ours i would like to reserve three minutes for rebuttal my name is elizabeth and peterson and i represent the united states as this court is aware federal statutes have long prohibited unauthorized use of federal lands for livestock raising this case began as a routine trespass matter in which the united states sought to enjoin page family from its longstanding practice of using federal lands for grazing without permits and to recover past fees and fines for many years of uncommitted grazing just in this case issue this is a decision that has essentially rendered federal administration of those hands impossible finding that only two instances of trespass over a period of decades constituted violations of the federal regulations and awarding damages for one hundred sixty five dollars which for those for that reason we are here today seeking reversal on five substantial issues of law and we are seeking reassignment of this case to a different judge on remand the district judge also held two federal employees in contempt of court that that's go be argued separately and that will be also you can separate appeal let mike let me ask you this question i couldn't figure out other than completely making it up where the district judge got this idea of a half a mile from a water source have any meaning whatsoever or is there any evidence or legal theory that you're aware of that the district court will i don't know in fact i believe it's in the transcript that he believed himself that that number was arbitrary he instead just believed that the behavior of cattle could be reflected by a radius of a half mile from a water source but in doing so what he was what he was addressing was the central error in this case which is the suggestion that there could be private property  public range lands in this case the district court held that it wasn't the kind of grazing rights that this court rejected in hunter and was instead an easement to get to sta law water rights but you can graze while you're doing it there is no distinction between those two holdings this court's decision and hunter is directly contrary to the district court's conclusion that the hage family has private property rights and federal lands congress has never authorized the acquisition of private property rights in federal lands and the existence of state law water ri no bearing on whether there is authority to use the federal lands for that reason we seek reversal of the district court's conclusion that the pages own easements and its refusal to apply the statutory and regulatory damages measure of damages for their past unauthorized use what specific regulations and statutes does the government contend the hague's are violating well there are actually two regulatory regimes that govern the federal range lands one is that forest service statutes which are the organic administration  litigation in nevada that is very revealing about the nature of the claims here that there is zero to support the notion that any state law right preempts federal regulation of these lands and that has been understood in the state of nevada from long before that the tail of racing act was enacted the nevada supreme court has decided on multiple occasions that any state law right to use the lands would be superseded by a federal statute that came in to regulate them and when the taylor racing act was enacted ruled affirmatively that that statute to the extent that it conflicted with any state law right to use those range lands had superseded them so any belief that a state law right could allow the hage is to continue to use federal lands in violation of federal law is unsupported by any state or federal law and it's also inconsistent with the u s constitution to agree to hate pages have sea water rights in some of these lands that actually the fact of any state law water rights is irrelevant to this case they we did not challenge the existence of such rights they brought them in as a defense to the use of federal property so they have water right and some have said as i understand the government's position that under federal law means they can come in and divert the water coming in on farms or by truck or whatever without cattle attached  to divert that water so that it can be put to use on their own lands or they can get a grazing permit and do what they've done those are the two ways that one can when the government denied or didn't allow the original grazing permit as a correct application for grazing permit i would like to answer that in two parts this seventy eight i think it was actually in the seventy's when the pages first acquired their property they applied for and received permits and they operated under those permits until the ninety's during comply with many of the terms of their forest service permits and they believed that the united states was treating them unfairly in its efforts to enforce the terms of those permits and they therefore brought a taking sql aim saying that by enforcing the terms of those permits against them in the manner that they had the united states had taken property rights that they had the that ultimately resulted in nothing  federal claims held that one small aspect of that case did constitute a physical taking but that holding was reversed by the federal circuit and the federal circuit also held that the  additional access issue that was addressed in those cases was beyond the court's jurisdiction so that those decisions have been vacated by the federal circuit this court however relied pretty heavily on findings in those decisions and read many of them into the record it appears to have been extremely concerned that the way that the such that the court of federal claims in the federal circuit handled the claims before them was not fair to the hague has and came to this case with that belief fixed and in that belief it also encouraged the hey just to bring a counter