From the pages of
Sublette Examiner
Volume 7, Number 1 - March 29, 2007
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Court hears case dealing with BLM harassment

by Cat Urbigkit

The United States Supreme Court heard oral arguments in the federal government’s appeal of a lawsuit brought forth by Hot Springs County rancher Frank Robbins’ case last week.

The Bureau of Land Management (BLM) had appealed a lower court’s decision allowing the Robbins case to move forward. Robbins’ goal is a jury trial to hear how several BLM employees led a campaign of harassment and coercion designed to force Robbins to give the government a property interest in his land without just compensation.

Although Robbins is represented by Karen Budd-Falen, Robbins’ oral argument before the court was handled by Cambridge professor Laurence Tribe while U.S. Deputy Solicitor General Gregory Garre represented the federal defendants.

Just minutes into the federal government’s opening arguments, Justice Ruth Bader Ginsburg interrupted, asking: “General Garre, there's a record here that the district court said there was substantial evidence, enough to go to trial, of a pattern of harassing conduct that included trespasses on this man's lodge and leaving the place in disarray, videotaping the guests, selective enforcement of the grazing laws, a whole pattern of things, even asking the Bureau of Indian Affairs to impound his cattle? This man says, ‘this has been done to me by officers of my government.’ Is there a remedy?”

The federal government maintained that Robbins is only able to contest each citation issued against his grazing permit and to take on each wrong individually. Justice Anthony “Because if this, if this continues, your argument – and I understand your argument that there's no essential free-standing cause of action for damages – basically means he has a right to go broke with attorneys' fees challenging each individual incursion, each individual wrong,” Justice Anthony Kennedy said.

Federal attorneys said Robbins can take every intrusion to the Interior Board of Land Appeals.

Justice Antonin Scalia countered saying “they may be wrong, too. They may have been as much a part of the conspiracy as the officers who conducted it. And there are indeed those in the West who think that the BLM does, does act quite arbitrarily and high-handedly and is, is upheld by, by the, the administrative courts. Now, if that's a problem, what's the solution to that problem?”

“Every time there is another trespass he has to go all the way through the administrative procedure and then when the, when the administrative court says, well, it was okay, then he has to go through the regular federal courts,” Scalia added. “That doesn't seem to me like a realistic remedy, not for somebody who claims he's being systematically harassed for five years as, as is the claim here.”

The federal attorney argued that the court should assume that Robbins’ claims would all fall flat, but Scalia refused, stating: “I don't assume that at all. Even if they succeed, they say, yes, you're right, they trespassed, good for you. I mean, what is the remedy if they did trespass? What administrative remedy does he obtain?”

Garre responded that Robbins could then go to court with a tort claim against the government action.

“It's important to recognize the overarching context of how the federal government manages the public lands,” Garre said. “There are – there are numerous reciprocal arrangements that could be affected by this. Any time a landowner refuses to enter into a reciprocal arrangement, he can then turn around in any government action that is taken against that landowner, all he has to do is add on an element of wrongful subjective intent, and he can bring a constitutional tort claim, or even a Racketeer Influenced and Corrupt Organization (RICO) claim like the respondent here, and subject officers to the threat of personal liability. And we think this would have a significant skewing effect on legitimate government decision making.”

Justice Stephen Breyer entered into the discussion, stating he worried if the court were to side with Robbins and allow his claims to go forward as proposed, “all of a sudden vast numbers of regulations … will be suddenly in federal court as people claim that what's going on with this regulation is there are individuals in the government who have gone too far, and they are just trying to get my property and the use of it, without paying a fair price. Now by the way, sometimes people in government do go too far, so many of those claims might have some justification. But suddenly I see the possibility of this kind of action becoming a major roadblock, an obstacle sometimes used unjustifiably, and not necessarily, not necessary, this kind of thing, to impose a roadblock to totally legitimate government regulatory action.”

Tribe responded by noting such claims of flooding the courts had been made in other circumstances, but didn’t bear fruit, adding “I suppose that is because not that many postal inspectors or BLM guys think they can get away with deliberately retaliating against people for exercising their rights.”

“You see, part of what's worrying me is that once you get into the Fifth Amendment, which is – prevents the government from taking property for a public use without just compensation, the possibility of the legal imagination becomes endless,” Breyer said.

Chief Justice John Roberts Jr. didn’t seem to buy the arguments put forth on Robbins’ behalf.

“Well, you say – you call it punishment, but in fact the government's position on each of these particulars has generally been vindicated,” Roberts said. “When your client has appealed, they've upheld the trespass citations. When you've sued for malicious prosecution, the suit's been rejected.”

Roberts questioned where it was that Robbins didn’t have a possible remedy.

Tribe responded that “it is the retaliatory pattern that there is no remedy for.”

“I think the most important point that I'm trying to make …that when someone says, I do not want to give you my property, you have to take it from me and give me just compensation, the position of the government here is that there is no constitutional limit on the kind of retaliation they can engage in,” Tribe said.

“Well, if the position of the government were more fairly represented they would say, we don't want everyone to be able to claim that everything we're doing under color of law is retaliation, because then we'll hear that against IRS agents, we'll hear it against OSHA agents,” Roberts said. “So long as you – and their position is you have a remedy for everything you're complaining about, and you invoked some of them and you lost, you didn't invoke others and so you didn't prevail. But don't create a whole new remedy just because you're dissatisfied with having to pursue each one individually.”

Scalia found the case troubling

“There are overzealous government agents,” he said. “There always have been and I am sure that, assuming all of the misbehavior described here is correct, I'm sure it is not the first time this has happened. Government agents sometimes get overzealous. But why should there be this extraordinary remedy when the overzealousness happens to be attached to a desire to get a piece of land, whereas if they had just picked on this guy because they didn't like the way he combed his hair or for any other reason …?”

Roberts suggested Robbins refused to negotiate with the BLM, leaving the BLM “disabled” from negotiating.

“If they go up to somebody and say, you know, we'd really like a right-of-way because we have some interest in lands that we need to maintain on the other side, and the person says, no and, you know, get off my property, do they have to shrug their shoulders and say all right?” Roberts questioned. “Or can they say, well, you know, we're neighbors, we have a lot of interests in common and we should work together? Is that all of a sudden extortion?”

“So how many trespass citations for his cattle does it take before it's all of a sudden extortion?” Roberts asked.

“The record in the case shows that on those very instances where he was cited with trespass others who were doing the identical thing were not,” Tribe said.

Tribe explained that the administrative appeals process does not have jurisdiction to consider whether the BLM employees’ motives were retaliatory, whether the actions were unconstitutional, whether it was part of a pattern.

The case is making its way through the federal court process, Tribe said, because “no other remedy will work.” Tribe said when Robbins challenged each individual action, “it was taking years and costing hundreds of thousands of dollars more than was involved in each individual one, that was hopeless.”

Justice David Souter likened the situation to “the death by a thousand cuts … you can stitch up every cut, but by the time you get to a thousand, you're dead.”

The court is expected to issue a decision in the case later this spring.

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