Free Leave to File Amicus Brief - District Court of Federal Claims - federal

Case 1:91-cv-01470-LAS

Document 299

Filed 01/04/2007

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ ) ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) __________________Defendant._______________) THE ESTATE OF E. WAYNE HAGE AND ESTATE OF JEAN N. HAGE,

No. 91-1470L

Senior Judge Loren Smith

MOTION OF AMICI CURIAE NEVADA DEPARTMENT OF WILDLIFE, ET AL., TO FILE A SUPPLEMENTAL MEMORANDUM REGARDING THE FEDERAL CIRCUIT'S DECISION IN COLVIN CATTLE COMPANY Pursuant to RCFC 15(d), amici1 respectfully request that they be allowed to file the attached SUPPLEMENTAL MEMORANDUM OF AMICI CURIAE NEVADA DEPARTMENT OF WILDLIFE, ET AL., REGARDING THE FEDERAL CIRCUIT'S DECISION IN COLVIN CATTLE. As grounds for this motion, amici state as follows: 1. The recent decision of the U.S. Court of Appeals for the Federal Circuit in Colvin

Cattle Company v. United States, No. 06-5012 (filed November 1, 2006), is an important precedent governing the resolution of this case. In its Notice of Supplemental Authority, the United States pointed out that this decision resolves the issue of whether an appropriative water right includes a right to graze on public lands, and whether plaintiffs possess a viable claim for compensation under 43 U.S.C. § 1752(g). However, amici submit that the decision also supports
1

Amici are the Nevada Department of Wildlife, the National and Nevada Wildlife Federations, the Natural Resources Defense Council, and the Toiyabe Chapter of the Sierra Club.

Case 1:91-cv-01470-LAS

Document 299

Filed 01/04/2007

Page 2 of 2

rejection of all of the other remaining claims in this case, including the claim that plaintiffs suffered a taking of an alleged right to graze livestock within a 50-foot right of way on either side of the ditches they utilize, the claim that the government's land management decisions effected a taking of their water rights, and the claim that the government effected a taking by cooperating in the introduction of elk to the Toiyabe National Forest. The proposed memorandum addresses how the ruling and analysis in Colvin Cattle relates to each of these claims and should assist the Court in resolving this case. 2. Plaintiffs will not be prejudiced by granting this motion. Given that this litigation

has already been pending for well over a decade, plaintiffs will not be prejudiced by the slight additional delay required to carefully consider whether Colvin Cattle may finally and definitively dispose of this case. Plaintiffs should, of course, be granted an opportunity to respond to the proposed memorandum. Date: January 4, 2007 Respectfully submitted, _(/s/___________________________________ Johanna H. Wald, COUNSEL OF RECORD Natural Resources Defense Council 111 Sutter Street, 20th floor San Francisco, California 94104 415/875-6100; 415/875-6161 (fax) Thomas D. Lustig National Wildlife Federation 2260 Baseline Road, Suite 100 Boulder, Colorado 80302 303/441-5158; 303/786-8911 (fax) Attorneys for Amici Curiae Nevada Department of Wildlife, National and Nevada Wildlife Federations, Natural Resources Defense Council, and the Toiyabe Chapter of the Sierra Club

Of Counsel: John Echeverria Georgetown Environmental Law & Policy Institute Georgetown University Law Center 600 New Jersey Ave., NW Washington, D.C. 20001 Professor Joseph Feller College of Law Arizona State University Tempe, AZ 85287-7906

-2-