United States of America v. Estate of E. Wayne Hage; Wayne N. Hage

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
ESTATE OF E. WAYNE HAGE; WAYNE
N. HAGE,
Defendants-Appellees.
No. 13-16974
D.C. No.
2:07-cv-01154-
RCJ-VCF
OPINION
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted
as to Appellant and Estate of Hage*
December 9, 2015—San Francisco, California
Filed January 15, 2016
Before: Susan P. Graber, Kim McLane Wardlaw, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Graber
* The panel unanimously concludes that this case is suitable for decision
without oral argument as to Appellant and Wayne N. Hage. Fed. R. App.
P. 34(a)(2).

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 2
SUMMARY**
Grazing Rights
The panel vacated in part and reversed in part the district
court’s judgment on the merits, and remanded for further
proceedings before a different district judge, in an action
brought by the United States for damages and injunctive
relief alleging that E. Wayne Hage (now deceased) and
Wayne N. Hage grazed cattle on federal lands without a
permit or other authorization.
The panel held that the Hages violated applicable federal
statutes and regulations, as well as the Nevada state law of
trespass because between 2004 and 2008, the Hages’ cattle
grazed frequently on lands owned by the United States and
the Hages did not hold a grazing permit or other grazing
authorization during that time. The panel also held that the
district court erred in concluding that, because of their water
rights, the Hages had an “easement of necessity” to access
water sources. The panel held that the Hages’ counterclaim
under the Administrative Procedure Act was barred by the
statute of limitations.
The panel remanded with instructions that the district
court enter judgment for the government on the Hages’
counterclaims. The panel vacated the judgment with respect
to the government’s trespass claims and remanded for
reconsideration under the correct legal standard.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 3
The panel held that the district judge was biased against
the government agencies, and directed that on remand the
case be assigned to a different district judge.
COUNSEL
Elizabeth Ann Peterson (argued), William B. Lazarus, David
C. Shilton, Stephen G. Bartell, Anna K. Stimmel, Bruce K.
Trauben, and Vivian H.W. Wang, Attorneys, Environment
and Natural Resources Division, United States Department of
Justice, Washington, D.C.; John C. Cruden, Assistant
Attorney General, Robert G. Dreher, Acting Assistant
Attorney General, Daniel B. Bogden, United States Attorney,
Elizabeth White, Appellate Chief, and Blaine T. Welsh,
Assistant United States Attorney, District of Nevada, United
States Department of Justice, Las Vegas, Nevada; and Nancy
C. Zahedi, Regional Solicitor’s Office, United States
Department of the Interior, Sacramento, California, and
Kenneth D. Paur, Assistant Regional Attorney, Office of
General Counsel, United States Department of Agriculture,
Denver, Colorado, for Plaintiff-Appellant.
Mark L. Pollot (argued), Boise, Idaho, and John W. Hoffman,
Hoffman, Test, Guinan & Collier, Reno, Nevada, for
Defendant-Appellee Estate of E. Wayne Hage; and Wayne H.
Hage, Tonopah, Nevada, pro se, as and for Defendant-
Appellee.
John Echeverria and Hillary M. Hoffmann, Vermont Law
School, South Royalton, Vermont, for Amici Curiae Natural
Resources Defense Council, Inc., and Sierra Club.

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 4
Brian T. Hodges, Pacific Legal Foundation, Bellevue,
Washington, as and for Amicus Curiae.
OPINION
GRABER, Circuit Judge:
The United States brought this action for damages and
injunctive relief against E. Wayne Hage (now deceased) and
his son, Wayne N. Hage, alleging that they grazed cattle on
federal lands without a permit or other authorization. The
district court found that, in fact, the Hages had grazed cattle
on federal lands without a permit or other authorization. The
court nevertheless ruled almost entirely against the
government by holding—contrary to longstanding binding
precedent—that the Hages’ water rights provided a defense
to the government’s claims of trespass. The district court also
ruled against the government on a counterclaim—filed at the
district court’s invitation—even though the counterclaim
plainly was barred by the statute of limitations. Finally, the
district court held two federal agency officials in contempt of
court for their ordinary actions, lawfully carried out within
the scope of their regulatory and statutory duties, despite the
fact that the actions had no effect whatsoever on this case. In
this opinion, we vacate in part and reverse in part the
judgment on the merits, and we remand for further
proceedings before a different district judge. In a separate
disposition filed today, we reverse the findings of contempt
against the government officials.

