Our Klamath Basin Water Crisis Upholding rural Americans

Hage v. United States, Days Two, Three and Four

Hage v. United States
Takings and Liability Trial
May 4, 2004
Reported by Margaret Byfield, Executive Director

Trial resumed at 10:15 am with only a few seats in the audience empty. The proceedings
began with the government raising objections to characterizations made by Hage in the
previous day’s testimony and objections to plaintiff’s next witness who had not yet been
called to the stand.

Specifically they objected to Hage’s description of the Forest Service as druggies and
boozers when he testified that he believed it was the Forest Service employees that must
have provided the drugs and booze to his riders stationed on Table Mountain.
They also objected to Plaintiffs witness, Bob Schwager, who would be called after Hage
finished his testimony, and argued plaintiffs must accept in a takings case that the
government action was justified.

Ladd Bedford responded by stating that the line of questioning goes towards whether the
government took Hage’s property, not whether it was justified. Judge Loren Smith said
the character of the government’s action is one of the three prong test in determining a
taking and overruled the objections.

Hage described the condition of the allotment as excellent and even related a story where
a high ranking Forest Service official from the Ogden, Utah office, after touring the
allotment in the early 1980’s, stated that the range was the best he had seen in Nevada.
He identified a series of pictures taken, pointing out a water gap created by the Forest
Service after they fenced off his primary springs for their Administrative Site, and after
they broke up the allotment into three rotation areas. These actions created a narrow 100
foot wide area where the cattle were forced to water just below the ranger station.

Wayne identified a picture taken at the water gap with a Forest Service Range
Consultant, a Representative from the Nevada Cattlemen’s Association, and a third
person standing knee high in grass. The year prior, 1990, that same Range Consultant
had reported this area was so over grazed that it was a “dust bowl.” That report led to the
Forest Service decision that Hage had to remove his cattle off before the season ended,
and ultimately a 38% cancellation of his permitted numbers along with a 5 year
suspension of the entire permit.

The grazing season in Meadow Canyon usually ran through October. But August 1,
1990, as a result of the Range Consultants report, Hage received a letter requiring him to
remove all cattle off the allotment in ten days. Wayne filed an appeal because it was
impossible to get the cattle off in that amount of time and keep them off. The allotment
borders the Monitor Valley Allotments managed by the BLM where the cattle would
have to be located. There is 25 miles of unfenced boundary between the two allotments,
with 17 unrestricted roads and trails Hage counted on the Forest Service’s map.

Judge Smith asked for clarification of which allotment was affected. Wayne responded
that the decision was made on the Meadow Canyon Allotment but that the policy
previously was that the cattle would drift between the two allotments because the border
between was unfenced. But when their policy changed and they restricted the one
allotment, you couldn’t keep the cattle off so you would have to not use both allotments,
which severely impacted the ranch.

Bedford showed Wayne a letter he received from the District Ranger, Dave Grider,
denying his appeal on August 9, 1990. It also served him with a notice of impoundment.
Several other letters were entered into the record, including letters by Wayne where he
explained the difficulty of keeping the cattle off because of the unfenced boundaries.
Bedford then turned to the next grazing season and asked what efforts Hage made to keep
cattle off the allotment. Hage explained that by 1991 he realized the only way to comply
with the cancellation of the Meadow Canyon permit and the sever reduction already
made on Table Mountain, was to remove all the livestock from the ranch. In the spring
of 1991 he began gathering all the cattle as they moved off the winter range and hold
them in private meadows until the controversy was resolved. If not resolved, he would
be in a position to sort and sell the cattle. But, 1991 turned out to be a very dry year so he
couldn’t hold the cattle for very long.

In order to move the cattle from the Ralston range to Pine Creek headquarters where the
cattle would be held, they had to migrate through the Monitor Valley Allotment, which
borders the now suspended Meadow Canyon allotment. “From June 1 to July 27 our crew
gathered the Allotments every day,” in order to try and keep the cattle off as they
migrated to Pine Creek.

