The Estate of Wayne Hage v. United States

United States Court of Appeals
for the Federal Circuit
__________________________
THE ESTATE OF E. WAYNE HAGE AND THE
ESTATE OF JEAN N. HAGE,
Plaintiffs-Cross Appellants,
v.
UNITED STATES,
Defendant-Appellant.
__________________________
2011-5001, -5013
__________________________
Appeals from the United States Court of Federal
Claims in case no. 91-CV-1470, Senior Judge Loren A.
Smith.
___________________________
Decided: July 26, 2012
___________________________
LYMAN D. BEDFORD, Clausen Law Group, of Pt. Rich-
mond, California, argued for plaintiffs-cross appellants.
With him on the brief was MICHAEL J. VAN ZANDT, Han-
son Bridget LLP, of San Francisco, California.
ELIZABETH ANN PETERSON, Environment and Natural
Resources Division, Appellate Section, United States
Department of Justice, of Washington, DC, argued for
defendant-appellant. With her on the brief was IGNACIA
S. MORENO, Assistant Attorney General.
HAGE v. US 2
JOSEPH FELLER, Natural Resources Law Clinic, Uni-
versity of Colorado, of Boulder, Colorado, for amicus
curiae, State of Nevada, Department of Wildlife, et al.
BRIAN T. HODGES, Pacific Legal Foundation, of Belle-
vue, Washington, for amicus curiae Pacific Legal Founda-
tion. With him on the brief was JAMES S. BURLING, of
Sacramento, California.
__________________________
Before LOURIE, LINN, and MOORE, Circuit Judges.
MOORE, Circuit Judge.
E. Wayne Hage and Jean Hage brought an action
against the United States, seeking compensation for a
Fifth Amendment taking of private property, breach of
contract, and range improvements pursuant to 43 U.S.C.
§ 1752(g). The Court of Federal Claims (Claims Court)
awarded compensation for the taking of water rights plus
interest from the date of the taking. The Claims Court
also awarded compensation for range improvements, but
did not award any corresponding pre-judgment interest.
For the reasons set forth below, we affirm-in-part, reverse-
in-part, vacate-in-part, and remand for proceedings con-
sistent with this opinion.
BACKGROUND
In 1978, E. Wayne Hage and Jean Hage acquired a
ranching operation in Nevada that occupied approxi-
mately 7,000 acres of private land and used approxi-
mately 752,000 acres of adjoining federal lands under
grazing permits from the Forest Service and the Bureau
3 HAGE v. US
of Land Management. 1 The Hages’ predecessors in inter-
est to the land acquired water rights under Nevada state
law in streams and ditches now located on federal lands.
See Act of July 26, 1866 (43 U.S.C. § 661).
Shortly after the Hages acquired the ranching opera-
tion, disputes arose between the Hages and the govern-
ment concerning the nature and scope of the Hages’ water
rights and grazing permits. For example, the Hages
objected to the Forest Service allowing the Nevada De-
partment of Wildlife to release non-indigenous elk onto
federal land for which the Hages had grazing permits on
the ground that the elk reduced the available forage and
water. The introduction of the elk caused other problems
as well, such as fence damage and scattering of the Hages’
cattle on the allotments.
As early as 1978, the Forest Service observed unau-
thorized grazing by the Hages’ cattle, and made several
requests that the cattle be moved. J.A. 569. This contin-
ued for several years. J.A. 570-73. The Forest Service
also notified the Hages of issues relating to fence mainte-
nance pursuant to their grazing permits. J.A. 1022. In
1983, for example, the Hages received approximately forty
letters and seventy visits from the Forest Service charg-
ing them with various violations related to their grazing
permits. Id.In June 1990, the Forest Service informed the Hages
of a twenty percent suspension of permitted cattle on
their Table Mountain allotment during the 1990 grazing
season due to the Hages’ lack of livestock control and
excess use on the allotment after the permitted grazing
1
Although many of the interactions relating to the
Hages’ claims relate only to the Forest Service or Bureau
of Land Management, we need not distinguish between
them for the purposes of this appeal.