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 5
FACTUAL AND PROCEDURAL HISTORY
Beginning in 1978, E. Wayne Hage (“Hage Senior”)
grazed cattle on federal lands managed by the Bureau of Land
Management (“BLM”) and the United States Forest Service.
Early on, he applied for and received the necessary grazing
permits. In 1993, Hage Senior filed an application for
renewal of the grazing permit, but the BLM denied it because,
in its view, the application had not been completed properly.
Hage Senior has not held a federal grazing permit since the
early 1990s; his son, Wayne N. Hage (“Hage”), has never
held a federal grazing permit. Despite the lack of a permit or
other authorization, the Hages continued to graze cattle on
federal lands.
The United States filed this action in federal district court
in Nevada, alleging that, between 2004 and 2008, the Hages
intentionally grazed cattle on federal lands without a permit
or other authorization. After Hage Senior died, his estate was
substituted as a defendant. The government moved for
summary judgment, which the district court denied because
of its idiosyncratic view that Defendants’ water
rights—perfected by Defendants’ predecessors-in-interest in
the late 1800s and early 1900s—provided a defense to the
government’s action. The court also noted that, “[a]lthough
the Hages may or may not be able to bring a counterclaim[,]
. . . the Court invites them to try.”
Defendants then filed an amended answer that included
counterclaims against the government, including an alleged
violation of the Administrative Procedure Act (“APA”). The
government moved to dismiss the APA counterclaim on the
ground that neither the BLM nor the Forest Service had taken
any “final agency action” under the APA within the

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 6
applicable six-year statute of limitations. The district court
denied the government’s motion to dismiss the APA
counterclaim, reasoning that “[t]he United States . . . has
taken ‘final agency action’ by filing the present lawsuit.”
After a 21-day bench trial, the district court ruled almost
entirely in favor of Defendants. On the government’s claims
of trespass, the court concluded that, by virtue of their water
rights, Defendants have an easement by necessity to access
the water on public lands. The court further concluded that
the easement allowed Defendants to bring cattle with them
onto federal lands. The court also concluded that, because it
is infeasible to prevent cattle from eating or wandering, the
government cannot succeed on trespass claims if the cattle
stayed within a reasonable distance of a water source to
which Defendants possess water rights. Correctly
recognizing that its determination of an appropriate distance
was “arbitrary,” the court selected one-half mile. Applying
that newly minted legal standard to the facts of the case, the
court found that, although the government proved that cattle
under Defendants’ control had grazed extensively on federal
lands, the government had proved trespass as to only two of
its many trespass claims because all other unauthorized
grazing occurred within a half mile of a water source. The
court awarded the government $165.88 in damages.
On the counterclaim, the district court held that
Defendants had proved a procedural due process violation.
The court issued a wide-ranging injunction against the
government, including a requirement that the federal agencies
obtain permission from the court before issuing trespass
notices against Defendants and a requirement that the
agencies issue grazing permits to Defendants. The court

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 7
concluded that it would retain “continuing jurisdiction to
enforce this Order and Injunction.”
The government timely appeals.
STANDARDS OF REVIEW
We review de novo questions of law. Kohler v. Presidio
Int’l, Inc., 782 F.3d 1064, 1068 (9th Cir. 2015). We review
for clear error the district court’s findings of fact. Addington
v. US Airline Pilots Ass’n, 791 F.3d 967, 982 (9th Cir. 2015).
DISCUSSION
A. Trespassing Claim
Article IV of the Constitution states: “The Congress shall
have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property
belonging to the United States . . . .” U.S. Const. art. IV, § 3,
cl. 2. “That power is subject to no limitations.” United States
v. West, 232 F.2d 694, 698 (9th Cir. 1956) (quoting Gibson v.
Chouteau, 80 U.S. (13 Wall.) 92, 99 (1871)); see also
McFarland v. Kempthorne, 545 F.3d 1106, 1112 (9th Cir.
2008) (“The Property Clause gives Congress plenary power
to regulate the use of federal land.”). “The United States can
prohibit absolutely or fix the terms on which its property may
be used.” Light v. United States, 220 U.S. 523, 536 (1911).
“It is also beyond question that ‘the government has, with
respect to its own lands, the rights of an ordinary proprietor,
to maintain its possession and to prosecute trespassers.’”
West, 232 F.2d at 698 (quoting Camfield v. United States, 167
U.S. 518, 524 (1897)).