Bedford asked what happened July 27, 1991, the first day they confiscated his cattle.
Hage described how the crew went to Meadow Canyon to gather cattle but were met with
several riders and Forest Service officials wearing bullet proof vests and carrying semi-
automatic weapons. His instructions to the crew had always been to avoid any
confrontation with the Forest Service, so they turned around and came home.

After the Forest Service confiscated the cattle, Wayne received a letter informing him he
could redeem his cattle if he paid $39,000 for the cattle, and $40,000 for the cost of
impoundment. On October 28, 1991, Hage sent a letter to the Forest Service stating he
wouldn’t be using any of his allotments. All his cattle had all been sold at fire sale prices
trying to comply with the Forest Service policies. “I didn’t have any cattle and couldn’t
buy any as no one would loan me any money because of the reputation put on me by
these actions.”

Then Bedford asked, “Did you always pay your grazing fees to the Forest Service and
BLM?” Wayne answered, “Yes, I did.” Bedford asked, “Did they always accept
payment?” Wayne responded, “Yes, they did.”

The discussion turned to the BLM’s decision to fence off two major highway’s that ran
through Hage’s winter range in 1989. Hage talked with the Tonopah Transportation
Department and requested that cattle underpasses be installed which is normally done on
the grazing lands. “I wasn’t opposed to the fencing, but I wanted to make sure that cattle
had a way to pass through the allotments and reach all the waters.”

A meeting was set between the Transportation Department, BLM and Hage. In the
meeting the BLM informed them that FLPMA revoked any rights Hage might have had,
so the Transportation Department went ahead with the proposed fencing. Instead of
cattle underpasses, they installed gates, and Hage is required to contact the highway
patrol to block the road whenever cattle need to pass.

Sometime after 1991, a man named Douglas Baker who had purchased 40 acres in an
area that Hage owns a stock driveway, constructed a fence across the driveway blocking
Hage’s use. This driveway is about ¼ mile wide and is necessary for cattle to pass from
the southern end of the winter range to the northern end. It was created years earlier by
previous owners who exchanged water rights for the driveway in order to help keep the
cattle off a major highway near the area. The restriction to the property is that the stock
driveway cannot be blocked.

But after Mr. Baker purchased the property the BLM informed him that Hage had no
rights on the land and he could fence the area if he wanted to do so. The BLM also
allowed a gravel pit operation in the same area, which was also an effective block to the
cattle.

Bedford asked Hage if he had ever discussed these situations with the BLM. Hage
answered, “Yes, I did with Ted Angle. Their position was the same, that I didn’t have any
rights out there, water rights or any other and that if they wanted to block me that was
their right.”

Judge Smith asked Wayne why Mr. Baker constructed the fence. Hage answered that he
didn’t know his reasons, but assumed that it was to delineate what he thought was his
property. The Government’s attorney, Ms. Burakreis, objected to the testimony as
hearsay and then informed the court that Mr. Baker constructed the fence to protect his
children from Hage’s bulls who were harassing them. The Judge allowed Wayne to
respond upon a direct question from Bedford. Wayne stated, “I didn’t own any cattle at
the time the fence was constructed.”

Bedford then asked a series of questions regarding the third party use of Hage’s grazing
allotments managed by the BLM. They had issued temporary permits to other ranchers
who were now using Wayne’s range and water. Although the ranchers were required to
haul in water, the cattle would still use Hages wells and springs since none were fenced.
They admitted into evidence a photo taken by Hage of cattle drinking at Baxter Springs,
many laying down around the area with a full belly.

There was also a discussion about several Desert Entry applications the BLM had
approved on Hage’s range. Hage testified he protested the granting of the water rights.
Then the questioning turned to Hage’s financial situation after the impoundment and as
of the filing of this case. Hage testified that the proceeds from the sale of his cattle went
to pay off his production loan, but because they were sold at fire sale prices, there was
still a $100,000 balance remaining. Later he satisfied this loan with insurance proceeds
from a rental house of his that had burnt down.

