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Hage v. United States, Takings and Liability Trial, Days 13 - 15

May 19, 2004
Reported by Margaret Byfield, Executive Director

Day Thirteen

Mike Van Zandt began the cross-examination of Wallie Hajj today, the government’s
water expert. Because several of the government’s witnesses relied on the conclusions of
Hajj’s report for their own studies, such as the upcoming appraiser, it was critical to the
government’s case that Hajj remain credible before the court. However, by the time Van
Zandt finished with this witness, his credibility was clearly in question. Each line was a
slow but sure unraveling of this witnesses report, expertise and conclusions.

Van Zandt began questioning Hajj as to why he determined there was less water available
to sell than the State of Nevada Water Engineer concluded and than the Nevada District
Court upheld when it issued a final Decree earlier this year. Hajj had many answers. It
became clear that he simply disagreed with the highest authority on water in the State of
Nevada. One of the first reasons he gave for determining the lesser amount was that he
did not believe all of the acreage had been historically irrigated as the State Engineer
determined.

Another reason he gave was that in a change case you would use the consumptive use
figure instead of the water duty. He explained that for agriculture use, the state looks at
beneficial use to determine the water duty, but that it would be different in a change case.
Van Zandt asked if one of the reasons you use consumptive use is to protect the down
stream users. Hajj said yes. Van Zandt asked, how many downstream users there were
in the Monitor Valley where these waters drain. Hajj said 20-30.

At this point, supporters of the plaintiffs were notably surprised. Pine Creek Ranch is the
only downstream user of the water. Van Zandt asked Hajj to point these 20 to 30 users
out on the map. Hajj seemed happy to oblige and began looking through the Decree to
help him locate these other users. Standing in front of the map, he studied it up and
down, then thumbed back through the decree, then studied the map a bit more. Van Zandt
asked isn’t it true these waters flow out of the mountain and drain into Scuffy’s lake?
“Yes,” Hajj agreed, but then went on to explain he knows there are down stream users
and that the BLM has a water right somewhere. Not willing to give up, Hajj continued to
scan the map. After several minutes Van Zandt broke the silence and said, “maybe we
should move on Mr. Hajj.”

Van Zandt then began questioning Hajj on his understanding of consumptive use in
Nevada water law. Hajj said consumptive use is the standard used in change cases and
that he knows the State Engineer would not permit a change of use based on beneficial
use. He explained that after consulting with Mr. Buschelman, the Nevada water law
expert up next to testify, he was certain the state would not permit more than
consumptive use in a change case.

So Mike began asking questions about specific Nevada water decrees where water rights
had been changed from agriculture use to quasi-munincipal use. He began with the Ore
Ditch Decree. “Would it surprise you that in this decree there is no limitation to the
beneficial use?” Hajj replied, “That would surprise me … that is a miss characterization
of what the State Engineer does.” Van Zandt asked, “But you haven’t read the decree.”

Hajj said no, but that he had talked with the state engineers office and they never decide
the full water duty.

Van Zandt asked about another decree, but this time opposing counsel objected claiming
it was a unique situation, which the witness should not have to testify on. The Judge
overruled the objection saying that he had heard the witness say that beneficial use
always equals consumptive use, and that counsel is allowed to challenge whether that is a
correct statement. Van Zandt asked about several more Nevada water decrees where the
full water duty was awarded, all of which Hajj was not familiar with and all of which
Hajj indicated that he could not believe the State Engineer would make the decision as
counsel was characterizing.

Then Van Zandt asked a very simple question. If you were going to buy Pine Creek
Ranch, wouldn’t you buy all the water decreed? Hajj agreed. Van Zandt also asked if a
buyer was to purchase the water to pipe to a city, wouldn’t they collect the water at the
point of diversion and not at the irrigated fields. Hajj said they probably would but you
still would not be able to pipe the full water duty. Van Zandt continued, “But we both
agree, you can take up to the amount decreed subject to availability?” Hajj said “yes.”
But he further explained that if you take the full amount of water at the diversion it is an
enlargement of the right.