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 8
Before the enactment of the Taylor Grazing Act in 1934,
longstanding custom allowed persons to use open, unreserved
federal lands for the purpose of grazing stock. Buford v.
Houtz, 133 U.S. 320, 326 (1890); West, 232 F.2d at 697. But
the Supreme Court consistently referred to that custom as an
“implied license,” Buford, 133 U.S. at 326, and the Court
explained in 1918 that “Congress has not conferred upon
citizens the right to graze stock upon the public lands. The
government has merely suffered the lands to be so used.”
Omaechevarria v. Idaho, 246 U.S. 343, 352 (1918); see also
Light, 220 U.S. at 535 (“There thus grew up a sort of implied
license that these lands, thus left open, might be used so long
as the government did not cancel its tacit consent. Its failure
to object, however, did not confer any vested right on the
complainant, nor did it deprive the United States of the power
of recalling any implied license under which the land had
been used for private purposes.” (citation omitted)).
“With [the enactment of] the Taylor Grazing Act,
Congress revoked this indiscriminate ‘implied license’ in
favor of an express statutory permit . . . .” West, 232 F.2d at
697. The Taylor Grazing Act authorized the Secretary of the
Interior “to issue or cause to be issued permits to graze
livestock” pursuant to “his rules and regulations.” 43 U.S.C.
§ 315b. In 1950, Congress granted the same authority to the
Secretary of Agriculture with respect to national forests. Act
of Apr. 24, 1950, ch. 97, § 19, 64 Stat. 82, 88, codified at 16
U.S.C. § 580l. In 1976, Congress enacted the Federal Land
Policy and Management Act of 1976 (“FLPMA”), which
provides specific guidance to the Secretaries in implementing
the federal grazing permit systems. Pub. L. No. 94-579,
§ 402, 90 Stat. 2743, 2773, codified at 43 U.S.C. § 1752; see
also 43 U.S.C. § 1740 (authorizing the Secretaries to

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 9
promulgate “rules and regulations to carry out the purposes
of this Act”).
All three Acts clearly state that the issuance of a permit
does not create any property rights. See 43 U.S.C. § 315b
(“[T]he issuance of a permit pursuant to the provisions of this
subchapter shall not create any right, title, interest, or estate
in or to the lands.”); 16 U.S.C. § 580l (“[N]othing herein shall
be construed as limiting or restricting any right, title, or
interest of the United States in any land or resources.”); 43
U.S.C. § 1752(j) (“Nothing in this Act shall be construed as
modifying in any way law existing on October 21, 1976, with
respect to the creation of right, title, interest or estate in or to
public lands or lands in National Forests by issuance of
grazing permits . . . .”). Accordingly, we long have held that
a grazing permit “has always been a revocable privilege” and
is not a “property right[].” Swim v. Bergland, 696 F.2d 712,
719 (9th Cir. 1983); accord West, 232 F.2d at 697–98;
Osborne v. United States, 145 F.2d 892, 896 (9th Cir. 1944).
The ownership of water rights provides a substantial
benefit to an applicant for a grazing permit. By statute, the
federal agencies generally must give preference to owners of
water rights. See, e.g., 43 U.S.C. § 315b (“Preference shall
be given in the issuance of grazing permits to . . . owners of
water or water rights . . . .”). Additionally, the federal agency
granting a grazing permit to those who own water rights often
need not include the requirement—common to other grazing
permits, such as those in the record here—that the recipient
haul water to the site.
But the ownership of water rights has no effect on the
requirement that a rancher obtain a grazing permit (or other
grazing authorization) before allowing cattle to graze on

