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July 27, 2012
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Federal court overturns sagebrush rebel's lawsuit

The United States Court of Appeals for the Federal Circuit ruled Thursday on a decades-long legal battle over a takings claim that received national attention and was a cornerstone of the Sagebrush Rebellion states' rights movement.

The Federal Circuit vacated the Court of Federal Claims' award of monetary damages for a regulatory taking of water rights and compensation for range improvements in the case of The Estate of E. Wayne Hage v. United States, and reversed the finding that compensation was due for a temporary physical taking of water rights, in this 20-year-old case in which a rancher alleged a taking of his ranching operation by the government, based on the government's efforts to enforce land management statutes.

In its ruling, the Federal Circuit held that the Claims Court erred in holding that the Hages' regulatory takings claim was ripe, because the Hages failed to seek special use permits to maintain their irrigation ditches, and vacated the award of compensation for a regulatory taking. As to the physical takings claims based on fences erected by the government, the Federal Circuit reversed the award of compensation since some claims were time barred and for the other claims, pursuant to Nevada law, the rancher could only assert a taking of water that he could put to beneficial use. The Court found that the Hages had presented no evidence that the government took any water that he could have put to beneficial use. The Court further noted that "water rights do not include an attendant right to graze," citing the Circuit's earlier Colvin Cattle, 436 F.3d 803 (Fed. Cir. 2006) decision.

The Federal Circuit also vacated the award of statutory compensation for range improvements on ripeness grounds, because the Hages failed to satisfy the regulatory requirement that they first request compensation. Finally, the Federal Circuit affirmed the lower court finding that the Hages would not have been entitled to interest on the award for range improvements, rejecting the Hages' argument that the range improvements were taken under the Fifth Amendment.

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The Record Courier Updated Jul 30, 2012 11:47AM Published Jul 27, 2012 08:18PM Copyright 2012 The Record Courier. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.