William Perry Pendley

Finally, in August 1998, after suffering years of abuse, Mr. Robbins sued the BLM employees in Wyoming federal district court, which ruled against him on technical pleading grounds; however, the U.S. Court of Appeals for the Tenth Circuit reversed. On remand, the BLM employees argued that they had immunity. The district court rejected that claim, held that the evidence substantiated Mr. Robbins’ allegations, and ordered that the case proceed to trial. The BLM employees appealed. The Tenth Circuit held that the “Fifth Amendment right to exclude the government from one’s private property” is “fundamental” and that, “[i]f the right to exclude means anything, it must include the right to prevent the government from gaining an ownership interest in one’s property[;]” therefore, Mr. Robbins had “sufficiently alleged a violation of his clearly established Fifth Amendment rights,” from which the BLM employees were not immune. The BLM employees petitioned for Supreme Court review.

The Founding Fathers believed: that private property is fundamental to a free society; that, by protecting private property, other rights are protected as well; and, that an essential aspect of property ownership is the right to exclude others—friends or strangers—but, especially, the government. One does not need to read Locke, Hamilton, or Adams to learn this; every schoolchild knows these things. Millions of “Keep Out - Private Property” signs have been affixed by children to bedroom doors, tree houses, and secret hideaways. Just as well established is the guarantee that the government may not retaliate when citizens exercise their constitutional rights, including their right to exclude others.

Given all of this, perhaps the opening question to the Solicitor General as he defends the BLM employees should be, “Counsel, what planet are these people from anyway?”


William Perry Pendley

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

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