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 10
federal lands. In Hunter v. United States, 388 F.2d 148 (9th
Cir. 1967), we held that, pursuant to the Mining Act of 1866
and another Act, an owner of water rights possessed a right of
way over federal lands for the purpose of diverting the water
by “the construction of ditches and canals.”1 Id. at 154
(quoting Act of July 26, 1866, ch. 262, § 9, 14 Stat. 251, 253,
codified at 43 U.S.C. § 661 (1866); 30 U.S.C. § 51 (1866)).
But we made clear that an owner of water rights possessed a
right of way only for those diversionary purposes. Id. We
expressly rejected the rancher’s argument that water rights
entitled him to an appurtenant right to graze or to any
“additional or other easements.” Id. Accordingly, we held
that the rancher “is not entitled to an easement to graze
livestock on the lands within the boundaries of the [federal
lands]” but that “he should be allowed a right of way over
those lands to divert the water by one of the methods
contemplated by the [Mining Act of 1866].” Id. Both the
Tenth and Federal Circuits have agreed. See Diamond Bar
Cattle Co. v. United States, 168 F.3d 1209, 1214–15 (10th
Cir. 1999) (following Hunter and rejecting ranchers’
argument that they have an appurtenant right to graze); Estate
of Hage v. United States (Hage VIII), 687 F.3d 1281, 1290
(Fed. Cir. 2012) (holding that “water rights do not include an
attendant right to graze” but that the government may not
“prevent all access to such water rights”); see also Colvin
1 The FLPMA repealed the portion of the Mining Act of 1866 that
guaranteed a right of way for the purpose of constructing ditches and
canals. 43 U.S.C. § 661 note. But the FLPMA expressly provided that the
Act did not affect any existing rights of way. See 43 U.S.C. § 1769(a)
(“Nothing in this subchapter shall have the effect of terminating any
right-of-way or right-of-use heretofore issued, granted, or permitted.”).
Because Defendants’ predecessors-in-interest obtained their water rights
well before 1976 (the enactment date of the FLPMA), that repeal does not
affect this case.

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 11
Cattle Co. v. United States, 67 Fed. Cl. 568 (2005) (following
Hunter and Diamond Bar and concluding that water rights
contain no appurtenant right to graze and contain only a right
of access for diversion); Gardner v. Stager, 892 F. Supp.
1301, 1303–04 (D. Nev. 1995) (holding that the argument
that the ranchers’ “predecessors acquired vested water rights
and that grazing rights are ‘appurtenant’ to such water rights
. . . was expressly rejected long ago” (citing Hunter, 388 F.2d
at 153–55)).2
In sum, an owner of water rights has special privileges
when applying for a grazing permit and has a right to access
federal lands for the sole purpose of diverting the water. But
an owner of water rights—like all other persons—may graze
cattle on federal lands only if he or she has obtained a grazing
permit or other grazing authorization. Water rights are
irrelevant to that basic requirement.
Between 2004 and 2008, Defendants’ cattle grazed
frequently on lands owned by the United States. Neither
Hage Senior nor Hage held a grazing permit or other grazing
authorization during that time. Accordingly, Defendants
violated applicable federal statutes and regulations, as well as
2 Although Hunter did not rely on this reasoning, the Taylor Grazing
Act’s granting of preference in the permitting process to owners of water
rights strongly suggests that Congress did not intend grazing rights to
follow from water rights without a permit. 43 U.S.C. § 315b. If owners
of water rights did not need to obtain permits at all, the provision would
be a nullity. See, e.g., Ciolino v. Frank (In re HP Inkjet Printer Litig.),
716 F.3d 1173, 1184 (9th Cir. 2013) (“Under accepted canons of statutory
interpretation, we must make every effort not to interpret a provision in a
manner that renders other provisions of the same statute inconsistent,
meaningless or superfluous.” (internal quotation marks and alterations
omitted)).

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 12
the state law of trespass. See 43 U.S.C. § 1733(g) (“The use,
occupancy, or development of any portion of the public lands
contrary to any regulation of the Secretary or other
responsible authority . . . is unlawful and prohibited.”); 43
C.F.R. § 4140.1(b)(1) (prohibiting persons from “[a]llowing
livestock . . . to graze on or be driven across [federal] lands:
(i) Without a permit or lease or other grazing use
authorization”). See generally 43 C.F.R. subpart 4150
(governing “Unauthorized Grazing Use”). See also West, 232
F.2d at 699 (“[T]he Government is vested with legal title. It
must be conceded as well that any license appellees may have
had to occupy the lands at the sufferance of the Government
has been terminated. Hence, as between the Government and
appellees, the latter are now clearly trespassers.”).
The district court nevertheless concluded that, because of
their water rights, Defendants have an “easement by
necessity” to access the water sources. That conclusion
squarely contravenes Hunter. As discussed above, Hunter
held that an owner of water rights has an easement for
diversionary purposes only, and it rejected the argument that
water rights entitle the owner to any “additional or other
easements.” 388 F.2d at 154.
The district court’s theory also fails for several additional,
independent reasons. We briefly mention two. First, the
“easement by necessity” test fails on its own terms. For
example, the requirement that “the unity of title was severed
by a conveyance of one of the parcels,” McFarland, 545 F.3d
at 1111 (internal quotation marks omitted), is not met because
there has never been a severance of title. Under Nevada law,
the owner of water rights owns neither the land nor the water;
the right is usufructuary only. Desert Irrigation, Ltd. v. State,
944 P.2d 835, 842 (Nev. 1997) (per curiam). Second, even if