“How many transfers of water have you looked at in Nevada,” asked Van Zandt. Hajj
recalled one but said he had many discussions with Mr. Bushnell. “Mr. Hajj, transfer of
water in Nevada is not your area of expertise is it,” asked Van Zandt. Hajj said it was not
but explained that Nevada and Colorado water law was very similar.

Mike was also interested in Hajj’s understanding of stream flow as an expert in
Hydrology. He asked if there were pinion and juniper and other vegetation grown up in
the stream, would that inhibit the flow? Hajj said yes but that precipitation would make
up for that. So Mike asked if you cleared the vegetation by prescribed burning, would
flow increase? Hajj gave another “yes if, no if,” answer. He said it would have pluses
and minuses but generally it would improve flow.

Finally, in his last line of questions, Mike asked, “Isn’t it true much of the opinions
you’ve given are based on Colorado law and not Nevada law?” Hajj said, “Not at all.”

“And you stand by that,” followed Van Zandt. “Well of course … all of these issues of
availability, water flow, consumptive use are all the same.”
The government had no re-direct.

Next up for the government was Michael Buschelman, admitted as an expert in water
rights and water value. Buschelman had spent his professional career working in the
State Water Engineer’s office before going into private practice. He was hired in this
case to determine if the Pine Creek Ranch water could be transferred from agriculture use
to quasi-municipal use. He concluded that it would not be feasible to do this primarily
because of the location of the property.

Both direct and cross-examination were relatively short for this witness. On cross, Van
Zandt asked how far the Hot Creek basin was from Pine Creek Ranch. This is an area
where Buschelman had testified that he worked while he was with the Las Vegas Water
authority to change the use from agriculture to quasi-municipal. Buschelman guessed
Hot Creek was possibly 25 to 30 miles from Monitor Valley.

Van Zandt also followed up with this witness on how change of use applications were
made in Nevada. He presented three applications that Buschelman himself had made on
behalf of his clients. Van Zandt asked a few questions on each, but primarily wanted to
know the amount of water duty that was applied for on the applications. For all of these
the full water duty had been applied for.

Judge Smith also had a question of the witness. He asked if a rancher decided to graze
wild fowl on his grazing allotment instead of cattle, would the water right have to be
changed? Buschelman said yes, because water fowl are not considered domestic
livestock.

On re-direct, counsel asked if the full water duty is always given in a change of use case.
Buschelman said no.

The final witness for the day would prove to be the most grueling for spectators. Dr.
David M. Merritt, an environmental scientist employed by the US Forest Service was
brought in to explain how willow growth had not been increasing as plaintiff’s had
alleged and that plaintiff’s witnesses had exaggerated the stream flows. Using lofty,
scientific terms, he began explaining how his study of the willow growth proves there has
been no encroachment. With almost every answer he claimed plaintiff’s experts in this
area used faulty methods, and exaggerated their findings to achieve their pre-determined
conclusions.

Before his testimony began, Van Zandt questioned his expertise as a Hydrologists. He
also asked that Merritt only testify to those chapters in his report that he wrote. Merritt
and another Forest Service employee, Dr. Schmidt, wrote the report on willow growth he
presented. The court did not qualify the witness as an expert in hydrology, and also
agreed that he could only testify on those portions he wrote.

Merritt began his testimony explaining he and Dr. Schmidt visited the ranch three times
in 2003. They were asked to analyze plaintiff’s expert report by Western Resource
Development where it had been determined that willow growth and other factors had
caused many of the streams flows to stop before they reached the Pine Creek Ranch
meadows. They determined that there were “no significant trends” in stream flow loss
between 1978 and 2003. In fact they determined there was increased stream flow.
Dr. Merritt’s riveting testimony would continue tomorrow.

Hage v. United States
Takings and Liability Trial

May 20, 2004

Reported by Margaret Byfield, Executive Director

Day Fourteen

Direct of Dr. Merritt continued today. It was the longest day of trial yet. Listening to a
man who insisted on being called “Doctor” explain in scientific terms how willow had
not encroached on Hage’s streams, and how stream flow had not decreased over the
recent period, proved to be an exercise in patience. It seemed the government brought in
this witness hoping his use of scientific language would explain away what was clearly
apparent . . . that years of not being allowed to perform routine ditch maintenance
coupled with the Forest Service agenda to allow invasive species encroachment, had
resulted in Hage’s hay meadows drying up. As Dr. Tony Lesperance previously testified,
anyone can look at the creeks and see what has happened.

