William Perry Pendley

On March 19, 2007, the U.S. Supreme Court will hear oral arguments in Wilkie v. Robbins, a case from the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado, regarding whether federal bureaucrats are liable for violating a citizen’s constitutional rights. Among the rather technical, legalistic questions before the Court—such as whether RICO (the Racketeer Influenced and Corrupt Organizations Act) and a Bivens claim (pertaining to constitutional violations by federal employees) apply in the case—is this stunning question posed by government lawyers:

Whether the right to exclude others from property is sufficiently established that federal employees should know, when they retaliate against an owner for excluding them, that they are violating his constitutional rights! How can federal lawyers, who have taken an oath to support and defend the Constitution, claim that federal bureaucrats do not know it is wrong to retaliate against a person for exercising his constitutional rights? Perhaps a little background is in order.

Harvey Frank Robbins owns the High Island Ranch, a cattle and guest ranch in Hot Springs County, Wyoming. In 1994, Mr. Robbins’ predecessor granted the Bureau of Land Management (BLM) an easement to use a road that crossed the ranch, which the BLM wanted to access other federal land, in exchange for a limited right-of-way to use that same road where it crossed BLM land. He recorded his right-of-way; however, the BLM failed to record its easement.

Unaware of the unrecorded easement, Mr. Robbins later purchased the ranch and, thereby, under Wyoming law, automatically extinguished the BLM’s easement. Upon learning that its easement had been extinguished, the BLM demanded that

Mr. Robbins grant it an easement without compensation. When he refused, BLM employees began a campaign of threats, harassment, and intimidation to coerce him into relinquishing his rights to exclude the federal government from his private property. Among other things, the BLM employees brought unfounded criminal charges against him, trespassed on his property, cancelled his special recreation use permit and grazing privileges, interfered with his guest cattle drives, refused to maintain the road that provided access to his property, and threatened to cancel, and then did cancel, his right-of-way across BLM lands.

William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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