Hatahley v. United States 26 8212 27, 1956

• Citation: 100 L.Ed. 1065,76 S.Ct. 745,351 U.S. 173
• Decision Date: 07 May 1956
• Docket Number: No. 231,231
• Parties: Bill HATAHLEY et al., Petitioners, v. UNITED STATES of America. Argued March 26—27, 1956
• Court: United States Supreme Court

351 U.S. 173

76 S.Ct. 745

100 L.Ed. 1065

Bill HATAHLEY et al., Petitioners,

v UNITED STATES of America.

No. 231.

Argued March 26—27, 1956.

Decided May 7, 1956.

Mr.Norman M. Littell, Washington, D.C., for petitioners.

Mr. Roger P. Marquis, Washington, D.C., for respondent.

Mr. Justice CLARK delivered the opinion of the Court.

Petitioners, either families of Navajo Indians, seek damages under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., for the destruction of their horses by agents of the Federal Government. The District Court allowed damages of $100,000 and enjoined the Government and its agents from further interference with petitioners. The Court of Appeals for the Tenth Circuit reversed, 220 F.2d 666, on the ground that the Utah abandoned horse statute, Utah Code Ann., 1653, 47—2, was properly invoked by the government agents. We do not agree with the Court of Appeals.

Petitioners are wards of the Government. They have lived from time immemorial in stone and timber hogans on public land in San Juan County, Utah. This bleak area in the southeastern corner of the State is directly north of the Navajo Indian Reservation. While some Indian families from the reservation come into the area to graze their livestock, petitioners claim to have always lived there the year round. They are herdsmen and for generations they have grazed their livestock on this land. They are a simple and primitive people. Their living is derived entirely from their animals, from the little corn they are able to grow in family plots, and the wild game and pine nuts that the land itself affords. The District Court found that horses, as petitioners' beasts of burden and only means of transportation, were essential to their existence. ¹

In 1934 the Government enacted the Taylor Grazing Act, 48 Stat. 1269, 43 U.S.C. § 315, 43 U.S.C.A. § 315, which provided for the regulation and use of these public lands. Grazing permits were issued to white livestock operators, and for a number of years these permittees grazed their livestock in common with petitioners, who continued in peaceable occupation and use of the land they claimed as their ancestral home. Limited forage made disputes between the stockmen and the Indians inevitable, and about 1950 both the Government and the white livestock operators filed suits to remove the Indians from this land. ² In addition to legal proceedings, another method was employed by the government agents. Beginning in September 1952 and continuing until sometime after the present suit was filed in the District Court, the Department of Interior's range manager vigorously prosecuted a campaign to round up and destroy petitioners' horses. This action was taken pursuant to the Utah abandoned horse statute, Utah Code Ann., 1953, 47—2, which provides that the Board of County Commissioners may authorize the elimination of 'abandoned' horses on the open range. An 'abandoned' horse is defined as one running at large on the open range which is either not branded or, if branded, one on which the tax for the preceding year has not been paid. During the roundup a total of 115 horses and 38 burros belonging to petitioners were taken and sold or destroyed. Some horses were sold locally. Some were shot and their carcasses left on the range. Most of the animals, however, were trucked some 350 miles away to Provo, Utah, where they were sold to a horse-meat plant or a glue factory. The total amount derived from such sales, about $1,700, has been retained by the District Advisory Board composed of local stockmen. No part of it has been paid or offered to petitioners.

There is considerable evidence in the record to show that the Utah abandoned horse statute was applied discriminatorily against the Indians. In one instance the assistant range manager watched from a bluff while petitioner Hosteen Sakezzie released his horses from their corral. Later, a short distance away, the same government agent supervised a roundup of these horses and drove them 35 miles through the night to another corral from which they were loaded into trucks for the horse-meat plant. Sakezzie and three other Indians trailed the horses to the entrucking point but were not allowed to reclaim them. On another occasion five horses taken during the roundup which belonged to white stockmen were returned to their owners on the payment of a nominal $2.50 a head, but petitioner Little Wagon was told that to reclaim his horses the charge would be $60 a head, an amount known to be far above his means. For the most part, these and other facts found by the District Court were unchallenged in the Court of Appeals and are unchallenged here.³

The Court of Appeals did not reach the question of liability under the Federal Tort Claims Act, since it concluded that the government agents' actions were authorized by the Utah abandoned horse statute. We cannot dispose of this case so easily.