Although Merritt tried to maintain the image of an unbiased scientist, his intentions
became increasingly obvious. At one point, as he was describing items in an aerial photo
attempting to show that plaintiff’s expert’s had falsely claimed excessive willow growth,
the Judge asked for clarification. Judge Smith pointed to a barren area in the valley and
asked Merritt what it was. Merritt answered that it was most likely an area over-grazed
by cattle. In the high deserts of central Nevada, a barren area such as that illustrated is a
common site, and not the cause of cattle, but a result of the limited water this area
receives. Dr. Merritt mistakenly believed the Judge presiding over this case would not
understand such logic.

After laboriously explaining his method of analyzing stream flow data, precipitation,
temperature, evapotranspiration , and other necessary components to determine whether
or not willow growth had increased, Merritt concluded that the plaintiff’s expert report
was a disappointment. They had rounded up numbers, broadened the growing season,
and made other considerable errors. He believed that had they conducted their study
properly, they would have also concluded that stream flows had actually increased.
Cross-examination was certainly more interesting. Mike Van Zandt began by asking
Merritt a series of questions on the information he gathered during his visits to Pine
Creek Ranch. An agitated Dr. Merritt, presumably because he was being questioned,
explained that he relied on plaintiff’s expert data for his analysis.

Van Zandt asked, “You have not done any on the ground investigation of willow
growth?” Merritt explained that he went to the valleys, each of the creeks, looked at the
riparian areas and saw young willows and old willows. “But you didn’t quantify on the
ground, the amount of willow?” Van Zandt insisted. Merritt replied that this was outside
the scope of what he had been asked to do. Van Zandt questioned, “So you didn’t do an
independent investigation?” Merritt said that if he and his partner, Dr. Schmidt, had seen
a decrease in stream flow they might have taken the next step but since they had not, they
determined that such an investigation was not necessary. “Did you do any stream flow
analysis?” asked Mike. “I did not,” Merritt answered.

In another interesting line of questioning, Van Zandt asked about a series of photos the
plaintiff’s expert had provided to Merritt for his analysis. “What steps had they taken to
verify what they saw in the photos?” Van Zandt asked. Merritt answered that his partner
had ground-truthed the photos. “When was that,” Van Zandt asked? “In May,” Merritt
answered. “And when did you receive the photos,” Van Zandt continued. Merritt
responded, “In July.”

Van Zandt switched to Merritt’s previous testimony claiming plaintiff’s experts used
faulty methods when comparing aerial photos showing willow growth on the streams in
1993 to photos taken in 2003. He testified that plaintiffs had drawn tight lines around the
growth in the 1993 photos and simply widened those lines in the 2003 photos, therefore
concluding there had been an increase. Van Zandt asked, “You didn’t analyze all the
photos?” Merritt answered, “That is correct.” Van Zandt then asked, “You analyzed
about 5% of the work they did?” Merritt said he could not give an exact figure; simply
that they had sub-sampled some of the work they did.

Van Zandt continued his line of questioning and revealed that Merritt and his partner did
not conduct any field studies of their own, did not even mention the many beaver ponds
that were also blocking water flow nor did they measure any of the stream flows
themselves. Merritt and his partner simply tried to use scientific language to get the court
to believe the eye was lying. Willows have indeed increased in the riparian areas,
blocking the amount of water that reaches Hage’s meadows. Not allowing the control of
invasive species has led to the taking of Hage’s water. It did not take a PhD to see that.
Next up was Paul Meiling, the government’s appraiser. Meiling testified that the highest
and best use of the ranch was for agriculture. He also stated that he believed the
plaintiff’s appraiser had overstated the animal units the ranch could run and the resulting
appraisal was much higher than it should have been. He criticized Dr. McIntosh’s
method of determining a value for each of the five property components of the ranch.
Doing it this way overstates the value, he testified.

