Estate of Hage v. United States , 685 F. App'x 927 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ESTATE OF E. WAYNE HAGE AND ESTATE OF
JEAN N. HAGE,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1330
______________________
Appeal from the United States Court of Federal
Claims in No. 1:91-cv-01470-MMS, Judge Margaret M.
Sweeney.
______________________
Decided: April 20, 2017
______________________
MARK LEE POLLOT, Eagle, ID, argued for plaintiffs-
appellants.
ELIZABETH ANN PETERSON, Environment and Natural
Resources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by JOHN C. CRUDEN.
______________________
2 ESTATE OF HAGE v. US
Before DYK, MAYER, and REYNA, Circuit Judges.
PER CURIAM.
The estate of E. Wayne Hage and the estate of Jean
N. Hage (collectively “the Hages”) appeal a final order of
the United States Court of Federal Claims dismissing
their complaint. See Estate of Hage v. United States, 113
Fed. Cl. 277, 279 (2013) (“Hage IV”). For the reasons
discussed below, we affirm.
DISCUSSION
The relevant facts related to this dispute, which has
been the subject of litigation since 1991, have been set
out in exhaustive detail in multiple opinions from the
Court of Federal Claims, see, e.g., Hage IV, 113 Fed. Cl. at
279–80; Estate of Hage v. United States, 82 Fed. Cl. 202,
204–08 (2008) (“Hage II”); Hage v. United States, 51 Fed.
Cl. 570, 572–74 (2002) (“Hage I”), and in a previous opin-
ion from this court, see Estate of Hage v. United States,
687 F.3d 1281, 1283–85 (Fed. Cir. 2012) (“Hage III”). In
their current appeal, the Hages argue that Hage I and
Hage II left unresolved certain issues related to their
entitlement to compensation from the United States for a
purported Fifth Amendment taking of their water rights.
Specifically, the Hages contend that the Court of Federal
Claims made a “finding” that a physical taking occurred
when the government, using intimidation and threats of
prosecution, prevented them from maintaining ditches on
federal property, and that this finding was “undisturbed”
by this court’s judgment in Hage III. The Hages further
assert that the Court of Federal Claims, following this
court’s remand, “should have recalculated and awarded
[them] the amount of compensation” they are due as a
result of this alleged physical taking by the United States.
We find this argument unpersuasive for a number of
reasons. First, nothing in Hage III even arguably sug-
gested that the Hages were entitled, on remand, to liti-
ESTATE OF HAGE v. US 3
gate the issue of whether the government could be held
liable for a physical taking of their water rights. See
Hage III, 687 F.3d at 1286–92. Our remand order was
clear and precise. We vacated the portion of the trial
court’s judgment awarding compensation for the alleged
regulatory taking of the Hages’ right to access and main-
tain stream channels and ditch rights of way established
pursuant to the Act of July 26, 1866, 43 U.S.C. § 661 (the
“1866 Act”). See Hage III, 687 F.3d at 1287–88. We
determined, moreover, that the trial court erred in hold-
ing that the government’s erection of fences around water
sources on federal lands constituted a compensable tak-
ing. See id. at 1289–90. In addition, we held that the
Hages’ claim for range improvements, under 43 U.S.C.
§ 1752(g), was not ripe because they had failed to exhaust
their administrative remedies. See Hage III, 687 F.3d at
1290–91.
Although we remanded the case to the Court of Fed-
eral Claims “for further proceedings consistent with [our]
opinion,” id. at 1292, nothing in our opinion or remand
order suggested that the trial court should conduct fur-
ther proceedings on the question of whether the govern-
ment could be held liable for a physical taking of the
Hages’ right to access and maintain the 1866 Act ditches.
See Hage IV, 113 Fed. Cl. at 282 (“[I]f the Federal Circuit
intended that this court open the record, receive addition-
al evidence, and render new or additional findings of fact
and conclusions of law, then the appellate court would
have provided that clear instruction to the trial court. It
did not do so and the reason is abundantly clear from
reading the Federal Circuit’s decision—nothing more
remains to be decided.”). Our mandate reversing and
vacating the judgment of the Court of Federal Claims
fully and finally resolved all issues presented on appeal,
leaving no room for further proceedings on remand relat-
ed to a purported physical taking of the Hages’ right to
access the 1866 Act ditches. See TecSec, Inc. v. Int’l Bus.
4 ESTATE OF HAGE v. US
Machs. Corp., 731 F.3d 1336, 1341–42 (Fed. Cir. 2013)
(“After our mandate issues, the mandate rule forecloses
reconsideration of issues implicitly or explicitly decided on
appeal.” (citation and internal quotation marks omitted));
see also Retractable Techs., Inc. v. Becton Dickinson & Co.,
757 F.3d 1366, 1371 (Fed. Cir. 2014) (“While the [trial]
court was certainly free to take action consistent with the
mandate, that does not mean that it was likewise free to
disturb matters that were within the mandate.” (citation
omitted)).
