Real Estate & Property Law

9th Circuit blasts judge who ruled for rancher, boots him from grazing-rights case

  • Print.

A federal appeals court not only vacated and reversed portions of a judgment in a high-profile Nevada grazing-rights case on Friday but booted the trial judge from the case on remand.

Saying that U.S. District Judge Robert Clive Jones had displayed bias against the federal government and grossly abused his contempt power, the 9th U.S. Circuit Court of Appeals instructed the district’s chief judge to assign the case to another jurist.

At issue was whether the defendant rancher, E. Wayne Hage, who is now deceased, and his son, Wayne Hage, who is currently defending the case, had grazed cattle on federal land without authorization. Indeed, Jones found that is what happened, the San Francisco-based appeals court said in its written opinion (PDF). However, instead of granting the feds the injunctive relief and damages they sought, Jones took another approach.

“Defendants openly trespassed on federal lands. Rather than simply resolving the fact-specific inquiries as to when and where the cattle grazed illegally, the district court applied an ‘easement by necessity’ theory that plainly contravenes the law,” the 9th Circuit panel wrote in an opinion authored by Judge Susan Graber. “The district court also encouraged defendants to file a counterclaim that was clearly time-barred. … Moreover, as discussed more fully in a separate disposition filed today, the court grossly abused the power of contempt by holding two federal agency officials in contempt of court for taking ordinary, lawful actions that had no effect whatsoever on this case.”

The defendants argued that, because they had water rights, a necessary easement over federal lands to get their cattle to the water was implied. However, that argument is contravened by long-standing precedent, the opinion says.

In a separate opinion that is not published, the appeals court reversed the contempt citations Jones made against the Bureau of Land Management and U.S. Forest Service employees, the Las Vegas Review-Journal reports.

Hage said the 9th Circuit ruling “is a big disappointment, not just for my family but for the entire industry,” the newspaper reports.

“They felt relief at the Jones decision. Ranchers’ rights had been upheld, but now it has all been overturned,” Hage continued. “It looks to me like the 9th Circuit just swelled the ranks of the militias.”

He said he himself is not involved in the militia movement, but feels members’ frustration with the government.

Related coverage: “Estate of ‘Sagebrush Rebellion’ Rancher Wins $8.6M in Water Rights Case”

See also: “After stalemate between rancher, armed militia and feds, Nevada prosecutor not rushing to bring case”

ABC News: “Militia, Along With Family of Cliven Bundy, Take Over Federal Land at National Wildlife Refuge in Oregon”

Los Angeles Times (sub. req.): “Cliven Bundy still owes the U.S. $1 million. What are the feds doing to collect it?”

Reuters: “Lack of Prosecution in US West Land Disputes Emboldens Protesters, Some Say”

Give us feedback, share a story tip or update, or report an error.