United States v. Hatahley

• Decision Date: 15 April 1955
• Docket Number: 4952.,No. 4933,4933
• Citation: 220 F.2d 666
• Parties: UNITED STATES of America, Appellant, v. Bill HATAHLEY et al., Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

220 F.2d 666 (1955)

UNITED STATES of America, Appellant, v. Bill HATAHLEY et al., Appellees.

Nos. 4933, 4952.

United States Court of Appeals, Tenth Circuit.

March 1, 1955.

Rehearing Denied April 15, 1955.

S. Billingsley Hill, Washington, D. C., (Perry W. Morton, Asst. Atty. Gen., A. Pratt Kesler, U. S. Atty., Llewellyn O. Thomas, Asst. U. S. Atty., Salt Lake City, Utah, and John F. Cotter, Atty., Dept. of Justice, Washington, D. C., were with him on the brief), for appellant.

Milton A. Oman, Salt Lake City, Utah (Delbert M. Draper, Salt Lake City, Utah, was with him on the brief), for appellees.

Before MURRAH and PICKETT, Circuit Judges, and SAVAGE, District Judge.

Rehearing Denied No. 4933 April 15, 1955.

PICKETT, Circuit Judge.

The plaintiffs, all Navajo Indians, brought this action under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2671 et seq., to recover damages for the unlawful seizure and destruction of one hundred and fifteen horses and thirty-five burros belonging to plaintiffs. Agents of the Bureau of Land Management, ostensibly acting under the Utah "abandoned horse" statute, and under the direction of the Board of County Commissioners of San Juan County, Utah, rounded up and disposed of the horses and burros owned by the different plaintiffs. A joint judgment for $100,000 was prayed for and entered by the court. The court also entered a judgment enjoining the United States and its agents from further molesting the plaintiffs and their families in their possession and use of certain public lands; from molesting or interfering with plaintiffs' livestock on said lands; and from disposing of the lands or any interest therein. Some time thereafter the trial court denied a motion to dissolve the injunction. The United States has appealed from the judgment and the order overruling the motion to dissolve the injunction.

The complaint alleges that employees of the Department of Interior in the administration of the public domain in the State of Utah, wrongfully and unlawfully seized possession of the thirty-five burros and one hundred and fifteen horses, knowing them to be the property of the plaintiffs, and disposed of or destroyed them. It was alleged that the acts of the agents were part of a plan to deprive the plaintiffs of their livestock; to drive them from their ancestral homes and ranges; to reduce them to a condition of helplessness and want; to subject them to extreme fear and worry; and that the plaintiffs have been grieviously harassed, distressed, persecuted, troubled and reduced to acute and shameful want, and were deprived of means to properly care for their livestock. The defense was that the plaintiffs' stock was trespassing on public domain which was included in a district created under the Taylor Grazing Act; that permits to use the land had been issued to others; and that the livestock in question had been seized, disposed of, or destroyed under the direction of the Board of County Commissioners of San Juan County, Utah, after a compliance with the Utah "abandoned horse" statute. 5 U.C.A. 1953, Title 47, Ch. 2.

The area involved is public domain administered under the Taylor Grazing Act, 43 U.S.C.A. § 315 et seq., as part of the Utah Grazing District No. 6 in San Juan County located in the southeast corner of the State of Utah immediately north of the Navajo Indian Reservation. The plaintiffs, although Navajo Indians, had not remained on the reservation and had continued to graze their livestock upon the range. Since the creation of the District there has been a continuous effort to prevent nonpermittees, including these plaintiffs, from grazing their livestock upon the range. Those who had permits to graze their livestock within the area brought an action in the Utah State Court against certain Navajo Indians, including some of these plaintiffs, to enjoin them from using the lands. The action resulted in a judgment holding that the Indians had no rights upon the lands and the issuance of an injunction against further use of it by them. Young v. Felornia, Utah, 244 P.2d 862, certiorari denied 344 U.S. 886, 73 S.Ct. 186, 97 L.Ed. 685. In 1950, the United States brought a similar action in the United States District Court of Utah, United States v. Hosteen Tse-Kesi, 93 F.Supp. 745. The trial court entered summary judgment dismissing the complaint but this court reversed, and ordered the complaint reinstated. United States v. Hosteen Tse-Kesi, 10 Cir., 191 F.2d 518. After remand the case was considered moot and was dismissed.¹

