By Chris Reed | Special to Watchdog.org
It didn’t make headlines, but it should have. A July 26 ruling released to little fanfare by a three-judge panel of the U.S. Circuit Court of Appeals in Washington, D.C., was a landmark blow to property rights — at least as originally conceived by our Founding Fathers.
The judges reversed a lower court’s order that the federal government pay $4.4 million to the family of Nevada rancher Wayne Hage for depriving Hage of water rights.
By the time of that 2008 decision, Hage had already been dead for two years.
“The founders would have been horrified,” Sacramento-based Pacific Legal Foundation attorney Timothy M. Sandefur said. “They and their children — the pioneers and settlers of the West — believed that the American landscape was for the people to use, to live on, develop, earn, make a living, explore, and enjoy. But today’s bureaucracy sees land as the government’s private stash, off-limits to mere human beings, to be permanently locked away from the grubby hands of the people.”
The complex legal case began in the late 1970s when the federal government launched a series of attacks on Hage, intermittently denying the Hage ranch permits for grazing and water access while objecting to improvements the family made to federal areas for which it had long-established grazing rights.
In 1991, Hage finally chose to ignore grazing restrictions in Nevada’s Humboldt-Toiyabe National Forest as well as fines federal bureaucrats imposed for grazing violations. Federal officials responded by impounding some of Hage’s cattle.
The legal issues, of course, matter deeply. The “sagebrush rebellion” that Hage helped revive held that new government restrictions on long-accepted public uses of federal land amounted to a taking of property rights. The high point for the rebellion came in Hage’s posthumous 2008 legal victory.
But in a larger sense, the technicalities and the vast minutiae of the Hage case can obscure more powerful and more profoundly unsettling truths about the degradation of property rights in America.
Our Founding Fathers considered property rights a fundamental American freedom, not something subject to bureaucratic whim. In the Declaration of Independence, Thomas Jefferson’s preference for a reference to “life, liberty and the pursuit of happiness” prevailed, but some founders preferred “life, liberty and property.” But by 1964, as Ronald Reagan observed in a revered speech on behalf of Republican presidential candidate Barry Goldwater, “Private property rights are so diluted that public interest is almost anything that a few government planners decide it should be.”
Even though there have been purportedly limited-government Republican presidents (including, of course, Reagan) for 28 of the 48 years since Goldwater’s speech, the trend he described hasn’t stopped. Barring a reversal of the Hage ruling by our unpredictable Superme Court — whose 2005 Kelo ruling was another property rights atrocity, allowing governments to use eminent domain to seize land for economic development benefitting private parties — the triumph of modern environmentalism over traditional American conservation and constitutional originalism seems near complete.
Members of the Hage family are resisting the tide of federal power. Last week, they took the first steps toward an appeal to the Supreme Court. They have the Founding Fathers on their side.