It was not surprising that Meiling’s appraisal of the ranch was significantly lower than
what plaintiff’s had introduced. Meiling used several methods to determine the value of
the ranch. One approach was to appraise the amount of water determined to be available
by the government’s water expert, Walie Hajj, instead of the full water right decreed to
the ranch by the state of Nevada. Another approach Meiling used was to calculate the
number of animal units that the 100 foot ditch easements would carry. He determined
this figure to be 20 animal units.

Tomorrow, Meiling would be cross examined, and the rebuttal witnesses would be called
back to the stand for the last day of trail.

 

www.stewards.us

 

Hage v. United States

Takings and Liability Trial

 

May 21, 2004

 

By Margaret Byfield

 

Day Fifteen

 

Cross Examination of Paul Meiling

 

Mike Van Zandt spent several hours cross examining Paul Meiling, who testified the day before that the value of Pine Creek Ranch was significantly lower than what plaintiff’s appraisers had determined. Meiling was relying on the reports of Walie Hajj, a witness who had already been discredited on the stand.

 

Van Zandt began by asking Meiling how many government appraisals he had performed over his career. Meiling was unable to quantify exactly how many but explained he spent many years as a staff appraiser for the government and currently about half of his work is government contracts.

 

Meiling explained that he had only been to Pine Creek Ranch in 2003 and had never seen the ranch in operation. His appraisal was based on a low carrying capacity of animal units.

 

Plaintiff’s expert, Duane Webb, had determined that the ranch could carry 2900 animal units, the total number that had been allotted to the ranch by the Forest Service and Bureau of Land Management. Meiling used a reduced number and criticized Webb for including those animal units that had been suspended. Van Zandt questioned why he had not included the suspended units. “So you were told by the BLM that these suspended aum’s would not be available?”

 

Meiling answered, “That is correct.”

 

Van Zandt questioned whether Meiling had conducted an independent assessment of the carrying capacity. Meiling assured him that he did, and testified that he looked at the permitted numbers, talked to the BLM and reviewed other standard information to make his determination. After a few more questions, Van Zandt asked if he included the hay available from the private land in his carrying capacity estimate. Meiling had to answer that he did not know and admitted that Dr. Anderson had done the carrying capacity estimate.

Now that it was clear Meiling valued the ranch according to the animal units determined

available by the Forest Service expert, Van Zandt walked through the calculations of adding to Meiling’s number the additional animal units that could be carried from the hay production on the meadows. He concluded that a total of 2975 animal units would be available. Meiling said, “That is correct.” Van Zandt followed, “and Mr. Webb found 2901 units were available?”

 

Meiling said he understood that math, but did not subscribe to that conclusion.

Van Zandt then began a line of questioning on how Meiling determined the value of the water.

 

He asked if he understood that the decreed amount of water to the ranch was 17,000 acre feet. Meiling said he did. He asked if Meiling had used Mr. Hajj’s figure of 3300 acre feet in his calculations. Meiling said he had, in order to determine the value of the water should it be transferred to another use, however if the water were to remain in agriculture use, the total would be 7000 acre feet. So Van Zandt asked, “Is it your experience that a buyer would only purchase the consumptive use or would they purchase the decreed amount?” Meiling said they would certainly buy the decreed amount, but the question would be how much of that they would be able to use.

 

Van Zandt continued by discussing Mr. Hajj’s report, which alleges there is 10,386 acre feet available at the point of diversion. He asked if one wouldn’t at least value this amount? Meiling explained that he would look at the amount of water that was actually delivered to the farm. Van Zandt followed, “Wouldn’t you most likely transfer the water at the point of diversion and not the field?” Meiling said a buyer would consider the amount of water consumed. Van Zandt continued, “Does the owner of the water rights own the amount of water available at the point of diversion?” Meiling agreed testifying, “He owns the water at the point of diversion.” “He can take up to that amount decreed?” asked Van Zandt? “Yes, but there are always the ‘what ifs’,” Meiling replied.

 

After a short break, Van Zandt asked why he had not included the neighboring ranch, which had been sold twice since 1988 and was a similar operation, in his comparable sales analysis.