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 13
Defendants had an easement by necessity, the government
retains the right to issue reasonable regulations—and it has
done so by requiring a grazing permit. See McFarland, 545
F.3d at 1112 (“Even where a statutory right of access exists,
the [federal agency] has broad discretion to regulate its
use.”); see also Diamond Bar, 168 F.3d at 1217 (“Plaintiffs
contend their water right is of little utility if their cattle have
no place to graze. If true, the fault lies with plaintiffs, who
were fully apprized of the consequences of failing to renew
their permits.”). See generally Adams v. United States, 3 F.3d
1254, 1259 (9th Cir. 1993). In sum, the district court’s
“easement by necessity” theory plainly contravenes the law.
Defendants offer several alternative theories on appeal in
support of affirmance. None is persuasive.
Collateral estoppel does not apply here against the
government. In 1991, Hage Senior and his wife sued the
government in the Federal Court of Claims. Hage v. United
States (Hage I), 35 Fed. Cl. 147, 153–56 (1996). Although
they initially prevailed on some claims, the Federal Circuit
reversed on all such claims and remanded for further
proceedings. Hage VIII, 687 F.3d 1281. On remand, the trial
court held that no further claims had merit and entered
judgment for the government. Estate of Hage v. United
States (Hage IX), 113 Fed. Cl. 277 (2013). Because that
judgment is in favor of the government, we need not decide
whether any subsidiary determinations in that case were
adverse to the government. Any determinations adverse to
the government would not have any preclusive effect here.
See, e.g., United States v. Weems, 49 F.3d 528, 532 (9th Cir.
1995) (“[A] determination adverse to the prevailing party is
not given preclusive effect.”).

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 14
Defendants’ water rights do not include, as a matter of
state law, an implicit, appurtenant grazing right on federal
lands. As recognized by federal and Nevada courts alike
(including the district court here), the Taylor Grazing Act
preempted any such right. Colvin Cattle Co. v. United States,
468 F.3d 803, 807–08 (Fed. Cir. 2006); Ansolabehere v.
Laborde, 310 P.2d 842, 849–50 (Nev. 1957).
Defendants have not established a right of way pursuant
to Revised Statute (R.S.) 2477, which is the title given to
section 8 of the Mining Act of 1866: “the right of way for the
construction of highways over public lands, not reserved for
public uses, is hereby granted.” 14 Stat. at 253.3 Defendants
have not shown that any roads exist, let alone that Nevada
established the alleged roads as public “highways” under
Nevada law. See Lyon v. Gila River Indian Cmty., 626 F.3d
1059, 1077 (9th Cir. 2010) (holding that the party asserting an
R.S. 2477 right of way has the “burden to establish [its]
existence” and that “the first question is whether [the State]
at some point established these roads as public highways
under [state] law”); see also S. Utah Wilderness All. v. BLM,
425 F.3d 735, 773–74 (10th Cir. 2005) (“At the opposite
extreme [from a recognized ‘highway’], in Cassity v.
Castagno, 347 P.2d 834, 835 (Utah 1959), the Utah Supreme
Court declined to recognize an R.S. 2477 right of way where
one cattleman had a practice of herding his cattle across the
lands of another to get to and from winter grazing land.”).
Finally, the district court correctly rejected the
argument—for legal and factual reasons that Defendants have
3 The FLPMA repealed this section at the same time that it repealed the
“ditches and canals” right of way. As noted above, in footnote 1, that
1976 repeal did not affect existing rights of way. 43 U.S.C. § 1769(a).

