Court sides with BLM in decades-old land-grazing case

By Scott Sonner, Associated Press

Published Tuesday, Jan. 19, 2016 | 12:27 p.m.

Updated Tuesday, Jan. 19, 2016 | 1:29 p.m.

RENO — Siding with the government in a decades-old battle over grazing rights, a federal appeals court overturned a lower-court ruling in favor of a Nevada rancher and strongly admonished a judge in Reno for abusing his power and exhibiting personal bias against U.S. land managers.

In a pair of decisions issued on Friday, the 9th Circuit Court of Appeals ruled the late Wayne Hage of Tonopah and his family were guilty of trespassing cattle on federal land illegally without a grazing permit and should be subject to fines. The appellate court based in San Francisco also determined that U.S. District Judge Robert Clive Jones had no legal basis to find employees of the Bureau of Land Management and Forest Service in contempt of court for doing their jobs.

In remanding the case back to the lower court in Reno, a three-judge panel of the 9th Circuit took the unusual step of ordering a different district judge to handle the case.

Such a move is warranted "only in rare and extraordinary circumstances, such as when the district court has exhibited personal bias or when reassignment is advisable to maintain the appearance of justice," Judge Susan Graber wrote in the 3-0 decision.

"We regretfully conclude that the quoted standard is met here because a reasonable observer could conclude that the judge's feelings against (the federal agencies) are both well-established and inappropriately strong," she said.

Jones, a former bankruptcy judge in Las Vegas who was appointed by President George W. Bush in 2003, has had his share of conflict with the 9th Circuit Court. His rejection of same-sex marriage in Nevada in 2012 was overturned by the appeals court in 2014. So was his 2012 effort to pull "None of These Candidates" off Nevada's ballots.

More recently, Jones was overturned in September 2015 when the 9th Circuit revived a lawsuit against the Nevada Health and Human Services Department over the issue of disenfranchising potential low-income and disabled voters.

In a 104-page ruling in May 2013, Jones largely agreed with the Hages' argument that they didn't have to have a grazing permit because they had existing water rights that entitled them to run their cattle on the federal land in north-central Nevada about 200 miles north of Las Vegas.

The 9th Circuit disagreed.

"Defendants openly trespassed on federal land," Graber wrote. "The ownership of water rights has no effect on the requirement that rancher obtain a grazing permit ... before allowing cattle to graze on federal lands."

Jones issued a wide-ranging injunction against the government at the time, ordering the two federal agencies to issue grazing permits to the Hages and to obtain permission from his court before issuing any future trespass notices against them. He also found two government workers — Thomas Seley of the Bureau of Land Management and Steven Williams of the Forest Service — in contempt of court for their continued attempts to force the Hages to comply with the law.

The 9th Circuit addressed that matter in a separate, 4-page unpublished memorandum, saying Jones "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."

"A dispassionate observer would conclude that the district judge harbored animus toward the federal agencies. Unfortunately, the judge's bias and prejudgment are a matter of public record."

The Hage case is similar to that of Cliven Bundy, who in March 2014 was at the center of an armed standoff with federal officials over grazing rights on government land. Federal officials backed away from seizing the Nevada rancher's cattle, but the dispute remains unresolved, and the Bureau of Land Management says the family has not made payments toward a $1.1 million grazing fee and penalty bill.