MURRAH, Circuit Judge.
This is an action against the United States brought under the provisions of the Federal Tort Claims Act, as amended, 28 U.S.C.A. §§ 1346(b), 2671-2680, and arising out of the Taylor Grazing Act, as amended, 43 U.S.C.A. §§ 315-315q, and the Federal Range Code for Grazing Districts, 43 C.F.R. Sec. 161.1 et seq., promulgated by the Secretary of the Interior pursuant to the authority vested in him by the Taylor Act.
Plaintiffs' complaint alleges that defendant's employees, in charge of grazing activities on the public domain in the San Rafael District, Utah, wrongfully aided, allowed, and encouraged other livestock operators to utilize the public domain, upon which defendant had previously granted exclusive grazing privileges to plaintiffs (predicated upon plaintiffs' ownership in fee of adjacent private lands).
It further alleges that plaintiffs' predecessors in interest in certain leased lands were granted similar exclusive grazing privileges on public domain adjacent to
As a result of these negligent, wrongful, and unlawful acts, plaintiffs allege that they have been obligated to rent extra pasture and purchase extra food; that their livestock has remained in poor condition and losses have been high; that they have been forced into lawsuits, and that the plaintiffs' lands and the public domain in which plaintiffs have exclusive grazing rights have been damaged, all in the amount of $109,000.00.
The District Court sustained the defendant's motion to dismiss the complaint on the grounds that it failed to state a cause of action, and that it was not a claim within the jurisdiction of the court. Plaintiffs have appealed from this ruling.
The Federal Tort Claims Act confers jurisdiction upon the district courts coextensive with the waiver of sovereign tort immunity, and provides that "the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, for injury or loss of property * * * caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant * * *." 28 U.S.C.A. § 1346(b). However, this "shall not apply to — (a) Any claim * * * based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. * * * (h) Any claim arising out of * * * misrepresentation, deceit, or interference with contract rights." 28 U.S.C.A. § 2680.
Eliminating the claim arising out of misrepresentation, the tortious acts, if any, bringing this case within the jurisdiction of the federal courts, consist of aiding and encouraging other livestock owners to utilize the grazing lands adjacent to the lands owned in fee, and of aiding and directing similar acts, with intent to injure and destroy plaintiffs' exclusive grazing privileges, coupled with the refusal to cancel plaintiffs' predecessor's permits, on the grazing lands adjacent to the leaseholds.
Such acts are not within the exception to the Tort Claims Act based upon discretionary functions. No government employee is granted the discretion whether he shall induce or incite third persons to interfere with exclusive rights or privileges granted by the United States. It may be that certain of defendant's employees would have had the discretionary authority to take steps to revoke or cancel plaintiffs' exclusive grazing privileges, but no such steps appear to have been taken in this case. Had such steps been taken, the plaintiffs would have been afforded procedural safeguards which apparently were not available to them here.
It is suggested that if the alleged acts are non-discretionary, they could not perforce have been committed within the scope of employment. A principal is liable civilly for the tortious acts of his agent which are done within the course and scope of the agent's employment, even though the principal did not authorize, ratify, participate in, or know of such misconduct.
No precise test can be laid down to determine when an act or omission of an agent is or is not within the scope and course of his employment. Generally, it may be said that an agent is acting within the course and scope of his employment when he is engaged in doing for his principal, either the act consciously or specifically directed or any act which can fairly and reasonably be deemed to be an ordinary or natural incident or attiribute of that act or a natural, direct, or logical result of it.
The remaining question is whether the acts alleged constituted a redressible wrong for which the United States, if a private citizen, would be liable. All persons who advise, instigate, aid, encourage or direct a wrongful act are as liable as if they had performed the act themselves.
Other courts have held that these permits conferred rights subject to judicial protection. In Arizona, the holder of similar grazing permits was said to be entitled to an action of trespass against encroaching ranchers. Garcia v. Sumrall, 58 Ariz. 526, 121 P.2d 640. Even the opinion in the Osborne case, supra, implied that these permits would be "highly valuable as between private persons".
We conclude that plaintiffs have stated a cause of action against the United States within the jurisdiction of the District Court for acts done with respect to lands upon which plaintiffs had grazing permits. They have further stated that they were entitled to grazing permits upon the lands as to which they were transferees. This involves a legal conclusion which we need not now resolve, but it appears that plaintiffs' rights are akin to the rights of the plaintiff in the Red Canyon Sheep Co. case in that they will "in the ordinary course of administration * * * ripen into a permit".
The judgment is reversed.