HAGE v. US 4
season in 1988. J.A. 1249-51. The Forest Service also
notified the Hages that they were required to place a
minimum number of cattle on the allotment, and notify
the Forest Service prior to placing any cattle on the
allotment. J.A. 1246-47. The Hages placed less than the
minimum number of cattle on the allotment and failed to
notify the Forest Service beforehand. J.A. 1248. The
Forest Service notified the Hages of their non-compliance
and ordered them to remove the cattle by September 21,
1990, which was after the end of the Hages’ permitted
season. Id. After requesting the Hages to “show cause”
why a portion of the remaining permitted cattle should
not be suspended due to the repeated violations, the
Forest Service canceled some of the remaining permitted
cattle rights for two years. J.A. 1249-52, 1254-55.
During the 1990 grazing season, the Forest Service
also instructed the Hages to remove all of their permitted
cattle from the Meadow Canyon allotment due to over-
grazing. J.A. 301. Mr. Hage testified that it was impossi-
ble to keep the cattle off Meadow Canyon due to a twenty-
five mile largely unfenced boundary between the sur-
rounding land and the allotment. J.A. 1040-41. After an
administrative appeal to stay this requirement was
denied, Mr. Hage tried unsuccessfully to remove the
cattle. J.A. 1042. Because of the continued violation, the
Forest Service permanently canceled thirty-eight percent
of the Hages’ permitted cattle rights and suspended all
grazing on the Meadow Canyon allotment for five years
beginning with the 1991 grazing season. J.A. 373-88.
After sending at least two notices of intent to impound
cattle found on the Meadow Canyon allotment, J.A. 1256,
1265, the Forest Service eventually impounded the Hages’
cattle, J.A. 1260-61, and later sold them, J.A. 367, after
the Hages were unable to pay the costs of the impound-
ment, J.A. 1045.
5 HAGE v. US
Disputes also arose between the Hages and the gov-
ernment concerning maintenance of the Hages’ ditch
rights of way on federal lands. Shortly after the Hages
acquired the ranch, they became aware of the require-
ment to take out special use permits to perform ditch
maintenance. J.A. 856-57. The Hages asked for and
received special use permits until early 1986. J.A. 778,
805-08. The Hages, however, stopped applying for special
use permits because they no longer believed they were
necessary. J.A. 778, 857-58. Mr. Hage testified that a
ranger informed him he no longer needed to apply for a
special use permit, and that the Forest Service manual
stated the same. J.A. 857, 1028. Even though the Forest
Service continued to demand that the Hages apply for a
special use permit, J.A. 1029, the Hages performed ditch
maintenance without applying for any special use per-
mits, J.A. 1029-30.
Around 1990, Mr. Hage hired a woodcutter to clear
trees along a ditch right of way on federal land. J.A.
1030. The Forest Service sent Mr. Hage a letter notifying
him that “damaging or removing natural features . . . and
maintaining improvements without proper authorization
are criminal acts, punishable by a up to a $5000 fine
and/or 6 months imprisonment.” J.A. 1281. The letter
also reminded Mr. Hage that the Forest Service previ-
ously notified him of the special use requirement. Id. Mr.
Hage was subsequently prosecuted and convicted for
damaging and removing government property (the trees).
United States v. Seaman, 18 F.3d 649 (9th Cir. 1994).
The conviction, however, was overturned on the ground of
inadequate proof of the value of the property damaged
and removed. Id. at 651.
In 1991, the Hages filed suit against the United
States alleging a Fifth Amendment taking of private
property, a right to compensation for range improvements
HAGE v. US 6
pursuant to 43 U.S.C. § 1752(g), and breach of contract.
After almost twenty years of litigation, including two
trials and several opinions by the Claims Court, the court
awarded the Hages compensation for 1) a regulatory
taking of their water rights, 2) a physical taking of their
water rights, and 3) range improvements under 43 U.S.C.
§ 1752(g). Estate of Hage v. United States, 82 Fed. Cl. 202(2008) (Hage V). The court awarded pre-judgment inter-
est for the takings claims, but did not award pre-
judgment interest for the range improvements award.
Estate of Hage v. United States, No. 91-1470L, slip op. at 5
(Fed. Cl. June 9, 2010). The government appeals each
award, including the amount of just compensation
awarded, and the Hages cross-appeal for pre-judgment
interest on the range improvements award. We have
jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
Whether a compensable taking has occurred is a ques-
tion of law based on factual underpinnings. Cary v.
United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009) (citing
Alves v. United States, 133 F.3d 1454, 1456 (Fed. Cir.
1998)). We review the Claims Court’s legal conclusions de
novo and its fact findings for clear error. Holland v.
United States, 621 F.3d 1366, 1374 (Fed. Cir. 2010).
