Tonopah—it’s a Shoshone word meaning either “water brush” (a small desert shrub) or, more likely, “little spring”—in central Nevada, owes its existence to a sometime hay farmer, sometime prospector, and sometime district attorney (for thirty-five dollars a month) named Big Jim Butler who camped there in May of 1900. The story goes that his burros wandered away from him in the night, and when Big Jim found them they were sheltering from the wind near an outcropping that looked likely. It turned out to be somewhat more than likely, assaying out at a staggering six hundred and forty ounces of silver to the ton. Less than a year later, Tonopah was a town of sorts, with eager hopefuls living in tents, or in shacks made out of barrels or oil cans or glass bottles set in adobe, living even in the shafts themselves.
In 1903, some Mormons decided to jump a claim on the edge of Tonopah and when the mining company representative confronted them, they pulled their guns on him. Among the townspeople who came to see what the commotion was about was a fifty-five year-old saloon-keeper who looked down the vertical shaft.
“You gentlemen get on out of there. This ain’t your mine.”
“Oh, yeah? And who the hell are you, old man?”
“My name’s Wyatt Earp.”
It was many years since his days as a lawman, many years since Tombstone and the OK corral, many years too since he had made and gambled away a fortune in Alaska, but such was the strength of his reputation that the claim jumpers climbed quickly and quietly out.
His reputation was not strong enough, however, to keep him from being run out of town shortly afterward for fixing a boxing match.
The Pine Creek Ranch lies about sixty miles north of Tonopah and has the reputation of being the single most isolated ranch in the United States. The hardtop ends at the picturesque old semi-ghost mining town of Belmont (summer population between twenty-five and thirty, winter population six), once the county seat, with an elegant brick courthouse, and it is eighteen miles of dirt road from there to the ranch headquarters. The ranch owes its name and its existence to the creek that comes down out of the mountains there; the water made it a natural place for a stage stop on the Belmont to Austin stage line back in the eighteen-sixties, long before Tonopah.
I know this land. This is where, as a transplanted Easterner, I began to fall in love with the West. I have hunted and camped multiple times in the Arc Dome Wilderness in the Toiyabe Range, and on Table Mountain in the Monitor Range. Trout streams empty into ponds the color of strong tea. Elk and deer move through the pastures and woodlands. In the Arc Dome, after I shot a five-by-six buck, two mountain lions trailed us almost all the way back to the camp; we found their tracks over ours the next morning. On Table Mountain, near 11,000 feet is an aspen grove known as Porno Grove where lonely—and seriously horny—Basque sheepherders once carved their fantasies into the trunks of the trees: naked women standing, on their backs, on all fours; breasts with life-support systems attached; men with heroic phalluses, coupling in every imaginable and some unimaginable positions; hundreds of images carved into the trees. Most are done just about as crudely as you might expect. Some are elevated by aesthetics or humor, a few by both.
It was on Table Mountain that a white mule—who has since gone, unlamented, to his just reward—led our entire pack string, in hobbles, away from camp and back down fourteen miles of exceptionally difficult trail to the valley floor.
There are few things in this life quite as deflating as bouncing out of your tent in the pre-dawn hours to go feed the horses and finding them conspicuous by their absence. You stand there with a bucket of feed in each hand and your jaw listing southward, reflecting that not only is it fourteen miles to the trailhead, but another honest fifteen or twenty miles from there to the nearest and only ranch—Pine Creek—where there might—emphasis on might—be signs of life. Suddenly you begin to think fond thoughts of mass transportation and the interstate highway system and beltways and traffic jams.
Fortunately, our outfitter’s wife had a cell phone with her. Fortunately the weather was clear enough that she was able to get a signal. Fortunately the cell phone at the Pine Creek Ranch—they had no hard-wiring for phones or electricity—was working (it also functioned solely at the whim of the weather). And, most fortunately of all, there was someone there.
The next afternoon a young buckaroo rode into camp, leading our string—and the damn mule. The young hand wore a flat-brimmed, round crowned black Stetson, neckerchief, chinks, Carhartt jacket, Garcia spurs, and a Garcia bit on his horse, and he looked as if he just ridden right out of a Will James or Charlie Dye painting. His name was Wayne Hage, Jr., and that night he and I sat up late on opposite sides of the fire drinking Coors and Jack Daniels as he told me the story of his family’s legal battles and harassment and persecution at the hands of the United States government. It was easy to dismiss his tale as the delusional ravings of a disenfranchised cowboy, which is pretty much what I did, until one May night several years later when Tom Brokaw said something that made my ears perk up.