He worked closely with the bank that held his land loan, whose parent company was
CIGNA, and was able to sell several parcels of property that were not critical to the
ranching operation, retaining the stockwaters on each, to make the payments for a few
years after the filing of the case. But in 1994, he had nothing left to sell and they began
foreclosure proceedings.

Part of the difficulty he had working with the banks was that the BLM and Forest Service
had long since been informing his lenders that he would not be able to satisfy his loans
because they were revoking his permits. After Wayne was able to show CIGNA that
both the Forest Service and National Wildlife Federation were involved in running him
out of business, and CIGNA was a contributor to the National Wildlife Federation, the
bank discounted the remaining balance of the note by 50%. Wayne’s brother in law paid
the remaining balance. He told Wayne that if he is awarded compensated for the taking
of his property the note could be paid at that time.

Bedford asked, “Mr. Hage, did the communication from the Forest Service with your
lenders impact your relationship with them?” Hage answered yes. “When I went to
renew my notes they would inform me that the Forest Service had been contacting them
letting them know that I wouldn’t be able to service the loans and would be loosing my
range. As a result, they were concerned I wouldn’t be able to pay it out and would face
foreclosure.”

Then Bedford asked Hage if he had leased his private pastures since 1991. Wayne said
yes. He leased them first to Steve Wilmans, owner of RO Livestock in 1992 who was
having the same problems with the Forest Service and BLM that he had. In May of 1994,
Mr. Wilmans received a letter from Jim Angle of the BLM informing him that they
would only agree to the renting of Hage’s fenced pastures if Hage put his private land
under their permit system. Some of the fenced pastures were not fenced exactly as shown
on the survey, which is commonly occurs on these early outfits. They said he would be
in trespass if Hage didn’t allow them to put his private meadows under the permit system.
Hage wouldn’t agree to this, so Mr. Williams hired a survey crew and fenced the pastures
exactly to the survey. After this, Wilmans was able to use the pastures without receiving
trespass notices.

Bedford began another line of questioning on a more recent trespass notice, issued in
2001. Hage explained his crew was moving cattle from one pasture to another and were
on a road between the two when a BLM vehicle forced the cattle off. The agents stopped
and took pictures of the cattle they had chased off the road and later sent Hage a trespass
notice.

Dorothy Burakreis objected to this testimony when the first question was asked by
complaining that Bedford was asking leading questions. After Bedford offered proof of
relevance, the Judge allowed the leading question.

Then finally, Bedford asked about a notice Hage received in the fall of 2003 for dumping
waste on federal property. He received a fine of $200 from a government entity whose
address was in Austin, Texas. He wasn’t sure what that was about, but later received a
call from his son who said two BLM officials calling themselves law enforcement were at
the ranch to see Wayne and his wife Helen. Wayne called the sheriff and explained that
he thought they were pushing for a confrontation. By the time Wayne and Helen arrived
there were already two Nye County Deputies there explaining to the BLM that they had
no Law Enforcement authority in Nye County. The BLM called the Solicitor General
who talked directly to the Deputy and informed him that if he stood in the way they
would send Federal Marshals to arrest the Hages and the deputy. The deputy simply
replied that they should do what they needed to do. The BLM agents left without making
any arrests.

They were complaining about a dump site right outside Hage’s property, which has been
used for that purpose since the 1880’s based upon artifacts found there. Wayne testified
that the site is allowed by Nevada law. Wayne paid the $200 fine along with a letter
explaining they were interfering with a case in litigation.

Cross of Wayne’s testimony was handled by lead attorney Dorothy Burakreis. Court
watchers quickly witness the difference in efficiency between the two sides. Ms.
Burakreis’s questions were difficult to understand, often forcing the witness to ask her to
repeat it several times, which didn’t necessarily clarify the question but did cause the
raising of Ms. Burakreis’s voice on occasion.