Whether the Claims Court has jurisdiction is a legal issue
reviewed de novo. W. Co. of N. Am. v. United States, 323
F.3d 1024, 1029 (Fed. Cir. 2003). The Claims Court “does
not have jurisdiction over claims that are not ripe.”
Morris v. United States, 392 F.3d 1372, 1375 (Fed. Cir.
2004) (citing Howard W. Heck & Assocs., Inc. v. United
States, 134 F.3d 1468 (Fed. Cir. 1998)).
The Fifth Amendment provides that private property
shall not be taken “for public use, without just compensa-
tion.” U.S. Const. amend. V, cl.4. There are two kinds of
7 HAGE v. US
takings under the Fifth Amendment: physical takings and
regulatory takings. Washoe Cnty. v. United States, 319
F.3d 1320, 1326 (Fed. Cir. 2003) (citing Lucas v. S.C.
Coastal Council, 505 U.S. 1003, 1014-15 (1992)). A physi-
cal taking generally occurs by “a direct government ap-
propriation or physical invasion of private property.”
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005)
(citations omitted). A regulatory taking may occur “when
government actions do not encroach upon or occupy the
property yet still affect and limit its use to such an extent
that a taking occurs.” Palazzolo v. Rhode Island, 533 U.S.
606, 617 (2001) (citing Pa. Coal Co. v. Mahon, 260 U.S.
393 (1922)). These two types of takings are subject to
different analyses.
We employ a two-part test to determine whether gov-
ernmental action constitutes a physical taking without
just compensation: 1) we determine “whether the claim-
ant has identified a cognizable Fifth Amendment property
interest that is asserted to be the subject of the taking,”
and 2) if so, we determine “whether that property interest
was ‘taken.’” Acceptance Ins. Cos. v. United States, 583
F.3d 849, 854 (Fed. Cir. 2009) (citations omitted). “[W]e
do not reach this second step without first identifying a
cognizable property interest.” Air Pegasus of D.C., Inc. v.
United States, 424 F.3d 1206, 1213 (Fed. Cir. 2005).
Regulatory takings are generally evaluated using the
multi-factor test from Penn Central Transportation Co. v.
New York City, 438 U.S. 104, 124 (1978). The Penn
Central test involves analyzing: (1) “[t]he economic impact
of the regulation on the claimant”; (2) “the extent to which
the regulation has interfered with distinct investment-
backed expectations”; and (3) “the character of the gov-
ernmental action.” Id.HAGE v. US 8
A regulatory takings claim “is not ripe until the gov-
ernment entity charged with implementing the regula-
tions has reached a final decision regarding the
application of the regulations to the property at issue.”
Williamson Cnty. Reg’l Planning Comm’n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 186 (1985). A final
decision is necessary because “[e]valuating whether the
regulations effect a taking requires knowing to a reason-
able degree of certainty what limitations the agency will,
pursuant to regulations, place on the property.” Morris v.
United States, 392 F.3d 1372, 1376 (Fed. Cir. 2004) (citing
MacDonald, Sommer & Frates v. Yolo Cnty., 477 U.S. 340,
350-51 (1986)). Accordingly, “when an agency provides
procedures for obtaining a final decision, a takings claim
is unlikely to be ripe until the property owner complies
with those procedures.” Id. (citing Greenbrier v. United
States, 193 F.3d 1348, 1359 (Fed. Cir. 1999)).
I. Regulatory Taking
The Claims Court held there was a regulatory taking
of the Hages’ water rights when the Forest Service al-
lowed vegetation to accumulate in streams and prevented
the Hages from performing maintenance on the stream
channels and ditch rights of way. Hage V, 82 Fed. Cl. at
211-13. The Claims Court recognized that rights of way
that run over federal land may be subject to reasonable
regulation, such as requiring special use permits to per-
form certain ditch maintenance. Id. at 212 (citing Hage v.
United States, 51 Fed. Cl. 570, 584 (2002)). The court
concluded, however, that the Hages did not have to apply
for a permit since it would “clearly have been futile,” and
that “[b]ased on the history between the Forest Service
and [the Hages], the special use permit requirement for
ditch maintenance rises to the level of a prohibition, and
is therefore a taking of their property rights.” Id. at 213.
The court also found that the Forest Service allowed the
9 HAGE v. US
Hages to use only hand tools for ditch maintenance and
concluded that this “prevented all effective maintenance.”
Id. at 212-13.
