Water for sale: Hunters of California seek buyers for water rights in Death Valley
Meanwhile Wayne Hage, Jr. plans for some water usage changes on his own operation. As reported in the May 5, 2018, edition of Tri-State Livestock News, three 9th Circuit Court judges encouraged Hage this spring to pursue the removal of his own water from his established water sites located on BLM-administered land in Nevada. Hage has been unable to utilize the water for years because, like the Hunters, the federal government forced Hage to remove his cattle from a number of locations where his family had established water rights that could not be utilized by his cattle without also grazing the surrounding forage.
In April when Hage stood before the 9th Circuit Appeal Court judges, he told them that the government had also denied him permission to physically remove the water from the sources. The judges told Hage that case law – Hunter v. US - indicated that he had every right to remove his water from the source, including piping it across BLM-administered land – much of which is Wilderness - to his own patent ranch land.
Hage says he intends to just that, and soon.
“We’ve put in the paperwork with the state of Nevada to start moving the water off the land,” he said. “We plan to start putting in pipeline as soon as the process is fulfilled and if the government gets in the way, we’ll seek an injunction against the U.S. like the Ninth Circuit Court indicated we should do. If they won’t let us use our water there, (at it’s source) we have no choice but to take our water and go home with it.”
Hage said he has met with the state engineer who sees no problem with the concept.
“We even talked about the idea of transporting the water to Las Vegas. He said that was fine, there would be nothing wrong with that.”
Because Hage owns the forage on the right of ways (approximately 100 feet wide) for more than 130 water sources, he expects he will likely fence the right of ways, at least the ones without natural barriers (steep mountain sides) and graze them. “We will fence it so the cows stay in and the elk stay out. Under Nevada law we don’t have to water elk or horses,” he said, adding that the will continue to ensure wildlife has access to water.
With the water being as far as 90 miles from his home ranch, the right of ways will provide forage for a significant number of livestock, he believes.
“The way the Ninth Circuit has ruled, those right of ways already exist, we’re not applying for some new right of way, we just don’t know where it is until we put the pipe in the ground. They will be surprised when they see where the pipe is going to go.”
Water for sale
While much of the state burns out of control, the Hunter family of Death Valley, California is looking for a place to go with their water.
Wayne Hage, Jr., who, like his father before him, has become well known for lifelong battles defending water and grazing rights on his Nevada ranch, said the Hunters have asked him to serve as a broker as they look for a buyer for their water rights.
“The Hunter family owns water in Death Valley. They tried to sell their water rights to the Park but the Park offered such an insultingly low price, that didn’t get far,” said Hage.
In order to obtain the full value of their water rights, the Hunters have recruited Hage to help them.
The Hunters, who have ranched in the area since 1871, didn’t set out to parse off their water rights.
Ranch and litigation history
The story behind the story is much the same as Hage’s.
After the Hunter family settled the region, generation after generation raised cattle in some of the most inhospitable dry desert country in the United States.
Obviously the ranch required water, and the family discovered, developed, maintained and improved water sources throughout the years.
The ranch homestead which was lost along with access to their water rights with the 1964 court injunction, sits in the Death Valley watershed near the top of the mountains, in the northwest corner of the Death Valley National Monument, where the water is shed to Death Valley, Panamint Valley and Saline Valley, explains John Hunter. The headquarters of the current ranch is in the Owens Valley, 35 miles as the crow flies and 55 miles by the road southwest of the original homestead.
The federal government declared Death Valley National Monument in 1933 and it was substantially expanded and became a National Park in 1994.
A 1964 decision by the district court required the Hunters to remove their cattle from Death Valley. I have never seen the original district court decision
The federal government argued that because the area had been named a Monument, government bureaucrats had the authority to require that Hunter cattle be removed from the Monument area. The Hunters and their attorneys argued in a 1967 appeal that their use of the water far pre-dated the Monument designation, and the family had established water rights, under the “Act of 1866,” by establishing beneficial use and continually utilizing and improving said water since 1871.