claim against the united states although it was undisputed that they were using federal lands and that mr hage did not have and had never applied for a permit they the pages then didn't bring a counter claim that was essentially the complaint in their takings case rearranged as as an a p a challenge seeking a declaration that they had been deprived of substantive due process that the district court heard in even asserting jurisdiction over that counter claim in the first instance and found that the decision of the united states to sue the hay just to enforce federal law was a and that is clearly incorrect but even if it had had jurisdiction to consider those claims all of them were stale the last action that the page alleged to have violated their rights was in one thousand nine hundred seven and this claim was filed in two thousand and eleven finally even assuming neither of those reasons precluded the court from considering the claims the claims were entirely unsupported on the record because the hage is eventually dropped their administrative dealings with the government and put all their eggs in their federal you your honor i would just like to quickly before i run out of the time that i would like to use on affirmative just urge this court to take seriously the united states request that this case be reassigned on remount the district court threw out the proceedings from long before the trial ever began expressed great sympathy with the hage is an expressed strong aversion to that federal agencies and the programs that they administer on these lands we recognize that it is extremely unusual for the united states to come here and to request that a case be reassigned to a different federal judge but this federal judge really truly is biased in this case and we do not believe that he can put aside the beliefs that caused him to reach the really truly outrageous conclusions that he did in this case i'd like to reserve you may do so  physical scope of the right of way that the court found and we agree exists and that is there was substantial evidence in terms of testimony and documents as to the normal behavior of livestock around water and as the court of district court itself pointed out that evidence was on contested but that evidence has nothing to do with the need as a matter of law to obtain a great regulation allows grazing without a permit in this area here your honor is where the united states i think has kind of confused the issue the issue is not whether there is a generalized grazing right the issue is a whether the pages or the estate in this case has an easement to get to and from its stock watering rights and secondly as an incident of that right whether the livestock has the right to consume forage while it is in the use of that easement to and from and around the water right didn't hunter answer that question yes you answer i would respectfully submit that it does not in fact hunter itself specifically pointed out that the law must allow for a right of way to and from the water and in fact in the of way if you can't grain is the right of way is the right of way of of human beings to come and divert the water the diversion of water and stock water rights first of all your honor according to the act of eight hundred sixty six and all  cases we cite pertaining to the act of eight hundred sixty six say that contrary to what the united states argues that state law governs in terms of water rights and those easements  proport the portion of the activate hundred sixty six that became known as r s twenty four seventy seven provides for public highway rights of wait and under the law in nevada including decisions for example nine thousand nine hundred forty seven point seven one acres united states vs there applied the law of the state to determine you know what constitutes an r s twenty four seventy seven right of way and they concluded as does the state law including the state supreme court in the case called steptoe and they are that it is a public right of way when the right of way it can be created by the use of even one person and that public right away serves a public purpose such as mining which under the laws of nevada is considered a public purpose so too are grazing and any other beneficial use of water the ninety nine thousand seven hundred  four hundred forty seven hundred acre plus case involved a mining claim in which first the right away was created by the individual who did his assessment work then that was later used for employees to go back and forth to the mine and used to take or from the mind to the railhead and then eventually even uses a private toll road under nevada law that is considered a public highway and under the act of eight hundred sixty six as the one thousand plus acre case found that then qualified as an r s twenty four seventy seven right away i'm going to ask you a question about the taylor grazing act  sense if there could be grazing without a permit anywhere including near the water rights well your honor actually judge jones found that a permit could be required even within the bounds of the right of way this case in the not take that doesn't answer my question well yes the statute says a person who has water rights has a preference to receive a grazing permit or if that appears to me to presuppose that congress understood that even people act and are recognized by the act of eight hundred sixty six which the supreme court itself has said in many cases recognize preexisting rights which must be protected by the federal government the reason your honor i would suggest that the united states is case is kind of off target on this is because they chose not to is to sue on some other legal theory they sought to sue on a theory of trespass trespas to land by having the livestock at their theory is amply demonstrated by their production of maps where it shows a line here showing this land and it