The Estate of Wayne Hage v. United States
2012 U.S. App. LEXIS 15506
| Fed. Cir. | 2012Background
- Hages sued the United States for Fifth Amendment taking, breach of contract, and § 1752(g) range improvements; Claims Court awarded taking and range improvements (no pre-judgment interest on range).
- Land involved ~7,000 acres private ranch and grazing permits on ~752,000 federal acres; water rights were Nevada state-law rights attached to land and use claims.
- Forest Service/BLM disputes began in the late 1970s over water rights, grazing permits, elk introductions, fence maintenance, and ditch rights of way.
- Forest Service issued multiple enforcement actions—noncompliance notices, permit suspensions, and eventual impoundment/sale of cattle on Meadow Canyon—affecting grazing and water access.
- Disputes culminated in a Claims Court ruling (2008) that was challenged on ripeness, ownership of improvements, and pre-judgment interest; this court’s decision is partly affirmed, partly reversed, partly vacated, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the regulatory taking ripe for review? | Hage claims futility of permit applications due to Forest Service history. | Futility not proven; permits could be sought; disputes did not justify denial. | Regulatory taking claim not ripe; remand for further proceedings. |
| Did the government physically take water rights via fencing? | Fences excluded cattle from water during grazing permits period. | Water rights carry no attendant grazing right; claims time-barred for early fences. | Physical taking claim untimely for 1981–82 fences; no proof of taking water actually usable. |
| Are range improvements ripe for compensation under § 1752(g)? | Improvements built under permits entitle compensation. | Claim not ripe due to failure to seek Secretary’s determination. | Not ripe; affirmed denial of § 1752(g) compensation. |
| Is there entitlement to pre-judgment interest on the range-improvements claim? | If taking exists, interest should run on value lost. | No cognizable property interest shown; interest not warranted. | Pre-judgment interest denied; ownership not established. |
Key Cases Cited
- Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (U.S. 2005) (taking must go too far; regulation analyzed for takenness)
- Penn Central Transportation Co. v. New York City, 438 U.S. 104 (U.S. 1978) (multi-factor regulatory takings test)
- Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (U.S. 1985) (ripeness requires final government decision)
- Colvin Cattle Co. v. United States, 468 F.3d 803 (Fed. Cir. 2006) (ripe analysis for § 1752(g) requires exhaustion of remedies)
- Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206 (Fed. Cir. 2005) (identifying cognizable property interests for takings)