The Act of 1866 says:
“Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed.”
At the very least, Roy Hunter, grandson of original settler Wm. Lyle Hunter, said the loss of the use of the water constituted a “taking” since his grandfather had established beneficial use of the water far before the Monument designation.
In the appeal paperwork, Roy Hunter said his predecessors had established use on 26 springs and a stream.
The 9th Circuit Court of Appeals found the following:
“7. Prior to 1880 Wm. Lyle Hunter, grandfather and predecessor of defendant, Roy Hunter, discovered certain springs within the area now known as Death Valley National Monument, and developed said springs by diverting spring water through pipes or other conduits into tanks and troughs constructed by him for livestock watering purposes.
8. Defendant, Roy Hunter, and his predecessors in interest, his father and grandfather, have watered cattle and other livestock from the tanks and troughs adjacent to said springs and from a free flowing stream within said area, have maintained the original diversions and said use, and have grazed cattle and other livestock adjacent to said sources of water continuously since prior to 1880.
9. The watering of cattle and livestock by defendant and his predecessors in interest from the springs and from the free flowing stream within the Death Valley National Monument constituted a beneficial use of said waters.”
Despite these favorable findings, the court granted an injunction to require the Hunter family to stop grazing and using water on the Monument.
The Ninth Circuit Court ruled that the Hunter family must remove their cattle from around their established water right locations in Death Valley, however the court confirmed their ownership of their water rights and said the government could not deny the Hunter family access to their water rights. They were to access their water through the ditches and canals portion of the 1866 Act, which means they own the right of way to pipe their water out of the Park and to their private lands.
The court decision forced the sale of about half of the family’s mother cows. With the acquisition of other leases since, the herd number is now at about 70 percent of historical numbers, said Hunter.
While the Hunters have not been able to use their 26 streams located on the original monument, they still access their water and grazing rights within the Death Valley Park (established in 1994).
Sale to the Park a no go
Hunter said he recently offered for sale to the Park the original 26 streams that he can no longer access, (on the original monument) as well as his currently utilized grazing permits and water rights within Death Valley Park. The reason he considered selling the permits and water rights currently in use is because of the “constant opposition and pushback of grazing within the National Park,” he said.
While local Park Service employees made a legitimate effort to work with him, red tape got in the way, he said. “The park conducted an appraisal placing a value only on the currently utilized water rights, completely omitting the value of the 26 streams disputed in the 1964 case. The Park Service appraiser was not allowed to utilize a local comparison sale, saying it was not representative because it sold to an environmental group, so he had to go all the way to northeastern Nevada to find allotment sales for comparison. The offer made by the Park did not reflect market value, Hunter said. Because of ongoing drought, the quantity of water from the streams in question is not particularly large at the moment, Hunter said, but it is the right, not the actual water that is for sale. With some good moisture the streams would provide significantly more water.
“It’s sad. They’ve had the rights since the 1870s. Basically they were the first settlers down there,” said Hage.
Hunter said he has documentation of William Lyle Hunter filing on water in 1874. William Lyle Hunter, John Hunter and Bev Hunter continued to file on water through 1913 while John and Bev Hunter filed on water until 1925. “There were other miners in the area but no other settlers as far as homesteads that I know of,” says Hunter.
A new idea?
The ranching operation has survived despite extreme weather and forage challenges. But by far the biggest challenges sit behind desks. “In a desert sense, it’s probably the harshest (cattle range) in this country. The Hunters were entrepreneurs. The government was looking for people to settle, and that’s what they did. Then they came back decades later and said, ‘this is way too pretty for you to own or use, so we’re going to steal it from you,’ after the blood, sweat and tears they shed for it,” says Hage.
Hage spoke recently with several members of Congress about creating a system that would pay water right holders for water that the federal government has made inaccessible. This would be similar to a rental agreement, but not a sale.
“I said to them, ‘if you don’t want us to take our water off the land and go home with it, which is our only option because the bureaucrats won’t let us graze cattle out there, why don’t you just pay us to leave the water out there?’”