In 1952, after a report that there were abandoned horses on the open range in San Juan County, the Bureau of Land Management, acting upon the recommendation of the District Advisory Board,² decided to request the Board of County Commissioners to proceed under the Utah "abandoned horse" statute for the purpose of eliminating abandoned horses from this range. The Range Manager of District No. 6 appeared before the Board of County Commissioners on July 1, 1952, and requested that proceedings be instituted for this purpose. A motion to adopt a resolution to authorize such proceedings was unanimously passed, but no record of this action was shown in the minutes of that meeting. The county clerk testified that the failure of the minutes to show this action may have been her fault. The individual members of the Board of County Commissioners signed a resolution on July 9, 1952. This resolution provided that the Advisory Board of Monticello Grazing District, Utah 6, was "exclusively engaged to remove said horses under the direction of this Commission." Pursuant to the resolution, the statutory notices were published, beginning on July 10, 1952. The notices announced that the elimination drive would start on August 10, 1952, and stated that "All the owners of horses running upon the open range are hereby given notice to file with the Board of County Commissioners within thirty (30) days from the date given below, a description of such horses and the brands and marks thereon. Dated this tenth day of July, 1952. * * *"³ At the September meeting, the County Commissioners directed that the July 9, 1952, resolution be inserted in the minutes of the Board.

The drive got under way on September 19, 1952, and continued until the date when this action was filed. Agents of the Bureau of Land Management, assisted from time to time by the county sheriff and livestock operators who had grazing permits, rounded up the horses and burros with which we are here concerned, together with a few others. The animals were either driven or hauled in trucks to corrals at nearby Blanding, Utah, where they were kept for a period of about two weeks. A few of the animals were disposed of on the range because they were not in condition to be moved, or were injured; some fifteen horses were sold locally; a small number were redeemed and returned to owners; and the remainder were transported by trucks to a packing company near Provo, Utah, where they were sold for not more than three cents per pound. A total of $1,700 was received from the sale of the animals, and that sum was retained by the District Advisory Board as directed by the Board of County Commissioners. All of the horses and burros in question were running on the open range. It was generally known to those who were rounding up the animals that they belonged to Indians, but none of the owners of any of the animals had filed a description of his animals with the Board of County Commissioners showing the marks and brands of his animals as required by the notice. Some of the horses were branded, but there is a dispute as to whether any of the owners had recorded the brands as required by Utah statute. Some of the plaintiffs testified that the brands on their horses were recorded. A representative of the Bureau of Land Management who had a Utah brand book testified that none of the animals were branded with recorded brands. The state brand records were not produced. The trial court found that the horses were plainly branded and that some bore recorded brands.

The trial court held that the roundup and destruction of the plaintiffs' animals was willful, wanton and malicious and part of a plan to drive the plaintiffs from the range; that by the enactment of the Taylor Grazing Act, the United States undertook complete control and supervision of its own lands; and that the state statutes having to do with the control of livestock thereon became ineffective, but that if the Utah statute were effective, its provisions had not been complied with by the Board of County Commissioners and the proceedings thereunder were a nullity. The court also held that the animals taken and destroyed were not abandoned animals within the meaning of the Utah statute.

As grounds for reversal, the appellant presents four contentions: one, that the district court exhibited such a hostile attitude toward the government's case and its witnesses that it prejudiced appellant's conduct of the trial and the court's findings and decision; two, that the Utah statute providing for the elimination of abandoned horses from the federal domain was applicable even after the enactment of the Taylor Grazing Act, and such statutes were complied with and the plaintiffs' animals were abandoned within the meaning of the state statute; three, that the damages were excessive; and four, that the trial court erred in entering and continuing a restraining order against the United States.

While the record discloses that the case was tried in an atmosphere of maximum emotion and a minimum of judicial impartiality, and that the amount of the judgment appears to be more for punishment because of the methods used in eliminating the animals, rather than for the damages suffered, we shall not discuss these questions as we have concluded that the case should be disposed of upon the determination of the applicability of the Utah statute. This also makes it unnecessary to consider the...