 

Meiling said he did not know. This ranch sale was in his database, but was not used as a

comparable. Judge Smith asked if the litigation that occurred on this ranch, which was filed after the Hage case and settled shortly thereafter, had impacted the value of that ranch. Meiling turned to the judge and said he didn’t know and that Smith had told him more about that ranch than he was previously aware of. Van Zandt followed this by asking if the value of a ranch would be affected if that ranch was involved in litigation that affected the animal units. Meiling danced around his answer, never offering a clear one. He testified that it was a condemnation case, then yes, it would, but he didn’t really know if the described litigation would have an effect on the value of the ranch.

 

Van Zandt turned to the appraisal Meiling did where he considered the property value without any grazing permits. He asked if he made an independent decision to value the ranch without the permits. Meiling said, “Oh no, I was instructed to do that.” Van Zandt asked how he treated the water that was not on the private lands in determining the value. Meiling said all the rights were rolled up into the value of the private lands and its carrying capacity of 380 animal units. Van Zandt asked, “Wouldn’t that mean the stock water off the private lands were not considered?”

 

“Indeed,” said Meiling. “That is a serious problem in making this determination.” He explained that it is a bit of a challenge when you have stock water off private land, and can’t access those waters because you don’t have the permits.

 

Van Zandt continued, “Because of the premise given to you to value this ranch, you had to assume some of the rights were not usable.” Meiling said he thought a prospective buyer would look at the rights and realize they would have the legal right to drink the water but would not have the ability to access those rights. Then he turned to the Judge and said, “What I don’t understand, Your Honor, is what the rights are on the public lands that go along with the ranch that belongs to the Hages.

 

Alf Brant asked a few more questions on re-direct followed by more questions from Van Zandt.

 

After lunch the court began hearing from plaintiff’s rebuttal witnesses.

 

When court resumed after lunch, as usual, Judge Smith began the proceeding with a humorous anecdote. Today, Judge Smith offered a joke. He said that there was a successful attorney who died, and when he reached heaven he was greeted with a parade and unbelievable fanfare.  Shocked, he asked Saint Peter why there was such a celebration for him and was told because at 815 years old, he was the oldest attorney to make it to heaven. The attorney quickly corrected the record and said he was only 72. Saint Peter said, not according to your billing records.

 

Rebuttal Witness, Clare Mahannah

 

Plaintiffs called two rebuttal witnesses before concluding the trial. The first was Clare

Mahannah with Western Resource Development, the organization that compiled the water report that several of the government’s witnesses attempted to discredit. Van Zandt began his questions by asking Mahannah how he would characterize the report offered by the government’s water expert, Walie Hajj. Hajj had concluded there was only 3300 acre feet of water available to transfer instead of the 17,000 acre feet the state of Nevada decreed to the ranch. Mahannah stated, “He attempted to re-adjudicate the stream system.”

 

He went on to say that Mr. Hajj’s approach was unorthodox for the conditions present on Pine Creek Ranch, specifically when he claimed there were 20-30 down stream users, when there were clearly none. “How many years of experience do you have in Nevada water law?” asked Van Zandt. “Over 40 years,” Mahannah answered. “How much water would be allowed to be transferred by the state engineer?” Van Zandt continued. “He would allow all of it,” stated Mahannah. Van Zandt then asked, “Who is beneficially using the water today?” Mahannah testified that the ranch was using a small amount

of the decreed water, but the Forest Service was beneficially using most of the water. The water was not making it out of the National Forest because of the blocked streams.

 

Rebuttal Witness, Wayne Hage

 

Wayne Hage was recalled to the stand. His rebuttal testimony made a powerful statement to the court as he refuted previous testimony and helped tie together the how and why the federal agencies ran him out of business. Van Zandt began by stating that throughout trial the Forest Service claimed they bent over backwards to cooperate, but Hage was insistent on doing things his way. He asked Hage to describe what happened when Mr. David Grider arrived on the scene as the district ranger.

 

Wayne explained that he had a good relationship with the previous district ranger, Guy Pence. He talked about a few of the many management solutions they agreed on which allowed the cattle to graze in a manner more fitting to the range. “Bottom line is we were able to run the ranch with less interference.” Then, Hage explained, they received a copy of the new Toyiabe Management Plan that was issued in 1986. It was a complete change in philosophy and unreasonable for a livestock operation. One of the new rules was changing the allowable utilization of the forage to a level that would have been met within the first two weeks of grazing.