The Taylor Grazing Act seeks to provide the most beneficial use of the public range and to protect grazing rights in the districts it creates. Chournos v. United States, 10 Cir., 193 F.2d 321. Section 2 of the Act, 48 Stat. 1270, 43 U.S.C. § 315a, provides that the Secretary of the Interior shall 'make such rules and regulations * * * and do any and all things necessary to accomplish the purposes of this Act.' Pursuant to this authorization the Secretary has issued the Federal Range Code, 43 CFR § 161.1 et seq. Unauthorized grazing on the federal range and the removal of trespassing livestock is expressly provided for by § 161.11(b) of this Code:

'(b) Unlawful grazing on Federal range; removal of livestock; impoundment. Whenever the charge consists of unlawfully grazing livestock on the Fed- eral range, the notice served on the alleged violator * * * will order the alleged violator to remove the livestock or to cause them to be removed immediately or within such reasonable time as may be specified. If the alleged violator fails to comply with the notice the range manager may proceed to exercise the proprietary right of the United States in the Federal range, under local impoundment law and procedure, if practicable; otherwise he may refer the matter through the usual channels for appropriate legal action by the United States against the violator.'

Whenever the charge consists of unlawfully grazing livestock, this section requires that written notice, as provided by § 161.11(a),⁴ together with an order to remove the livestock, be served on the alleged violator. Only 'if the alleged violator fails to comply with the notice' may the range manager proceed under local impoundment law and procedure. It is clear that both the written notice and failure to comply are express conditions precedent to the employment of local procedures. The Code is, of course, the law of the range, and the activities of federal agents are controlled by its provisions.⁵ They are required to follow the procedures there established.

The Court of Appeals held that there was no inconsistency between the federal regulation and the state statute because the regulation pertained to individual owners while the statute was aimed at 'abandoned' horses running loose on the range. We cannot agree. As we read it, the Utah statute is directed not to horses abandoned in the sense that they are ownerless, or that their owners cannot be located, but rather to horses considered 'abandoned' under an express statutory definition. As applied to horses 'at large upon the open range,' this definition depends only on branding and payment of prior tax assessment without any consideration of whether the horses are owned by someone and, if so, whether such owner is known or can be located. As the Court of Appeals itself recognized: 'The dictionary definition of the term 'abandoned' has no application.' 220 F.2d, at page 672. Furthermore, the record is replete with evidence that in this case the government agents actually did know that the horses belonged to petitioners and had not been abandoned. The District Court found that, 'said agents knew beyond any possible doubt to whom said horses belonged'; that 'the said agents and employees of defendant knew these brands to be the brands used by plaintiffs as well as they knew that the horses belonged to plaintiffs'; and concluded that the horses 'were used daily in the performance of the work of their owners, the plaintiffs, and this was well known by defendant's said agents and employees.' In the face of these findings, not disturbed by the Court of Appeals, it cannot be contended that the government agents were unable to comply with the specific provision for notice which regulated their actions. Nor has the Government contended that there was an attempt at any time to comply with the notice provisions of the Federal Range Code.

For these reasons we hold that the Utah abandoned horse statute was not properly invoked. The circumstances of this case were specifically provided for by § 161.11(b) of the Federal Range Code, and the government agents failed to comply with the terms of that section because the requisite notice was not given.

But, having concluded that there was no statutory authority, we are faced with the question whether the Government is liable under the Federal Tort Claims Act for wrongful and tortious acts of its employees committed in an attempt to enforce a federal statute which they administer. We believe there is such liability in the circumstances of this case.

Section 1346[b] of Title 28, United States Code, 28 U.S.C.A. § 1346(b), authorizes suits against the Government for 'loss of property * * * caused by the negligent or wrongful act * * * of any employee of the Government while acting within the scope of his office or employment, under...