United States v. Estate of E. Wayne Hage , 810 F.3d 712 ( 2016 )


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  •                                FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        JAN 15 2016
    MOLLY C. DWYER, CLERK
    FOR THE NINTH CIRCUIT                       U.S. COURT OF APPEALS
    UNITED STATES OF AMERICA,                       No. 13-16974
    Plaintiff - Appellant,            D.C. No. 2:07-cv-01154-RCJ-VCF
    v.
    OPINION
    ESTATE OF E. WAYNE HAGE;
    WAYNE N. HAGE,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the District of Nevada
    Robert Clive Jones, District Judge, Presiding
    Argued and Submitted December 9, 2015, as to Appellant and Estate of Hage*
    San Francisco, California
    Before: Susan P. Graber, Kim McLane Wardlaw, and Mary H. Murguia, Circuit
    Judges.
    Opinion by Judge Susan P. Graber
    GRABER, Circuit Judge:
    *
    The panel unanimously concludes that this case is suitable for decision
    without oral argument as to Appellant and Wayne N. Hage. Fed. R. App. P.
    34(a)(2).
    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
    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
    2
    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.
    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."
    3
    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
    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
    4
    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 $165.88 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. US Airline Pilots Ass’n, 
    791 F.3d 967
    , 982 (9th Cir. 2015).
    DISCUSSION
    A.       Trespassing Claim
    5
    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
    6
    government has merely suffered the lands to be so used." Omaechevarria v. 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. § 580l. 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. 94-579, § 402, 90 Stat. 2743,
    2773, codified at 43 U.S.C. § 1752; see also 43 U.S.C. § 1740 (authorizing the
    7
    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. § 580l ("[N]othing herein shall be 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 697
    –98; 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
    8
    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 canals."1 
    Id. 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
    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.
    9
    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
    , 1214–15 (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 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
    , 1303–04 (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 153
    –55)).2
    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
    (continued...)
    10
    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 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. § 4140.1(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
    2
    (...continued)
    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)).
    11
    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. Under Nevada law, the owner of water rights owns neither the land nor the
    water; the right is usufructuary only. Desert Irrigation, Ltd. v. State, 
    944 P.2d 835
    ,
    842 (Nev. 1997) (per curiam). Second, even if Defendants had an easement by
    necessity, the government retains the right to issue reasonable regulations—and it
    12
    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 apprized 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
    , 153–56 (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 1281
    . 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 determinations in that case were adverse to the government. Any
    13
    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
    , 807–08 (Fed.
    Cir. 2006); Ansolabehere v. Laborde, 
    310 P.2d 842
    , 849–50 (Nev. 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 253.3 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. 2477 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
    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).
    14
    [state] law"); see also S. Utah Wilderness All. v. BLM, 
    425 F.3d 735
    , 773–74
    (10th Cir. 2005) ("At the opposite extreme [from a recognized ‘highway’], in
    Cassity v. Castagno, 
    347 P.2d 834
    , 835 (Utah 1959), the Utah Supreme Court
    declined to recognize an R.S. 2477 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 2011.
    15
    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.
    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
    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.
    16
    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 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
    17
    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 439
    , 445 (7th Cir. 1994) (internal
    quotation marks omitted).
    The statute of limitations bars Defendants’ counterclaim.
    C.     Instructions on Remand
    We reverse in part, vacate in part, and remand with instructions. We reverse
    the judgment for Defendants on their counterclaims and remand with instructions
    that the district court enter judgment for the government. No further proceedings
    on the counterclaims are necessary.
    We vacate the judgment with respect to the government’s trespass claims
    and remand for reconsideration under the correct legal standard. Because the
    government does not challenge the district court’s factual findings concerning
    18
    when cattle under Defendants’ control grazed on federal lands, further
    evidentiary proceedings likely are not needed. The district court shall enter
    judgment for the government on all claims supported by the record, shall calculate
    appropriate damages, and shall enter appropriate injunctive relief. We encourage
    the parties and the court to bring this litigation—unnecessarily protracted by the
    district court—to a speedy and just resolution.
    On remand, the district court shall determine, among other things, whether
    the source of law—state law or federal law—has any effect on the calculation of
    damages. Because of the positions taken by the government in this case, the
    answer appears to be "no." During closing argument at trial, the government’s
    lawyer expressly disclaimed exemplary (punitive) damages and stated that the
    government "is only seeking compensatory damages." It appears that, under state
    law, the appropriate measure of compensatory damages is "all loss actually
    sustained as a direct result of the trespass." Gerlach Live Stock Co. v. Laxalt, 
    284 P. 310
    , 311 (Nev. 1930). It is unclear to us how that measure differs from the
    federal-law measure of damages that the government sought in its post-trial brief:
    19
    "the reasonable value of the occupancy and use, considering its extent and
    duration, and not the scale of charges named in the regulations."5
    Our final consideration is the government’s request that we remand the case
    to a different district judge. "We reassign 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." Nat’l Council of
    La Raza v. Cegavske, 
    800 F.3d 1032
    , 1045 (9th Cir. 2015) (citations and internal
    quotation marks omitted). 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."
    
