Robbins case: Campaign of harassment detailed

by Cat Urbigkit

Papers filed in the nation’s highest court last week detail the intention and determination that Bureau of Land Management officials had in attempting to obtain a right-of-way from Hot Springs County rancher Harvey Frank Robbins.

In a brief filed by Robbins’ attorney, Karen Budd-Falen of Cheyenne, the background was set for the fight that eventually led to the U.S. Supreme Court.

The brief alleges that certain BLM officials “engaged in a campaign of harassment and coercion designed to force respondent, a Wyoming rancher, to give the government a property interest in his land without just compensation.” The brief argues that the principal question before the court “is whether that brazen attempt to circumvent both the limitations on petitioners’ regulatory authority and the requirements of the Fifth Amendment violated respondent’s clearly established rights under the Constitution and state and federal statutes prohibiting extortion under color of official right.”

Robbins is the current owner of the High Island Ranch, a cattle and guest ranch spanning about 40 miles, abutting the Shoshone National Forest in the Rock Creek headwaters, an area of great natural beauty. Recreationists had long sought improved access to the area, and in the late 1980s, federal and state officials met to discuss how to satisfy that public demand. Attention turned to obtaining public access to the South Fork Owl Creek Road, which runs through the High Island Ranch, owned at that time by George Nelson. The difficulty was that neither the state nor the federal government owned the road where it passed through the ranch or had any legal authority to demand that the public be allowed to use it. Nelson eventually negotiated a right-of-way agreement at the same time he was seeking to sell the ranch. The BLM failed to file the agreement and the ranch sold to Robbins, meaning that when Robbins completed the purchase and recorded his warranty deed, the unrecorded easement was thereby extinguished.

The BLM soon discovered its mistake. Not only had the plan to purchase the ranch for public use been frustrated by the sale to respondent, but the BLM’s limited success in obtaining at least some access across the ranch had been lost through its failure to record the easement.

According to court records, BLM Manager Joe Vessels immediately contacted Robbins, still living in Alabama. Vessels “demanded that respondent sign a new easement, telling him ‘this is what you are going to do’ and ‘you don’t have any choice,’” according to the brief filed last week. Robbins said he would be happy to negotiate a deal once he moved to Wyoming but was unwilling to capitulate to unilateral demands. Vessels informed Robbins that “the federal government does not negotiate.”

A BLM coworker later testified that BLM employees were soon referring to Robbins as that “the rich SOB from Alabama (who) got” the property. He also testified that officials were “quite upset,” predicting, “this was going to be one heck of a fight.”

The coworker testified that as time went on, the BLM employees became increasingly hostile toward Robbins and settled on a scheme to “get . . . (Robbins') permits and get him out of business.”

The battle had begun. A BLM law enforcement officer interrogated Robbins and accused him of interfering with a federal employee, which led to a federal criminal charge. Robbins was acquitted by a jury after less than 30 minutes of deliberation, with jurors commenting that they were “appalled at the actions of the government.”

What followed was a period of harassment and attempted interference with Robbins’ guest ranch operation. According to the brief filed last week: “For example, petitioners would closely follow the guest cattle drives in BLM vehicles and openly videotape them, ruining the guests’ authentic cattle drive experience. On one occasion, petitioners Barnes, Miller and Vessels trespassed on respondent’s property and parked a BLM vehicle in the path of the cattle drive, then proceeded to videotape respondent’s guests from a hilltop, even as they sought privacy to go to the bathroom. That same day, petitioners broke into his upper guest ranch lodge, leaving it in disarray.”

The BLM employees also engaged in a prolonged campaign of false administrative charges and selective enforcement of agency regulations in an attempt to build a case for revoking Robbins’ grazing and special recreational-use permits. According to a co-worker’s testimony, the BLM employees instructed him to “look closer” and “investigate harder” in an effort to catch respondent in grazing permit violations, and that “if I could find anything, to find it.”

After years of appeals and battles, Robbins did lose his grazing permits. The BLM also contacted Bureau of Indian Affairs Manager Preston Smith. Robbins' cattle grazed adjacent to the reservation. Smith testified that the BLM “put a lot of pressure” on him to impound Robbins' cattle, asserting that Robbins was “a bad character” and that “something needs to be done” with him. Smith declined to comply with the request.

The brief summarized: “After enduring many years of such abuse and finding his livestock and guest-ranching businesses seriously damaged by petitioners’ harassment, respondent sued them in their individual capacities.”

Among other things, Robbins sought relief pursuant for violations of his Fifth Amendment property rights and alleged that petitioners had engaged in a pattern of extortion and blackmail in violation of the Racketeer Influenced and Corrupt Organizations Act.

The case made its way through the judicial process, with the Tenth Circuit Court of Appeals eventually siding with Robbins, concluding: “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, “Thus, Robbins has a Fifth Amendment right to prevent BLM from taking his property when BLM is not exercising its eminent-domain power.” The court further concluded that petitioners’ actions violated that clearly established constitutional right: “If we permit government officials to retaliate against citizens who chose to exercise this right, citizens will be less likely to exclude the government and government officials will be more inclined to obtain private property by means outside the Takings Clause. The constitutional right to just compensation, in turn, would become meaningless.”

The federal government appealed the decision to the nation’s highest court, which will hear oral arguments in the matter in late March.