 

He explained that when the Forest Service was created, they were there to serve the livestock community, and provided a useful function. Ranchers paid a fee for that service. But the focus of this new plan was on recreation and wildlife. Ranchers were told that livestock grazing was going to be eliminated.

 

Van Zandt asked if there was any mention of wilderness study areas. Hage said that at the time this plan came in, he learned that a study area had been designated on one of his allotments, but it was done very quietly. Later there was a congressional committee hearing conducted in the area but no one even knew where the boundaries were. Van Zandt asked what the impact was of that study area on the ranch. Hage explained that he wasn’t impacted until they started enforcing the regulations. “When the new plan came out, and Mr. Grider began enforcing these rules, we realized they were intent on creating a wilderness and driving livestock users out.”

 

Van Zandt then asked Hage a series of questions about how the specific goals of the new plan affected his ranching operation. He began by asking if Hage had any experience with the Forest Service pursuing the stated goal that water rights would be acquired as necessary for management of the National Forest. Hage said he did. The Forest Service had already filed claims over several of his water rights, but with the new plan in place, their efforts had intensified. The plan specifically instructed the Forest Service to process 32 claims for water rights in one area, and 46 claims in another. They did pursue those claims, Hage testified.

Van Zandt asked about the plan’s goal that all riparian areas be enhanced. Hage explained that in order to accomplish their mission, the Forest Service allowed beaver dams and vegetation encroachments that essentially blocked the water from getting to Hage’s meadows. But, he continued, they did accomplish their goal. The riparian zones were enhanced.

 

Van Zandt then asked him if there was mention of livestock grazing in the plan. Hage replied that very little mention was made. Van Zandt read one section of the plan that pertained to livestock. That section stated that compatibility of livestock production and other resources will be emphasized. Hage responded that he had definitely seen the other uses being emphasized. “I don’t know what their idea of compatibility was. They drove us off the allotments.”

 

Van Zandt asked if there was any specific mention of Hage’s livestock operation in the plan.  Hage said he hadn’t seen any. But, he did point out that one of the few mentions the plan made to livestock was to design the grazing system to work with recreation.

 

Van Zandt then asked Hage to explain to the court the nature of a livestock operation. Hage began by saying cattle are looking for feed, water, and a place to breed and calve. The whole purpose of a cattle operation was to allow them to do this. You want to manage them as little as possible so that you put the least amount of stress on them. Historically, the way native range cattle live, a calf raised in the mountains will return to that same place the following year, next to the same spring where she was raised, to have her calf. Because of this instinct, cattle naturally distribute themselves in the most effective manner. Historically, the cattle were not counted until the fall time, usually after the weather drove them out of the mountains. In those days the Forest Service understood how cattle operate.

 

Van Zandt questioned Hage on Grider’s testimony that the Meadow Canyon allotment needed to be rested for five years. He asked Hage to identify a photo that he presented to the court. Hage explained that this was the area in Corcoran Canyon that the Forest Service Range Conservationist, Al Winward, had described as a “dust bowl” a year earlier. Grider testified that he had relied on Winward’s conclusions to validate the decision he had already made to rest the allotment. The photo showed Forest Service employee David Stewart, Nevada Cattlemen’s president at the time, Jim Connely, and Al Winward. They were standing knee high in lush green grass. Hage said on this field hearing he asked Winward to explain what was wrong with the resources. He had no comment.

 

Then Van Zandt moved on to the issue of fence maintenance where previous witnesses had claimed Hage was not conducting proper maintenance. Hage recalled several instances regarding conflicts over the fences. He said in 1983, the Forest Service conducted some prescribed burns and in the process burnt up one of his drift fences. They told him since they burnt it down they would fix it. They never fixed the fence, but in one summer they sent Hage up there nine times to clean out the canyon or he would be cited with trespass. Hage then asked if he could put in a new drift fence, lower in the canyon to solve the problem. They agreed to this. When Grider came in, he began requiring Hage to maintain the fence the Forest Service had burnt up. Judge Smith asked how Hage had responded to Grider. Hage said, “I would usually talk to the range conservationist Grider sent out and explain to him that we needed to make up our minds which fence we should maintain and which to tear out.”