The government argues that the Hages’ regulatory
takings claim is not ripe because the Hages failed to seek
a special use permit to maintain their irrigation ditches.
Appellant’s Br. 32. The government notes that all of the
Hages’ prior applications were granted, and that the
Hages deliberately decided not to apply for a permit,
which led to Mr. Hage’s prosecution. Id. The government
argues that the futility exception does not apply since a
plaintiff must previously have been denied a permit and
there must be evidence that further requests would be
treated similarly. Appellant’s Reply Br. 9.
The Hages argue that it would have been futile to ap-
ply for a permit based on their contentious history with
the Forest Service. Cross-Appellants’ Br. 22. The Hages
note that the government did not present evidence that a
permit would have been granted, or that one was even
necessary to maintain an 1866 Act ditch that preexisted
the Forest Service. Id. They also argue that there is no
requirement to seek permission for construction and
maintenance of 1866 Act ditches because those rights are
“specifically reserved.” Id. at 29 (citing 43 U.S.C. § 661).
Under Nevada law, according to the Hages, an appropria-
tor of water has the “absolute right” to go onto another’s
land to clear obstructions in the natural channel that
interferes with the water. Id. at 30. The Hages also
argue that the hand tool requirement prevented all effec-
tive ditch maintenance. Id. at 22.
We hold that the Claims Court erred in holding that
the Hages’ regulatory takings claim was ripe. While the
Hages claim that it would have been futile to apply for a
special use permit based on their history with the Forest
HAGE v. US 10
Service, the majority of the evidence showing disputes
between the Hages and the Forest Service related to the
Hages’ grazing permits. The Hages fail to explain how
disputes concerning their grazing permits would lead the
Forest Service to deny them special use permits to main-
tain their irrigation ditches. In fact, these disputes did
not prevent the Forest Service from granting the Hages’
applications for special use permits. The grazing disputes
began in 1978 and continued through the 1990s, see, e.g.,
J.A. 569-73, 1246-51, but the Forest Service still granted
every special use permit for which the Hages applied, see
J.A. 778, 805-08, 856-57. There is no evidence that these
disputes would lead the Forest Service to deny special use
permits after 1986 (when the Hages unilaterally decided
to stop applying). There is also no evidence that suggests
the Hages stopped applying for special use permits be-
cause they expected that the Forest Service would deny
the permits. Instead, Mr. Hage explained that he stopped
applying for special use permits because he no longer
believed they were necessary. J.A. 857-58.
Nor does the record support the Hages’ contention
that disputes regarding ditch maintenance would lead the
Forest Service to deny them permits. The only evidence
of a dispute concerning ditch maintenance is the letter
threatening prosecution of Mr. Hage and the actual
prosecution of Mr. Hage. This, however, was a result of
Mr. Hage’s failure to apply for a special use permit. The
letter, for example, states that “maintaining improve-
ments without proper authorization” is a criminal act,
punishable by fine and/or imprisonment. J.A. 1281 (em-
phasis added). Although Mr. Hage’s conviction was
overturned, it was on the basis of inadequate proof of the
value of the trees damaged and removed and not because
a special use permit was unnecessary. Seaman, 18 F.3d
at 651. There is no evidence suggesting that the disputes
11 HAGE v. US
between the Forest Service and the Hages would cause
the Forest Service to deny the Hages special use permits
to perform ditch maintenance.
We also reject the Hages’ contention that the Forest
Service limited ditch maintenance to hand tools even with
a special use permit, and that as a result, an application
for a special use permit to maintain their ditches with
heavy equipment would have been futile. Cross-
Appellants’ Br. 22; Oral Argument at 14:40-14:50, Estate
of Hage v. United States, No. 2011-5001, -5013 (Fed. Cir. Apr. 3, 2012),
available at http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2011-
5001.mp3. The record shows that the ditches cannot be
maintained effectively using only hand tools, see, e.g., J.A.
985-86, but does not support the Hages’ claim that the
Forest Service limited ditch maintenance to only hand
tools even with a special use permit.
The Hages cite testimony from Mr. Hage describing a
conversation with Bob Mason, a Forest Service employee,
shortly after he began ditch maintenance in 1978. J.A.
1027; see also J.A. 734. Mr. Mason, according to Mr.
Hage, explained that a special use permit was required to
perform any ditch maintenance. J.A. 1028.
