In the Supreme Court of the United States

Transcription

1 NO. 15- In the Supreme Court of the United States ESTATE OF E. WAYNE HAGE and WAYNE N. HAGE, v Petitioners, UNITED STATES OF AMERICA, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR WRIT OF CERTIORARI MARK L. POLLOT, ESQ. COUNSEL FOR PETITIONERS 2576 E. SADIE DRIVE BOISE, IDAHO (208) MPOLLOT@CABLEONE.NET APRIL 14, 2016 SUPREME COURT PRESS (888) BOSTON, MASSACHUSETTS

2 i QUESTION PRESENTED This case revolves around the Petitioners unquestioned and vested water rights. Petitioners have water rights under Nevada state law in wells, streams and ditches now located on federal lands and a right to access those rights under the U.S. Mining Act of 1866 (43 U.S.C. 661). The U.S. government has interfered with those vested property rights by prohibiting Petitioners from accessing and beneficially using the water at issue, and, after many years of litigation in numerous courts, the Court of Appeals for the Ninth Circuit has ruled that the government is entitled to do so, holding that the water rights at issue are extraordinarily limited in nature. This decision, which overturned rulings in favor of Petitioners in the both the trespass claims and Petitioner Estates s counterclaim, is in direct conflict with a contrary ruling from the Court of Appeals for the Federal Circuit, which held that the Petitioners have a broad right to access, and hence use, their water rights. As such, the Ninth Circuit s holding will result in significant confusion, litigation, and damages, given that this is an enormously important issue that affects millions of people and billions of dollars of private property. The question presented, therefore, is: Did the Ninth Circuit err in holding that the Petitioners vested water rights are so limited that Petitioners have no right to access their water other than for diversionary purposes?

3 ii PARTIES TO THE PROCEEDING AND RULE 29 STATEMENT Petitioners herein are the Estate of E. Wayne Hage and Wayne N. Hage. Respondent is the United States of America. There are no organizational petitioners.

4 iii TABLE OF CONTENTS Page QUESTION PRESENTED... i PARTIES TO THE PROCEEDING AND RULE 29 STATEMENT... ii TABLE OF AUTHORITIES... v OPINIONS BELOW... 1 JURISDICTION... 1 STATUTORY PROVISIONS INVOLVED... 1 STATEMENT OF THE CASE... 2 A. Introduction... 2 B. Petitioners and Their Vested Water Rights... 4 C. The Beneficial Use of Vested Stockwatering Rights... 6 D. The District Court Proceedings... 8 E. The Circuit Court Proceedings REASON FOR GRANTING THE PETITION A. A Conflict Among Circuits B. An Important Question of Federal Law CONCLUSION... 16

5 iv TABLE OF CONTENTS Continued Page APPENDIX TABLE OF CONTENTS Opinion of the Ninth Circuit (January 15, 2016)... 1a District Court Findings of Fact, Conclusions of Law, and Injunction (May 23, 2013)... 23a Order of the District Court (March 13, 2012) a Order of the District Court (August 11, 2011) a Relevant Statutory Provisions a

6 v TABLE OF AUTHORITIES TABLE OF AUTHORITIES CASES Page Ansolabehere v. Laborde, 310 P.2d 842 (Nev. 1957)... 5 Broder v. Natoma Water and Mining Co., 101 U.S. 274 (1879)... 5 Central Pac. Ry. Company v. Alameda County, California, 284 U.S. 463 (1932)... 5 Colvin Cattle Co. v. United States, 67 Fed. Cl. 568 (2005) Estate of Hage v. United States, 82 Fed.Cl. 202 (Ct. Cl. 2002)... 8 Hage v. United States, 35 Fed. Cl. 147 (Ct. Cl. 1996)... 3 Hage v. United States, 51 Fed. Cl. 570 (Ct. Cl. 2002)... 5, 8 Steptoe Live Stock Co. v. Gulley, 292 P. 772 (Nev. 1931)... 7 United States v. Estate of Hage, 810 F.3d 712 (9th Cir. 2016)... 3 United States v. Gerlach Live Stock Co, 339 U.S. 725 (1950) United States v. Hage, 2013 WL , No. 2:07-cv RCJ (D. Nev. May 24, 2013)... 9, 10 United States v. Hage, 687 F.3d 1281 (Fed Cir. 2012)... 4

7 vi TABLE OF AUTHORITIES Continued Page White v. Farmers Highline Canal & Reservoir Co., 43 P (Colo. 1896) Willey v. Decker, 73 P. 210 (Wyo. 1903) FEDERAL STATUTES 5 U.S.C. 701, et seq U.S.C U.S.C U.S.C. 1254(1) U.S.C U.S.C. 1331(a) U.S.C U.S.C U.S.C C.F.R C.F.R U.S.C U.S.C. 315a U.S.C. 315(b) U.S.C i, 2, 4, 5 STATE STATUTES N.R.S

8 vii TABLE OF AUTHORITIES Continued Page N.R.S N.R.S

9 1 OPINIONS BELOW The opinion of the Court of Appeals reversing in part, vacating in part, and remanding is reported at 810 F.3d 712 and included below at App.1a. The district court s opinion, ruling in favor of Petitioners, is unpublished, and included below at App.23a. JURISDICTION The decision of the Court of Appeal for which certiorari is sought was entered on January 15, Jurisdiction in this Court is timely invoked under 28 U.S.C. 1254(1). Jurisdiction in the United States Court for the District of Nevada is conferred by 28 U.S.C. 1331(a) and Jurisdiction before the Court of Appeal for Ninth Circuit is conferred by 28 U.S.C STATUTORY PROVISIONS INVOLVED The Constitutional provision applicable hereto is United States Constitution, Amendment V, which provides in pertinent part No person shall... be deprived of life, liberty, or property, without due process of law.... Pursuant to this Court s Rule 14, the following federal statutory and regulatory provisions relevant hereto are reproduced in the appendix:

10 2 5 U.S.C. 701, et seq. (App.189a) 7 U.S.C. 701 (App.202a) 16 U.S.C. 534 (App.204a) 28 U.S.C (App.200a) 28 U.S.C (App.201a) 43 U.S.C. 315 (App.193a) 43 U.S.C. 315a (App.197a) 43 U.S.C. 315(b) (App.198a) 43 U.S.C. 661 (App. 204a) 43 C.F.R (App.205a) 43 C.F.R (App.206a) 43 C.F.R (App.208a) N.R.S (App.209a) N.R.S (App.209a) N.R.S (App.209a) A. Introduction STATEMENT OF THE CASE The paradigmatic example of a circuit split must be that a party would prevail in one court of appeals but lose on precisely the same issue in another court of appeals for the sole reason that the law in the court of appeals differs. That is precisely the situation here.

11 3 The Petitioners are Nevada ranchers who own vested stock-watering rights pursuant to Nevada s prior appropriation water law. The water sources in which Petitioners own stockwater rights are located on lands in which the Respondent claims a proprietary interest which water rights vested in the 1800s. Under the Act of 1866, Congress provided that the right to use water which has vested and accrued and is recognized and acknowledged by local custom and law shall be maintained and protected. The Act of 1866 instructs courts to apply state law to determine title and scope of water rights. In Nevada, and several other western states, the right to bring cattle to the water, and for cattle to consume forage adjacent to a private water right, is an essential component of the vested stockwater right. In fact, the right to bring cattle to the water is the only way to put the water to beneficial use. The importance of this right is paramount for cattle ranchers throughout the entire West where water means the difference between farm and desert, ranch and wilderness, and even life and death. Hage v. United States, 35 Fed. Cl. 147, 172 (Ct. Cl. 1996). As such, water rights, like any other property rights, are entitled to the full protection of the Constitution. But the Ninth Circuit Court of Appeals contrary to other circuit decisions disagrees. The Ninth Circuit holds that a governmentissued permit is required in order to access and make beneficial use of private stockwatering rights. United States v. Estate of Hage, 810 F.3d 712, 717 (9th Cir. 2016). Indeed, the Ninth Circuit has made clear that an owner of water rights posses[es] a right of way only for... diversionary purposes. ) (emphasis added).

12 4 It also forcefully stated that ownership of water rights has no effect on the requirement that a rancher obtain a grazing permit or other grazing authorization in order to make beneficial use of a vested water right. Id. The Ninth Circuit s holding creates an untenable and illusory right that directly conflicts with other federal circuit rulings, which have expressly recognized that a landowner has the right to access his vested water rights and that the government may not prevent the owner of water rights from accessing that water for beneficial use. Because the Ninth Circuit s decision splits with the approaches of the other courts of appeals, this Court should grant certiorari to address the issue. B. Petitioners and Their Vested Water Rights In 1978, E. Wayne Hage and Jean Hage acquired a ranching operation in Nevada that occupied approximately 7,000 acres of private land and used approximately 752,000 acres of adjoining federal lands under grazing permits from the United States Forest Service and the Bureau of Land Management. United States v. Hage, 687 F.3d 1281, 1284 (Fed Cir. 2012). The Hages predecessors-in-interest to the land acquired water rights under Nevada state s prior appropriation water law in streams and ditches now located on federal lands. See Act of July 26, 1866 (43 U.S.C. 661) (hereinafter The Act of 1866 ). (App.204a). In a prior case between the Hages (Petitioners herein) and the government, the Court of Federal Claims was asked to determine whether the Petitioners had vested water rights for stockwatering, irrigation, domestic, and other uses in

13 5 numerous creeks, wells, springs, and other water sources located in lands in which the United States claims a proprietary interest as well as in ditches and ditch rights-of-way. Hage v. United States, 51 Fed. Cl. 570, 576 (Ct. Cl. 2002). In making its determination, the Court of Federal Claims appropriately held that state law controls this issue and that Congress carefully respected the rights that state law recognized prior to passage of the federal laws. Id. The Act of 1866, for example, clearly acknowledges vested water rights on public lands. The Act states in relevant part: Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same U.S.C. 661 (App.204a). Further, the Supreme Court has acknowledged that private parties may acquire rights on federal lands. See, e.g., Broder v. Natoma Water and Mining Co., 101 U.S. 274, 276 (1879) (water rights on public lands are rights which the government had... recognized and encouraged and was bound to protect ); Central Pac. Ry. Company v. Alameda County, California, 284 U.S. 463 (1932). Along those lines, the Nevada Supreme Court, when examining the intersection of Nevada water law and the Taylor Grazing Act, reiterated that where the federal government has not acted, the state may act. Ansolabehere v. Laborde, 310 P.2d 842, 845 (Nev.

