# In the United States Court of Federal Claims

No. 91

- 1 4 7 0 L (Filed: November 4 , 2013 )

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THE ESTATE OF E. WAYNE HAGE * AND THE ESTATE OF JEAN N. HAGE, *

*
* Motion for Hearing; Motion for Briefing;
Plaintiff s , * Motion for Appointment of Special Master;

* RCFC 52(b); RCFC 59; Res Judicata

v. *

*
THE UNITED STATES, *

*
Defendant. *

*

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Mar k L. Pollot , Boise, ID, for plaintiffs.

Bruce Trauben , United State Department of Justice, Washington, DC, for defendant.

O PINION AND ORDER

SWEENEY, Judge

Plaintiff s , the Estate of E. Wayne Hage and the Estate of Jean N. Hage , request a hearing following t he remand of this action by the United States Court of Appeals for the Federal Circuit. Estate of Hage v. United States , 687 F.3d 1281

, reh’g and reh’g en banc denied

, (Fed. Cir. 2012 ) (“Federal Circuit Ruling”)

, cert denied

, 133 S. Ct. 2824 ( 2013 )

. According to plaintiffs, d espite
decades of litiga tion and numerous rulings by the trial court, including its 2010 decision awarding money damages and directing the Clerk of Court to enter final judgment and close the case, unresolved legal issues remain

. Plaintiffs re quest an expedited briefing sche dule as well as the appointment of the f ormer trial judge in this case to serve as a special master to ad judicate
these issues . For the reasons set forth below, the court find s p laintiffs’ motion lacks merit and it
is hereby DENIE D

.

I. BACKGROUND AND PROCEDURAL HISTORY

More than 20 years ago, p laintiffs filed their complaint against the United States alleging compensation owed for a Fifth Amendment taking of private property under the Just Compensation Clause of the Constitution

, range improvements pursuant to 43 U.S.C. §1752(g)

, 1 and breach of contract. During th e ensuing two decades, th e court conducted multiple hearings and issued numerous decisions. See Hage v. United States , 35 Fed. Cl. 147 (1996) (“ Hage I ” ); Hage v. United States , 35 Fed. Cl. 737 (1996) (“ Hage II ” ); Hage v. United States , 42 Fed. Cl. 249 (1998) (“ Hage III ” ); Hage v. United States , 51 Fed. Cl. 570 (2002) (“ Hage IV ” ); Estate of Hage v. United States , 82 Fed. Cl. 202 (2008) (“ Hage V ”); Estate of Hage v. United
States , 90 Fed. C l . 388 (2009) (“ Hage VI ”); Estate of Hage , No. 91

- 1470L, 2010 WL 9110258 (Fed. Cl. June 9, 2010) (“ Hage VII ”).

Ultimately, on August 2, 2010, t he trial court i s sued its Fi nal J udgment and Order resolving all outstanding issues on liability and damages. Estate of Hage v. United States, 93 Fed. Cl. 709 (2010) (“ Hage VI I I ”). In Hage VIII , the trial court award ed damages in the amount of $14,243,542.00 and direct ed t he Clerk of Court “ to enter final judgment accordingly and to
close the case.” Id. Two days later, the Clerk of Court entered judgment as ordered, pursuant to
Rules of the United States C ourt of Federal Claims (“RCFC”) 58. See Judgment, filed Aug. 4,
2010

.

D efendant filed its notice of appeal on October 1, 2010 , and plaintiff filed their cross appeal two weeks later

. O n July 26, 2012, the U nited States Court of Appeals for the Federal
Circuit ( “ Federal Circuit ” ) issued its decision which revers ed in part, vacat ed in part, and affirmed in par t the final judgment , and remanded the matter back to this court “ for further proceedings consistent with [ the ] opinion

. ” Estate of Hage , 687 F.3d at 1 286

- 88. The Federal
Circuit denied r ehearing and rehearing en banc on October 19, 2012 ; and o n June 17, 2 013, t he United States Supreme Court denied certiorari

. Despite the plain language of the trial court ’s decision in Hage VIII that directed the entry of final judgment and the closing of the case , and the subsequent Federal Circuit Ruling that reversed the trial court’s liability determination and damages assessment in favor of plaintiffs, on July 6, 2013, plaintiffs filed the instant motion as serting that additional proceedings

were necessary . According to plaintiffs, certain liability theories remain un resolved . O n July 31, 2013, the case was reassigned and transferred to the undersigned judge. On September 3, 2013, the parties filed a joint status report

.