    Id. at 1046.
    Defendants openly trespassed on federal lands. Rather than simply resolving
    the fact-specific inquiries as to when and where the cattle grazed illegally, the
    district court applied an "easement by necessity" theory that plainly contravenes
    the law. The district court also encouraged Defendants to file a counterclaim that
    was clearly time barred. The only support that the court cited to overcome the
    obvious jurisdictional problem was a decision that stands for the opposite
    5
    We express no view as to whether federal law would permit a different
    measure of damages in a different case.
    20
    conclusion. Moreover, as discussed more fully in a separate disposition filed
    today, the court 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. See Int’l Union, United Mine Workers of Am. v.
    Bagwell, 
    512 U.S. 821
    , 831 (1994) ("[T]he contempt power . . . uniquely is liable
    to abuse. . . . Contumacy often strikes at the most vulnerable and human qualities
    of a judge’s temperament, and its fusion of legislative, executive, and judicial
    powers summons forth the prospect of the most tyrannical licentiousness."
    (citation, internal quotation marks, and ellipsis omitted)).
    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. On the first day of the 21-day trial, the
    judge stated: "the Bureau of Land Management, you come in with the standard
    arrogant, arbitrary, capricious attitude that I recognize in many of these cases."
    "[I]t’s my experience that the Forest Service and the BLM is very arbitrary and
    capricious." "Your insistence upon a trespass violation, unwillful —your arbitrary
    determination of unwillfulness [sic: willfulness] is undoubtedly going to fail in this
    court."
    21
    At a pretrial motions hearing, the judge advised a third-party rancher that he
    could file a lawsuit against the government and that "[h]opefully you’ll get Judge
    Jones because I’m very receptive to Mr. Hage’s lawsuit." Addressing Hage, the
    judge stated: "You have a court that’s very receptive and sympathetic to your
    claim."
    At a separate pretrial motions hearing, the judge stated: "In my opinion, not
    only in this case but in many cases, the government has been all too ready to—in
    the name of revoking or suspending or limiting grazing licenses, the government
    has been all too ready in the history of Nevada to impair otherwise suspected and
    substantiated rights of landowners." The judge explained in detail:
    We all know what that game is about. . . . And the game, just
    for the record, even though the government in many cases didn’t have
    the right to insist upon a permit, because asking for a permit would be
    an additional limitation on the right of use of a property right[],
    nevertheless, the government in many cases has insisted upon it, and
    then, when they denied or suspended or revoked the right, they said
    you no longer have the right. So that’s what that game is all about.
    During the contempt hearings, the judge stated: "I don’t like and never have
    liked the BLM’s or Forest Service’s arrogant presumption that they could assess to
    people for [animal unit months], for trespass, their own travel costs, office costs,
    sitting in their big chair already paid for by the American taxpayer." Compare 43
    C.F.R. § 4150.3 (providing that the amount due for willful unauthorized grazing
    22
    includes "all reasonable expenses incurred by the United States in detecting,
    investigating, [and] resolving violations"). The judge’s statements in this case
    reflect both pre-judgment of the merits and bias against the federal agencies.
    Judge Jones’ improper treatment of government officials and his improper
    statements about federal agencies were the subject of United States v. United States
    District Court (In re United States), 
    791 F.3d 945
    (9th Cir. 2015). See La 
    Raza, 800 F.3d at 1046
    (looking to the conduct and statements of the district judge in
    other cases, when deciding whether to remand for reassignment). In that case,
    Judge Jones had refused to admit out-of-state Assistant United States Attorneys to
    practice before the court under a personal policy that such admissions were not
    warranted unless the local Assistant United States Attorneys were unavailable. In
    re United 
    States, 791 F.3d at 949
    –50. After the government filed a mandamus
    action, Judge Jones reversed his decision in that particular case but continued to
    apply the policy in at least one other case. 
    Id. We held
    that district courts have
    discretion to deny admission, but that Judge Jones "clear[ly]" had acted outside
    that discretion. 
    Id. at 955.
    The following is the passage most relevant to this case:
    [S]ome of Judge Jones’s comments risked giving the impression that
    his admission policy was motivated by his disagreement with the
    enforcement priorities of specific federal agencies. For instance,
    during a proceeding in [a different case], Judge Jones stated:
    23
    My experience has been, in a number of cases, that when I
    admit out-of-state licensed attorneys for the U.S. Government,
    that they feel no obligation to me under the ethical standards of
    the Nevada Bar . . . . And some of the directions taken by the
    Internal Revenue Service and attorneys out of and licensed out
    of Washington with respect to that is just abhorrent to me.
    (emphasis added). Similarly, an order denying a motion for
    reconsideration in [a second case] stated: "[t]he local United States
    Attorney, Mr. Daniel G. Bogden, serves under an Attorney General
    who, under the guise of prosecutorial discretion, selectively enforces
    laws to further political objectives that ought to be left to the
    legislature. There is simply no presumption that his subordinates are
    above ethical reproach." (emphasis added). . . . [C]omments like
    these created a real risk that the policy would, rightly or wrongly, be
    viewed as an encroachment on the domain of the political branches.
    