14 6 1957). In short, federal law requires courts to examine state law to determine whether or not a water right exists. In examining Nevada state law and the Hages ownership claims to water existing on federal land, the Court of Federal Claims ruled that the Hages proved they had vested water rights in ditches, wells, creeks, and pipelines that cross their land and grazing areas as well as the Monitor Valley, Ralston, and McKinney Allotments. Hage, 51 Fed. Cl. at 577. This finding has not been challenged. C. The Beneficial Use of Vested Stockwatering Rights In addition to Petitioners vested water rights, the use and fundamental meaning of these water rights, particularly in the arid Western states, is critically important to this matter and to thousands of other ranchers affected by the Ninth Circuit s adverse ruling. A right to water is inextricably bound up with its beneficial use. See Nevada Revised Statute (NRS) ( Beneficial use shall be the basis, the measure and the limit of the right to use water. ) (App.209a). The point of the stockwatering right is to provide water for grazing cattle. See NRS (App.209a) ( The use of water for watering livestock is hereby declared to be a beneficial use.... ). Thus, the right to access that water is the essential component of the water right. See Hage v. United States, 687 F.3d 1281 at (stating that ownership of water includes a protected right of access and that if the government interfered with Hages right to access

15 7 stockwater in streams crossing federal lands, its actions would result in a taking). The Court of Federal Claims expressly recognized that the beneficial use and the only use of a cattle rancher s vested water right is to permit his cattle to directly access the water i.e., to drink straight from the source. [T]the owner cannot make cattle drink; if he built the most expensive pipe conceivable and the most beautiful trough that human ingenuity and skill could produce, for the cattle to drink out of, there would be no way of compelling the cattle to drink out of the trough, instead of out of a puddle made by the overflow from the trough. No doubt it was this consideration which led the hard and practical livestock men of a half a century ago to adopt the well and widely established custom which the court found to prevail. Hage, 51 Fed. Cl. at 586 (citing Steptoe Live Stock Co. v. Gulley, 292 P. 772, 776 (Nev. 1931)). Thus, if cattle are not allowed to drink from the water source, then ranchers in the West are not making a beneficial use of their water rights. Ranchers let cattle drink straight from the source for pragmatic, economic reasons: While the BLM might commission a genetically engineered cow that will drink only where preprogrammed, until then it is highly unlikely that you will be able to make a cow differentiate between water they can drink because it is on base property

16 8 and water that is attached to public land. For centuries, no one has been able to lead the cow without it drinking at will. In a sense, the point of use for the water is the cow s head, which is an extension of the base ranch. Id. The Ninth Circuit ruling discussed below eviscerates these water rights by denying the essential purpose of nearly every rancher s property use. D. The District Court Proceedings Despite this settled law, shortly after the Hages acquired the ranching operation, various disputes arose between the Hages and the government concerning the nature and scope of the Hages water rights and grazing permits. Id. In the early 1990s, the government suspended and cancelled the Hages grazing permits, depriving them of their right to graze cattle without interpretation or interference. Hage, 35 Fed. Cl. at 156. Petitioners have not held grazing permits since, but have continued to access their water in order to make beneficial use of such water rights, including allowing their cattle to drink from the source consistent with local law and custom in light of the Claims Court s finding that cancellation of a grazing permit did not, standing alone, prevent the Hages from accessing their stockwater. Estate of Hage v. United States, 82 Fed.Cl. 202, (Ct.Cl. 2002). On August 29, 2007, the United States of America sued the Petitioners Wayne N. Hage in his individual capacity and Hage in his capacity as administrator of the Estate of E. Wayne Hage

17 9 (together, the Petitioners ) for trespass, requesting both damages and an injunction. United States v. Hage, 2013 WL , No. 2:07-cv RCJ (D. Nev. May 24, 2013) (App.32a). The Government alleged several instances of Petitioners cattle grazing without a permit on Bureau of Land Management and United States Forest Service lands between 2004 and Id. The district court followed well-established common law when it ruled that the Hages could drive their cattle over the land to access their stockwater if the impact of those lands was limited and reasonable. Id. at * (App.153a-154a). And even in the absence of a forage right, cattle grazing while watering pursuant to a water right do not cause a trespass simply because they graze near the water source to the extent that it is their natural behavior that cannot reasonably be prevented. Id. at 44. (App.153a) The district court, like other courts who have addressed this issue, recognized that a contrary ruling would essentially amount to a complete deprivation of a vested water right: To conclude that a trespass results from attendant activity that cannot reasonably be prevented in the course of the use of a valid water right would be to put a restriction on the use of the water right that destroys the ability reasonably to utilize the water right itself. Id. (emphasis added). Thus, the district court correctly dismissed the government s trespass claim where (1) the Hages proved that they owned vested water rights at the location of the alleged trespass, and (2) the government was unable to show that the Hages cattle did

18 10 anything more than incidentally consume forage while in route to the stockwater. Id. E. The Circuit Court Proceedings The Government appealed the district court ruling to the Ninth Circuit Court of Appeals. United States v. Estate of Hage, et. al., 810 F.3d 712. (App.1a). Without mentioning, describing or even considering the fundamental meaning of stockwatering rights, the Ninth Circuit Court of Appeals made a blanket statement that ownership of water rights has no effect on the requirement that a rancher obtain a grazing permit (or other grazing authorization) before allowing cattle to graze on federal lands. Id. at 717 (App.7a). It did hold, however, that pursuant to the Mining Act of 1866, an owner of water rights possessed a right of way over federal lands for the purpose of diverting the water by the construction of ditches and canals. Id. But it made clear that an owner of water rights possessed a right of way only for diversionary purposes. Id. at 718. (App.8a) It expressly rejected the argument that water rights entitle the owner of such rights an appurtenant right to consume any forage, even if it is merely incidental to the access and use of stockwatering rights. Id. In short, under the Ninth Circuit ruling, an owner of water rights like other persons may graze cattle on federal lands only if he or she has obtained a grazing permit or other grazing authorization. Id. (App.9a) Astonishingly, the Ninth Circuit held that [w]ater rights are irrelevant to that basic requirement. Id. (Emphasis added). Under this flawed interpretation of property and water rights law, the Ninth Circuit found that Petitioners had violated applicable