Unlike plaintiff’s counsel, who would provide the witness with the document referring to
first, and then ask questions, the witness would continually have to ask for a copy of the
document she was using. This often resulted in the government’s table having to look
through a few folders before providing a copy. The majority of her cross examination
involved reading portions of a letter or excerpts from Wayne’s deposition and asking if
he sees what it says. Wayne would usually respond, “the document says what it says.”
One of her first questions began with a recount of his early testimony. She asked why he
claims he was driven out of business when the previous owners managed to maintain the
ranch as one of the best in the State of Nevada under the same Forest Service policies.
Wayne responded by explaining prior to 1976 the rancher’s rights were generally
respected, but after that, the Forest Service began to operate differently believing they
didn’t need to respect these rights. He purchased the ranch in 1978.

She then turned to a line of questioning regarding the calf weight and percentage of calf
crop his records showed. At one point she asked if he had inflated the calf crop on his
loan documents. He said he certainly did not, because every time the cattle were counted
an officer from the bank was right there with them.

She asked if his average weaning weight was 340 pounds from 1978-1991. He agreed
with her figures and explained that was an indication of the harassment he had been
getting because you can’t move cattle around as the Forest Service required without ther
calf weight reflecting that. She followed this up questioning why he represented to a
prospective buyer that the weaning weight was 440 pounds. He responded, “it wasn’t a
misrepresentation. I said to Mr. Pete Talbot, if you could run this ranch the way it should
be without government interference you should get 440 pounds.”

Burakreis then states that he testified he considers himself a very good ranch manager
and asked if a 71% calf crop at 340 pound average weight was good management.
Wayne responded, “well, most of the time I wasn’t managing that ranch, the Forest
Service was.”

She then discussed a 1981 Wall Street Journal article on Hage about his cattle operation.
In the article he states, “we do things the old fashioned way.” Burakreis continued that
the article describes your management style is to leave as much to nature as possible,
minimal vaccinations, leaving the cattle to make their own living. Wayne responded,
“that is very accurate,” and then further explained that the old style of ranching is tried
and true and has worked for 100’s of years. You work with nature, not against it. If you
are in an intensive management situation such as a clover field in California, you need to
vaccinate more. But this is not an intensive operation. “Every person who has tried to
manage one of these ranches that way, has gone broke.”

Burakreis went back to discussing excerpts out of Wayne’s deposition asking him if he
recalled these statements. For one of the statements, Wayne asked to see his deposition
to refresh his memory. The court waited several minutes as she looked through her notes,
and thumbed through the deposition and then apologized to the court for not having it.
Frustrated, she said, “Well, you would agree you said that somewhere.” After a bit of
laughter from the audience, Wayne agreed that it was a correct statement.

Burakreis later stated he testified that grazing the forage for three to four months and
resting the riparian area for eight to nine months is good practice. She asked if it was his
belief that he should be able to graze those areas without interference? Wayne stated that
it was Forest Service policy prior to 1976 to manage it that way. Back in those days they
followed common sense. You turned the cattle out when the forage was ready and when
the forage matured and it turned cold they came off. When you gathered cattle in the fall,
you expected that some of the cattle would not be off because in those days the people in
the Forest Service had some background in ranching and understood that some cattle
wouldn’t come off until the first snow. So there wasn’t a panic if they saw a cow and
they wouldn’t send you a trespass notice.

She inquired whether he believed you should use the forage to 100% of its utilization.
He answered that 80% is more common. “On your own hay meadows you take 80-90%
every year and each year those hayfields keep producing.” Burakreis asked if he was
able to rest the Table Mountain allotment consistently for 9 months. Wayne said yes, but
once the Elk were planted the area was grazed 12 months of the year.

She then turned to the impoundment of cattle on the Meadow Canyon Allotment asking if
any of the employees had upholstered their guns. Hage responded that in the deposition
of Dave Young, he stated that each Forest Service official had 4 guns. Burakreis
interjected that these were in their trucks. But Wayne continued, saying two were in the
truck and then began listing the guns Young had identified that he himself had brought
with him. Judge Smith asked who was this individual Dave Young. Wayne answered
that he was the Forest Service employee who called himself a special agent with law
enforcement authority.