says be a lamb and another line over here and it says to be humboldt national forest and they say there's livestock inside these boundaries therefore it's trespass well one defense to trust past of course is and this is important the united states challenge the the government the courts application of state law as to damages but they did not challenge was the government the courts application of the decisional law of the state which the supreme court says applies if there's no other provision of law that says otherwise to determine whether there was trespass in the first instance in other words if there's no trespass under nevada state law there's no trespass on the federal land the supreme court has been clear it doesn't matter where the united states is is the party because it literally cannot be prevented i don't understand how your argument is in accordance with this court's decisions and united states versus where i asked far one versus him for which deal with a plan or e honor according to the nevada state law which governs the nature of the water right the way in almost all cases in which the water is diverted for use is by having that cow council that or that's why i was asking about the west case and  mcfarlane case because they deal with the land it's not about the water rights he has the water rights but that doesn't mean he can't come onto the federal land without obeying federal law at least according to our court not because the issue here is not grazing but the incidental use of forge within the bounds of the right of way while he's in the lawful use of that that right away the feds circuit itself in the hage case when the government raised the argument that they did not have the right to access that water without the permission of the federal government rejected that argument and i submit that hunter rejected that argument two hundred sponsor spoke about it generalized grazing right anywhere and then said and i'm trying to find a cite you asked me to to give you your honor because i knew hunter would be argued here at some l hunter u s one five three eighty eight at fed second one forty eight at one fifty three to one fifty four and said that they had to be allowed to access their water and gave the hunters leave to go ahead and alleged amended complaint to allege the right of way they did not say there was no right away this existed there had to be a right away and it had to be if we're going to one of the methods contemplated by the and economical method in nevada and it had been the custom for over forty years before they've stopped ok so itself was decided to go to divert the water and put it to beneficial use because  not a seminal arid state it is an arid state and the only reasonable way to do this those rights state and local law and custom were embodied as federal law in the eight hundred sixty six act  distinction between grazing and using forage all the cases including hunter that talk about grazing are literally talking about a free roaming right to graze anywhere on the allotment and this balsa by the way was a finding which was not contested on appeal by judge smith in the taking case and i don't need to go into it now but the description of taking case nature in its history was not accurate rather he found also literally as a matter of common sense but also consistent with the principles of law that when congress acts it is presumed to know all the facts relevant to his legislation and there was plenty of testimony at trial showing the truth of this matter that no more than you can control where a cow drinks can you control when the cows going to put his head down and chomp on the forge by all the more reason to consider it gr isn't i would your honor the issue here was not a defense to whether or not a permit was required for some kind of grazing he got united states could have chosen that they did they chose to argue trespass and having a right of way to you a right away and if you have the right away then you can have your cattle graze may i give you an analogy why not just just you could just follow me because it seems like i'm trying to figure out what happened here and if this is the way  is that's that's that interview is that your view it is my view and again let me give you the analogy if i have a right of way across your property to get to my property in the dirt road no matter what i do i'm going to kick up some amount of dust the easement that allows me to do that is very unlikely you say and by the way while you're using the easement you can kick up dust yeah because you will it's inevitable the other thing you know is i'm not sure that you have a right of way and easement says you can bring all of your cattle as you come across it within a half mile on each side of that right away that's why i'm struggling with this because i don't think that's what it in beijing is i don't think it in visions all of your cattle following you all the way to the to the to the did shirt to the water well they don't follow frankly kal l i know i understand that but you're using your example it would mean you get to kick up dust well does that mean also you get to bring a thousand cattle along that way if that's what the easement was for the easement is actually governed by the water right in the extent there is a time a place manner of place and use under the state law so i can use that if i have a stock water right and that's all i have that's what i get to use it for and if it's for four hundred had it's for four hundred it's for four hundred head the live in this is where i go back to the idea that the congress is presumed to know the facts underlying its legislation congress has to be presume to know that livestock on the way to and from water and around water is going to eat the half mile distance was based on the evidence on the cattle behavior that would be then they'll bill to people legislating and judge jones