Long land battle

Environmentalists and an aggressive federal government are trying to remove ranchers from federal lands they have used for generations

By Angela Lu

     Two coils of rope and a cowboy hat hang on bull horns mounted over Wayne Hage Jr.’s desk, the rest of his office dedicated to shelves upon shelves of law books. In the evening at his generator-powered Nevada ranch, Hage and his sister Ramona Morrison engage in repartee on court cases and property laws, as his three young children roast marshmallows in the living room fireplace. 
     If Hage and Morrison had their way, they’d be spending their days focused on taking care of the Pine Creek Ranch: galloping through shrub-dotted valleys and jutting rocky mountains, rounding up stray cattle, and following in the footsteps of generations before them. Instead, overgrown weeds line the dirt road in Meadow Canyon, as Hage has just returned from a weeklong visit with his attorney to prepare for an upcoming appeal. Morrison now lives near Reno working as a legal consultant specializing in property rights in the West.      
    The Hage family has now fought a 35-year battle against the federal government to protect the family’s grazing and water rights. With more than 87 percent of Nevada’s land owned by the federal government, ranchers are allowed grazing permits and many have water rights dating back to the 1800s. Yet since the Hages moved to their 752,000-acre ranch near Tonopah, Nev., in the late ’70s, officials from the Bureau of Land Management (BLM) and U.S. Forest Service have buried the Hages with onerous regulations with an aim to kick them and their cattle off the land. 
     The tale of cowboys (and Indians) vs. federal bureaucrats (and environmentalists) stretches across the Western United States, where more than 50 percent of the land is federally owned, and goes back to the days of the Sagebrush Rebellion in the 1970s. Although the movement fizzled out when Ronald Reagan was voted president, the regulations continued to tighten and skirmishes broke out in the courtroom as well as on the range. Environmentalists aiming to wipe out all ranching on federal land have succeeded in getting the government to force more ranchers out of their livelihoods. In response, Western states are trying to transfer federal lands to state control, believing the federal government has broken its trust with its citizens.
     BUMPING DOWN THE DIRT ROADS in Pine Creek Ranch is a time warp to a different age. After miles of nothing but arid Nevada desert, cotton candy skies, and the occasional cluster of munching cows, the ghost town of Belmont emerges in the distance. Crumbling facades from the 1865 mining town stand next to renovated buildings, like Dirty Dick’s Belmont Saloon. Inside the dimly lit room warmed by a wood-burning stove, hunters and ranchers with cowboy hats and leathered faces catch up on the latest news. One man pointed to the elk bloodstain on his khakis as a sign of his success that day, as an older man with an unruly white beard contemplated if he was celebrating his 49th or 50th wedding anniversary. He shrugs his shoulders and asks: “Who gets married in the middle of hunting season anyway?”
     While Belmont was still in its heyday in 1866, Hage’s predecessors secured rights to water sources around the area to use for their cattle. Although Nevada became a state in 1864, the federal government did not dispose of the land in the state, in part because much of the land was too arid for homesteading. The federal government kept the land under its control, while recognizing vested water rights and grazing preferences. Currently, Pine Creek Ranch is 99 percent public land, and 1 percent privately owned. 
In 1934, Congress passed the Taylor Grazing Act, which created grazing districts regulated by the federal government to ensure that the land would be put to good use. Ranchers had to pay for 10-year grazing permits, and priority was given to those who already had water rights in the area. While the purpose for the system was intended for good, many ranchers believe that the pendulum has now swung too far the other way as BLM officials make it nearly impossible for ranchers to stay in business. 
     Morrison remembers her excitement when her parents, Wayne and Jean Hage, brought her and her four siblings to their new home of Pine Creek Ranch in 1978. The horse-loving teen cherished the times her dad brought her along to round up cattle on horseback. The earlier owners sold the ranch because of trouble with the Forest Service, yet the elder Wayne Hage thought that with his experience working with the feds on his previous California ranch, he wouldn’t face the same problems.

But from the time he took over, the objective of the officials was clear. Coveting the ranch’s precious water, BLM officials constantly changed the number of cattle allowed on permitted land and when they could graze on the land. The Hages received five-day notices to remove their cattle, a near impossible task when dealing with thousands of cattle. And when they couldn’t keep up with the changes, armed officials would show up at their door with citations and fines. 

    Morrison and Hage at Pine Creek RanchIn 1991, the Forest Service cut the number of cattle allowed on the Meadow Canyon allotment by 35 percent, then by 100 percent, forbidding any cattle to graze on that area for five years to “recover” the land. But the Hages noted a darker purpose—not using the water for five years would result in an abandonment of a water right, and the Forest Service would have the rights to the water. As much as the Hages and ranch hands tried to keep cattle from wandering onto the unfenced Meadow Canyon allotment, they couldn’t keep up. Thirty Forest Service riders, some armed with semiautomatic weapons, confiscated more than 100 cattle, selling them and keeping the profit. 

    Afraid that they’d lose more of their livelihood, Hage Sr. sold off the rest of the cattle and filed a takings claim in the U.S. Court of Federal Claims. “The most heartbreaking image I have from that period is of the two-foot-tall weeds growing in the corrals across from the ranch house,” Morrison wrote in Range Magazine. For the next two decades, two generations of Hages pitted themselves against the federal government in proving that they legally had pre-existing rights to water on the allotment, as well as the accompanying forage, easements, and improvements. They dug up a total of 501 ranch titles dating back to 1866.
    Once the court cases began, BLM filed felony charges against Hage Sr. for clearing brush that blocked the water flow in their ditch, refused to renew the his grazing permits and fined him for trespassing when he continued grazing, and even intimidated witnesses by writing up trespass fees. Every time judges sided with the ranching family, the federal government would appeal, dragging on the legal process. 