Burakreis asked why Gallagher livestock refused to sell the confiscated cattle. Wayne
responded, “The reason given me by Mr. Gallagher was he didn’t sell stolen cattle.”
She then showed him a document she said was from a brand inspector. On it was a note
that claimed freshly branded calves were also impounded. She asked why there would be
freshly branded calves if he was gathering these and putting them on the private
meadows. Clearly, if they had been branded then they had recently been gathered. Hage
explained that they often gathered the same cattle over and over. You couldn’t always
get them to Pine Creek in one day.

But he noted that he didn’t know if they did confiscate freshly branded calves. “I don’t
even know that this happened. It looks like an account from Dave Grider.” After some
questions were raised about whether the document was from a brand inspector, Judge
Smith asked for clarification whether this document had been identified. Burakreis
explained it was from the Forest Service impoundment log and said that they would clear
this up during Dave Grider’s testimony.

She then asked questions about whether he agreed with the CRMP recommendations
made to the operating and management plan. Wayne explained the CRMP committee
was made up of members of the Forest Service, BLM, National Wildlife Federation,
some local officials and others. “They were all trying to make decision of what to do
with my property. That is one of the reasons we are in court.” He then was able to point
out that during this time there were three congressional investigations called for which
turned into internal Forest Service investigations, resulting the firing of several
individuals. Again frustrated, Burakreis said, “You are not answering my question.”

Burakreis objected to Wayne’s response and Judge Smith stated that counsel for plaintiff
can ask a question on redirect to clarify, but that the witness needs to answer yes or no
when not asked for explanation. Bedford objected to her question because what she said
was not and accurate characterization of the question she was discussing from the
deposition, and then read what the deposition actually said. Judge Smith said it seems
that the Government’s question is a bit different than what is in the deposition.

By day three of the trial, watchers were getting comfortable with the Judge’s demeanor.
Most mornings began with a short recount of his and the clerk’s adventures the night
before. One evening they searched several shops trying to find a laser pointer since the
laser plaintiffs were using wasn’t functioning well. The pointer they found not only
project a light to help identify items on maps, but the pen itself lit up much like a slot
machine. He commented that he thought only in Reno, Nevada could you find such a
pen.

Importantly, those hoping for the Hage’s success, saw a Judge who throughout trial was
actively taking notes, reviewing exhibits as presented, and asking questions as
appropriate of the witnesses. The questions he asked made clear he was listening closely
to the testimony presented.

Dorothy Burakreis resumed her cross-examination of Wayne. This by far, has been the
most difficult part of the trial, not because her questions raised any concerns from
plaintiffs, but because she was difficult to follow and frustrating to watch searching for
documents. She simply was not as organized or articulate as plaintiff’s counsel.

The day continued as it had ended, with Burakreis asking if Wayne had seen certain
documents and reading from his deposition which several times Bedford objected to
because she was mischaracterizing the content. In response to one objection, Judge
Smith explained that the object of questioning the answers given in a deposition was to
establish credibility. He noted that it seemed unproductive just to read the questions and
verify answers, which since the witness has already signed the deposition you would
assume he agrees with those statements. But if you are reading a question from the
deposition it seems reasonable that the question be read as asked.

She began by raising several examples where Hage had been cited for trespass and even
one incidence where they had dropped charges even though even though he continually
allowed his cattle in trespass situations and failed to maintain his fences. Wayne was
able to explain that they dropped the charges because he had appealed it, and also
because there was an internal investigation into the Forest Service’s actions going on at
the same time.

When she questioned him over the Forest Service’s charge that he failed to maintain the
fences on Table Mountain, he explained. The fences were erected in a way that didn’t
allow good range use. They were barriers the Elk would tear down and cause trespass
situations. Since it cost the Forest Service $12,000 per mile to erect the fences, it
certainly was going to cost Hage $1000’s of dollars to maintain them, which was
prohibitive considering all the other Forest Service regulations.

