From the pages of
Sublette Examiner
Volume 6, Number 37 - December 7, 2006
brought to you online by Pinedale Online

From ranch to sacred halls:
Budd-Falen to argue in nation’s highest court
by Cat Urbigkit

Big Piney native and Cheyenne attorney Karen Budd-Falen, daughter of Dan and Barbara Budd, will soon stand before the United States Supreme Court to argue an important property rights case for a Wyoming rancher.

Although representing a single client, in spirit, she’ll represent ranchers and property owners nationwide. She was born for this and it’s the reason she started a law firm with her husband, rancher and attorney Frank Falen.

“I was born to be a cowboy lawyer,” she said.

Interviewed Monday, Budd-Falen said she got the call last Friday from the high court, telling her the case would be heard. She said she had to sit down, and still shakes when she thinks about the enormity of her undertaking.

“This is a landmark case,” Budd-Falen said. “There’s never been any like it.”

The U.S. Supreme Court only takes about two percent of the cases presented to it, so there are not a lot of people who have been granted the opportunity to brief a case and stand before the panel of justices. Budd-Falen joins an elite group.

The case involves Hot Springs County rancher Harvey Frank Robbins, who, with the help of the Budd-Falen Law Office, filed a federal lawsuit under the Racketeer Influenced and Corrupt Organizations Act alleging specific employees of the Bureau of Land Management’s Worland office attempted to extort a right-of-way across Robbins’ property in violation of RICO and the Fifth Amendment.

The case has been making its way through the federal court system for years, with the federal government seeking summary judgment in its favor, asserting qualified immunity. But the courts haven’t agreed with that assertion, instead finding that Robbins had sufficiently alleged violations of his clearly established rights under RICO and the Fifth Amendment. The federal defendants first appealed the case to the Tenth Circuit Court of Appeals, but found no sympathy there either.

The Tenth Circuit Court of Appeals ruled last year: “Because the right to be free from retaliation for the exercise of Fifth Amendment rights is clearly established and Defendants’ alleged wrongful use of otherwise lawful authority to obtain a right-of-way from Robbins violates clearly established law ... we affirm.”

The Fifth Amendment states: “No person shall be ... be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Robbins alleges that in retaliation for his refusal to grant the right-of-way, the named BLM employees attempted to extort the right-of-way from him by refusing to maintain the road providing access to his property; threatening to cancel, and then canceling, his right-of-way across federal lands; stating they would “bury Frank Robbins”; canceling his special recreation use permit and grazing privileges; bringing unfounded criminal charges against him; trespassing on his property; and interfering with his guest cattle drives.

In defense of the BLM employees, federal government attorneys argued that there was not a clearly established constitutional right to exclude others from one’s property, and they could not be held liable under RICO for actions authorized by BLM regulations because those actions are not “wrongful.”

The courts concluded Robbins had a clearly established right to be free from retaliation for exercising his right to exclude others from his property under the Fifth Amendment.

When the Tenth Circuit decided the case, it quoted an earlier case: “The intruder who enters clothed in the robes of authority in broad daylight commits no less an invasion of (property) rights than if he sneaks in in the night wearing a burglar’s mask.”

While the federal government argued the BLM employees’ conduct “was not extortionate, but merely the zealous exercise of regulatory authority,” the court noted that there is a factual dispute regarding whether the employees were merely enforcing the law or using their otherwise lawful authority to extort a right-of-way from Robbins. The question of material fact focuses on their intent.

The Tenth Circuit ruled that “if Defendants engaged in lawful actions with an intent to extort a right-of-way from Robbins rather than with an intent to merely carry out their regulatory duties, their conduct is actionable under RICO.”

The court continued: “If the trier of fact finds Defendants in fact intended to extort a right-of-way from Robbins, then Defendants’ conduct was not merely the zealous exercise of regulatory authority; it was extortion and is actionable ...”

While the federal government has fought against having the merits of the case tried by a jury, the case is inching closer to finally being heard. It was the federal government who sought the hearing before the U.S. Supreme Court, again attempting to keep the Robbins case from being decided on its merits.

Last Friday, the Supreme Court issued an order granting the writ of certiorari in the case, meaning it accepts the appeal from the lower court. The federal government must file its written argument by Jan. 5, followed by Robbins’ brief by Feb. 2. Reply briefs will be due Feb. 16, with oral arguments at a later date.

Budd-Falen has represented Robbins in court for seven years now. If the court were to decide in Robbins favor, he’ll finally get the jury trial he’s been after all along.

Budd-Falen said people can express their concern about eminent domain and the federal court decision in the Kelo v. New London case last year, in which the court ruled that a governmental entity could take private property for economic development, but that case pales in significance to the Robbins case.

“This is huge,” Budd-Falen said. “If you don’t have the right to exclude the government from your private property, we don’t have anything left.”

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