Wilkie v Frank Robbins Case: Right to exclude argued

Wilkie v Frank Robbins Case: Right to exclude argued
Wyoming Rancher refuses to grant BLM a right-of-way across his private land

by Cat Urbigkit, Pinedale Online!
February 28, 2007

In late January 2007, the U.S. Supreme Court has received its first briefs in federal appeal filed by Bureau of Land Management officials after an appeals court sided with Worland-area rancher Frank Robbins case.

It’s been just over a year since the Tenth Circuit Court of Appeals ruled that BLM employees cannot retaliate against a ranch owner for refusing to grant the BLM a right-of-way across his private land.

The court’s ruling held that an individual has the right to be free from retaliation when exercising a Fifth Amendment property right and that the right to exclude someone from using private property includes the right to exclude the federal government.

Robbins filed a lawsuit against Worland BLM employees under the Racketeer Influenced and Corrupt Organizations Act and under the Fourth Amendment to the U.S. Constitution. RICO has been used against those involved in organized crime and is now being used against BLM employees who Robbins claim attempted to use the power of the federal government to extort a right-of-way across his private land. Robbins refused to comply, and alleges that certain BLM employees retaliated against him by canceling his grazing privileges and permits, his right-of-way across federal land and his special use permits, as well as bringing unfounded criminal charges against him. Robbins alleges that the BLM employees then trespassed on his private property and even broke into his private lodge.

Robbins filed a lawsuit against the employees, with the government fighting all the claims make by Robbins in court proceedings, even arguing, “there was not a clearly established constitutional right to exclude others from one’s property.” The Tenth Circuit Court of Appeals disagreed, ruling, “A property owner’s right to exclude extends to private individuals as well as the government … If the right to exclude means anything, it must include the right to prevent the government from gaining an ownership interest in one’s property outside the procedures of the Takings Clause.”

The court noted, “If we permit government officials to retaliate against citizens who choose to exercise this right [to exclude others from private property], citizens will be less likely to exclude the government, and government officials will be more included to obtain private property by means outside the Takings Clause. The constitutional right to just compensation, in turn, would become meaningless.”

Not liking the ruling, the federal government has taken the case to the nation’s highest court. In a brief filed last week attorneys from the U.S. Justice Department wrote: “The enormous threat of personal RICO liability was never designed to check overzealous regulation in itself. Thrusting RICO into this context would chill government officials in a broad range of regulatory contexts from engaging in appropriate and vital regulatory actions.”

The government also argued, “Government officials do not become racketeers or extortionists merely by taking overzealous regulatory actions.”

Government attorneys wrote that the Tenth Circuit Court had been “profoundly wrong” in its decision in the Robbins case, stating, “the Fifth Amendment does not prohibit the government from taking property but simply requires the government to pay just compensation if it does.”

The government argued that in the present context of interlocking properties and reciprocal easements that are common in public land management in the West, “there is a broad scope of legitimate give and take that makes liability for going too far in allegedly ‘retaliating’ for another landowner’s failure to agree to a reciprocal easement particularly troubling.”

The brief alleged: “Because the only guarantee of the Fifth Amendment is the availability of just compensation, respondent has no Fifth Amendment right to preclude the government from taking his property (or under his theory, from seeking to coerce him to grant property to the government). Thus, the court of appeals plainly erred when it held that “[respondent] has a Fifth Amendment right to prevent BLM from taking his property when BLM is not exercising its eminent domain power.”

The Wyoming Wildlife Federation has joined with its national affiliate, the National Wildlife Federation and the Public Lands Foundation in filing a brief supporting the government’s case. In a brief prepared by the Houston law firm of Weil, Gotshal and Manges LLP, the organizations echoed the arguments put forth by the Justice Department, adding, “If left unchecked, the end result of Robbins will be the punishment of government officials who, within the scope of their authority, aggressively perform their jobs. Congress could not have intended—or even imagined—that result.”

The groups argued, “The creation of Robbins extortion will chill a governmental official’s ability to aggressively perform his or her job in a property dispute. The court of appeals’ decision ensures that a government official will face personal liability based only on an allegation of an ‘intent to extort.’ Knowing that the end result of a decision may ultimately be an allegation of extortion, a government official will be reticent—if not downright afraid—to perform job duties in property disputes.”