drew a balance between what he felt was quite possible five miles because livestock will do that but it's like a bell curve going on some of them are going to be out here most of them are going to cluster here and when they're around the water gets a point where if enough cattle are moving farther away from that water than what that bell curve suggests why then the inference would change from you're just using your water right and this is an incident stringing together that state law rights that my friend just mentioned does not get you a right to use federal land more than one hundred years ago the supreme court held that stock grazing on forest lands did not result in a private property right that would persist it would it could be revoked at any time if it was an implied license and there is nothing in the eight hundred sixty six mining act that gives a right to use land beyond the ditches and canals that are granted for water no other right to use land in conjunction with water rights is granted in that statute so there really is no way to get from the mining act or any other federal statute to an easement over federal lands to use state law water rights and as watering and therefore mr pollock is correct that that is the manner in which a state law stock watering right could be appropriated after one nine hundred fifty seven when that case was decided but before that there wasn't any record but that the state recognized stock watering on federal lands as a beneficial use until nine hundred twenty seven so these rights that the hague has claimed from prior to the eight hundred sixty six mining act are themselves somewhat questionable we have not challenge them here but if they provide the basis for a right to use federal lands their very existence before that mining act was enacted is very questionable under state law as i think our brief made we're in closing i would just like to say that we believe that this case is extremely important that the protection of the administration of these federal lands is a critical responsibility of the federal government and that the decision in this case has made that all but impossible and has encouraged people who that the very small handful of people who choose to defy the law in this area should do so we strongly urge the court to reverse on all five of the substantive issues that we've raised and we request that the your honor is the may it please the court vivian wang on behalf of tom seeley steven williams and the united states i six reserve three minutes for rebuttal mr seely and mr williams were found in contempt for doing nothing more nothing less than their routine duties as federal land management officers their actions were required by agency regulations and they were not in violation of any court order because no court order was in place the district court violated established legal principles when it imposed contempt sanctions against them and against their agencies and these terminations must be vacated i wish to focus my remarks this morning first on one of the main errors of law by the district judge which is the finding of contempt in the absence of a decree that required or perhaps at any conduct the central component of a contempt for seeking is a violation of a definite and specific court order and here no injunction was in place let alone a clear one what happens when a party is disrupting a court proceeding the judge finds somebody in contempt yes your honor the laws do provide for for example contemptuous conduct  for example the presence of a judge so as to disrupt the course of forty well so is the distinction is that it happened in the presence of the court that is one distinction your honor is that the other is there any other distinction certainly  so if someone were disrupting court proceedings during the trial for example as your honor mentioned that could be a basis for contempt another basis for contempt and one that both this court and the supreme court of explored is in the context where a party has requested and received a preliminary injunction or temporary restraining order or may be in violation of a consent decree some specific written set of instructions that either prohibit or require certain conduct and so if a party violates a specific definite order in that context that could also be a valid basis for contempt i think i think the theory was that somehow the individuals were interfering with the subject matter of the law for example if there were a court case involving the ownership of a valuable piano and somebody went out and smashed it to pieces that might be contemptuous even with there was no court order but just as a matter of sort of understanding the theory of the district court what happened here did any of the actions of either mr seely or mr williams relate specifically to those cattle and the specific sources of water that are an issue in the main case there the answer to that your honor is both yes and no so to answer your honor's question did any of the actions of mr same mr williams relate to the cattle bearing the page or the state's brands the answer to that is no the that was all that was my impression as well so we agree with your understanding of that is the way the law operates your honor began this line of questioning by referring to the heart i think of the district court's error which has its mistaken belief that the mere existence of litigation over grazing function as an automatic injunction against an foresman a federal lawsuit concerning the lancet issue against non parties and this relates back to your honor's point which is that that's right the for example the grounds that the district court cited for contempt including the sending of trespass notices to non parties these were not actions directed toward hage it was not they were not actions directed toward the est and because there was no order in place for example  he was