19 11 federal statutes and regulations, as well as the state law of trespass, when they allowed their cattle to consume forage incidentally while in route to and at their stockwatering sources the rights to which vested long before the statutes and regulations at issue existed. Id. The Ninth Circuit erred. It has denied the essential purpose of nearly every rancher s proper water use. To hold that the owner of water rights is only allowed to divert that water is to deny the essential use of that right. Preventing ranchers from taking their cattle to the stockwater is the same as denying them the right to use their vested water right. REASON FOR GRANTING THE PETITION This Court should grant Petitioner s petition for a writ of certiorari for two compelling reasons. See Sup. Ct. R. 10. First, the Ninth Circuit s decision that Petitioners have no right to access their water for anything other than diversionary purposes is in direct conflict with the decision of the Court of Appeals for the Federal Circuit holding that the U.S. government cannot limit the Petitioners rights in that way without effecting a taking. See id. R. 10(a). This split will result in a hopeless confusion of holdings and rulings, as courts throughout the country, and particularly in the western United States, attempt to apply the disparate, controlling law resulting from the Ninth Circuit s opinion. And this confusion will be significant. That leads to the

20 12 second reason this Court should grant Petitioner s writ: the decision of the Ninth Circuit, which conflicts so starkly with that of the Federal Circuit, addresses an important question of federal law that has not, but should be, settled by this Court. See id. Rule 10(c). A. A Conflict Among Circuits The Ninth Circuit clearly held that an owner of water rights possesse[s] a right of way only for... diversionary purposes. See United States v. Estate of E. Wayne Hage, 810 F.3d 712 at (App.8a) (emphasis in original). That means that water rights owners have no right to access or use the water for anything other than the construction of ditches and canals. Id. (quotation omitted). In other words, an owner of water will not be able to access or use that water to graze cattle, to water crops, or to do anything other than build diversionary ditches and canals unless the U.S. government permits the owner to do so. Id. at (App.8a-9a). This is an extraordinarily limited view of a property right, particularly in this context, given the size and scope of the land involved and the type of water right at issue. As discussed above, Petitioners water rights are beneficial in nature and are limited, under Nevada law, to watering cattle. There is no other use to which that water can be put, but the water is often a hundreds miles away from Petitioners patented lands. That means that the only way to use their rights (water their cattle) is to construct a ditch or canal which would involve millions (or tens of millions) of dollars in cost and expense. That is simply not possible. A refusal by the government to

21 13 issue a permit for the owner to access the water, then, effects a total and utter taking of the water rights, and affected property holders, such as the ranchers at issue here, simply will not be able to enjoy or use their property. This is extreme. It is also diametrically opposed to the holding of the Court of Appeals for the Federal Circuit. In viewing this very issue, with these very parties, the Federal Circuit specifically held that the government [cannot] prevent [the Hages] from accessing water to which they owned rights without just compensation. See Estate of E. Wayne Hage v. United States, 687 F.3d 1281 at This is doubtless due to the fact that any other ruling effectively eliminates these rights. Further, this means that the Federal Circuit, holding on the exact same issue as the Ninth Circuit, has specifically stated that the government cannot limit private water rights (without effecting a taking) by preventing access to the water. The bluntness of this split is made manifest by the fact that both the Ninth Circuit and the Federal Circuit rely on the same authority in reaching opposite conclusions. The Ninth Circuit cited the case of Colvin Cattle Co. v. United States, 67 Fed. Cl. 568 (2005), for the proposition that water rights... contain only a right of access for diversion. The difficulty with this statement is that the Federal Circuit has expressly disavowed it. See Hage, 687 F.3d at 1289 ( We disagree... that Colvin Cattle means that there is no access component to the Hages water rights. ). The Ninth Circuit and the Federal Circuit, then, have passed upon the same facts, involving the same

22 14 parties, relying on the same authority, and have reached opposite conclusions. A more clear circuit split is difficult to imagine. So is a more significant issue. B. An Important Question of Federal Law Whether individuals have the right to access and beneficially use their water located on lands to which the United State asserts a proprietorial interest is an extremely important question of federal law that this Court has not previously addressed, and doing so has the potential to affect millions of people and billions of dollars. When water is scarce, water rights are among the most valuable property rights known to the law. White v. Farmers Highline Canal & Reservoir Co., 43 P. 1028, 1030 (Colo. 1896). This is particularly acute in the western United States. See Willey v. Decker, 73 P. 210, (Wyo. 1903). Indeed, governments, businesses, and individuals all rely on water located on federal lands for drinking water, irrigation, sewer, ranching, farming, and many, many other purposes. It was so important to Congress in 1866 that it enacted the Act of July 26, 1866, supra, to ensure that water rights were protected and to, as this Court noted in United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950), foreclos[e] further proprietary objection by the United States to appropriations which rested upon local custom. Id. at 748. This case is an excellent if small example of the interests at issue. Petitioners have vested water rights in the ditches, springs, wells, creeks, and pipelines located on 752,000 acres of land, and they relied on those water rights to water livestock,