The groups concluded, “This remarkable and erroneous decision, if not overturned, will impact a wide array of government officials by severely hampering their ability to perform their jobs.”

Main Story: Robbins case: Right to exclude, extortion at issue
Wilkie v Frank Robbins Case: Wyoming rancher refuses to grant BLM a right-of-way across his private land

December 4, 2006:
From ranch to sacred halls: Budd-Falen to argue in nation’s highest court

January 31, 2007:
Right to exclude argued

February 20, 2007:
Brief for the Respondent - Robbins Legal Response (60 pages, 321K PDF)

February 28, 2007:
Robbins case: Campaign of harassment detailed
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Amici Curiae (Friend of the Court):
Others in support of Frank Robbins’ side of this case

Oregon Cattlemen’s Association and Nevada Grazing Board
The Oregon Cattlemen’s Association represents ranching interests in Oregon. It exists to promote environmentally and socially sound industry practices, improve and strengthen the economics of the industry, and protect industry communities. The Nevada N-6 Grazing Board represents the interests of federal and other public lands ranchers in Nevada. The board advocates on their behalf to ensure that livestock grazing remains a viable use of the federal lands.

Oregon Cattlemen (159K PDF)
BRIEF OF THE OREGON CATTLEMEN’S ASSOCIATION AND NEVADA N-6 GRAZING BOARD AS AMICI CURIAE IN SUPPORT OF RESPONDENT

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New Mexico Cattle Growers Association
New Mexico Cattle Growers Association Legal Brief (32 pages, 168K PDF)
BRIEF OF THE NEW MEXICO CATTLE GROWERS’ ASSOCIATION, NEW MEXICO FEDERAL LANDS COUNCIL, NEW MEXICO WOOL GROWERS, INC., GRANT COUNTY CATTLEGROWER’S ASSOCIATION, COALITION ARIZONA/NEW MEXICO COUNTIES FOR ECONOMIC GROWTH AND WYOMING PUBLIC LANDS COALITION AS AMICI CURIAE SUPPORTING RESPONDENT

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Pacific Legal Foundation
An amici curiae (friend of the court) brief supporting Harvey Frank Robbins was filed by the Pacific Legal Foundation, the Washington Farm Bureau and the Wyoming Farm Bureau Federation.

Pacific Legal Foundation (24 pages, 110K PDF)
BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION, WASHINGTON FARM BUREAU, AND WYOMING FARM BUREAU FEDERATION IN SUPPORT OF RESPONDENT HARVEY FRANK ROBBINS

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Paragon Foundation
An amici curiae (friend of the court) brief supporting Harvey Frank Robbins was filed by the Paragon Foundation, Inc. a New Mexico non-profit organization created to support and advance the fundamental principles set forth in the Declaration of Independence and Constitution of the United States of America. The Paragon Foundation, Inc. advocates for individual freedom, private property rights, and limited government controlled by the consent of people. The Paragon Foundation, Inc. has several thousand current or former members nationwide.

Legal Brief of the Paragon Foundation Inc. (12 pages, 86K PDF)
BRIEF OF THE PARAGON FOUNDATION, INC. AS AMICUS CURIAE SUPPORT OF RESPONDENT

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Public Lands Council
An amici curiae (friend of the court) brief supporting Harvey Frank Robbins was filed by the Public Lands Council, National Cattlemen’s Beef Association, Wyoming Public Lands Coalition, Oregon Cattlemen’s Association and the Nevada Cattlemen’s Association, as representatives of ranchers and cattlemen throughout the United States.

Legal Brief of the Public Lands Council et al (28 pages, 114K PDF)
BRIEF OF THE PUBLIC LANDS COUNCIL, NATIONAL CATTLEMEN’S BEEF ASSOCIATION, WYOMING PUBLIC LANDS COALITION, OREGON CATTLEMEN’S ASSOCIATION, AND NEVADA CATTLEMEN’S ASSOCIATION AS AMICI CURIAE SUPPORTING RESPONDENT

"If we permit government officials to retaliate against citizens who choose to exercise this right [to exclude others from private property], citizens will be less likely to exclude the government, and government officials will be more included to obtain private property by means outside the Takings Clause."

Let me modify that a little because it is so powerful.

"If we permit government officials to retaliate against citizens who choose to exercise their constitutional rights, citizens will be less likely to resist the government, and government officials will more likely to retaliate against citizens by means outside of any Constitutional authority to do so."

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