From the pages of
Sublette Examiner
Volume 6, Number 45 - February 1, 2006
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Right to exclude argued

by Cat Urbigkit

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 more than 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 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 made 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.”

Robbins’ attorney, Karen Budd-Falen of Cheyenne is due to file a response brief with the high court later this month. The case is set for oral argument on Monday, March 19.

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