When asked if he would have agreed to additional fencing on the Meadow Canyon
Allotment, Wayne said he didn’t believe he would. “It is a question of control, and the
Forest Service was in control.” He further explained the system in place when Guy
Pence was there, worked very well, but when he was replaced by Dave Grider, the policy
changed and Hage was back in a trespass situation.

While reviewing one of the documents showing the use of the allotment, signed by Hage,
Wayne noticed at the bottom it said see back in his handwriting. However, this portion of
the document was not copied. Judge Smith admitted the document allowing the back
side to be admitted later if relevant.

Then Burakreis turned to questions on Wayne’s legal interpretation of the final decision
in the property rights phase. She asked if he had been advocating that he owns the lands
and is telling other ranchers in seminars that they are his fee lands. Bedford objected on
grounds that the question was outside of direct and irrelevant. Judge Smith sustained the
objection after making a comment that this might indicate people had read his decision.
However, he noted that the witness’s legal conclusions are not pertinent to the testimony.
Then she tried to admit into evidence the minutes from the CRMP committee meetings.
Bedford objected, and Judge Smith ruled that since there were non government people on
the committee it was not considered a public document and would not be admitted.
Burakreis had no more questions.

When re-direct of Wayne began, this court watcher was thankful for the new pace
quickly established by Bedford. He asked a handful of short, clear questions that
clarified some issues raised by the government. One of the issues was the reason it was
difficult to remove cattle from trespass situations in the time the Forest Service allotted.
Hage explained that most of these notices would come during holiday’s when the crew
was off and not on the ranch.

In following up to the Governments efforts to paint Wayne as a bad ranch manager,
Bedford asked, if he subtracted the depreciation number, a non-cash item, and the loan
interest from his tax returns, would the ranch show a profit. Wayne said yes it would.
In another area of potential confusion, Bedford noted. “You testified that you made your
decision to liquidate the cattle in 1991. Had you received a notice of impoundment in
1990 on the Meadow Canyon Allotment?” Wayne answered, “Yes we did.”

After being handed several notes from Dave Grider, Burakreis asked a few more
questions regarding 91 head of cattle that were unaccounted for on Table Mountain at the
end of the grazing season during one of the later years. She said he testified that these
cattle were driven off by hunters. “Isn’t it a fact Mr. Hage, that it could simply be you
missed those cattle when you gathered?” Wayne responded, “that is not correct, because
in all the years we gathered we never missed anywhere near that number of cattle in one
gathering.” She then tried to get him to agree that he really didn’t know what drove them
off but simply presumed that it was from the hunters. He answered, “Well, I presume
that with 80 people up on the mountain shooting guns that the cattle would run away
from them.” “Couldn’t it just be that they were running away from you,” she asked.

After a short recess, Plaintiff’s called Robert Schwagert to the stand, who was qualified
as an expert in Range Management and Wildlife Habitat. Mr. Schwagert owns
Intermountain Range Consulting, which provides consultation to ranchers across the west
primarily on range conditions.

In 1991, Nevada rancher Cliff Gardner, hired him to conduct a diversity study on Pine
Creek Ranch to determine which areas were more productive, those grazed by cattle or
those not grazed. However, after reviewing portions of the Forest Services 1990 report
on the range conditions, which led to the 5 year suspension of Hage’s Meadow Canyon
Allotment, Schwagert decided to do a production study instead. A production study
analyzes the quality of the forage available and is a good indicator of the condition of the
range.

He studied the heavily grazed water gap created by the Forest Service after they fenced
off Hage’s primary springs, and compared this with the bordering meadow the Forest
Service had fenced off for their own use. He found that the Forest Service meadow had
4500 pounds per acre of desirable vegetation, and the water gap had 6140 pounds of
desirable vegetation per acre. He concluded that the water gap area was in good to
excellent condition. The numbers made it clear, that what the Forest Service called a dust
bowl the year before was in better condition then the meadows they managed.

He also studied a meadow in Corcoran Canyon on the same allotment. This was within
another area the Forest Service had cited as being in such poor condition that the cattle
must be kept off for 5 years. Schwagert testified that he had to go back to town to
purchase 4 foot high pipes because the vegetation was so tall that the usual 18” markers
he used would not be seen.