In the j oint s tatus r eport, p laintiffs contend that the Federal Circuit R uling did not end the litigation because it “was limited in scope, [] did not reverse the majority of the trial court ’ s fi nding s of fact and conclusions of law, and that a substantial number of issues remain to be
decided in this case on remand.

. . . ” Joint Status Report 1

. I n defendant’s po r tion of the report,

1 43 U.S.C. § 1752(g) (1988) provides in relevant part:

Whenever a permit or lease for grazing domestic livestock is canceled in whole or in part, in order to devote the lands covered by the permit or lease to another public purpose, including disposal, the permittee or lessee shall receive
from the United Stat es a reasonable compensation for the adjusted value, to be determined by the Secretary concerned, of his interest in authorized permanent improvements placed or constructed by the permittee or lessee on lands covered by such permit or lease, but not to exc eed the fair market value of the terminated portion of the permittee’s or lessee’s interest therein

.

- 2

-it set forth an opposing view

– t hat the Federal Circuit’s Ruling resolved all issues and that there is nothing more for this court to do except direct the Cle rk of Court to dismiss the action. Id. at 3

- 4. Defendant is co r rect.

II. DISCUSSION

Plaintiffs Are N ot E ntitled to the Relief T hey S eek.

1

. T he decisions of the Court of Federal Claims and Federal Circuit leave no room for
doubt that additional proceedings are un warranted.

Plaintiffs contend that certain issues remain for the court’s resolution

. Specifically, plaintiffs argue that unresolved issues include w hether the Federal Circuit Ruling “ reversed the trial court’s finding of a physical taking of water rights based upon a practical ouster and the physical impacts of regulatory policies and proc edures through threats and intimidation with respect to ditches and streams; ” w hether there was a physical or regulatory takings of certain water rights and the erection and removal of fencing; and whether subsequent decisions of law and intervening facts, require or permit review of the Federal Circuit findings notwithstanding
the “law of the case doctrine.” Joint Status Report 1

- 2. Plaintiffs’ contentions lack merit both in
fact and law.

There can be no serious question that the trial court’s eight separate ruling s adjudicated all issues raised by plaintiffs’ complaint. Indeed, the United States Court of Federal Claims (“C ourt Federal Claims” ) rendered the following rulings in Hage IV , 51 Fed. Cl. at 592 regarding plaintiff s ’ physical and regulatory takings theories: that plaintiffs had vested water rights to the Southern Monitor Valley, Ralston

, and McKinney allotments, id. ; that p laintiffs acquired 1866 Act Ditch right s

- of

- way water rights

, id. ; and

, finally, that plaintiffs did not possess a property interest i n the surface estate and grazing permits that could be taken within the meaning of the Just Compensation Clause

, i d

.

Then, i n Hage V

, 82 Fed. Cl. at 208

, having determined the scope of plaintiffs’ property rights , the trial court next decided which of plaintiffs’ alternate takings theories

– physical vs. regulatory

– was the appropriate rubric to apply when performing its legal analysis

. T he trial

court explained “there is no bright line between physical and regulatory takings. ” Id. Ultimately, t he court concluded that the government’s construction of fences around springs and streams that prevented plaintiffs’ cattle access to the water caused a physical taking of plaintiff s ’ water rights during the period plaintiffs had grazing permits. Id. at 2 11. In addition, t he trial

court found a regulatory taking by the government allowing vegetation to accumulate and overgrow the stream beds

, by prevent ing the Hages from performing maintenance in the
streambeds and ditches

, and by allowing beavers to establish dams in the upper reaches of the streams thus impounding water

. Id. at 211

- 12. Based upon these findings of fact, the trial court
concluded these actions pre vented plaintiffs from accessing and using that water for their cattle

. Id. at 212.

T he trial court a lso rules that plaintiffs could have put the water from their 1866 Act Irrigation ditches to beneficial use for agricultural purpose s and, therefore, the government was liable for a regulatory taking of plaintiffs’ ditches. Id. at 212

- 13

. The trial court found plaintiffs
were entitled to an award of compensation u nder 43 U.S.C. § 1752(g). Id. at 214

- 15.

