Case Summary
Issue:
Whether federal agencies can alter the scope of a property interest granted by Congress by redefining the scope of the grant or imposing a permitting requirement on the exercise of the rights granted?
Plaintiffs:
Estate of E. Wayne Hage and Jean N. Hage
Defendant:
United States of America
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Case History
In addition to 7,000 acres of private land owned by the Pine Creek Ranch, established in 1865 and purchased by Wayne and Jean Hage in 1978, the Ranch includes rights-of-way, or easements on federal land to transport water for irrigation, as to which the Hages made significant expenditures to improve and maintain the rights-of-way, that is, rights under the Act of July 26, 1866.
The Hages and the Forest Service had a long history of disputes, which began when the Forest Service put non-indigenous elk on the Hages’ grazing area, which interfered with cattle grazing and consumed Hages’ water. Then the agency erected fences barring cattle from meadows and water sources.
The Forest Service harassed the Hages and treated them with hostility by sending 40 letters to them in one year and by visiting them 70 times over the same period. The Forest Service filed 22 charges against them, told them they could use only hand tools to maintain their 1866 Act ditches, and filed felony charges against Mr. Hage when he cleared trees that significantly reduced water flow to his pastures. His felony conviction was overturned.
The Court of Federal Claims held that the Forest Service caused both a physical taking and regulatory taking of the Hages’ property. The appeals court reversed holding the case not ripe. On January 17, 2013, the Estate filed a petition for writ of certiorari. At issue are whether interference with a water right is a taking per se and whether federal agencies may impose permitting requirements on a congressionally granted water right.