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 15
not challenged on appeal—that certain treaties between the
United States and the original owners of the land are relevant.
In sum, Defendants’ unauthorized grazing of cattle on
federal lands was unlawful, and their water rights have no
effect on the analysis.
B. Defendants’ Counterclaim
Defendants’ counterclaim under the APA is barred by the
statute of limitations. “To obtain judicial review under the
APA, [a party] must challenge a final agency action.” Or.
Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th
Cir. 2006). The six-year statute of limitations found in 28
U.S.C. § 2401(a) applies to APA claims. Wind River Mining
Corp. v. United States, 946 F.2d 710, 713 (9th Cir. 1991).
Defendants filed the counterclaim in 2011.
The BLM’s denial of an application for a grazing permit
in 1993 plainly cannot provide the foundation for an APA
claim, because it occurred 18 years before Defendants filed
the counterclaim—12 years after the statute of limitations
expired.
The district court held, instead, that “[t]he United States
. . . has taken ‘final agency action’ by filing the present
lawsuit.” But we have long held that “litigation decisions are
generally committed to agency discretion by law, and are not
subject to judicial review under the APA.” City of Oakland
v. Lynch, 798 F.3d 1159, 1165 (9th Cir. 2015) (alteration
omitted) (quoting Didrickson v. U.S. Dep’t of Interior, 982
F.2d 1332, 1339 (9th Cir. 1992)); see 5 U.S.C. § 701(a)(2)
(providing that the APA does not apply to the extent that
“agency action is committed to agency discretion by law”).

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 16
Accordingly, the Attorney General’s discretionary decision
to file this lawsuit cannot give rise to an action under the
APA.4
There is no support for the district court’s conclusion that
the filing of this action could give rise to an APA claim. The
district court cited only one case in support: AT&T Co. v.
EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001). That case stands
for the opposite conclusion. The district court misleadingly
quoted only a portion of the relevant passage of that opinion:
Under the circumstances of this case, there
clearly would be final agency action if the
Commission filed a lawsuit against AT&T.
(Of course, the Company could not challenge
that decision as final agency action under the
APA; it would instead simply defend itself
against the suit.)
Id. The district court quoted the first sentence but ignored the
very next phrase: “Of course, the Company could not
challenge that decision as final agency action under the
APA[.]” Id. (emphasis added).
Nor does the “continuing violations” doctrine—urged by
Defendants on appeal—save this claim from the time bar. At
the outset, we note that the doctrine almost certainly does not
4 Even if the Attorney General’s decision to file this lawsuit were a final
agency action, the “agency” would be the Department of Justice, not the
Forest Service or the BLM. Other than the filing of this lawsuit and
defending the Estate’s suit in the Court of Federal Claims, the Department
of Justice has not taken any actions relevant to grazing permits or water
rights. For that reason, too, the claim would fail.

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 17
apply to APA claims. See Preminger v. Sec’y of Veterans
Affairs, 517 F.3d 1299, 1307 (Fed. Cir. 2008) (holding that
the doctrine does not apply to APA claims). But even
assuming that the doctrine could apply to an APA claim, it
does not apply here because Defendants cannot show that any
agency action occurred within the limitations period. See
Cowell v. Palmer Township, 263 F.3d 286, 292 (3d Cir. 2001)
(holding that, under the continuing violation doctrine as
applied in the § 1983 context, “an action is timely so long as
the last act evidencing the continuing practice falls within the
limitations period” (emphasis added) (internal quotation
marks omitted)). The doctrine clearly is aimed at the scope
of the remedy: “the court will grant relief for the earlier
related acts that would otherwise be time barred.” Id.
(internal quotation marks omitted). The doctrine does not
allow a claim that is entirely time barred. As the Seventh
Circuit has put it, “[t]he continuing violation doctrine allows
a plaintiff to get relief for a time-barred act by linking it with
an act that is within the limitations period.” Doe v. R.R.
Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir. 1994)
(internal quotation marks omitted).
The statute of limitations bars Defendants’ counterclaim.
C. Instructions on Remand
We reverse in part, vacate in part, and remand with
instructions. We reverse the judgment for Defendants on
their counterclaims and remand with instructions that the
district court enter judgment for the government. No further
proceedings on the counterclaims are necessary.
We vacate the judgment with respect to the government’s
trespass claims and remand for reconsideration under the