The record supports the government’s position that
the hand tools requirement only applied in the absence of
a special use permit. Until 1986, the Hages obtained
special use permits to perform ditch maintenance, which
as the Hages explain, could not be accomplished with
hand tools. See Cross-Appellants’ Br. 22-23. If the special
use permits were limited to only hand tools, however, the
Hages could not have performed ditch maintenance. The
record does not explain this inconsistency and does not
otherwise support holding that the special use permits
limited maintenance to hand tools.
HAGE v. US 12
We therefore conclude that the Claims Court erred in
holding that applying for a special use permit would have
been futile. To the extent the Hages argue that the mere
existence of a requirement for a special use permit consti-
tutes a regulatory taking, we disagree. The government
may regulate private property; it is only when a regula-
tion “goes too far [that] it will be recognized as a taking.”
Lingle, 544 U.S. at 537 (quoting Pa. Coal Co., 260 U.S. at
415).
II. Physical Taking
The Hages allege a physical taking of their water
rights based on the construction of fences around water
sources on federal lands in which they held grazing per-
mits. The Hages’ water rights were acquired under
Nevada state law, which defines the scope of such rights.
See 43 U.S.C. § 661. In Nevada, “water of all sources of
water supply within the boundaries of the State whether
above or beneath the surface of the ground, belongs to the
public.” Nev. Rev. Stat. § 533.025. Those that hold water
rights “do not own or acquire title to water,” but “merely
enjoy the right to beneficial use.” Desert Irrigation, Ltd.
v. Nevada, 944 P.2d 835, 842 (Nev. 1997) (citing Nev. Rev.
Stat. § 533.030). Beneficial use is “the basis, the measure
and the limit of the right to the use of water.” Nev. Rev.
Stat. § 533.035. A water rights holder has no rights to the
water beyond what he can put to beneficial use. There-
fore, to establish their Fifth Amendment takings claim,
the Hages had to prove, inter alia, that any water taken
could have been put to beneficial use.
The Claims Court held that the construction of fences
around certain springs and streams on federal lands
amounted to a physical taking of the Hages’ water rights
during the time period the Hages had grazing permits.
Hage V, 82 Fed. Cl. at 211. The court reasoned that the
13 HAGE v. US
construction of fences physically prevented the Hages’
cattle from accessing the water during the time in which
cattle were still permitted to graze on the allotments. Id.
The cattle, according to the court, “had the right to water
at these streams.” Id. Although the record indicates that
the government constructed fences in 1981-1982, J.A.
1019-20, and again in 1988-1990, J.A. 1153, the court’s
opinion does not specify which fences constituted a physi-
cal taking. The court did, however, limit this takings
claim to the time period when the Hages “still had a
grazing permit.” Hage V, 82 Fed. Cl. at 211.
The government argues that the Hages’ physical tak-
ings claim relating to the fences constructed in 1981-1982
is time barred because the action allegedly giving rise to a
taking occurred more than six years before the complaint
was filed. Appellant’s Br. 46-47. The government notes
that the Hages challenged the government’s authority to
construct the fences at that time, but that the fences
remained. Id. at 46 (citing J.A. 1020). The government
argues that the fences erected in 1988-1990 could not
support a takings award because Mr. Hage testified that
they did not exclude cattle from the water sources. Id. at
47 n.17 (citing J.A. 1021). The government also argues
that “a water right has no ‘access’ component,” and that
Congress’s recognition of state-law water rights on federal
lands “does not include recognition of an ‘appurtenant’
right to use and occupy federal rangelands for access to
the water.” Id. at 49-50 (citing Colvin Cattle v. United
States, 468 F.3d 803, 808 (Fed. Cir. 2006)). The govern-
ment further argues that the Hages failed to prove that
they could have put the water allegedly appropriated by
the government to beneficial use. Id. at 53.
The Hages argue that their claim is not time-barred
because fences were erected in 1988-1990, which is within
the six-year statute of limitations period. Cross-
HAGE v. US 14
Appellants’ Br. 40. The Hages contend that there is
“ample evidence” in the record to support the court’s
determination that a physical taking occurred. Id. at 41.
The Hages claim that “[t]he fact that some of this water
may have seeped out beyond the boundaries of the fences
is irrelevant.” Id. The Hages argue that a physical
taking occurred when the government erected fences that
excluded their cattle from the water sources. Id. The
Hages admit that the fences erected in 1988-1990 did not
prevent access to the water after the elk tore the fences
down, but argue that a taking still occurred during the
period of time the fences remained. Oral Argument at
21:47-22:25, Hage, No. 2011-5001, -5013.