NBC Nightly News is hardly a hot bed of radical right-wing thought. Like all the major networks it tries to both reflect and influence the thinking of the mainstream majority of Americans, so when Tom Brokaw announced, “And the Fleecing of America. The government seizing private property just to increase the tax base. Is that fair?” I sat up. I had heard words very similar to those on top of Table Mountain. I decided I wanted to know more.
There is a lot of arid nothing to drive through in Nevada, and zipping through with the cruise control set at seventy does nothing to change that impression. But the thirty-sixth state gets its name from the Spanish word, nevar, meaning ‘to snow,’ and Nevada, meaning ‘snow clad,’ or ‘snow covered,’ is an apt name. The Sierras in California block most of the westerly storms—the western slope of the Sierra Mountains may get as much as eighty inches of precipitation in a year, while the eastern slope averages around ten inches—yet despite that, the mountains of Nevada get enough snow each winter that at the higher elevations the nation’s most arid state has some surprisingly good trout fishing—native brook trout—and equally good grass range. In a state where eighty-six percent of the land is publicly owned, that good grass range has become a bitter bone of contention.
In 1862, in an effort to encourage Western settlement and relieve urban labor pressures, Congress passed the Homestead Act, which essentially gave one hundred and sixty acres, free, to anyone willing to occupy and cultivate the land for five years. One hundred and sixty acres, a quarter section, one half mile square—free! To Easterners, accustomed to rich, arable land, and thinking in terms of pasturing many cows per acre, one hundred and sixty acres—free!—must have seemed like manna from Heaven.
Unfortunately, unlike the manna, rain did not fall from Heaven.
The ninety-eighth meridian runs a little ways west of the North Dakota-Minnesota border. It runs down through Mitchell, South Dakota, home of the aptly-named Corn Palace, a little east of Grand Island, Nebraska, near the staging grounds of Sandhill cranes on the Platte River, and in Kansas it runs just west of Wichita, where Wyatt Earp served briefly as a lawman. In Oklahoma it pretty much follows highway 81, west of Oklahoma City, and in Texas it passes near former President Bush’s home in Crawford and on down through Austin. It is an arbitrary line, but it is significant because it is an isohyet.
An isohyet is any line connecting points on a map that have equal amounts of rainfall, and along the ninety-eighth meridian the amount is thirty inches, the bare minimum needed for agriculture. Speaking in generalities, one can say that east of the ninety-eighth meridian enough rain falls to make one hundred and sixty acres a decent farm. West of that line there is not enough rainfall to make one hundred and sixty acres productive agriculturally, and a quarter section is not enough land to ranch. The farther west you go, the less rain there is. For thousands of eager settlers the Homestead Act was just a cruel joke. Homesteaders sold, mortgaged, and borrowed everything they could lay their hands on to make the journey west to their free piece of paradise, and by 1890, only one out of three had managed to stay on their dream long enough to gain the title.
In the desperately arid Great Basin of Nevada, as in most of the West, you can’t think in terms of multiple head of cattle per acre. You think instead of how many acres it takes to run a cow-calf unit, and in some places it may take an entire section, six hundred and forty acres, or more, to run a single unit. Where grass is converted to dollars through the medium of cattle, good grass is almost as valuable as gold.
So in a state where the Federal Government claims public ownership of eighty-six percent of the land, grazing rights become an extremely valuable commodity, and if you’re a rancher, those grazing rights directly affect the ultimate value of your ranch, as well as your ability to earn a living.
Even more valuable than grass is water, both kinds of water. Ground water is reasonably straight forward: it means any water that is under the ground. Surface water is a little more complex. It can refer to the obvious, such as streams and lakes, or it can refer to wells or stock ponds or other collecting systems that are influenced by surface water. Either way, without water the land is useless, so water rights become critical, and the history of water rights in the West is a story of bloodshed, chicanery, legal maneuvering, politicking, fraud, lobbying, graft, greed, malfeasance, and shady dealings so complex and so convoluted as to be almost unbelievable. If John Grisham and Tom Clancy collaborated with Jackie Collins, they might be able to do justice to the story.
But if you own the land, all this is moot, right? Well, no. Land ownership in the West is nowhere near that simple. For one thing, in addition to the water rights and grazing rights, there are also mining rights, timber rights, oil and gas rights, wildlife rights, easement rights, development rights, trespass rights, and possibly other rights that I’m not aware of. It is a concept known as the ‘split estate,’ and to take it to its illogical extreme, it is theoretically possible for you to own a piece of land in the West with which you can’t do a single damn thing except pay taxes and boast.
