United States v. Hage

UNITED STATES OF AMERICA, Plaintiff, v. WAYNE N. HAGE, Executor of the ESTATE OF E. WAYNE HAGE,and WAYNE N. HAGE, Individually, Defendants.

Case No.: 2:07-cv-01154-GMN-VCF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

February 27, 2017

ORDER

The United States Court of Appeals for the Ninth Circuit instructed this Court on remand to reconsider the government's trespass claims "under the correct legal standard." United States v. Estate of Hage, 810 F.3d 712, 721 (9th Cir. 2016), cert. denied, No. 15-1295 (U.S. Oct. 17, 2016). The Ninth Circuit further directed this Court on remand to "enter judgment for the government on all claims supported by the record . . . calculate appropriate damages, and . . . enter appropriate injunctive relief." Id.

Upon remand, the Court requested that the parties file briefing on three issues:

1. Whether the source of law—state or federal law—has any effect on the calculation of damages;

2. If so, whether state law or federal law governs the calculation of damages; and

3. The appropriate method to calculate damages owed to Plaintiff.

(Order on Mandate, ECF No. 452).

The parties filed their briefs in response to the Court's questions on May 31, 2016, (ECF Nos. 467, 468), and on June 2, 2016, (ECF No. 470). On June 23, 2016, the Court held a status conference at the Lloyd D. George U.S. Courthouse, Las Vegas, during which additional issuesidentified by the Court were addressed by counsel for the parties and by defendant, Wayne N. Hage, appearing pro se. Additionally, the Court reviewed the record in this case, including the transcripts and exhibits entered during a twenty-one-day trial held in 2012, and makes the following findings of fact, conclusions of law, and orders that judgment be entered in favor of the United States.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Mexico ceded the lands within the State of Nevada to the United States under the Treaty of Guadalupe-Hidalgo in 1848, 9 Stat. 922 (1848). Tr. 97: 15-101:13; Ex. 568; Ex. 577; see also United States v. California, 436 U.S. 32, 34 n.3 (1978); United States v. Gardner, 107 F.3d 1314, 1317 (9th Cir. 1997); United States v. Nye Cty, Nev., 920 F. Supp. 1108, 1110 (D. Nev. 1996).

2. There were no preexisting property owners in Nevada whose interests were recognized under the Treaty of Guadalupe-Hidalgo in 1848, 9 Stat. 922 (1848). Tr. 101:7-13, 102:15-104-18; Ex. 570.

3. The lands at issue in this case are "federal lands" located in Nye County, Nevada and such lands total approximately 707,613 acres. Tr. 111:13-125:23 (since 1848 the lands at issue have been federally owned except for patented in-holdings).

4. The Forest Service and Bureau of Land Management ("BLM") are the federal agencies that manage and administer the federal lands at issue in this case. These lands include the Meadow Canyon Cattle & Horse Allotment, the Table Mountain Cattle & Horse Allotment, the Monitor Valley East Allotment, and the Monitor Valley West Allotment on the Humboldt-Toiyabe National Forest ("Forest Service grazing allotments"), and the Ralston Grazing Allotment and the Monitor Grazing Allotment ("BLM grazing allotments").

5. Prior to the creation of the federal permitting systems for use of the federal lands at issue in this case, the United States simply acquiesced in the use of these federal lands forgrazing. See Hage, 810 F.3d at 716-17 ("Congress has not conferred upon citizens the right to graze stock upon the public lands. The Government has merely suffered the lands to be so used." (quoting Omaechevarria v. Idaho, 246 U.S. 343, 352 (1918) (internal quotation marks omitted) (citing Light v. United States, 220 U.S. 523, 535 (1911))).

6. The federal lands suffered from overgrazing, and conflicts regarding grazing on the federal lands were common in the late nineteenth century. See Tr. 1205:1-25, 1210:10-22, Tr. 184, Ex. 564; see also Pub. Lands Council v. Babbitt, 529 U.S. 728, 732 (2000).

7. Congress responded in the late nineteenth century to the overgrazing and hostilities that were escalating between competing users of the federal western lands by enacting laws to protect such lands from degradation and to regulate uses of those lands, including livestock grazing. See Tr. 549:13-25, 1248:11-16; see also Pub. Lands Council, 529 U.S. at 733. Congress directed the Secretaries of Agriculture (Forest Service) and Interior (BLM) to manage livestock grazing on federal lands, including the grazing allotments at issue in this case. See Organic Admin. Act of 1897, 30 Stat. 34, 16 U.S.C. § 473; Taylor Grazing Act of 1934, 43 U.S.C. §§ 315-315r; Granger-Thye Act of 1950, 64 Stat. 82, 88, 16 U.S.C. § 572; National Forest Management Act ("NFMA"), 16 U.S.C. §§ 1600-1687; Federal Land Policy and Management Act of 1976 ("FLPMA"), 90 Stat. 2743, 43 U.S.C. § 1752(a). "The Taylor Grazing Act authorized the Secretary of the Interior 'to issue or cause to be issued permits to graze livestock' pursuant to 'his rules and regulations.'" Hage, 810 F.3d at 717 (quoting 43 U.S.C. § 315b). "In 1950, Congress granted the same authority to the Secretary of Agriculture with respect to national forests." Id. (quoting 16 U.S.C. § 5801); see also United States v. Grimaud, 220 U.S. 506, 521 (1911) ("[T]he implied license under which the United States has suffered its public domain to be used as a pasture for sheep and cattle . . . was curtailed and qualified by Congress, to the extent that such privilege should not be exercised in contraventionof the rules and regulations" (citations omitted)); see also Light v. United States, 220 U.S. 523 (1911).