As an initial matter, we agree with the government
that any claim based on the fences erected in 1981-1982 is
barred by the six-year statute of limitations period, 28
U.S.C. § 2501, because this suit was filed in 1991. We
disagree, however, that Colvin Cattle means that there is
no “access” component to the Hages’ water rights. In
Colvin Cattle, we held that the cancellation of grazing
permits on federal land did not amount to a taking of the
plaintiff’s stockwater rights, because its Nevada “water
rights do not have an attendant right to graze.” 468 F.3d
at 808. We expressly noted, however, that “the govern-
ment has not impeded its access to water.” Id. at 806.
Colvin Cattle thus stands for the proposition that water
rights do not include an attendant right to graze, id. at
808, but it does not follow that the government may
prevent all access to such water rights.
We agree with the Hages that the government could
not prevent them from accessing water to which they
owned rights without just compensation. The govern-
ment, for example, could not entirely fence off a water
source, such as a lake, and prevent a water rights holder
from accessing such water. Assuming the other criteria
15 HAGE v. US
for a Fifth Amendment taking were met, such fencing
could be a taking. The Hages’ claim, however, is flawed
because there is no evidence that the government actually
took water that they could have put to beneficial use. For
example, the Hages do not allege or point to evidence that
the fences prevented the water from reaching their land.
Likewise, the Hages do not allege that there was insuffi-
cient water for their cattle on the allotments or that they
could have put more water to use. Because there is no
evidence that the government’s actions resulted in taking
the Hages’ water rights, the Claims Court erred in hold-
ing that the construction of fences amounted to a physical
taking.
III. Range Improvements – 43 U.S.C. § 1752(g)
The Hages claim they should receive compensation for
range improvements because of the government’s actions.
By statute, a permittee shall receive “reasonable compen-
sation for the adjusted value, to be determined by the
Secretary concerned, of his interest in authorized perma-
nent improvements placed or constructed by the permit-
tee” on land covered by a grazing permit when the grazing
permit is canceled to devote the lands covered by the
permit to another public purpose. 43 U.S.C. § 1752(g)
(emphasis added). A claim for compensation under
§ 1752(g) is not ripe unless a claimant requests a deter-
mination by the Secretary of the value of its improve-
ments “as required by the statute.” Colvin Cattle, 468
F.3d at 809.
The Claims Court awarded the Hages compensation
for several range improvements on federal lands pursuant
to § 1752(g). Hage V, 82 Fed. Cl. at 216. The court ac-
knowledged that the Hages did not request a determina-
tion by the Secretary concerned of the value of their
improvements, but nonetheless awarded compensation.
HAGE v. US 16
The court held that the Hages could pursue their claim
because there was “no clear procedure” for how they could
seek compensation. Id. at 214. The court also noted that
withholding consideration would impose upon the Hages
“the hardship of attempting to determine how they would
seek compensation in an appropriate agency” and that
their claim would “likely be futile” in light of their history
with the Forest Service. Id. at 214.
We addressed this issue in Colvin Cattle, in which we
held that when a claimant “d[oes] not request a determi-
nation by the Secretary of the value of its improvements
as required by the statute . . . its claim is not ripe for
failure to exhaust administrative remedies.” 468 F.3d at809 (citing Julius Goldman’s Egg City v. United States,
556 F.2d 1096, 1099 (Ct. Cl. 1977)). As in Colvin Cattle,
the Hages did not request a determination by the Secre-
tary of the value of their improvements. The Hages fault
the government for not presenting evidence of procedures
to seek such a determination, but the Hages bear the
burden of establishing jurisdiction, not the government.
See Alder Terrace, Inc. v. United States, 161 F.3d 1372,
1377 (Fed. Cir. 1998). While the Hages’ path to obtaining
an agency action was ill-defined, the alleged “hardship of
attempting to determine how [the Hages] would seek
compensation in an appropriate agency,” Hage V, 82 Fed.
Cl. at 214, alone is insufficient to render the Hages’ claim
ripe. The Hages do not argue that they attempted to seek
a determination by the Secretary, and without doing so,
the Hages’ claim for range improvements pursuant to
§ 1752(g) “is not ripe for failure to exhaust administrative
remedies.” See Colvin Cattle, 468 F.3d at 809. We thus
hold that the Claims Court erred in awarding the Hages
compensation for range improvements under § 1752(g)
because the Hages’ claim is not ripe.