23 15 irrigate land, and provide domestic water. Their entire ranching operation depended on that water that vested property right that is entirely acknowledged by every court at every level and they were unable to continue to operate any part of their ranch once the government cut off their right to beneficially use and access those sources of water. That type of need is the rule, not the exception. There are over 139,000 cattle producers throughout the United States, and many of these hold federal grazing permits and rely on privately-owned water rights in water sources located on lands to which the United States has a proprietary claim. All of these ranchers, and many other beneficial property owners, are directly threatened by the Ninth Circuit s narrow view of water rights, as those rights are potentially worthless if the Ninth Circuit is permitted to strip those owners of any right of access or if the rights themselves can be exclusively couched in terms of a restrictive, illusory ability to build cripplingly expensive ditches and canals spanning hundreds or thousands of miles. What is at stake, then, is the right of millions of Americans (particularly those living in the West) to access their water, their property, in the historical and customary manner in which the rights vested, and in a way that is reasonable and feasible and that will permit them to continue their way of life. If the Ninth Circuit s remarkably restricted view of property rights goes unchecked, that is all at risk.

24 16 CONCLUSION For the foregoing reasons, this Court should grant the petition for a writ of certiorari. Respectfully submitted, MARK L. POLLOT, ESQ. COUNSEL FOR PETITIONERS 2576 E. SADIE DRIVE BOISE, IDAHO (208) MPOLLOT@CABLEONE.NET APRIL 14, 2016

25 APPENDIX TABLE OF CONTENTS Opinion of the Ninth Circuit (January 15, 2016)... 1a District Court Findings of Fact, Conclusions of Law, and Injunction (May 23, 2013)... 23a Order of the District Court (March 13, 2012) a Order of the District Court (August 11, 2011) a Relevant Statutory Provisions a

26 App.1a OPINION OF THE NINTH CIRCUIT (JANUARY 15, 2016) UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, v. Plaintiff-Appellant, ESTATE OF E. WAYNE HAGE; WAYNE N. HAGE, Defendants-Appellees. No Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, District Judge, Presiding. D.C. No. 2:07-cv RCJ-VCF. Before: Susan P. GRABER, Kim McLane WARDLAW, and Mary H. MURGUIA, Circuit Judges GRABER, Circuit Judge: The United States brought this action for damages and injunctive relief against E. Wayne Hage (now deceased) and his son, Wayne N. Hage, alleging that they grazed cattle on federal lands without a permit or other authorization. The district court found that, in fact, the Hages had grazed cattle on federal lands without a permit or other authorization. The court nevertheless ruled almost

27 App.2a entirely against the government by holding contrary to longstanding binding precedent that the Hages water rights provided a defense to the government s claims of trespass. The district court also ruled against the government on a counterclaim filed at the district court s invitation even though the counterclaim plainly was barred by the statute of limitations. Finally, the district court held two federal agency officials in contempt of court for their ordinary actions, lawfully carried out within the scope of their regulatory and statutory duties, despite the fact that the actions had no effect whatsoever on this case. In this opinion, we vacate in part and reverse in part the judgment on the merits, and we remand for further proceedings before a different district judge. In a separate disposition filed today, we reverse the findings of contempt against the government officials. FACTUAL AND PROCEDURAL HISTORY Beginning in 1978, E. Wayne Hage ( Hage Senior ) grazed cattle on federal lands managed by the Bureau of Land Management ( BLM ) and the United States Forest Service. Early on, he applied for and received the necessary grazing permits. In 1993, Hage Senior filed an application for renewal of the grazing permit, but the BLM denied it because, in its view, the application had not been completed properly. Hage Senior has not held a federal grazing permit since the early 1990s; his son, Wayne N. Hage ( Hage ), has never held a federal grazing permit. Despite the lack of a permit or other authorization, the Hages continued to graze cattle on federal lands.

28 App.3a The United States filed this action in federal district court in Nevada, alleging that, between 2004 and 2008, the Hages intentionally grazed cattle on federal lands without a permit or other authorization. After Hage Senior died, his estate was substituted as a defendant. The government moved for summary judgment, which the district court denied because of its idiosyncratic view that Defendants water rights perfected by Defendants predecessors-in-interest in the late 1800s and early 1900s provided a defense to the government s action. The court also noted that, [a]lthough the Hages may or may not be able to bring a counterclaim[,]... the Court invites them to try. Defendants then filed an amended answer that included counterclaims against the government, including an alleged violation of the Administrative Procedure Act ( APA ). The government moved to dismiss the APA counterclaim on the ground that neither the BLM nor the Forest Service had taken any final agency action under the APA within the applicable six-year statute of limitations. The district court denied the government s motion to dismiss the APA counterclaim, reasoning that [t]he United States... has taken final agency action by filing the present lawsuit. After a 21 day bench trial, the district court ruled almost entirely in favor of Defendants. On the government s claims of trespass, the court concluded that, by virtue of their water rights, Defendants have an easement by necessity to access the water on public lands. The court further concluded that the easement allowed Defendants to bring cattle with them onto federal lands. The court also concluded

29 App.4a that, because it is infeasible to prevent cattle from eating or wandering, the government cannot succeed on trespass claims if the cattle stayed within a reasonable distance of a water source to which Defendants possess water rights. Correctly recognizing that its determination of an appropriate distance was arbitrary, the court selected one-half mile. Applying that newly minted legal standard to the facts of the case, the court found that, although the government proved that cattle under Defendants control had grazed extensively on federal lands, the government had proved trespass as to only two of its many trespass claims because all other unauthorized grazing occurred within a half mile of a water source. The court awarded the government $ in damages. On the counterclaim, the district court held that Defendants had proved a procedural due process violation. The court issued a wide-ranging injunction against the government, including a requirement that the federal agencies obtain permission from the court before issuing trespass notices against Defendants and a requirement that the agencies issue grazing permits to Defendants. The court concluded that it would retain continuing jurisdiction to enforce this Order and Injunction. The government timely appeals. STANDARDS OF REVIEW We review de novo questions of law. Kohler v. Presidio Int l, Inc., 782 F.3d 1064, 1068 (9th Cir.2015). We review for clear error the district court s findings of fact. Addington v. U.S. Airline Pilots Ass n, 791 F.3d 967, 982 (9th Cir.2015).

