morrison, is more optimistic.

"Whether it's a permanent or a temporary taking is not clear" -- a matter that may be cleared up in a post-trial conference Friday, says Mrs. Morrison. "At the time, Dad was told he was crazy to try and do this, so to come out with this kind of a ruling after all this time, while we were not surprised that there was compensation, is quite remarkable. ... Dad plowed a trail through 6 feet of snow with this case."