running his cattle on these federal lands and without having any permits and so in that line of questioning the district court interjected his belief that the routine sending of trespass notices were  or no your honor it was not while he was a witness i believe that they were the original so the i guess to explain this the process that the agencies go through when they detect an authorized rescinded because at the time the agencies had not been aware that birkhead was purporting to operate under a lease arrangement which would have been invalid anyways because mr hage who he berg was presumably running cattle under did not have the permits but yes your honor that is one of the basis of the district court's findings is that he believes that these routine acts which were directed at non parties and which had not been enjoined by any court order somehow interfered with the conduct of the trespass claims and i think to this point your honor it's also important to note that the complaint filed by the united states in this action were directed only order for us to pick apart but yes and i believe that the court did have this belief that the pending litigation operated as some sort of injunction against any land management actions but that is not how  operates and that is certainly not how the court's jurisdiction should be interpreted and as as we discussed in our briefing the district judges assertion that any sort of litigation over  honor he did believe that but that is not how that is not what was going on there is no evidence that there was any intent to interfere or any intent to intimidate for instance your honor and if the corporate so you wish to reserve the balance of my time you may do that thank you generally was at issue pertaining to water rights to permanence to the conduct of the united states which in the in the page trespass case give me the page taking case that judge van that many of the actions of the government were motivated by hostility toward the hage is a conclusion that was not challenge on appeal this case also addressed some of these issues but in any event it was the united states itself of the trial court and asked that these issues be determined now there was a statement for a question that the court had asked about interference with water rights and the name of danny byrd has been mentioned not been mentioned is the name of a man named gary snow and his correspondence and work with alleged contender mr seely pertaining to the and pages such as the supplemental excerpts of record three fifty three exhibit forty eight exhibit fifteen ninety four ninety five and so on sixteen fifty sixteen sixty two there is evidence that they not only allowed mr snow on there although they did say now you have to haul water but knew very well that it was a an impossibility to keep mr snow from using mr hedges water in the record also shows that one for a service i believe is for a service witness when asked whether i thought it was ok for the forest service to allow other people to use water rights belonging to a third party  answered yes originally until the judge pressed the question a bit further and i asked him about sort of general overview question and that is this i want you to assume for the sake of this question although i know you vigorously disputed i want to you to assume for the sake of this question that the united states prevails in the me in case your theory is not accepted by the court what if any effect would that have on the contempt piece of the case truth be told your honor none the decision on the merits of the case doesn't apply because the whole concept of conte and in this case it's civil contempt so intent is essentially irrelevant for this case and if it were relevant that would be a fact of the matter let me ask you in the reason i say that is this because  as i understand your theory the main case is at least in part about water rights but the government's position is that it is not at all about water rights which are assumed to be valid it is only about grazing so if the case isn't abou water rights then how could the district court be correct that there's been an interference with water rights that are not the subject of the lawsuit well you wonder they say they accept the water rights but they don't accept the water rights they challenge what those water rights contain and what those water rights allow the hedges to do or to not doesn't answer my question though because the theory of the district court as i understood it in the contempt was it leased largely about water and not about grazing and so if if we were to conclude counter to your argument that water rights really have nothing to do with this it's only about grazing then how could actions about the water even pertain to the case i guess that's my problem with your own i would again have to respectfully disagree the case was about trespass and whether the interference with other thing making decisions for example one of the decisions that the judge found to be intolerable was because mr hage the elder mr hage before he died in the government claims he relinquished as he did not he signed a permit asking for you know for an extension of his term permit the first one it expired and underneath that he simply wrote subject to u c c to dash to zero seven meaning just because he signed the permit he was not waiving any claims that he might have in the claims court action which was already pending so this case was about more than water rights but the water rights were part of it we asked the court in fact to declare those water rights and whatever easements and other things that might go with it so you can't accept the premise in the iran i can't accept the premise because he was how how how were silly and williams on notice that they were supposed to suspend all law enforcement proceeding well first of all you're on the lam like to finish the