In the United States Court of Federal Claims

No. 91-1470 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;

Plaintiffs, * Motion for Appointment of Special Master;

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

v. *

*

THE UNITED STATES, *

*

Defendant. *

*

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Mark L. Pollot, Boise, ID, for plaintiffs.

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

OPINION AND ORDER

SWEENEY, Judge

Plaintiffs, the Estate of E. Wayne Hage and the Estate of Jean N. Hage, request a hearing 

following the 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, despite 

decades of litigation 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 request an expedited briefing schedule as well as 

the appointment of the former trial judge in this case to serve as a special master to adjudicate 

these issues. For the reasons set forth below, the court finds plaintiffs’ motion lacks merit and it 

is hereby DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY

More than 20 years ago, plaintiffs 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 the ensuing two decades, the 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. Cl. 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, the trial court issued its Final Judgment and Order 

resolving all outstanding issues on liability and damages. Estate of Hage v. United States, 93 

Fed. Cl. 709 (2010) (“Hage VIII”). In Hage VIII, the trial court awarded damages in the amount 

of $14,243,542.00 and directed the 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 Court of Federal Claims (“RCFC”) 58. See Judgment, filed Aug. 4, 

2010. 

Defendant filed its notice of appeal on October 1, 2010, and plaintiff filed their cross 

appeal two weeks later. On July 26, 2012, the United States Court of Appeals for the Federal 

Circuit (“Federal Circuit”) issued its decision which reversed in part, vacated in part, and 

affirmed in part 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 1286-88. The Federal 

Circuit denied rehearing and rehearing en banc on October 19, 2012; and on June 17, 2013, the 

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 asserting that additional proceedings 

were necessary. According to plaintiffs, certain liability theories remain unresolved. On 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 joint status report, plaintiffs contend that the Federal Circuit Ruling did not end the 

litigation because it “was limited in scope, [] did not reverse the majority of the trial court’s 

findings 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. In defendant’s portion 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 States 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 exceed the fair market value of the terminated 

portion of the permittee’s or lessee’s interest therein.

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it set forth an opposing view – that the Federal Circuit’s Ruling resolved all issues and that there 

is nothing more for this court to do except direct the Clerk of Court to dismiss the action. Id. at 

3-4. Defendant is correct.

II. DISCUSSION

Plaintiffs Are Not Entitled to the Relief They Seek.

1. The decisions of the Court of Federal Claims and Federal Circuit leave no room for 

doubt that additional proceedings are unwarranted.

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

plaintiffs argue that unresolved issues include whether 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 procedures through threats and intimidation with 

respect to ditches and streams;” whether 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 rulings adjudicated 

all issues raised by plaintiffs’ complaint. Indeed, the United States Court of Federal Claims 

(“Court Federal Claims”) rendered the following rulings in Hage IV, 51 Fed. Cl. at 592 regarding 

plaintiffs’ physical and regulatory takings theories: that plaintiffs had vested water rights to the 

Southern Monitor Valley, Ralston, and McKinney allotments, id.; that plaintiffs acquired 1866 

Act Ditch rights-of-way water rights, id.; and, finally, that plaintiffs did not possess a property

interest in the surface estate and grazing permits that could be taken within the meaning of the 

Just Compensation Clause, id. 

Then, in 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. The trial 

court explained “there is no bright line between physical and regulatory takings.” Id.

Ultimately, the 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 plaintiffs’

water rights during the period plaintiffs had grazing permits. Id. at 211. In addition, the trial 

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

overgrow the stream beds, by preventing 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 prevented plaintiffs from accessing and using that water for their cattle. 

Id. at 212.

The trial court also rules that plaintiffs could have put the water from their 1866 Act 

Irrigation ditches to beneficial use for agricultural purposes 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 under 43 U.S.C. § 1752(g). Id. at 214-15.

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Not all rulings were in plaintiffs’ favor. The trial court denied “Plaintiffs’ claim for 

compensation for the taking of the forage in their 1866 Act ditch rights-of-way.” Id. at 213 n.11. 

And relying 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.” Id. at 209. 

On appeal, the Federal Circuit determined that plaintiffs’ regulatory taking claim was not 

ripe because they failed to apply for the required 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 maintenance.” 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 –

1982 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 compensation.” Id. at 1290. Nevertheless, the Federal Circuit 

explained that:

The Hages’ claim, however is 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 Claims] erred in holding that the 

construction of fences amounted to a physical taking.

Id. 

Similarly, concerning plaintiffs’ claim for compensation for range improvements 

pursuant to 43 U.S.C. § 1752(g), the Federal 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 that claim too was unripe:

We addressed this issue in Colvin Cattle, in which we held that when a 

claimant ‘d[oes] not request 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 seek such a determination, but 

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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 

exhaust administrative remedies.” [citation omitted] We thus hold that 

the [Court 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 its holding, the Federal Circuit concluded:

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 

[Court of Federal Claims] 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 reverse because there is no 

evidence that water was taken that the Hages could have put to beneficial 

use. 

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 trial court intended to 

conduct more proceedings 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 numerous 

detailed decisions that explored every theory of liability raised in the complaint. Rather than 

suggest that 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 proceedings, 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 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. Plaintiffs’ 

dissatisfaction with the outcome of the appeal process does not change this fact. 

In sum, it is beyond dispute that the Federal Circuit Ruling 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. The Federal Circuit 

Ruling is clear, it addressed and resolved all of plaintiffs’ claims, albeit not to plaintiffs’ 

satisfaction, and plaintiffs’ disagreement with the Federal Circuit does not provide new grounds 

2 After the trial court rendered numerous decisions in this case, not once did plaintiffs 

seek, pursuant to RCFC 52 or 59, to amend or modify any findings of fact, conclusions of law, or 

the judgment entered. 

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to resurrect plaintiffs’ complaint. Consequently, there are no claims left to be adjudicated by this 

court; this litigation is at its end.

2. The Relief Plaintiffs Seek Is Barred by Res Judicata

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

res 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, 398 (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. Traveling 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) (“Claim preclusion refers to the effect of a judgment in 

foreclosing relitigation of a matter that never has been litigated, because of a determination that it 

should have been advanced in an earlier suit. Claim preclusion therefore encompasses the law of 

merger and bar.”)). Therefore, in order to dismiss a case under res judicata, it must be 

established “that (1) the parties are identical 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 (Fed. 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. Third, the issues now raised are the 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, there 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 

identical 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, the trial court ruled on the entire breadth 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 

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special master. The court has no authority grant such a request. The Clerk is directed to enter 

judgment accordingly and to close the case. No costs.

IT IS SO ORDERED.

s/ Margaret M. Sweeney 

MARGARET M. SWEENEY

Judge

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