30 App.5a DISCUSSION A. Trespassing Claim Article IV of the Constitution states: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.... U.S. Const. art. IV, 3, cl. 2. That power is subject to no limitations. United States v. West, 232 F.2d 694, 698 (9th Cir.1956) (quoting Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1871)); see also McFarland v. Kempthorne, 545 F.3d 1106, 1112 (9th Cir.2008) ( The Property Clause gives Congress plenary power to regulate the use of federal land. ). The United States can prohibit absolutely or fix the terms on which its property may be used. Light v. United States, 220 U.S. 523, 536 (1911). It is also beyond question that the government has, with respect to its own lands, the rights of an ordinary proprietor, to maintain its possession and to prosecute trespassers. West, 232 F.2d at 698 (quoting Camfield v. United States, 167 U.S. 518, 524 (1897)). Before the enactment of the Taylor Grazing Act in 1934, longstanding custom allowed persons to use open, unreserved federal lands for the purpose of grazing stock. Buford v. Houtz, 133 U.S. 320, 326 (1890); West, 232 F.2d at 697. But the Supreme Court consistently referred to that custom as an implied license, Buford, 133 U.S. at 326, and the Court explained in 1918 that Congress has not conferred upon citizens the right to graze stock upon the public lands. The government has merely suffered the lands to be so used. Omaechevarria v.

31 App.6a Idaho, 246 U.S. 343, 352, (1918); see also Light, 220 U.S. at 535 ( There thus grew up a sort of implied license that these lands, thus left open, might be used so long as the government did not cancel its tacit consent. Its failure to object, however, did not confer any vested right on the complainant, nor did it deprive the United States of the power of recalling any implied license under which the land had been used for private purposes. (citation omitted)). With [the enactment of] the Taylor Grazing Act, Congress revoked this indiscriminate implied license in favor of an express statutory permit.... West, 232 F.2d at 697. The Taylor Grazing Act authorized the Secretary of the Interior to issue or cause to be issued permits to graze livestock pursuant to his rules and regulations. 43 U.S.C. 315b. In 1950, Congress granted the same authority to the Secretary of Agriculture with respect to national forests. Act of Apr. 24, 1950, ch. 97, 19, 64 Stat. 82, 88, codified at 16 U.S.C In 1976, Congress enacted the Federal Land Policy and Management Act of 1976 ( FLPMA ), which provides specific guidance to the Secretaries in implementing the federal grazing permit systems. Pub.L. No , 402, 90 Stat. 2743, 2773, codified at 43 U.S.C. 1752; see also 43 U.S.C (authorizing the Secretaries to promulgate rules and regulations to carry out the purposes of this Act ). All three Acts clearly state that the issuance of a permit does not create any property rights. See 43 U.S.C. 315b ( [T]he issuance of a permit pursuant to the provisions of this subchapter shall not create any right, title, interest, or estate in or to the lands. ); 16 U.S.C ( [N]othing herein shall be

32 App.7a construed as limiting or restricting any right, title, or interest of the United States in any land or resources. ); 43 U.S.C. 1752(j) ( Nothing in this Act shall be construed as modifying in any way law existing on October 21, 1976, with respect to the creation of right, title, interest or estate in or to public lands or lands in National Forests by issuance of grazing permits.... ). Accordingly, we long have held that a grazing permit has always been a revocable privilege and is not a property right[ ]. Swim v. Bergland, 696 F.2d 712, 719 (9th Cir.1983); accord West, 232 F.2d at ; Osborne v. United States, 145 F.2d 892, 896 (9th Cir.1944). The ownership of water rights provides a substantial benefit to an applicant for a grazing permit. By statute, the federal agencies generally must give preference to owners of water rights. See, e.g.,43 U.S.C. 315b ( Preference shall be given in the issuance of grazing permits to... owners of water or water rights.... ). Additionally, the federal agency granting a grazing permit to those who own water rights often need not include the requirement common to other grazing permits, such as those in the record here that the recipient haul water to the site. But the ownership of water rights has no effect on the requirement that a rancher obtain a grazing permit (or other grazing authorization) before allowing cattle to graze on federal lands. In Hunter v. United States, 388 F.2d 148 (9th Cir.1967), we held that, pursuant to the Mining Act of 1866 and another Act, an owner of water rights possessed a right of way over federal lands for the purpose of diverting the water by the construction of ditches and