Conversely, if you own grazing rights, say, on land controlled by the Federal government, when you die, the IRS will tax those rights as your ownership interest in the land, your private property.
For ranchers throughout the West these rights, grazing, water, and so on, have become inextricably entangled with the question of property rights as defined under the Fifth Amendment. If the government decides to take your property for the greater good of society, should you not be compensated fairly, as spelled out in the Fifth Amendment?
When I was there, The Pine Creek Ranch was 757,000 acres, give or take a plot or two. 757,000 acres is—if I’ve done my math correctly—roughly 1,183 square miles. To give you an idea of the scale of the place, Rhode Island, at 1,214 square miles, is only slightly larger, while the country of Luxembourg (nine hundred and ninety-nine square miles) is substantially smaller. The country of Liechtenstein (sixty-one square miles) would barely qualify as one of Pine Creek’s pastures. The ranch was eighty-two miles long, running north-south, and varied in width from eight miles at the narrowest to almost thirty-five miles wide. It encompassed two separate mountain ranges with peaks ranging from 11,000 to 12,000 feet. The ranch headquarters on the valley floor sit just at 7000 feet.
7000 acres of meadows and hay fields on the valley floor were owned by Wayne Hage, Sr. in fee patented land (sometimes called full fee simple, or fee simple absolute) which means he owned both the land itself and all the inheritable rights that come with the land. 750,000 acres were fee lands, which means the public owns the land, while he owned some of the inheritable rights, in this case water rights and grazing rights.
This is a little like saying, “I own the chair, but you own the right to sit in it,” but that’s the way things have evolved in the West, thanks to a raft of frequently contradictory and indigestible slabs of legislation such as the Homestead Act, the Organic Act (the one of 1897, of course, not the Organic Acts of 1849, 1884, 1890, 1900, 1916, 2003, or any of the others by the same name), the Taylor Grazing Act, the Forest Reserve Act, the Mining Act, the Stock Raising Homestead Act, the Illinois Central Act, and the Act of July 26, 1866 which has surely the most spine-tingling, breath-taking, pulse-racing sub-title of any act ever passed by Congress: “An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands and for other Purposes.”
Clearly, any cattle baron with 757,000 acres and the intestinal fortitude to duke it out toe-to-toe in the middle of the legal ring with the United States government for twenty-five years must be larger than life, a titan of a man in a twenty gallon Stetson, a sprawling, brawling, hairy-chested, two-fisted cross between John Wayne and Daniel Webster, shaking the devil by the scruff of his neck, while dispensing home-spun wisdom and rough justice from a ponderosa-pine castle.
Not exactly. I once had a sweetly vague professor who would occasionally try to absentmindedly write on the blackboard with the stem of his pipe. That’s who Wayne Hage, Sr. reminded me of. Small, rumpled, portly, hair and shirttails both sticking out at variegated angles, his Stetson little more than a glorified fedora, a beard that managed to somehow be both short and untidy, he was an unlikely warrior, who dispensed his hard-won legal knowledge from a modest cinderblock ranch heavily festooned with dozens of mud cliff-swallow nests.
There were three common rooms in the ranch house: Wayne’s office, which looked like a cross between an unsuccessful law office and a disorganized history professor’s inner sanctum; a family room with an enormous fireplace and a television set; and the great room, a combination kitchen, entry, and dining room, with a wonderful antique wood-burning cook-stove and some prints by Western artist Jack Swanson on the walls. Wayne and I sat at the long table in this room on the folding metal chairs that served as dining chairs, looking out at an ancient unpainted wooden barn (possibly a hangover from the old stagecoach days) and the great expanse of the Monitor Valley.
Before the advent of instant celebrity and super-lotteries and reality television, Americans used to admire Horatio Alger men, men who overcame adversity through hard work and pluck and self-reliance.
“I started working as soon as I was old enough be able to. My father was in mining, a consulting geologist, but a lot of the other members of the family were involved with ranching, so I pretty well grew up with ranching, up around Elko.
“The winter of ’51, ’52 was devastatingly hard, so I persuaded my parents to let me drop out of school. I spent my high school years working around on different ranches in that country. At that time you had the big cattle outfits and they’d put out a roundup wagon and just stay out on the range for maybe ten months of the year. For a teenaged boy, that kind of life made school seem pretty dull and uninteresting, so I just stayed with it.