 

Judge Smith asked what Mr. Grider’s response to this was. Hage said, “Well, I’d get sent up there again the next year.”

 

Van Zandt asked if he had ever refused to do fence maintenance. Hage said yes. He recalled several stories. One was over a fence on Table Mountain where he had been noticed for failure to maintain his fences. Hage described how he and his crew packed fencing equipment up the mountain only to find all of their fence maintenance was done, but the neighbor’s portion was lying down. “I refused to maintain the neighbor’s fence.”

 

He then told of a similar instance on another portion of the ranch. Finally, he told the court how he was cited for leaving trash on the ridge between Bucks canyon and Pasco creek. The Forest Service had built some new fences there, and when Hage went up to see what the problem was, the trash they were talking about was the remainder of their fencing materials. “They wanted me to go up there and pack that off for them,” Hage explained. “What was the Forest Service’s response to your refusal?” Van Zandt asked. “They said I was uncooperative,” Hage answered.

 

Van Zandt moved to the testimony given on the carrying capacity of the ranch and the issue of the suspended aum’s that occurred before Hage purchased the ranch. Hage explained, “When I bought the ranch I bought the full carrying capacity. The permit is something that you are forced to take, kind of like you either sign these or we will break both knee caps. Or as one Forest Service official said, either I sign those permits or they would run me off. So I signed them because I didn’t want those kinds of fights.” But he explained that he believed he could manage the range in a way that would reinstate the animal units that had been suspended.

 

Van Zandt turned to the issue of Hage’s water and whether or not it could be transferred to quasimunicipal use. The government’s testimony was that the Las Vegas Water Authority was not interested in the area of Nye County where Pine Creek Ranch was located. Van Zandt asked if Hage had ever explored this option to transfer his water. He said yes, the Las Vegas authority had held two public hearings in the Tonopah area exploring options for purchasing water rights.

 

After this case was filed, he attempted to meet with them, but they refused explaining that the Forest Service also claimed they owned the water and they would not consider a proposal until the cloud of title had been cleared.

 

Van Zandt asked about the circumstances that led to the story Mr. Fisher had told about campers complaining Hage had chased them out of a camp ground. Hage explained that the couple was camped on 40 acres owned by Lorna Arcularius, below the Pine Creek campground. He was deputized by the Nye County Sheriff to help keep an eye on the vandalism that was happening, usually by environmentalists and federal agents, he added.

 

One his duties was to keep people from camping in those 40 acres. Hage said that most of the time, people who camped there did not realize it was private land and were very cooperative. In this case, the woman came out of the camper in her underwear, noticeably drunk, and refused to leave. Hage called the Sheriff who came out and forced them off the property. The Sheriff was upset with Hage for not making the arrest himself.

 

Van Zandt asked Hage to describe the result of the Forest Service’s final actions to cancel and suspend his grazing allotments. Hage explained that with all of the summer allotments unusable and with several appeals pending, he had nowhere to go with his cattle. In 1990, he sold a lot of his light calves along with the heavy calves. “This brought my weaning weight way down as Mr. Tanaka pointed out. I agree with him,” Hage continued, “my weaning weights were way down.”

 

He was also using his private meadows to hold the cattle, using up the feed he would normally harvest. “It was a downward spiral. You go to your banker and they have to pull your loan. I don’t blame them. I’d do the same thing.”

 

Then Van Zandt asked if Hage could give an account of his current family condition. The

government objected, however, Judge Smith said since this was a bench trial, he would allow the testimony. Turning to look at the Judge, Hage spoke. “Thirteen years ago, the BLM and Forest Service broke us. We knew we owned this ranch. I also knew that if I died tomorrow, the IRS would come and place an inheritance tax on my children and tax my fee lands. But after the litigation, we couldn’t sell anything.”

 

He told of how he tried to lease his private meadows, only to be met with more harassment. The BLM said the pastures were not fenced according to the survey. Then every year, he received less and less water, and each year more of his hay meadows were drying up. But then, the court handed down its order saying that he had some rights out there on those federal lands. “So, I thought they should at least begin to let us make a living.” Instead, the harassment just got worse. Hage explained how the Forest Service began trespassing him every chance they could, even for a dumpsite that had been in existence since the late 1800’s. He said they continue to harass him, continue to infringe on his rights and continue their campaign to get him off his land.