Second, the Hages’ contention that they were entitled,
on remand, to litigate the question of the government’s
liability for a physical taking of their water rights is
premised on a fundamental misapprehension regarding
the nature of the appellate process. Contrary to the
Hages’ assertions, our mandate reversing and vacating
the trial court’s damages award did not leave “undis-
turbed” any of the court’s findings related to that award.
As an appellate court, we “review[] judgments, not state-
ments in opinions.” Black v. Cutter Labs., 351 U.S. 292,
297 (1956); see also Stratoflex, Inc. v. Aeroquip Corp., 713
F.2d 1530, 1540 (Fed. Cir. 1983). When it appealed to
this court after the Court of Federal Claims entered final
judgment on the Hages’ claims, the government appealed
that judgment in its entirety. See Brief for Defendant-
Appellant, Hage III, 687 F.3d 1281 (Nos. 2011-5001, 2011-
5013), 2011 WL 860406, at *26 (“The [Court of Federal
Claims’] award of compensation must be reversed in its
entirety.”). The fact that we did not, in Hage III, specifi-
cally address each purported finding made by the Court of
Federal Claims does not mean that any such finding
“survived” our judgment reversing and vacating the
court’s damages award. See Sun-Tek Indus., Inc. v.
Kennedy Sky Lites, Inc., 856 F.2d 173, 176 (Fed. Cir.
1988) (“Although we review findings in connection with
our review of judgments, we do not review findings inde-
pendently.”); see also Jennings v. Stephens, – U.S. –, 135
ESTATE OF HAGE v. US 5
S. Ct. 793, 799 (2015) (“Courts reduce their opinions and
verdicts to judgments precisely to define the rights and
liabilities of the parties. . . . This Court, like all federal
appellate courts, does not review lower courts’ opinions,
but their judgments.”). As we have previously made clear,
“[u]nless remanded by this court, all issues within the
scope of the appealed judgment are deemed incorporated
within the mandate and thus are precluded from further
adjudication.” Engel Indus., Inc. v. Lockformer Co., 166
F.3d 1379, 1383 (Fed. Cir. 1999).
Third, the Court of Federal Claims, in Hage II, con-
cluded that it was appropriate to analyze the Hages’ claim
for compensation based on the alleged denial of access to
the 1866 Act ditches using a regulatory, rather than a
physical, taking rubric. 82 Fed. Cl. at 208, 210–14.
According to the Hages, “the trial court identified one
regulatory taking of waters not flowing through ditches in
the upper reaches of the Hages’ grazing lands affecting
primarily the Mosquito Creek area . . . and two classes of
physical taking, one being a physical taking of stock water
sources by the erection of actual physical barriers in the
form of fences and the other being a physical taking of
waters in ditches in the nature of a practical physical
ouster by means of intimidation, threats, harassment and
actual prosecution.” Supplemental Brief of Plaintiffs-
Appellants at 5. Even accepting arguendo that the trial
court “identified” a physical taking of water in the 1866
Act ditches based on the government’s alleged harass-
ment and threats of prosecution, see Hage II, 82 Fed. Cl.
at 208; Hage I, 51 Fed. Cl. at 580 n.13, however, the court
ultimately elected to analyze the Hages’ claim seeking
compensation for the alleged denial of access to the ditch-
es as a regulatory, rather than a physical, taking claim.
See Hage II, 82 Fed. Cl. at 208, 210–14.
The trial court indicated that it had previously held
“that the Government’s actions which physically prevent-
ed [the Hages] from accessing their 1866 Act ditches
6 ESTATE OF HAGE v. US
amounted to a physical taking,” id. at 208, because the
Hages argued that “the government ha[d] physically
barred them from the land, with threat of prosecution for
trespassing if they enter[ed] federal lands to maintain
their ditches,” Hage I, 51 Fed. Cl. at 580 n.13. Recogniz-
ing, however, that “there is no bright line between physi-
cal and regulatory takings,” Hage II, 82 Fed. Cl. at 208,
the court determined that it was appropriate to analyze
the Hages’ claim for compensation based on the alleged
denial of access to the 1866 Act ditches as a regulatory,
rather than a physical, taking claim, id. at 208, 210–14;
see also Yee v. City of Escondido, 503 U.S. 519, 534–35
(1992) (explaining that a regulatory taking theory and a
physical taking theory can be understood as two argu-
ments in support of the same claim).
The trial court concluded that the Hages were entitled
to compensation because if the government had “not
prevented their access to their various 1866 Act ditches,
the water could have been put to use for agricultural
purposes or could have been sold for quasi-municipal use.”