The method used by the Forest Service in 1990 was what they called the Ocular
Reconosense method. Schwagert was questioned on how this was done. He explained
that the Ocular method is more subjective, since you make determinations about
utilization by looking at the vegetation, rather than taking measurements to determine the
level of utilization. The production study he did, actually weighs the dry weight of the
forage giving you a more accurate indication as to the quality of the range.

Today began with cross-examination of Bob Schwagert by Alf Brant of the Department
of Interior. He asked several questions about utilization, whether the area was in a
drought at the time, whether he measured off his plots when he clipped the grass for the
production study or just randomly placed his transects.

Primarily, he tried to establish that Schwagert’s production study was incomplete. He
asked if he looked at soil compaction, diversity of species, and vigor. Schwagert
responded that all of these are short cuts to determining production, which is the study he
performed.

He then asked how Schwagert selected the areas to study. Schwagert had testified that
Cliff Gardner, the rancher who hired him, had shown him excerpted portions of the
Forest Services 1990 report where the range was describe to be in very poor condition.

In his questioning Brant insinuated that Schwagert relied on partial data and the biased
perspective of Mr. Gardener. Schwagert responded, “I didn’t preconceive what my
conclusions were going to be.” He went on to explain that the Forest Service reports
showed him that they used leaf length, soil compaction and hummicking as an indicator
of production. That lead him to determine he needed to do a production study rather than
the diversity study Mr. Gardner had wanted.

Then Brant questioned how he could conclude the water gap area was in good to
excellent condition when he didn’t even analyze the diversity of species. Schwagert
responded that the production numbers of the desirable species far exceeded the Forest
Service’s threshold of 2000 pounds per acre, which they use to determine the condition of
the range. In regards to not analyzing the diversity of species, he said, “neither did the
Forest Service’s 1990 study.”

Brant moved to questions about the method’s used to determine grazing utilization. He
commented that utilization studies don’t actually measure what is in the cow’s stomach,
pointing out that this method is very subjective. Schwagert agreed, and explained that
you have to make some assumptions to get to these conclusions as does the Forest
Service and BLM. If you didn’t use assumptions no one would come to any conclusions.
However, the method of measurement is far better than using the ocular method where
you just look at the plot. The 1990 Forest Service study, which we will be hearing about
later in the trial, was conducted using the Ocular Reconosense method.

Brant then stated that the ocular estimate by plot had been used and peer reviewed for
many years. Schwagert clarified that the method had been peer reviewed, but not the
subjective method the Forest Service currently uses.

On redirect, Ladd Bedford asked whether utilization standards are to based on
measurements of height er weight. Schwagert answered they are based on weight
because the bulk of the weight of the plants in the base, so measuring by height isn’t
accurate.

Schwagert said, “the report describes the area as severely overgrazed.” Bedford
continued by saying he understood Schwagerts study to show that the water gap area
exceeded the Forest Service’s horse pasture. “Correct,” responded Schwagert. He
explained that in areas where you have livestock grazing you have fertilization and usage
and in the horse pasture you didn’t have enough use so the forage compacted and
deteriorated the conditions.

Dr. Tony Lesperance was the plaintiff’s next witness, who was qualified as an expert in
surface water resources, water rights, and livestock management. The young Department
of Justice attorney was handling the cross examination and challenged the witnesses
qualifications as a hydrologists, saying since he was not trained in this field he was
unqualified to testify on surface water resources and water rights. Dr. Lesperance, sitting
on the stand with a full head of white hair explained that whether or not he took
hydrology courses in school was irrelevant since he wasn’t testifying on hydrology.
Judge Smith found him a qualified witness based on his 50 years of experience in the
field of surface water resources and water rights.

Mike Van Zandt, who was handling the direct of Lesperence, asked if he was familiar
with Monitor Valley where Pine Creek Ranch is headquartered. Tony recounted that
when his children were young they fell in love with the valley and fished the creeks there
many times. He said he had probably been in the valley every year since. He knew the
previous owners very well, they were students of his at the University of Nevada, Reno,
and also indicated he knew Wayne for about 50 years.