    Id. at 958.
    We held that, in an appropriate case, mandamus is a viable remedy. 
    Id. at 960.
    We also noted that "Judge Jones’s practice . . . may itself qualify as the
    type of conduct properly addressed by the Judicial Council." 
    Id. at 959;
    see also
    
    id. at 964
    (Wallace, J., concurring in the judgment) ("Judge Jones’s pattern of
    denying admission and then reversing himself only after the government files a
    petition for a writ . . . likely qualifies . . . as the type of conduct that is most
    properly addressed by the Circuit Council.").
    We also have expressed concern about Judge Jones’ conduct in several other
    recent cases. See La 
    Raza, 800 F.3d at 1046
    (remanding to a different district
    judge because a reasonable observer could conclude that his "feelings against out-
    24
    of-state attorneys are both well-established and inappropriately strong" and noting
    that this court had earlier found his comments "troubling" in Henry A. v. Willden,
    
    678 F.3d 991
    , 1012 (9th Cir. 2012)); Benvin v. U.S. Dist. Court (In re Benvin), 
    791 F.3d 1096
    , 1104 (9th Cir. 2015) (per curiam) ("Here, the appearance of justice will
    best be served by reassignment to a different judge. The current district judge
    [Judge Jones] has already expressed explicit views on the appropriate terms of the
    parties’ plea agreement, suggested the terms he would and would not accept, and
    explained that he would not grant any motion dismissing forty-nine counts of the
    indictment unless the government complies with such terms."); Townley v. Miller,
    
    693 F.3d 1041
    , 1043–45 (9th Cir. 2012) (order) (Reinhardt, J., concurring) (stating
    that Judge Jones’ actions "can only be explained as a deliberate attempt to evade
    review by higher courts" and that "[s]uch arrogance and assumption of power by
    one individual is not acceptable in our judicial system"). On remand, we instruct
    the Chief Judge of the District of Nevada to assign the case to a different district
    judge.
    REVERSED in part, VACATED in part, and REMANDED with
    instructions. Costs on appeal are awarded to Plaintiff-Appellant.
    25
    COUNSEL
    Elizabeth Ann Peterson (argued), William B. Lazarus, David C. Shilton,
    Stephen G. Bartell, Anna K. Stimmel, Bruce K. Trauben, and Vivian H.W. Wang,
    Attorneys, Environment and Natural Resources Division, United States
    Department of Justice, Washington, D.C.; John C. Cruden, Assistant Attorney
    General, Robert G. Dreher, Acting Assistant Attorney General, Daniel B. Bogden,
    United States Attorney, Elizabeth White, Appellate Chief, and Blaine T. Welsh,
    Assistant United States Attorney, District of Nevada, United States Department of
    Justice, Las Vegas, Nevada; and Nancy C. Zahedi, Regional Solicitor’s Office,
    United States Department of the Interior, Sacramento, California, and Kenneth D.
    Paur, Assistant Regional Attorney, Office of General Counsel, United States
    Department of Agriculture, Denver, Colorado, for Plaintiff-Appellant.
    Mark L. Pollot (argued), Boise, Idaho, and John W. Hoffman, Hoffman,
    Test, Guinan & Collier, Reno, Nevada, for Defendant-Appellee Estate of E. Wayne
    Hage; and Wayne H. Hage, Tonopah, Nevada, pro se, as and for Defendant-
    Appellee.
    John Echeverria and Hillary M. Hoffmann, Vermont Law School, South
    Royalton, Vermont, for Amici Curiae Natural Resources Defense Council, Inc.,
    and Sierra Club.
    Brian T. Hodges, Pacific Legal Foundation, Bellevue, Washington, as and
    for Amicus Curiae.
    26
    

Document Info

Docket Number: 13-16974

Citation Numbers: 810 F.3d 712

Filed Date: 1/15/2016

Precedential Status: Precedential

Modified Date: 1/12/2023

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Lyon v. Gila River Indian Community , 626 F.3d 1059 ( 2010 )

Roy Hunter v. United States , 388 F.2d 148 ( 1967 )

66 Fair empl.prac.cas. (Bna) 981, 65 Empl. Prac. Dec. P 43,... , 42 F.3d 439 ( 1994 )

McFarland v. Kempthorne , 545 F.3d 1106 ( 2008 )

United States v. Clarke Dexter Weems , 49 F.3d 528 ( 1995 )

lester-adams-v-united-states-of-america-lester-adams , 3 F.3d 1254 ( 1993 )

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Osborne v. United States , 145 F.2d 892 ( 1944 )

HENRY A. v. Willden , 678 F.3d 991 ( 2012 )

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Desert Irrigation, Ltd. v. State of Nevada , 113 Nev. 1049 ( 1997 )

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