- 3

-Not all rulings were in plaintiffs ’ favor . The trial court denied “Plaintiffs’ claim for compensation for the taking of the f orage in the ir 1866 Act d itch rights

- of

- way .” I d. at 213 n.11

. And r elying on the precedent set forth by the Federal Circuit in Colvin Cattle Co. v. United
States , 468 F.3d 803, 807 (2006) , the trial court also found that there had been no taking of plaintiffs’ cattle or the “entire ranch

. ” I d

. at 209.

On appeal

, the Federal Circuit determined that plaintiffs’ regulatory taking claim was not rip e because they failed to apply for the r equired special use permit that would have allowed them to perform the maintenance necessary to keep their irrigation ditches operational. Federal Circuit Ruling , 687 F.3d at 1287 . According to the Federal Circuit, “[t]here is no evidence suggesting that the disputes between the Forrest Service and Hages would cause the Forest Service to deny the Hages special use permits to perform ditch maintenanc e.” Id. at 1288 . The
Federal Circuit also found that the claim relating to fences that were constructed during 1981

- 1982 was barred by the Tucker Act’s six

- year statute of limitations

. Id. at 1289

- 90 (“As an initial matter, we agree with the government that any claim based on the fences erected in 1981

– 19 82 is barred by the six

- year statute of limitations period, 28 U.S.C. § 2501, because this suit was filed in 1991.”).

In its review of the trial court’s physical takings analysis , the Federal Circuit agreed with the Hages “that the government could not prevent them from accessing water to which they owned rights without just compens ation. ” I d. at 1290 . Nevertheless, the Federal Circuit explained that :

T he Hages’ claim, however i s flawed because there is no evidence that the government actually took water that they could 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 [and] the Hages do not allege that there was insufficient 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 [Court of Federal Cla ims] erred in holding that the construction of fences amounted to a physical taking.

Id.

Similarly, c oncerning plaintiffs’ claim for compensation for range improvements pursuant to 43 U.S.C. § 1752(g ), the Fed eral Circuit found that because the Hages failed to first seek compensation from the Secretary of Agriculture, the trial court’s compensation award must
be set aside because th at claim too was un ripe:

We addressed this issue in Colvin Cattle , in which we held that when a claimant ‘d[oes] not requ est a determination by the Secretary of the value of its improvements as required by statute . . . its claim is not ripe
for failure to exhaust administrative remedies. [ citation omitted ] As in
Colvin Cattle , the Hages did not request a determination by the Secretary of the value of their improvements. The Hages fault the government for not presenting evidence of procedures to see k such a determination, but

- 4

-the Hages bear the burden of establishing jurisdiction, not the government. . . . 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

e xhaust administrative remedies.” [ citation om itted] We thus hold that the [C ourt of Federal Claims] erred in awarding the Hages compensation for range improvements . . . because the Hages’ claim is not ripe.

Id. at 1290

- 91

.

In the summation of i t s holding, the Federal Circ uit concluded:

T he Hages ’ regula tory takings claim and claim for compensation pursuant to 43 U.S.C. § 1752(g ) are not ripe, and we therefore vacate the [Court of Federal Claims] award of damages. To the extent the Hages’ claim for a physical taking r e lies 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 reverse because there is no evidence that water was taken that the Hages could have put to beneficial

us e.

Id. at 1292.

Nothing in either the trial court ’s or appellate courts’ respective decisions suggest that issues requiring further scrutiny by the trial court remain. Indeed, if the tri a l court intended to
conduct more pro ceedings to resolve an outstanding legal issue, it would have said so in its 2010 decision. The prior judge assigned to this case labored diligently and provided n umerous detailed decisions that explor ed every theory of liability raised in the complaint. Rather than suggest th at future hearings might be necessary, in Hage VIII

, , the trial court directed the Clerk
of Court to “ enter final judgment [] and to close the case. ” Hage VIII

, 93 Fed. Cl. at 709.
Common sense dictates that if the court intended to conduct future proc eedings, it would not have directed the closing of the case and the entry of final judgment. 2 Similarly, if the Federal Circuit intended that this court open the record, receive additional evidence, and render new or additional findings of fact and conclusions of law

, then the appellate court would have p rovided
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

– n othing more remains to be decided. Plaintiffs’ dissatisfaction with the outcome of the appeal process does not change this fact.