“I was breaking horses in the Owyhee Mountains when the Korean War was going on. I figured I’d beat getting drafted and enlist in the Marines, but at the recruiting office I ran into a friend of the family. He said, ‘You’re a dumb S.O.B. Just look at you. You haven’t even been to high school. You enlist in the Marines and put in three years, and when you get out you’ll still be a dumb S.O.B.’ Then he started telling me about all the educational opportunities that were available in the Air Force, and before I knew it I had signed on the line and enlisted for four years. I got good schooling, came out at the top of all my classes, learned a lot about electronics, made up my high school with a G.E.D. test.”
At the end of the long table where we sat was a stack of magazines, Western Livestock Journal, Range, The Economist, Archaeology, and a carefully folded American flag. As we spoke, his ran his fingers over the flag, much as a man might run his hand absently over the head of a dog.
“When I came out of the Air Force I went right back to work on the ranches. Once that gets in your blood, making your living on horseback in that environment, it’s hard to get it out of your system. But I had the G.I. Bill, so I went ahead and got my degree. I was working on my Master’s at Colorado State when I got married, so I came back to a little ranch just over the Nevada line in northern California, finished up my Master’s at the University of Nevada. About fifteen years later I had the opportunity to buy this place, the kind of ranching I like, big open range kind of ranching.
“I knew the people were selling the place ‘cause they were having a lot of trouble with the U.S. Forest Service and the Bureau of Land Management, but I had worked for both of them, and I had taken a lot of courses relating to range science. I thought to myself, I understand good range management better than they do, and if that’s what they want, we’ll get along just fine.”
Wayne bought Pine Creek Ranch in 1978, and two months later the National Park Service met with him at a coffee shop in Tonopah and informed him that they were going to buy his ranch.
“They offered me a price that was about half of what I had just paid for the place, so I said, ‘OK, that’s fine, that’s for the land. What are you going to pay me for the water and the grazing?’ They said they weren’t going to pay me anything, that I didn’t own those. I told them I disagreed, that I had just paid a whole lot of money for those rights and I expected to be paid for them in turn. I said, ‘You go on back and do your homework. If those grazing allotments are public lands and the government owns them, then we’ll talk your price. If they’re not public lands and the government doesn’t own them, then we’re going to talk my price.’ Well, they went back and did their homework and I never heard from them again.”
All this is perfectly standard. America is a nation of laws, and when you and I disagree on something, we turn to the law to resolve our differences. And as proof of the efficacy of the system, you need look no further than Pine Creek Ranch, for Wayne Hage Sr. won every ruling in every court at every stage of his twenty-five year battle with the federal government.
What is not standard, and what Wayne Hage was not prepared for, was what happened outside the courtrooms, a dreary litany of unrelenting harassment: gates left open, fences cut, vandalism, destruction of property, his cattle mysteriously turning up over and over again on the wrong side of allotment fences, all of it coupled with an overwhelming avalanche of paperwork. In a single grazing season, one hundred and five days, Pine Creek Ranch had seventy ‘visits,’ and forty citations from the United States Forest Service. (One of these was an accusation of failure to maintain the fences on Table Mountain. After two days of riding the fence line, a hand found the Forest Service flag marking a single missing staple.) Forty-five separate trespass citations (for cattle) were served, all of which were subsequently dropped when an eyewitness saw Forest Service employees moving Hage’s cattle onto restricted land. A major spring was fenced off and the water illegally diverted to a local Ranger Station. The Forest Service filed claims over water rights, and each claim had to be defended before the state water engineer. Permits were cancelled, suspended, and burdened with impossible conditions.
Finally, Forest Service employees armed with semi-automatic rifles and wearing bullet-proof vests came in and confiscated one hundred and four head of cattle. They must have been a little disconcerted when Wayne Hage reached into his truck for his own weapon, a thirty-five millimeter camera, and asked them to, “Smile pretty, boys.”
But by that time four administrative appeals against the Forest Service (at $50,000 to $200,000 each) and fifteen years of legal battling had left him bankrupt.
“I thought to myself, ‘They’ve driven me into the ground. I’m broke. I’ve spent all my money fighting the Forest Service. They’ve made it so expensive for me to operate that it costs me twice as much to run a cow as I can hope to gain out of her. I can’t even maintain the essential functions of the ranch. If the United States wants this ranch that bad, they can have it. I’m not going to argue anymore. I’m folding my tent and getting out. But the Fifth Amendment says they have to pay me for it.’”
