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.

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.

Be the first to read William Pendley's column. Sign up today and receive Townhall.com delivered each morning to your inbox.