In sum, i t is bey ond dispute that the Federal Circuit R uling was comprehensive and put to

rest plaintiffs ’ 20

- year pursuit for compensation under alternative legal theories. For this reason, plaintiffs cannot now raise new , abandoned

, or rejected legal theories

. T he Fed eral Circuit Ruling is clear, it addressed and resol ved all of plaintiffs’ claims, albeit not to plaintiffs’
satisfaction

, and plaintiffs ’ disagree ment with the Federal Circuit does not provide new grounds

2 After the trial court rendered numerous decisions in this case, not once did plai ntiffs seek, pursuant to RCFC 52 or 59, to amend or modify any finding s of fact, conclusions of law, or the judgment entered.

- 5

-to resurrect plaintiffs’ complaint. Consequently, the re are n o claims left to be adjudicated by this
court; t his litigation is at its end.

2

. The Relief Plaintiffs Seek Is Barred by Res Judicata

Any claim supposedly unresolved during the near ly two decades of litigation is barred by

r es judicata

. Under the doctrine of res judicata , “[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised
in that action.” Federated Dep’t Stores

, Inc. v

. Moitie , 452 U.S. 394, 3 98 (1981). The purpose
of res judicata is “an end of litigation; that those who have contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled between the parties.” Baldwin v. Travelin g Men’s Ass’n , 283 U.S. 522, 525 (1931). “ Over the years, the doctrine has come to incorporate common law concepts of merger and bar, and will thus also bar a second suit raising claims based on the same set of transactional facts. ” Jet Inc. v. Sewage Aeration Sys. , 223 F.3d 1360, 1362 (Fed. Cir. 2000) ( citing Migra v. Warren City School Dist.
Bd. Of Educ. , 465 U.S. 75, 77 n.1 (1984) (“Cl aim preclusion refers to the effect of a judgment in foreclosing re litigation of a matter that nev er has been litigated, because of a determination that it should have been advanced in an earlier suit. Claim preclusion therefore encompa sses the law of merger and bar.” ) )

. Therefore, i n order to dismiss a case under res judicata , it must be
established “that (1) the parties are i dentical or in privity; (2) the first suit proceeded to a final judgment on the merits; and (3) the second claim is based on the same set of transactional facts
as the first.” Ammex, Inc. v. United States , 334 F.3d 1052, 1055 (F ed. Cir. 2003)

.
Here, each element of res judicata has been satisfied. First, it is beyond dispute that the parties (Hages and government) are identical

. Turning to the second element, this too is satisfied
because the trial court rendered a final decision on the merits and the Clerk of Court entered final judgment. T hird, the issues now raised are th e precise issues previously decided by the trial

court ( and reviewed by the appellate court )

, which arise from the same underlying transactional
facts

. The thrust of plaintiffs’ argument is that not all issues were specifically resolved by the
trial court or on appeal by the Federal Circuit. Plaintiffs are mistaken. Indeed, plaintiffs filed a

cross

- appeal to the Federal Circuit they cannot now complain . Moreover, t here is a presumption that claims arising from the same factual pattern will constitute the same claim for res judicata

purposes. Plaintiffs seriously cannot argue that the issues and facts they now raise are not ide ntical to those set forth in the complaint filed over 20 years ago and which was litigated to
conclusion

, as demonstrated by eight separate comprehensive opinions issued by the trial judge assigned to this case. Unquestionably, th e trial court ruled on th e entire brea d th of the complaint,
and resolved all the factual and legal issues by accepting some legal theories argued by plaintiffs and rejecting others. Hence, res judicata prevents the court from hearing the same matter for a
second time

.

III. CONCLUSION

For the foregoing reasons, the court DENIES plaintiffs’ motion for hearing

. Additionally, plaintiffs request an expedited briefing schedule and the appointment of a special
master. The court DENIES AS MOOT the motion for expedited briefing. The court further
DENIES plaintiffs’ motion for the appointment of the former trial judge in this case to serve as a

- 6

-special master . T he court has no authority grant such a request. The Clerk is directed to enter judgm ent accordingly and to close the case. No costs.

IT IS SO ORDERED.

s/ Margaret M. Sweeney
MARGARET M. SWEENEY Judge

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