 

“Then right here in this court we heard one of the BLM agents talk about how he loves his job. I’m sure he does,” Hage said.

 

“We need a resolution. I don’t know what this court can do, but we need to get them off our backs. Right now we are using our water and forage that this court has said we own, and the BLM is threatening federal action on us for using those rights. We need relief until the court makes a decision on whether they should pay for this.”

 

With that said, the court took a short recess as the government prepared their final questions for Hage. After thirteen years of fighting, a tremendous weight lifted from the shoulders of this remarkable man.

 

Cross of Wayne Hage’s Rebuttal Testimony

 

David Spohr was assigned the task of cross examining Hage instead of the lead attorney,

Dorothy Burakreis. Spohr began by explaining that there was so much in Hage’s rebuttal,

including now charges of vandalism, that it was difficult to cover it all. But when his questions came, they only provided Hage with additional opportunity to expand on events that shed even more unfavorable light on the government.

 

Spohr asked about Hage’s charge that Ted Angle, the BLM area manager, was sent in to

eliminate the Stewardship program Hage was in. “You said Mr. Angle was sent in to destroy the stewardship program,” Spohr stated. “That is correct,” Hage answered. “And you said that was because you published a book,” continued Spohr. “Yes, and do you want to know why?” Hage asked. “Go ahead Mr. Hage,” Spohr responded. Hage then gave a detailed explanation about how the previous area manager, Jim Nelson’s, deposition states that Angle was brought in to punish Hage for publishing the book Storm Over Rangelands.

 

Spohr took another shot at trying paint Hage as a bad rancher. “But you had problems long before that with the Forest Service and BLM.” “Yes,” answered Hage, “and do you want to hear about that?” Not knowing when it was best to say no, Spohr allowed Hage to answer. He told about how they had created 22 charges against him because he had talked with the Forest Service internal investigator, who was investigating charges brought by a neighboring rancher who was also being run out of business.

 

Hage went through a lengthy explanation of how the investigator attempted to meet with Hage but Hage was reluctant to do so, because he expected the Forest Service and BLM would retaliate with more charges. But he was assured by the investigator that they wouldn’t find out.  He went to the investigator’s hotel and entered using the back door. In that meeting he was informed that everything that had been alleged against the Forest Service was true, but that Hage didn’t know the half of it. It wasn’t long before it was evident that the Forest Service found out Hage had talked with the investigator because he faced an onslaught of new charges.

 

Spohr tried to set up a few more questions designed to make the government look good, but was met each time with, “and would you like to hear more?” from Hage. Cross examination turned out to be fairly short, as Spohr eventually realized Hage had a lot more to say, and it would better for their case if he didn’t give him the chance.

 

Appropriately, Hage had the first and last word in the trial he and many of America’s landowners had been waiting thirteen years to present.

 

 

Judge Loren Smith’s Comments

 

The Judge concluded trial by explaining that between now and October he would like counsel to complete the post trial briefings. He asked for a status conference June 4th to discuss the briefing schedule. He also said that he had taken 94 pages of notes over three weeks and would compile a list of issues he believes counsel should focus on to help the courts understanding of the issues.

 

Closing arguments will be scheduled for October and will again be held in Reno, Nevada. Judge Smith further stated they would be searching for a larger courtroom to accommodate the public interest in the case.

 

He thanked both sides for presenting well prepared cases and discussed the importance of doing so, especially when it involves emotional issues. Importantly, he noted, the discussions before him were fundamental questions that go to the nature of liberty.

And with that, the trial ended. The primary evidence was in and the truth proved powerful.

 

Hage told his story and the court listened. Wayne Hage is just one man but his war is about every American’s constitutional right. It is about the fundamental issue of taking without compensation being wrong. Period. Even when powerful government entities team up to intimidate, harass and steal what is rightfully yours, it is still wrong. Wayne Hage knew the battle would be long and tough but he also knew it had to be done. Justice is worth the fight. It’s what this country was founded on. And fortunately for all of us, Wayne Hage decided to fight for justice.

 

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