17 HAGE v. US
IV. Pre-Judgment Interest on Range Improvements
The Hages cross-appeal seeking pre-judgment interest
on the award for range improvements. Although we hold
that the Hages are not entitled to compensation for range
improvements under 43 U.S.C. § 1752(g), that does not
end our inquiry because the Hages’ cross-appeal alleges a
Fifth Amendment taking. To establish a Fifth Amend-
ment taking, a claimant must identify a cognizable prop-
erty interest. Acceptance Ins. Cos., 583 F.3d at 854. If the
claimant fails to do so, we need not reach the issue of
whether any property interest was taken. Air Pegasus of
D.C., 424 F.3d at 1213.
The Hages argue that the facts establish that they
constructed range improvements, both on their own land
and on the allotments for which they held grazing per-
mits. Cross-Appellants’ Br. 62. These improvements
include wells, pipelines, fences, and roads. Id. at 63. The
Hages argue that they own the range improvements
because they spent considerable time, effort, and financial
resources building them. Id. at 62-67. The Hages also
cite a 2009 decision by the Bureau of Land Management
(BLM), which directed the Hages to remove range im-
provement projects performed under the permits. Cross-
Appellants’ Reply Br. 11 (citing J.A. 1456-57).
The mere fact that the Hages constructed and main-
tained range improvements on federal land does not
establish that they own a cognizable property interest in
such improvements. The Claims Court noted that the
grazing permits stated that “permanent improvements
constructed, or existing for use, in conjunction with this
permit are the property of the United States Government,
unless specifically designated otherwise, or covered by a
cooperative agreement.” Hage v. United States, 35 Fed.
Cl. 147, 179 (Fed. Cl. 1996). The Hages failed to show any
HAGE v. US 18
agreements establishing an ownership interest in the
range improvements. Although BLM directed “[t]he
removal of the range improvement projects under each
Range Improvement Permit,” J.A. 1456, it does not follow
that the Hages owned a cognizable property interest in
range improvements absent any such designation. With
regards to cooperative agreements, the BLM decision
specifically stated, “Title to the range improvement pro-
jects authorized by these Cooperative Agreements is held
by the United States as set forth in the applicable regula-
tions and terms contained in these agreements.” J.A.
1458. The decision simply gave the Hages 180 days “to
salvage all materials owned by the [Hage] Estate.” J.A.
1456.
It is the Hages’ burden to establish cognizable prop-
erty interests for the purposes of their takings claims.
Klamath Irrigation Dist. v. United States, 635 F.3d 505,
519 n.12 (Fed. Cir. 2011) (citing Air Pegasus of D.C., 424
F.3d at 1212-13). The Hages have not met their burden
because the evidence demonstrates only that they con-
structed or maintained the improvements on the federal
lands, not that they owned title to those improvements.
To the contrary, the evidence of record demonstrates that
the improvements were the property of the United States
government. Without evidence of ownership, the Hages
cannot establish a cognizable property interest. To the
extent that the Hages argue that they are entitled to a
diminution in value for range improvements on their
private property stemming from the cancelation of their
permits, this argument is without merit. See Colvin
Cattle, 468 F.3d at 808 (“That the ranch may have lost
value by virtue of losing the grazing lease is of no moment
because such loss in value has not occurred by virtue of
governmental restrictions on a constitutionally cognizable
property interest.”) (citing United States v. Fuller, 409
19 HAGE v. US
U.S. 488, 493 (1973)). We thus affirm the denial of pre-
judgment interest for range improvements.
CONCLUSION
The Hages’ regulatory takings claim and claim for
compensation pursuant to 43 U.S.C. § 1752(g) are not
ripe, and we therefore vacate the Claims Court’s award of
damages. To the extent the Hages’ claim for a physical
taking relies on fences constructed in 1981-1982, this
claim is untimely. To the extent the physical takings
claim relies on fences constructed in 1988-1990, we re-
verse because there is no evidence that water was taken
that the Hages could have put to beneficial use. Finally,
we affirm the Claims Court’s holding that the Hages are
not entitled to pre-judgment interest for any range im-
provements award because the Hages failed to identify a
cognizable property interest. We remand for further
proceedings consistent with this opinion.
AFFIRMED-IN-PART, REVERSED-IN-PART,
VACATED-IN-PART, and REMANDED
COSTS
No costs.