A Ninth Circuit Reminder: Water Rights Do Not Trump Need for Grazing Permit


Thanks in part to the current standoff at the Malheur National Wildlife Refuge—and the 2014 armed confrontation in Nevada that preceded it, the contentious issue of grazing rights on federal lands is more front of mind nationally than it’s been in decades.

With the federal government owning and contcattlerolling millions of acres of land, particularly in the western states, business activities conducted on federal land are subject to close scrutiny and often require that a relevant permit be obtained and maintained. A failure to possess appropriate federal authorization can result in acrimonious legal action, and as illustrated in U.S. v. Estate of E. Wayne Hage, et al.  On January 15, 2016, the Ninth Circuit reversed the district court’s ruling (a federal court sitting in Nevada) that the federal government could not prosecute an action for damages or injunctive relief against ranchers who were grazing their cattle on federal land without a federal grazing permit.

Mr. Hage (now deceased) obtained a grazing permit in 1978, but it was not renewed. Nevertheless, he continued to graze his cattle on federal land without a required permit for many years, triggering the enforcement action. The district court ruled that that the Hages’ water rights provided a defense to the federal government’s claims of trespass. The district court also ruled against the government on a counterclaim, which the Ninth Circuit concluded the counterclaim “plainly was barred by the statute of limitations.” The district court awarded the federal government $165.88 in damages. The Ninth Circuit noted the strident animosity against the federal government in the district court’s conduct of a 21-day bench trial, including holding federal officers in contempt, was a reason for reversing the district court, and directed that further proceedings in this case be handled by another federal judge. The district court’s rationale was otherwise described by the Ninth Circuit as being inconsistent with federal law and Ninth Circuit precedent.

Photo:  thskyt, Cattle on a Sunny Spring Day – Creative Commons