Throughout his testimony he described the valley as once having great agriculture
production, even after a 15 year drought where precipitation levels were 75% less over
the period, there were lush fields in the valley and the Pine Creek Meadows were very
productive.

He was hired to survey the scope of the water resources in Monitor Valley. He
concluded that the amount of water now flowing past the points of diversions on the 7
major streams in Monitor Valley was around 5000 acre feet, with only 3500 reaching the
meadows and usable. According to records at the Nevada State Engineers office, there
should have been at least 13,000 acre feet reaching the meadows. He testified that only
two of the ditches have water reaching the meadows, when historically all the streams
were irrigating the fields in the valley.

Van Zandt asked if he investigated why the fields were not getting water. Lesperance
explained that there was one basic problem. “Over the last 30 years there has been an
unbelievable increase of woody vegetation, mainly willows, to the point that now water
doesn’t even reach 4 of their points of diversion. The vegetation is so dense that some
places you can’t get through let alone even see the streams, and the water doesn’t make it
out of the mouth of the canyon.”

Later he testified that precipitation was not a factor in the water loss. After studying the
precipitation trend, he concluded that it did not change. However, he explained, the
streams have stopped flowing. “I could come to no other conclusion other than the
riparian vegetation has significantly changed and increased to the point the woody
vegetation has invaded the streams so that they no longer flow.”

At the end of his testimony, Van Zandt asked what needed to be done to get the water
flow back to previous levels. Lesperance answered that they needed to maintain the
ditches and eliminate the invasive vegetation. “I don’t think that you have to eradicate all
of it, but once the government policy became that you couldn’t maintain your ditches and
control the woody vegetation, then significant water flow was lost and significant
property rights of the ranchers was lost. That’s a tragedy.” He continued, “I offer it as
my opinion, but I believe it to be fact. The reason they no longer get water is because of
loss of control of the ditches and control of the invasive species.”

As the young Justice attorney began his cross-examination, it became clear he was no
match for Tony’s years as a professor, years testifying in cases, and years on the ground
surveying water resources for ranchers, bankers, and other clients. The attorney, Tim
Raciacot, asked him to define “cowboy logic,” a term he used in his deposition.

He tried to make an analogy of the water flows in Monitor Valley and those in Brazil.
Lesperance responded that doing so was like comparing the flow of Studebakers on the
highway today to the flow of water on Pine Creek Ranch. “You can make the
comparison but is it a meaningful comparison. I suspect not.” Raciacot continued, “But
you could make the comparison.” Lesperance agreed. “I guess if you didn’t employ
cowboy logic you might think that was a useful comparison.”

He then had him look at one of plaintiff’s exhibits, which would be entered later, which
measured water flow and asked if Lesperance’s figures agreed with these. He had him
look at a table and told him that the numbers were over an 11 year period. Using the
calculator provided by the government, Lesperance did several calculations and it
appeared this reports water flow calculations were significantly different than his.

As a last question, Raciacot asked if he was a member of Stewards of the Range. Van
Zandt objected on grounds the question was irrelevant and outside of scope. Raciacot
explained to the court that Dr. Lesperance had given money to Stewards of the Range,
which has helped fund the case. Judge Smith allowed the question as it goes to the bias
of the witness. Tony responded, “I have given minimal amounts of money to Stewards.”
Raciacot asked, “are you aware they financially support Mr. Hage.” Tony answered, “I
believe they support Mr. Hage and other cases.”

The court took a short break and then re-direct began with Dr. Lesparance. During the
recess, Lesperance looked over the report Raciacot had him to look at on the stand, and
determined that the table Raciacot had him compute was not for an 11 year period as
represented, but for a one year period. When re-direct began, Tony pointed this out to the
court and stated, “If you calculate this correctly then these figures are very close to the
same figures for water flow of these streams that I calculated.”

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