The Estate Of Wayne Hage v. U.S.

Jul 26: In the U.S. Court of Appeals, Federal Circuit, Case Nos. 2011-5001, -5013. Appealed from the United States Court of Federal Claims. The Appeals Court explains that E. Wayne Hage and Jean Hage brought an action against the United States, seeking compensation for a Fifth Amendment taking of private property, breach of contract, and range improvements pursuant to 43 U.S.C. § 1752(g). The Court of Federal Claims (Claims Court) awarded compensation for the taking of water rights plus interest from the date of the taking. The Claims Court also awarded compensation for range improvements, but did not award any corresponding pre-judgment interest. The Appeals Court ruled, "For the reasons set forth below, we affirm-in-part, reverse-in-part, vacate-in-part, and remand for proceedings consistent with this opinion."

   

    The Claims Court held there was a regulatory taking of the Hages' water rights when the Forest Service allowed vegetation to accumulate in streams and prevented the Hages from performing maintenance on the stream channels and ditch rights of way.   

 

    Among other determinations, the Appeals Court indicates, "The Hages have not met their burden because the evidence demonstrates only that they constructed or maintained the improvements on the federal lands, not that they owned title to those improvements. To the contrary, the evidence of record demonstrates that the improvements were the property of the United States government. Without evidence of ownership, the Hages cannot establish a cognizable property interest. To the extent that the Hages argue that they are entitled to a diminution in value for range improvements on their private property stemming from the cancelation of their permits, this argument is without merit. . ."

 

    In its conclusion the Appeals Court said, "The Hages' regulatory takings claim and claim for compensation pursuant to 43 U.S.C. § 1752(g) are not ripe, and we therefore vacate the Claims Court's award of damages. To the extent the Hages' claim for a physical taking relies on fences constructed in 1981-1982, this claim is untimely. To the extent the physical takings claim relies on fences constructed in 1988-1990, we re-verse because there is no evidence that water was taken that the Hages could have put to beneficial use. Finally, we affirm the Claims Court's holding that the Hages are not entitled to prejudgment interest for any range improvements award because the Hages failed to identify a cognizable property interest. We remand for further proceedings consistent with this opinion. "

 

    Access the complete opinion (click here). [#Water, #Land, #CAFed]

 

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