           In the United States Court of Federal Claims
                                           No. 91-1470 L
                                    (Filed: November 4, 2013)

**************************************
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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