“They can manage for desert tortoises or prairie dogs or sage hens or whatever they have going on that week. They can do what they want as long as they compensate us for not using our own water. If they don’t want to pay us anymore, that’s fine, they can give us a permit that’s enticing enough for us to take it back and we’ll put cows back on it. It could be a win-win for the rancher, the environmentalists, and the agencies. And if they decide they want to fight fires all the time, we’ll take our livestock and our water off the land, the dry forage can build up, and they can fight fires. It seems like they’d rather not have a cow, just forest fires.”
But for now it’s time to make use of the water in a new way, says Hage. The Hunters will sell their water rights. It is possible that foreign investors will become the new owners of the rights. Hage speculates that an environmental organization could also attempt to buy the water rights.
The Park has acknowledged the Hunters’ rights and has acknowledged in writing that the family has the right to remove the water, Hage said. “But they were betting that they wouldn’t do it and the government would get it by default.” I do not recall a document that addresses the removal of water directly, please refresh my memory
“We’re shaking our heads. They would like to be compensated fairly for their water. If the U.S. wants to jerk them around then a foreign investor can transport the water out of there and dry the Park up.” The extremists who claim livestock are destroying the environment might realize that there is more to the story when they learn about the situation, Hage says. “It looks like environmentalists and sportsmen and others who have fought against the ranchers should be able to look at this and say, ‘wait a minute, the BLM and Forest Service are screwing ranchers over’ and ruined what those groups were hoping to achieve.” Hage said wildlife and environmental groups should support ranchers’ access to water in order to keep the water on the land.
Frank Falen, a Cheyenne, Wyoming – based attorney who has defended ranchers on property and water right issues for years, said he’s seen ranchers in situations like the Hunters are in.
“The Park screws you. They can lowball you because they can keep you from having a very easy sell to anyone else.”
The expense of piping the water out of Death Valley is something Falen said would obviously need to be looked at, as well as the red tape with a multitude of agencies.
“They will have to have the kind of volume that will make it worth the while,” he said. Falen said the right itself will likely need to be changed from that for beneficial use to a municipal use of some sort. Government regulations could be difficult to work through in this case, even for the building and maintenance of the pipeline, and he’s not aware of water that was previously established for beneficial use like agriculture being piped long distances for municipal use. Usually stockwater rights are small enough that building long pipelines to remove the water is cost prohibitive, he said. While he’s familiar with irrigation rights being purchased for municipal use, they tend to be wells rather than creeks, rivers and streams where downstream users need to be taken into consideration.
“The precedent of taking ag water and selling it to a municipality sure isn’t new. It happens quite a bit, but the cost and red tape are obstacles to over come.” Falen says the Hunters will have to determine whether the volume of water available to them is valuable enough to justify someone piping it long distances. I’m sure that’s what the Park Service has used against them is questioning whether or not they have a true cost effective alternative to selling their water to the Park.”
But Hage is optimistic. He points out that the Ninth Circuit has explained the 1866 right of ways already exist, therefore if the government interferes with the removal of the water then they will be liable for a taking. They were not liable for a taking before because technically the Park never denied access to the water, the Hunters had the right to remove it, said Hage. “What is the water worth? It would be the cost of trucking water back to Death Valley. The only right of ways that exist are for taking water out of the park, not bringing it in. I don’t think the local bureaucrats thought about that.”
Hunter said there is a small town, Darwin, that might be interested in the water rights, and he believes it would be feasible to transport the water that 12 miles off their current pipeline to that community.
Hage says the water will likely be sold in a live auction format. “The price could be astronomical. Or it might not. It could be worth more than we think it’s worth.” The water is extremely valuable, being located in the driest place in North American and to say it’s the most precious resource in Death Valley would be a gross understatement.
If the Hunters were offered $32 million for the water, he’s pretty sure they’d take it. “Looking at what Las Vegas and L.A. pay for water rights, that’s a fair price.”