Western reality show: Bureaucrats behaving badly

William Perry Pendley
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Posted: Jun 30, 2007 3:31 PM

In Wilkie v. Robbins, one of the final cases decided by the U.S. Supreme Court at the end of its term last month, one of the facts—in a case bursting at the seams with facts—on which all could agree was that a career bureaucrat was so offended by the conduct of his fellow employees that he retired. In his words, the way Bureau of Land Management (BLM) employees treated Harvey Frank Robbins was the “the volcanic point” in his decision: “It has been my experience that people given authority and not being held in check and not having solid convictions will run amuck and that [is] what I saw happening.”

Why did Wyoming BLM officials “run amuck?” In Justice Ruth Bader Ginsburg’s words, they “made a careless error:” after obtaining an easement to use a private road across the ranch owned by Robbins’ predecessor, they failed to record it. Thus, when Robbins bought the ranch, he did not know about the easement, and, under Wyoming law, took title free of it. Thereupon, BLM officials, writes Ginsburg, “demanded from Robbins an easement—for which they did not propose to pay—to replace the one they carelessly lost.” When Robbins offered to negotiate an agreement, they told him, “the Federal Government does not negotiate” and “[t]his is what you are going to do.” When he refused he became, to the BLM, “the rich SOB from Alabama [who] got [the Ranch]” and, according to Ginsburg, the target of “a seven-year campaign of relentless harassment and intimidation to force [him] to give in.”

After two appearances each before Wyoming federal district court and the U.S. Court of Appeals for the Tenth Circuit in Denver, Robbins was at the Supreme Court on a petition by the United States to determine whether he could sue named BLM officials for that “campaign.” Specifically, did Robbins have a cause of action against them under the Supreme Court’s 1971 Bivens decision for violating his constitutional rights to exclude them and to just compensation for the easement, and under the Racketeer Influenced and Corrupt Organizations Act (RICO) for trying to extort that easement from him? Over Ginsburg’s dissent, the Court said no.

On the Bivens claim, Justice David Souter first addressed if the Court should create a remedy for what Robbins faced, since, although he could vindicate his complaints, he suffered, in his words, “death by a thousand cuts;” in Souter’s words, “endless battling” that “depletes the spirit along with the purse.” Unable to answer that question, Souter then balanced the government’s need for “zeal on the public’s behalf” against a citizen’s need to battle “illegitimate pressure” by “unduly zealous” bureaucrats. On that too, Souter fell short of a “workable cause of action.” Congress was in a “better position” to write it, he concluded.

As to RICO, which bars obtaining property by threat or under color of official right, Souter held Congress was concerned with the “harm of public corruption, by the sale of public favors for private gain, not [with] the harm caused by overzealous efforts to obtain property on behalf of the Government.” Otherwise, wrote Souter, a RICO action “could well take the starch out of regulators who are supposed to bargain and press demands vigorously on behalf of the Government and the public.” If Congress meant differently, it would have said so.

Robbins’ experience, although extreme, is not exceptional. Thus, it is unfortunate the Supreme Court declined to provide beleaguered property owners a remedy, but it is not alone. Congress has little interest in oversight; elected officials demur if matters are “in litigation.” Moreover, bureaucrats operate largely without supervision; likewise their lawyers, who never question their clients’ motives and seek, not justice, but victory. Finally, in court, agencies, their employees, and their lawyers receive the benefit of every doubt. No wonder bumper stickers in the West read, “I love my country, but fear my government.”