Which of course begs the question of just why the United States wanted the Pine Creek Ranch that much.
In the play The Zoo Story, Edward Albee has one of the characters say: “Sometimes a person has to go a very long distance out of his way in order to come back a short distance correctly.”
Asking Wayne Hage, Sr. about the motivations of the government, or the relationship of the various administrations to the Forest Service and the Bureau of Land Management over the last twenty-five years, or the legal issues at the heart of his lawsuit, would invariably prompt a response that would have made Edward Albee proud. One hand absently stroking the flag, he would look at the swallows flashing past the window and say, “Well, now, let me walk you through that…” and off we would go on a long hike across the dry and rocky terrain of the jurisdiction authority of the Federal District Court versus the United States Claims Court, prior appropriation doctrine, riparian law, alienable rights versus unalienable rights, the inappropriate influence of the Sierra Club on the Department of Agriculture, the externalizing of the national debt under the Johnson administration, the implications and interpretation of the fourteenth Amendment….
But the bottom line, like everything else in the West, was water. Or money; in the West the two words are pretty much synonymous. The Pine Creek Ranch sits on the largest source of fresh water in central Nevada, some 80,000 acre feet worth of ground water, readily and regularly renewed by the run-off from the Monitor Range on one side and the Toquima Range on the other. At 7000 feet that water is an easy gravity feed to either Las Vegas, the fastest growing city in America, or even to Los Angeles, which is expected to add six million more people to its freeway system in the next twenty years. So instead of raising beef and supporting the elk and deer and antelope—and brook trout—of central Nevada, the Pine Creek water will go to fuel the fountains in front of those tastefully understated casinos in Sin City, or to water those oh-so-vital and ubiquitous lawns and golf courses in what Richard Henry Dana, Jr. once described as, “…a fine plane country, filled with herds of cattle, in the center of which was the Pueblo de Los Angelos…”
The final phase of this ordeal was the determining, by the United States Court of Claims, exactly how much the grazing rights and water rights on 750,000 acres were worth. According to various sources, the ultimate settlement, delivered after Wayne Hage’s too early death, was $4,000,000. Was it fair? Would ten times that amount have been fair? When looked at in the context of having your way of life taken from you, or in context of the harassment he and his family had to endure, would one hundred times that amount have been fair?
The kid who once found high school too dull and uninteresting ended up knowing more about constitutional law and American history, and legislative history in particular, than most superior court justices, but that knowledge came at a terrible price. Sitting at that long table, I asked Wayne Hage, Sr. if, after everything that had happened, after all his legal battles and victories, he had more or less faith in America.
“Well, the situation has changed.”
“But you’ve won.”
“It’s not that simplistic or that clear.”
“Wayne, you took on the United States government in the courts, using the United States laws and the United States Constitution, and you won.”
“Constitutional rights don’t exist under Federal Courts. All they’re interested in is what the rules are and did you violate the rules. I was smart enough to go through the Claims Court. If I hadn’t done that, I would have lost.”
“Yes, but…” I couldn’t let it go. The man who sat absently stroking the flag and gazing out over the land that would soon no longer be his wasn’t bitter or defeated or victorious, but somehow infinitely sad, and I wanted him to at least acknowledge what he had achieved with Hage v. United States, both for himself and for all property owners. At last he looked at me.
“You bet I believe in the rule of law, but most people are trapped in a fiction of law, rules and regulations, and don’t understand the law at all.”
I had to be satisfied with that, but perhaps that’s Wayne Hage, Sr.’s greatest lesson and legacy.
As I left, as my dog and the ranch border collie both walked around stiff-legged, taking turns peeing on all four of my tires, I turned to Wayne Hage.
“A hypothetical question for you, Wayne. If you get all that money and you could still keep the ranch, what would do?”
“I’d be like the rancher in the old joke. Rancher wins $250,000,000 dollars in the Super Lotto. Goes down to pick up the check and the press are all there and one of them asks him, ‘Now that you got all that money, what are going to do?’ Rancher takes off his Stetson, scratches his head a bit, puts the Stetson back on, says, ‘Well, I reckon I’ll keep on ranching until all that money is gone.’” He laughed for the first and only time during my visit.
We shook hands.
“Well, Wayne, I hope you get a fortune out of the government. You deserve it, and you’ll be a rich man.”
He didn’t hesitate. “I’ve always been a rich man. I’ve always had a roof over my head, clothes on my back, three meals a day. I’ve always been rich.”