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 18
correct legal standard. Because the government does not
challenge the district court’s factual findings concerning
when cattle under Defendants’ control grazed on federal
lands, further evidentiary proceedings likely are not needed.
The district court shall enter judgment for the government on
all claims supported by the record, shall calculate appropriate
damages, and shall enter appropriate injunctive relief. We
encourage the parties and the court to bring this
litigation—unnecessarily protracted by the district court—to
a speedy and just resolution.
On remand, the district court shall determine, among
other things, whether the source of law—state law or federal
law—has any effect on the calculation of damages. Because
of the positions taken by the government in this case, the
answer appears to be “no.” During closing argument at trial,
the government’s lawyer expressly disclaimed exemplary
(punitive) damages and stated that the government “is only
seeking compensatory damages.” It appears that, under state
law, the appropriate measure of compensatory damages is “all
loss actually sustained as a direct result of the trespass.”
Gerlach Live Stock Co. v. Laxalt, 284 P. 310, 311 (Nev.
1930). It is unclear to us how that measure differs from the
federal-law measure of damages that the government sought
in its post-trial brief: “the reasonable value of the occupancy
and use, considering its extent and duration, and not the scale
of charges named in the regulations.”5
Our final consideration is the government’s request that
we remand the case to a different district judge. “We reassign
only in rare and extraordinary circumstances, such as when
5 We express no view as to whether federal law would permit a different
measure of damages in a different case.

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 19
the district court has exhibited personal bias or when
reassignment is advisable to maintain the appearance of
justice.” Nat’l Council of La Raza v. Cegavske, 800 F.3d
1032, 1045 (9th Cir. 2015) (citations and internal quotation
marks omitted). We regretfully conclude that the quoted
standard is met here because “a reasonable observer could
conclude that the judge’s feelings against [the federal
agencies] are both well-established and inappropriately
strong.” Id. at 1046.
Defendants openly trespassed on federal lands. Rather
than simply resolving the fact-specific inquiries as to when
and where the cattle grazed illegally, the district court applied
an “easement by necessity” theory that plainly contravenes
the law. The district court also encouraged Defendants to file
a counterclaim that was clearly time barred. The only support
that the court cited to overcome the obvious jurisdictional
problem was a decision that stands for the opposite
conclusion. Moreover, as discussed more fully in a separate
disposition filed today, the court grossly abused the power of
contempt by holding two federal agency officials in contempt
of court for taking ordinary, lawful actions that had no effect
whatsoever on this case. See Int’l Union, United Mine
Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994) (“[T]he
contempt power . . . uniquely is liable to abuse. . . .
Contumacy often strikes at the most vulnerable and human
qualities of a judge’s temperament, and its fusion of
legislative, executive, and judicial powers summons forth the
prospect of the most tyrannical licentiousness.” (citation,
internal quotation marks, and ellipsis omitted)).
A dispassionate observer would conclude that the district
judge harbored animus toward the federal agencies.
Unfortunately, the judge’s bias and prejudgment are a matter

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 20
of public record. On the first day of the 21-day trial, the
judge stated: “the Bureau of Land Management, you come in
with the standard arrogant, arbitrary, capricious attitude that
I recognize in many of these cases.” “[I]t’s my experience
that the Forest Service and the BLM is very arbitrary and
capricious.” “Your insistence upon a trespass violation,
unwillful—your arbitrary determination of unwillfulness [sic:
willfulness] is undoubtedly going to fail in this court.”
At a pretrial motions hearing, the judge advised a third-
party rancher that he could file a lawsuit against the
government and that “[h]opefully you’ll get Judge Jones
because I’m very receptive to Mr. Hage’s lawsuit.”
Addressing Hage, the judge stated: “You have a court that’s
very receptive and sympathetic to your claim.”
At a separate pretrial motions hearing, the judge stated:
“In my opinion, not only in this case but in many cases, the
government has been all too ready to—in the name of
revoking or suspending or limiting grazing licenses, the
government has been all too ready in the history of Nevada to
impair otherwise suspected and substantiated rights of
landowners.” The judge explained in detail:
We all know what that game is about. . . .
And the game, just for the record, even though
the government in many cases didn’t have the
right to insist upon a permit, because asking
for a permit would be an additional limitation
on the right of use of a property right[],
nevertheless, the government in many cases
has insisted upon it, and then, when they
denied or suspended or revoked the right, they