‘A lot of people … realized that even when you win in the federal courts … the bureaucrats are still going to disobey the federal court and do whatever they want to do.’ —Wayne Hage

    After the death of both Wayne and Jean Hage, the BLM and Forest Service sued the younger Hage and the family’s estate in 2007 over their trespassing cattle. In 2012, years after Morrison’s parents had passed away, Federal District Court Chief Judge Robert Jones found that grazing preference had due process rights, meaning the government couldn’t take away grazing permits or reduce livestock lower than historical numbers. He also declared that “the Forest Service first and then BLM entered into a conspiracy, a literal intentional conspiracy, to deprive the Hages of not only their permit grazing rights, for whatever reason, but also to deprive them of their vested property rights under the takings clause.” He referred two BLM and Forest Service officials to the U.S. attorney for consideration to be prosecuted for the conspiracy.
    Yet nothing has been done since, and the federal government has again appealed the decision in the 9th U.S. Circuit Court of Appeals. “A lot of people saw that and realized that even when you win in the federal courts, even when the federal court is on your side, the bureaucrats are still going to disobey the federal court and do whatever they want to do,” Hage said.
    IT’S THAT FEELING OF FRUSTRATION that led some to “pick up a rifle, load it with ammunition, and say ‘No more. We can’t do this anymore,’” Hage said. Last April, the nation stood transfixed as brash Nevada cattle rancher Cliven Bundy gathered up hundreds of supporters—some armed—to protest a federal cattle roundup at his ranch. Sen. Harry Reid, D-Nev., deemed them “domestic terrorists” while many conservatives considered Bundy a folk hero. The BLM ended up backing down and returning Bundy’s cattle without a shot fired, and Bundy’s popularity waned after making a racist comment.
    But the standoff was the result of a long battle that started when the United States declared the Mojave Desert tortoise an endangered species in 1989 and told Clark County ranchers to move their cattle off the land immediately. The ranchers hired attorney Karen Budd-Falen, who argued in court that the cows were not killing tortoises, and the judge ruled in their favor. Yet the next year when permits were renewed, the BLM again told the ranchers to leave. Another court case again sided with the ranchers, yet the BLM proved that they could issue the same decision year after year. 

    Clark County, which also wanted those same lands to expand Las Vegas, received a permit to develop on that land—which would inadvertently kill tortoises—as long as they paid $550 per acre to fund conservation efforts in another area. The county offered to buy the ranchers out, and about 50 ranchers left, leaving only Bundy to stand his ground and continue grazing without a permit. For the next two decades he ignored the trespass fines the BLM issued him, claiming the federal government did not have authority over the land, until he owed about $1 million and the agency tried to confiscate his cattle.

    “I can’t say I agree with the way Cliven handled it, and I don’t think what he did … was legal, but I totally get what drove him to do what he did,” said Budd-Falen, who herself is a fifth-generation rancher. “I totally get it. I think you’re going to see more of that because we’re not left with any choice.”

     Budd-Falen remembers growing up that when her father had a dispute with the BLM, the local official would come sit down at their kitchen table to discuss their options and come up with a solution. But now the decisions are made higher up on the ladder, with bureaucrats in Washington, D.C., determining what happens to a piece of land thousands of miles away. The other factor is national environmental groups that aim to rid the public land of livestock. On Western Watersheds Project’s website, it blames ranching for native species endangerment and desertification: “The time has come to end public lands ranching.”

    But Morrison argues that ranchers have the strongest economic incentive to take care of the land, to make sure cattle have enough feed to survive on the land for the next generation and maintain water sources for all wildlife. Without grazing, thick overgrown grass becomes kindle for dangerous wildfires and other species are affected. Morrison argues that what the ranchers are doing harkens back to one of the first roles given to man in Genesis—to subdue the earth. 

    States have also jumped in, passing laws that would transfer the control of some of the federal lands to the states. In 2012, state Rep. Ken Ivory of Utah helped pass a bill that would require the federal government to transfer the land to Utah by the end of this year. If the government doesn’t comply, which looks likely, the state plans to file a lawsuit. While previous attempts in land transfer have been shot down in the courts, Budd-Falen believes Ivory’s law could stand a chance constitutionally.

    Ivory bases his argument on the Doctrine of the Equality of States and claims that the Western states did not come into the union on an equal footing as states in the East since the government did not dispose of the land within their borders. Six other states—Arizona, Wyoming, New Mexico, Colorado, Nevada, and Idaho—have also pushed for the government to return millions of acres of public land. 
    Critics have questioned if the state could afford to take care of the land and fear state control would close the land to the public. But Ivory believes Utah would be more effective at managing the land since it wouldn’t need to get every move approved by Washington. He pointed to studies that showed that Washington state, which manages its forests, is 1,283 times more effective at generating revenue. He also suggested that even federal grants to the state could allow for more efficient management.
    As Hage prepares to wade through even more litigation, he doesn’t see the handover as the ultimate solution to his current ranching woes, but recognizes it’s a necessary step forward. “I think some states will be [better than the federal government], some states may not be. But the one thing we do know for sure is that the federal government agencies have lost the trust and respect of the citizens.”

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