question for us in the land issue in this case how are they supposed to know well it was not that they the judge expected to make he's very clear in his that decision not allowed to do based on what's in the record here they submitted this to the court to determine these legal issues thing and then as we say they came to federal court and then they came to the court they submitted it and when i suggest that when you submit an issue to the court you submit anything that may be raised in response to return it what is your thirty for that the fact that we're even allowed to bring the counter claim in the first instance your honor you can just as a matter of united states except kelso that the government came in and said person number one is trespassing and we'd like to be compensated for their trespass and your theory is well not only was person number one not trespassing but they aren't allowed now to claim that people number two three four and five are also trespassing because they've alleged that number one is trespassing now they have to stop saying anybody stressed one of the questions that they put before the court your honor was who who is liable for the trespass now the government was and i'm trying to understand the logic of that if they argue that person number one is trespassing how are they supposed to know and why would they stop claiming that other people who are acting similarly also are trespassing  natural thing to run or do well the complaint first of all names all of those livestock including livestock mr hage was leasing from third parties as trespassing and arguing that he was liable for them while at the same time pursuing alternative challenges on their own and the united states talked about notices of trespass that's not what was complained about danny berg and others received his demands for payment and were were while they were in still have trouble with the logic of that let's say a whole bunch of people come on to my front lawn can i sue person number one for trespassing on my side just know that i'm now for banning from going after people the rest of the people who are also camped out on my front lawn because there might possibly i might loose on person number one that seems to be the theory that i or not dominated states knew and although they say they didn't know they knew and it's in the record in detail that mr hage had the sole responsibility and control over that livestock they sent demands for payment trying to get money from the same people that they were trying to get from mr hage if they really felt they were libel interest best they could have made them parties of this lawsuit in fact they did they missed mr coleman a party to the lawsuit and they separately settled with mr coleman you honor i i really think that the the legal theory here the issue here is whether the united states having submitted matters to the court now gets to pursue parallel remedies on its own in a way that essentially interferes with the court's own administration of justice there is a case we cited in our brief it was a appellate court case a federal district the federal public court case involving a school a civil rights case in which the subject matter of the suit was whether or not the school was discriminatory in handing out scholarship awards if there was an injunction be a junction expired the district court refused to extend it it went up to the court of appeals court of appeals actually called the school and asked them if they would mind stipulating to not distributing that money it was a request the school deny the request called a special meeting and it's attorney there and said there's no injunction here can we just go ahead and disperse this money before the court of appeals gets to hear the case the attorney said all there is no problem there they went ahead and did it and the court found them in contempt for essentially having placed the matter in front of the court accepting the court's jurisdiction to decide all the issues connected to the lawsuit and then you know thwarted that by giving the money away before the court could gain any control over it i submit that that is what happened here thank you counsel thank you your honor is when you have some rebuttal time and many about a minute and a half thank you i have a brief follow up to the question that judge wardlaw asked earlier regarding mr bergen the judge's basis for finding that contempt check the record and indeed the trespass notice sent to mr berg was actually sent before and it was actually resolved in rescinded before before he was a witness at trial so that is also clearly not an appropriate basis in the record for the lower court's finding of contempt and to briefly address my opponent's discussion of the temporary one year permit that had been issued to mr snow that is likewise not an appropriate basis for contempt first because as we've discussed previously the water rights issues were not raised by the united states in the complaint and secondly  because those even if the water rights had been an issue the permit required mr snow to haul his own water and indeed after the first renewal of that permit mr seely ceased that authorization to mr snow so neither of these there is indeed no basis in the record for any finding of contempt here and the lower courts rationale your honor is has placed the agencies in an untenable position each time a federal land management action is challenged in court the agencies have a hard choice between either suspending the administration of brazing programs which would invite lawsuits alleging failure to enforce regulations or on the other hand to continue managing federal lands and face the specter of a contempt citation mr seely and mr williams have each dedicated more than thirty five years to public service and the sanctions imposed on them and on the agencies are unlawful and we urge this court to reverse and vacate