Oman v. United States, 4302.
| Decision Date | 19 March 1952 |
| Docket Number | No. 4302.,4302. |
| Citation | 195 F.2d 710 |
| Parties | OMAN et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Milton V. Backman, Salt Lake City, Utah (Milton A. Oman, Salt Lake City, Utah, on the brief), for appellants.
John C. Harrington, Washington, D. C. (Wm. Amory Underhill, Washington, D. C., Scott M. Matheson, Salt Lake City, Utah, and Roger P. Marquis, Washington, D. C., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges.
This is an appeal from a judgment of the United States District Court of Utah, denying the appellants' claim under the Tort Claims Act, 28 U.S.C. § 1346, for alleged tortuous acts of agents of the United States in the administration of the Taylor Grazing Act, as amended, 43 U.S.C.A. 315 et seq., and the Federal Range Code, 43 C.F.R. Sec. 161.1 et seq. When the case was here in 179 F.2d 738, we epitomized and construed the complaint as charging the District Grazer of the San Rafael Grazing District with tortuously aiding and encouraging other livestock operators in the District to utilize the public domain within the Grazing District, upon which appellants had been previously granted exclusive grazing privileges as owners of base land and as transferees of their predecessors in interest; and wrongfully refusing to cancel the permits of such predecessors in interest.
In holding the complaint valid as against the defense that the acts complained of involved an excepted discretionary action, we said that no Government employee is granted a discretion whether he shall induce or incite third persons to interfere with exclusive rights or privileges granted by the United States. We recognized, however, the discretionary authority of the District Grazer to grant or withhold grazing privileges; and to revoke or cancel the same, so long as he observes the procedural safeguards set up in the Range Code.
More recently in Chournos v. United States, 10 Cir., 193 F.2d 321, we reviewed the purpose of the Taylor Grazing Act to stabilize the livestock industry by utilizing the Western public domain according to the needs and qualifications of livestock operators with base holdings and to that end authorize those charged with the administration of the Act to exercise their judgment and discretion in granting permits and determining the extent to which lands within the District shall be grazed.
A trial of the case on the complaint developed the following pertinent facts: For many years past, the Oman family has owned land now included in the San Rafael Grazing District in Utah, and has grazed cattle and sheep on the adjacent public domain. On July 13, 1942, the Omans and eight or nine other grazers entered into a range line agreement, recognized by the grazing authorities, under the terms of which the Omans were granted exclusive grazing privileges on a V-shaped body of land, known as Telephone Bench, located between Trail Canyon on the north and Wright Canyon on the south, embracing roughly Sections 4, 5, 6, 9 and 10, Township 14 south, Range 8 east, Carbon County, Utah. They were also conceded privileges in common with Weeks in Sections 11 and 12, located east of the apex of the V-shaped land. The ownership and control of these lands gave the Omans a priority for the grazing of 155 head of cattle and 25 head of horses. In January 1946, the Omans acquired a ten-year lease on 3470 acres of state land lying south of the home ranch, in Sections 7, 16, 18, 19, 20 and 29, Township 14 south, Range 8 east, and also a ten-year lease on the Oak Spring Ranch consisting of 1640 acres, and the Storrs Ranch, both lying northeast of the home ranch in Sections 21, 26, 27, 28, 33, 35 and 36, Township 13 south, Range 8 east.
The state lands carried no priority for grazing upon the public lands. They had been formerly leased to Chris Versamis and Gus Nicolodemus, who had grazing permits for 1705 head of sheep in Unit One of the Grazing District, based upon their ownership of other land in either the immediate vicinity or elsewhere. This permit was recognized in the 1942 range line agreement. Both the Oak Spring and Storrs Ranches carried priority for grazing on adjacent public lands, and they were leased directly from George Telonis, who held permits for the grazing of 2630 sheep in Unit One of the Grazing District, based partly upon his lease of the Storrs Ranch and partly upon his ownership or control of lands located in the high country north and west of the Oak Spring and Storrs Ranches in Township 13 south, Range 7 cast. These privileges were also recognized in the 1942 range line agreement.
After acquisition of the state land and the Oak Spring and Storrs Ranches, the Omans so advised District Grazer Dillard on January 10, 1947, and formally applied for exclusive permission to graze 500 cattle and 25 horses from April 1, 1947 to March 31, 1948, on the entire area within the perimeter of all the lands owned, leased or on which they or their predecessors in interest held grazing permits. Ten per cent of the land in this area was public domain and ninty per cent privately owned. The application also requested that the grazing privileges heretofore granted for sheep be changed to cattle. It was duly referred to the District Advisory Board, which on February 24, 1947, allowed the permits for 155 head of cattle and 5 head of horses, as before. It also recommended that the permit be recognized for the same number of sheep heretofore granted to George Telonis, and the proposed transfer from sheep to cattle be held for investigation to determine the effect upon the other users of the range. The applicant was given until March 4, 1947, to protest these recommendations.
Pursuant to the protest hearing on March 4 and 5, the District Grazer advised the Omans on March 15, 1947, that they had been granted a license for grazing 139 additional head of cattle, making a total of 294, and 5 head of horses, and that their application as to the other cattle and horses was rejected. They were given fifteen days to appeal from this order. The minutes of the meeting of the Advisory Board on March 4 and 5 reflect a recommendation that the Telonis permit be reduced by 696 sheep, or the equivalent of the permit for the additional 139 head of cattle granted to the Omans. The Advisory Board also recommended that a committee composed of Dillard and others be appointed to "go up and investigate and decide as to the boundary lines connected with the Oman permit, together with the permittees' interest in the Oman allotment." There was testimony to the effect that immediately after the adjournment of the Board meeting, Dillard told Milt Oman of the action of the Board, and also offered to call a meeting of the committee for the purpose of making the recommended investigation for the establishment of the range lines at any time convenient to the Omans, and that Oman replied that he would get in touch with him. For reasons not altogether clear in the record, the committee did...
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