33 App.8a canals. 1Id. at 154 (quoting Act of July 26, 1866, ch. 262, 9, 14 Stat. 251, 253, codified at 43 U.S.C. 661 (1866); 30 U.S.C. 51 (1866)). But we made clear that an owner of water rights possessed a right of way only for those diversionary purposes. Id. We expressly rejected the rancher s argument that water rights entitled him to an appurtenant right to graze or to any additional or other easements. Id. Accordingly, we held that the rancher is not entitled to an easement to graze livestock on the lands within the boundaries of the [federal lands] but that he should be allowed a right of way over those lands to divert the water by one of the methods contemplated by the [Mining Act of 1866]. Id. Both the Tenth and Federal Circuits have agreed. See Diamond Bar Cattle Co. v. United States, 168 F.3d 1209, (10th Cir.1999) (following Hunter and rejecting ranchers argument that they have an appurtenant right to graze); Estate of Hage v. United States (Hage VIII), 687 F.3d 1281, 1290 (Fed.Cir.2012) (holding that water rights do not include an attendant right to graze but that the government may not prevent all access to such water rights ); see also Colvin Cattle Co. v. United States, 67 Fed.Cl. 568 (2005) (following Hunter and Diamond 1 The FLPMA repealed the portion of the Mining Act of 1866 that guaranteed a right of way for the purpose of constructing ditches and canals. 43 U.S.C. 661 note. But the FLPMA expressly provided that the Act did not affect any existing rights of way. See 43 U.S.C. 1769(a) ( Nothing in this subchapter shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted. ). Because Defendants predecessors-in-interest obtained their water rights well before 1976 (the enactment date of the FLPMA), that repeal does not affect this case.

34 App.9a Bar and concluding that water rights contain no appurtenant right to graze and contain only a right of access for diversion); Gardner v. Stager, 892 F.Supp. 1301, (D.Nev.1995) (holding that the argument that the ranchers predecessors acquired vested water rights and that grazing rights are appurtenant to such water rights... was expressly rejected long ago (citing Hunter, 388 F.2d at )).2 In sum, an owner of water rights has special privileges when applying for a grazing permit and has a right to access federal lands for the sole purpose of diverting the water. But an owner of water rights like all other persons may graze cattle on federal lands only if he or she has obtained a grazing permit or other grazing authorization. Water rights are irrelevant to that basic requirement. Between 2004 and 2008, Defendants cattle grazed frequently on lands owned by the United States. Neither Hage Senior nor Hage held a grazing permit or other grazing authorization during that time. Accordingly, Defendants violated applicable 2 Although Hunter did not rely on this reasoning, the Taylor Grazing Act s granting of preference in the permitting process to owners of water rights strongly suggests that Congress did not intend grazing rights to follow from water rights without a permit.43 U.S.C. 315b. If owners of water rights did not need to obtain permits at all, the provision would be a nullity. See, e.g., Ciolino v. Frank (In re HP Inkjet Printer Litig.), 716 F.3d 1173, 1184 (9th Cir.2013) ( Under accepted canons of statutory interpretation, we must make every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous. (internal quotation marks and alterations omitted))

35 App.10a federal statutes and regulations, as well as the state law of trespass. See 43 U.S.C. 1733(g) ( The use, occupancy, or development of any portion of the public lands contrary to any regulation of the Secretary or other responsible authority... is unlawful and prohibited. ); 43 C.F.R (b)(1) (prohibiting persons from [a]llowing livestock... to graze on or be driven across [federal] lands: (i) Without a permit or lease or other grazing use authorization ). See generally 43 C.F.R. subpart 4150 (governing Unauthorized Grazing Use ). See also West, 232 F.2d at 699 ( [T]he Government is vested with legal title. It must be conceded as well that any license appellees may have had to occupy the lands at the sufferance of the Government has been terminated. Hence, as between the Government and appellees, the latter are now clearly trespassers. ). The district court nevertheless concluded that, because of their water rights, Defendants have an easement by necessity to access the water sources. That conclusion squarely contravenes Hunter. As discussed above, Hunter held that an owner of water rights has an easement for diversionary purposes only, and it rejected the argument that water rights entitle the owner to any additional or other easements. 388 F.2d at 154. The district court s theory also fails for several additional, independent reasons. We briefly mention two. First, the easement by necessity test fails on its own terms. For example, the requirement that the unity of title was severed by a conveyance of one of the parcels, McFarland, 545 F.3d at 1111 (internal quotation marks omitted), is not met because there has never been a severance of title.

36 App.11a Under Nevada law, the owner of water rights owns neither the land nor the water; the right is usufructory only. Desert Irrigation, Ltd. v. State, 113 Nev. 1049, 944 P.2d 835, 842 (1997) (per curiam). Second, even if Defendants had an easement by necessity, the government retains the right to issue reasonable regulations and it has done so by requiring a grazing permit. See McFarland, 545 F.3d at 1112 ( Even where a statutory right of access exists, the [federal agency] has broad discretion to regulate its use. ); see also Diamond Bar, 168 F.3d at 1217 ( Plaintiffs contend their water right is of little utility if their cattle have no place to graze. If true, the fault lies with plaintiffs, who were fully apprised of the consequences of failing to renew their permits. ). See generally Adams v. United States, 3 F.3d 1254, 1259 (9th Cir.1993). In sum, the district court s easement by necessity theory plainly contravenes the law. Defendants offer several alternative theories on appeal in support of affirmance. None is persuasive. Collateral estoppel does not apply here against the government. In 1991, Hage Senior and his wife sued the government in the Federal Court of Claims. Hage v. United States (Hage I), 35 Fed.Cl. 147, (1996). Although they initially prevailed on some claims, the Federal Circuit reversed on all such claims and remanded for further proceedings. Hage VIII, 687 F.3d On remand, the trial court held that no further claims had merit and entered judgment for the government. Estate of Hage v. United States (Hage IX), 113 Fed.Cl. 277 (2013). Because that judgment is in favor of the government, we need not decide whether any subsidiary