8. The federal lands managed by the Forest Service in Monitor Valley area became subject to federal permit requirements upon inclusion in the National Forest System in 1907. See Tr. 547:7-25, 552:17-25.

9. The federal lands managed by the BLM in the Battle Mountain District became subject to federal permit requirements after the Taylor Grazing Act was enacted in 1934 and with the creation of Nevada Grazing District No. 6 in 1951. See Tr. 1248:11-16.

10. Following promulgation of grazing regulations, the United States has required ranchers or owners of livestock to obtain grazing permits from the United States to graze livestock on these federal lands. See Tr. 549:13-25, 568:4-569:1.

11. No individuals have a right to graze livestock on the federal land at issue without authorization from the United States. Tr. 595:14-17, 1230:17-20. Any and all rights on federal property must be expressly granted by Congress and the law of the United States exclusively governs the disposition of federal property, and interests therein, under the United States Constitution, Article IV. See Utah Power & Light Co. v. United States, 243 U.S. 389, 404 (1917).

12. It was customary in Nevada for users of federal lands to comply with the regulations and obtain grazing permits when required to do so. See, e.g., Tr. 2966:20-2968:1.

13. For both the National Forest System lands and the public lands administered by the BLM, the first permits were issued according to a system that gave priority to those who held private property interests in proximity to the federal lands and who had previously grazed the federal lands. See Tr. 546:1-550:9, 664:17-669:9; see also Ex. 1163 at Bates No. US021122 ("Stock of all kinds will receive preference in the following order . . . "); Ex. 596 atBates No. US016200 (Regulation 11, USDA, U.S. Forest Service, Use of the National Forest Reserves, 1905); Ex. 1217; Ex. 607 at Bates No. US016526.

14. Prior owners of the Pine Creek Ranch who sold the Ranch to the Hage family in 1978, held federal grazing permits for the lands at issue in this case and also were authorized to place or construct range improvements such as fences and pipelines on these federal lands. Tr. 3431:22-24; Exs. 56, 75, 76, 666.

15. Until the mid-1990s, E. Wayne Hage and his wife Jean N. Hage held federal grazing permits for the lands at issue and, like their predecessors, were authorized to place or construct certain range improvements. Those permits were either cancelled or expired on their own terms, and were not renewed. Tr. 902:12-904:2, 957:16-24, 1665; Exs. 351, 576; see also Hage, 810 F.3d. at 715.

16. Defendant Estate of E. Wayne Hage has never held any grazing permits or other federal authorization for livestock grazing, nor authorization for range improvements, on the federal lands at issue in this case. Tr. 902:12-904:2, 957:16-24, 1665; Exs. 351, 576.

17. Defendant Wayne N. Hage has never held any grazing permits or other federal authorization for livestock grazing, nor authorization for range improvements, on the federal lands at issue in this case. Tr. 3271:4-12; see also Hage, 810 F.3d. at 715.

18. Despite his lack of authorization to do so, Defendant Wayne N. Hage has placed livestock on the federal grazing allotments at issue in this case since at least 2004. See ¶¶ 19-28 infra; see also Hage, 810 F.3d. at 718.

19. Employees of the Forest Service observed and documented cattle bearing brands registered in Nevada to Defendants grazing on the Meadow Canyon Allotment from at least 2004 through 2011 although neither Defendant held a permit authorizing that use. Tr. 811:8-815:18, 816:13-823:24, 827:23-831:7, 834:11-849:5, 972:17-973:6, 1066:17-24, 1281:8-1285:19, 1285:20-1326:21, 1375:4-1382:18-1407:25, 1429:4-1432:3, 1432:4-1443:21; Exs.22, 23A, 109, 110, 112-14, 116, 353-55, 368-373, 681, 874, 1242, 1243, 1244. 20. Employees of the BLM observed and documented cattle bearing brands registered in Nevada to Defendants grazing on the Ralston and Monitor Allotments from at least 2004 through 2011, although neither Defendant held a permit authorizing that use. Tr. 1478:17-1479:5, 1575:14-1576:9, 1586:8-13; Exs. 19, 21, 23A, 24, 26-28, 101, 103, 104, 105, 107, 108, 155, 163A, 164A, 164B, 164C, 241, 296, 313, 392A, 398, 407, 413, 419, 422, 479A, 483A, 497, 498, 500, 501, 503, 504, 505, 506, 507, 511A, 512, 513, 703, 707, 894, 902, 1248.

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