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 21
said you no longer have the right. So that’s
what that game is all about.
During the contempt hearings, the judge stated: “I don’t
like and never have liked the BLM’s or Forest Service’s
arrogant presumption that they could assess to people for
[animal unit months], for trespass, their own travel costs,
office costs, sitting in their big chair already paid for by the
American taxpayer.” Compare 43 C.F.R. § 4150.3 (providing
that the amount due for willful unauthorized grazing includes
“all reasonable expenses incurred by the United States in
detecting, investigating, [and] resolving violations”). The
judge’s statements in this case reflect both pre-judgment of
the merits and bias against the federal agencies.
Judge Jones’ improper treatment of government officials
and his improper statements about federal agencies were the
subject of United States v. United States District Court (In re
United States), 791 F.3d 945 (9th Cir. 2015). See La Raza,
800 F.3d at 1046 (looking to the conduct and statements of
the district judge in other cases, when deciding whether to
remand for reassignment). In that case, Judge Jones had
refused to admit out-of-state Assistant United States
Attorneys to practice before the court under a personal policy
that such admissions were not warranted unless the local
Assistant United States Attorneys were unavailable. In re
United States, 791 F.3d at 949–50. After the government
filed a mandamus action, Judge Jones reversed his decision
in that particular case but continued to apply the policy in at
least one other case. Id. We held that district courts have
discretion to deny admission, but that Judge Jones “clear[ly]”
had acted outside that discretion. Id. at 955. The following
is the passage most relevant to this case:

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 22
[S]ome of Judge Jones’s comments risked
giving the impression that his admission
policy was motivated by his disagreement
with the enforcement priorities of specific
federal agencies. For instance, during a
proceeding in [a different case], Judge Jones
stated:
My experience has been, in a number
of cases, that when I admit
out-of-state licensed attorneys for the
U.S. Government, that they feel no
obligation to me under the ethical
standards of the Nevada Bar . . . . And
some of the directions taken by the
Internal Revenue Service and
attorneys out of and licensed out of
Washington with respect to that is just
abhorrent to me.
(emphasis added). Similarly, an order
denying a motion for reconsideration in [a
second case] stated: “[t]he local United States
Attorney, Mr. Daniel G. Bogden, serves under
an Attorney General who, under the guise of
prosecutorial discretion, selectively enforces
laws to further political objectives that ought
to be left to the legislature. There is simply
no presumption that his subordinates are
above ethical reproach.” (emphasis
added). . . . [C]omments like these created a
real risk that the policy would, rightly or
wrongly, be viewed as an encroachment on
the domain of the political branches.

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 23
Id. at 958. We held that, in an appropriate case, mandamus
is a viable remedy. Id. at 960. We also noted that “Judge
Jones’s practice . . . may itself qualify as the type of conduct
properly addressed by the Judicial Council.” Id. at 959; see
also id. at 964 (Wallace, J., concurring in the judgment)
(“Judge Jones’s pattern of denying admission and then
reversing himself only after the government files a petition
for a writ . . . likely qualifies . . . as the type of conduct that
is most properly addressed by the Circuit Council.”).
We also have expressed concern about Judge Jones’
conduct in several other recent cases. See La Raza, 800 F.3d
at 1046 (remanding to a different district judge because a
reasonable observer could conclude that his “feelings against
out-of-state attorneys are both well-established and
inappropriately strong” and noting that this court had earlier
found his comments “troubling” in Henry A. v. Willden, 678
F.3d 991, 1012 (9th Cir. 2012)); Benvin v. U.S. Dist. Court
(In re Benvin), 791 F.3d 1096, 1104 (9th Cir. 2015) (per
curiam) (“Here, the appearance of justice will best be served
by reassignment to a different judge. The current district
judge [Judge Jones] has already expressed explicit views on
the appropriate terms of the parties’ plea agreement,
suggested the terms he would and would not accept, and
explained that he would not grant any motion dismissing
forty-nine counts of the indictment unless the government
complies with such terms.”); Townley v. Miller, 693 F.3d
1041, 1043–45 (9th Cir. 2012) (order) (Reinhardt, J.,
concurring) (stating that Judge Jones’ actions “can only be
explained as a deliberate attempt to evade review by higher
courts” and that “[s]uch arrogance and assumption of power
by one individual is not acceptable in our judicial system”).
On remand, we instruct the Chief Judge of the District of
Nevada to assign the case to a different district judge.

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UNITED STATES V. ESTATE OF E. WAYNE HAGE 24
REVERSED in part, VACATED in part, and
REMANDED with instructions. Costs on appeal are
awarded to Plaintiff-Appellant.

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