37 App.12a determinations in that case were adverse to the government. Any determinations adverse to the government would not have any preclusive effect here. See, e.g., United States v. Weems, 49 F.3d 528, 532 (9th Cir.1995) ( [A] determination adverse to the prevailing party is not given preclusive effect. ). Defendants water rights do not include, as a matter of state law, an implicit, appurtenant grazing right on federal lands. As recognized by federal and Nevada courts alike (including the district court here), the Taylor Grazing Act preempted any such right. Colvin Cattle Co. v. United States, 468 F.3d 803, (Fed.Cir.2006); Ansolabehere v. Laborde, 73 Nev. 93, 310 P.2d 842, (1957). Defendants have not established a right of way pursuant to Revised Statute (R.S.) 2477, which is the title given to section 8 of the Mining Act of 1866: the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted. 14 Stat. at Defendants have not shown that any roads exist, let alone that Nevada established the alleged roads as public highways under Nevada law. See Lyon v. Gila River Indian Cmty., 626 F.3d 1059, 1077 (9th Cir.2010) (holding that the party asserting an R.S right of way has the burden to establish [its] existence and that the first question is whether [the State] at some point established these roads as public highways under [state] law ); see also S. Utah Wilderness All. v. BLM, 425 F.3d 735, (10th Cir.2005) ( At 3 The FLPMA repealed this section at the same time that it repealed the ditches and canals right of way. As noted above, in footnote 1, that 1976 repeal did not affect existing rights of way. 43 U.S.C. 1769(a).

38 App.13a the opposite extreme [from a recognized highway ], in Cassity v. Castagno, 10 Utah 2d 16, 347 P.2d 834, 835 (1959), the Utah Supreme Court declined to recognize an R.S right of way where one cattleman had a practice of herding his cattle across the lands of another to get to and from winter grazing land. ). Finally, the district court correctly rejected the argument for legal and factual reasons that Defendants have not challenged on appeal that certain treaties between the United States and the original owners of the land are relevant. In sum, Defendants unauthorized grazing of cattle on federal lands was unlawful, and their water rights have no effect on the analysis. B. Defendants Counterclaim Defendants counterclaim under the APA is barred by the statute of limitations. To obtain judicial review under the APA, [a party] must challenge a final agency action. Or. Nat. Desert Ass n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir.2006). The six-year statute of limitations found in 28 U.S.C. 2401(a) applies to APA claims. Wind River Mining Corp. v. United States, 946 F.2d 710, 713 (9th Cir.1991). Defendants filed the counterclaim in The BLM s denial of an application for a grazing permit in 1993 plainly cannot provide the foundation for an APA claim, because it occurred 18 years before Defendants filed the counterclaim 12 years after the statute of limitations expired.

39 App.14a The district court held, instead, that [t]he United States... has taken final agency action by filing the present lawsuit. But we have long held that litigation decisions are generally committed to agency discretion by law, and are not subject to judicial review under the APA. City of Oakland v. Lynch, 798 F.3d 1159, 1165 (9th Cir.2015) (alteration omitted) (quoting Didrickson v. U.S. Dep t of Interior, 982 F.2d 1332, 1339 (9th Cir.1992)); see 5 U.S.C. 701(a)(2) (providing that the APA does not apply to the extent that agency action is committed to agency discretion by law ). Accordingly, the Attorney General s discretionary decision to file this lawsuit cannot give rise to an action under the APA.4 There is no support for the district court s conclusion that the filing of this action could give rise to an APA claim. The district court cited only one case in support: AT&T Co. v. EEOC, 270 F.3d 973, 975 (D.C.Cir.2001). That case stands for the opposite conclusion. The district court misleadingly quoted only a portion of the relevant passage of that opinion: Under the circumstances of this case, there clearly would be final agency action if the Commission filed a lawsuit against AT&T. (Of course, the Company could not challenge that decision as final agency action under 4 Even if the Attorney General s decision to file this lawsuit were a final agency action, the agency would be the Department of Justice, not the Forest Service or the BLM. Other than the filing of this lawsuit and defending the Estate s suit in the Court of Federal Claims, the Department of Justice has not taken any actions relevant to grazing permits or water rights. For that reason, too, the claim would fail.

40 App.15a the APA; it would instead simply defend itself against the suit.) Id. The district court quoted the first sentence but ignored the very next phrase: Of course, the Company could not challenge that decision as final agency action under the APA [.] Id. (emphasis added). Nor does the continuing violations doctrine urged by Defendants on appeal save this claim from the time bar. At the outset, we note that the doctrine almost certainly does not apply to APA claims. See Preminger v. Sec y of Veterans Affairs, 517 F.3d 1299, 1307 (Fed.Cir.2008) (holding that the doctrine does not apply to APA claims). But even assuming that the doctrine could apply to an APA claim, it does not apply here because Defendants cannot show that any agency action occurred within the limitations period. See Cowell v. Palmer Township, 263 F.3d 286, 292 (3d Cir.2001) (holding that, under the continuing violation doctrine as applied in the 1983 context, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period (emphasis added) (internal quotation marks omitted)). The doctrine clearly is aimed at the scope of the remedy: the court will grant relief for the earlier related acts that would otherwise be time barred. Id. (internal quotation marks omitted). The doctrine does not allow a claim that is entirely time barred. As the Seventh Circuit has put it, [t]he continuing violation doctrine allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period. Doe v. R.R. Donnelley & Sons Co., 42 F.3d