810 F.3d 712
9th Cir.2016Background
- From 1978, E. Wayne Hage and then his son grazed livestock on BLM and Forest Service lands; Hage Senior held permits until a 1993 renewal denial; neither defendant had a valid federal grazing permit from the early 1990s through 2008.
- The United States sued for unauthorized grazing (trespass) covering conduct between 2004–2008; the government moved for summary judgment but the district court refused, accepting defendants’ water-rights-based defenses.
- The district court held that Hages’ historic water rights created an easement by necessity and allowed grazing within a half-mile of water; it found only minimal damages ($165.88) for two trespass instances.
- The district court invited and entertained defendants’ APA counterclaim, ruled for defendants on procedural due process, and issued broad injunctions (including requiring agencies to obtain court permission before issuing trespass notices and to issue grazing permits).
- The Ninth Circuit reversed the district court on trespass legal theory, held the APA counterclaim time-barred, vacated parts of the judgment, ordered remand to a different judge, and instructed entry of judgment for the government on the counterclaims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether historic water rights create an easement appurtenant to graze on federal land | Gov: Federal property power and permitting regime preclude water rights from creating grazing rights | Hage: Water rights (acquired late 1800s/early 1900s) create an easement by necessity permitting cattle access and grazing near water | Held: Rejected. Water rights only permit access to divert water, not appurtenant grazing; Hunter controls and permits/regulations govern grazing on federal land |
| Whether unauthorized grazing during 2004–2008 constituted trespass and appropriate remedies | Gov: Unauthorized grazing without permit violates federal law and warrants damages/injunction | Hage: Grazing within a reasonable distance of water (half-mile) permitted by easement; minimal damages | Held: On remand district court must apply correct law; factual findings largely left intact; government entitled to judgment on trespass claims supported by record after proper legal analysis |
| Whether filing the government lawsuit constitutes final agency action under the APA, making counterclaim timely | Hage: The suit constitutes final agency action; counterclaim timely | Gov: Litigation decisions are committed to DOJ discretion and not reviewable under APA; BLM/FS denial was time-barred (1993) | Held: APA counterclaim barred by 6-year statute of limitations; filing the suit is not final agency action for APA review; judgment for government on counterclaims |
| Whether district judge’s conduct required reassignment and whether contempt findings against officials were appropriate | Gov: Judicial bias and improper contempt require reassignment and reversal of contempt | Hage/district court: (implicit) judge’s rulings and contempt proper | Held: Reassignment to a different district judge required due to appearance of bias; separate disposition reversed contempt findings against agency officials |
Key Cases Cited
- Hunter v. United States, 388 F.2d 148 (9th Cir. 1967) (water rights permit access to divert water but do not create appurtenant grazing easements)
- United States v. West, 232 F.2d 694 (9th Cir. 1956) (Government’s plenary Property Clause power and trespass enforcement on federal lands)
- Buford v. Houtz, 133 U.S. 320 (recognizing historical implied license to graze on open public lands prior to statutory scheme)
- Light v. United States, 220 U.S. 523 (authority of the United States to regulate and withdraw implied licenses to use public lands)
- McFarland v. Kempthorne, 545 F.3d 1106 (9th Cir. 2008) (federal agencies’ broad discretion to regulate access to federal lands)
- Diamond Bar Cattle Co. v. United States, 168 F.3d 1209 (10th Cir. 1999) (following Hunter; water rights do not include attendant grazing rights)
- Estate of Hage v. United States, 687 F.3d 1281 (Fed. Cir. 2012) (related Hage litigation addressing limits on water-rights-related claims)
- City of Oakland v. Lynch, 798 F.3d 1159 (9th Cir. 2015) (litigation decisions generally committed to agency discretion and not reviewable under the APA)
- In re United States (Mandamus), 791 F.3d 945 (9th Cir. 2015) (prior opinions and conduct of the district judge raising concerns about bias)
- Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821 (contempt power subject to special constitutional constraints)