Here's the BIO recently filed by the United States in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013). This brief responds to the cert petition which seeks Supreme Court review of Estate of Hage v. United States, 687 F.3d 1281 (Fed. Cir. 2012).
In that case, the Federal Circuit held that a 22-year old takings case was not ripe because even though the agency denied Hage's every application for a grazing permit, it might issue a special use permit that might allow the use of the water he alleges was taken. The issue in the case is whether it is a taking for the government to cut off physical access to a property owner's vested right to use water. The Court of Federal Claims had awarded $4.2 million in just compensation for the taking of Hage's water rights.
The BIO reformulates the Question Presented:
1. Whether the court of appeals correctly rejected petitioners' claim that the government effected a taking of their water rights, including their easements to operate and maintain certain ditches across federal lands, because petitioners never sought (and thus were not denied) the permit required to bring and operate heavy equipment on National Forest Service lands.2. Whether the court of appeals correctly held that petitioners' claim that the government effected a taking of their stockwater rights failed because the trial record lacked evidence that petitioners were deprived of access to any water they could have put to beneficial use.
Several amicus briefs were filed in support of the petitioners:
- Brief of Public Lands Council, National Cattlemen's Beef Association, Oregon Cattlemen's Association, Washington Cattlemen's Association, and Nevada Cattlemen's Association
Here is the Court's docket report if you'd like to follow along.