Hage II, 82 Fed. Cl. at 212. The court determined that
the government had interfered with the Hages’ right to
access the 1866 Act ditches, both by requiring special use
permits for the use of heavy equipment to clear obstruc-
tions from the ditches and by threatening to prosecute the
Hages for trespass if they entered federal lands to main-
tain the ditches. Id. at 210–14. The Court of Federal
Claims unequivocally concluded that the conduct that the
Hages now assert was a physical taking—the govern-
ment’s alleged harassment and threats of prosecution for
trespassing—should be analyzed as part of the purported
regulatory taking for which the court awarded compensa-
tion. See id. at 208, 212–13 (applying the multi-factor
regulatory takings standard set out in Penn Central
Transportation Co. v. New York City, 438 U.S. 104, 123–
36 (1978), in analyzing the government actions which
allegedly prevented the Hages from maintaining the 1866
ESTATE OF HAGE v. US 7
Act ditches); see also Tuthill Ranch, Inc. v. United States,
381 F.3d 1132, 1136 (Fed. Cir. 2004) (“The Penn Central
factors critical to determining which regulatory actions
constitute regulatory takings are simply inapplicable
when analyzing a physical taking.”). In Hage III we
vacated the regulatory taking determination, finding the
claim not ripe. 687 F.3d at 1287. Contrary to the Hages’
assertions, nothing in Hage II or Hage III suggests that
they are entitled to further proceedings on the question of
whether the government’s alleged harassment and
threats of prosecution are sufficient to support a viable
physical taking claim. See Hage IV, 113 Fed. Cl. at 282
(“[I]f the trial court intended to conduct more proceedings
to resolve an outstanding legal issue, it would have said
so in its . . . decision. The prior judge assigned to this case
labored diligently and provided numerous detailed deci-
sions that explored every theory of liability raised in the
complaint. Rather than suggest that future hearings
might be necessary . . . the trial court directed the Clerk
of Court to enter final judgment[] and to close the case.”
(alteration in original) (citation and internal quotation
marks omitted)).
Finally, we find no merit in the Hages’ contention that
this court was not, in the previous appeal, “given the
opportunity to consider the trial court’s holding that a
taking of waters in [the 1866 Act] ditches by a practical
physical ouster had occurred.” Supplemental Brief of
Plaintiffs-Appellants at 5. In the previous appeal, the
Hages’ counsel specifically stated at oral argument that
their claim for compensation based upon water flowing
through the 1866 Act ditches should be analyzed as a
physical taking claim. See Oral Arg. Tr. at 18:25–56,
20:20–21:09, Hage III, 687 F.3d 1281, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?/fl=20
11-5001.mp3. We reject, therefore, the Hages’ argument
that this court, in the previous appeal, was not aware of
their claim that the government’s threat to prosecute
8 ESTATE OF HAGE v. US
them for trespass if they entered federal lands to main-
tain the 1866 Act ditches could be construed as a compen-
sable physical taking. See Lowder v. Dep’t of Homeland
Sec., 504 F.3d 1378, 1383 (Fed. Cir. 2007) (“The failure to
discuss particular contentions in a case, however, does not
mean that the tribunal did not consider them in reaching
its decision.”); Hartman v. Nicholson, 483 F.3d 1311, 1315
(Fed. Cir. 2007) (“That the court did not specifically
mention [an argument] in its opinion forms no basis for
an assumption that it did not consider [it].” (citation and
internal quotation marks omitted)).
We emphasize, moreover, that the Hages’ claim for a
purported physical taking of their right to access the 1866
Act ditches is foreclosed by the determinations we made
in Hage III. The Hages contend that the Forest Service
effected a “practical physical ouster” when it threatened
to prosecute them for trespass if they entered federals
lands with heavy equipment to maintain the 1866 Act
ditches. See Supplemental Brief of Plaintiffs-Appellants
at 8. As we held in Hage III, however, the Forest Service
had the right to require that those seeking to conduct
ditch maintenance using heavy equipment obtain special
use permits. 687 F.3d at 1287–88. We further deter-
mined that there was no credible “evidence suggesting
that the disputes between the Forest Service and the
Hages would cause the Forest Service to deny the Hages
special use permits to perform ditch maintenance.” Id. at
1288.
Given that there was no showing that the Hages could
not have secured the requisite special use permits, the
government’s threat to prosecute them for trespass if they
entered federal property without first obtaining such
permits could not possibly give rise to a viable “practical
physical ouster” claim. “[T]he sole question governing
physical takings is whether or not the government has
physically occupied the plaintiff’s property.” Tuthill
Ranch, 381 F.3d at 1136; see Yee, 503 U.S. at 527 (“The
ESTATE OF HAGE v. US 9
government effects a physical taking only where it re-
quires the landowner to submit to the physical occupation
of his land.” (second emphasis added)). Where, as here,
the government merely restricts the use of an individual’s
property—instead of occupying that property—that
individual has not suffered a physical taking. See Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,
432 (1982) (emphasizing that the issue of whether there
has been an actual physical occupation is the critical
inquiry in assessing whether a physical taking has oc-
curred); Tuthill Ranch, 381 F.3d at 1137 (explaining that
“[p]hysical invasions short of an occupation and regula-
tions that merely restrict the use of property may qualify
as regulatory takings, but not as physical takings”); see
also United States v. Locke, 471 U.S. 84, 104 (1985) (em-
phasizing that “[a]lthough owners of unpatented mining
claims hold fully recognized possessory interests in their
claims,” the government “maintains broad powers over
the terms and conditions upon which the public lands can
be used, leased, and acquired”).
CONCLUSION
Accordingly, the final order of the United States Court
of Federal Claims dismissing the Hages’ complaint is
affirmed.
AFFIRMED