Presented at the
Tenth Annual National Conference on Private Property Rights
Property Rights Foundation of America, Inc.
Albany, N.Y. - October 14, 2006

RICO ACTION — RANCHER STOPS BLM ACCESS EXTORTION

KAREN BUDD-FALEN
Senior Attorney, Budd-Falen Law Office, Cheyenne, Wyoming

 

Thank you very much. After all that introduction, though, I’ve got to tell you my proudest accomplishment is having two beautiful children, one of whom is with me today, who is dying that I’d say his name, so I won’t say his name. But there is a twelve-year-old blond boy back there that really is my proudest accomplishment after all that list of stuff that I’ve done.

What I want to talk to you today is about a dear, wonderful friend of mine, who is also a client, a guy named Frank Robbins. Frank Robbins is probably the finest private property advocate in the United States, even including Jim Chilton.

Frank Robbins is a guy that grew up in Alabama, where his father owned a flooring business. Frank’s dad told him that if he didn’t smoke or drink until he was eighteen, he would buy him some cattle. Frank made good on that promise. He bought him some cattle. In 1994 Frank decided that Alabama was too hot and too muggy and too buggy, and so he moved to a place called the High Island Ranch, which is in Wyoming. He bought the ranch. It has mostly private land with very interspersed BLM land on this ranch. (1) It is a beautiful, beautiful place.

The problem was that the BLM also wanted the High Island Ranch private property. And the BLM had been working with the Wyoming Game and Fish and environmental organizations to buy the property, but Frank was able to come in and buy this property first. When the BLM was negotiating to buy the property, it had pressured the prior landowner into giving the BLM an easement across the private land. The BLM screwed up, however, and they did not record the easement, and, if you don’t record an easement, when a new purchaser comes along, the easement is extinguished. That’s the way the law works. So BLM did not record the easement. Frank buys the property. The easement is gone, and the fight was on.

The BLM called Frank while he was still living in Alabama and said, we forgot to record this easement. You have to give us an easement, and Frank said, I haven’t even moved out there yet. I’ll talk to you when I move. The BLM called him again and said, we’re going to survey the easement across your property private property. And Frank said, no. You do not have permission to survey an easement on my private property. The BLM did it anyway.

When Frank got to Wyoming, he looked at his property, he looked at the BLM’s request for an easement, and, as is his right under the United States Constitution, Frank Robbins said, I will not grant you an easement. You have other ways to get to your property. You are not going to cross my private property. That’s when the retaliation began.

Frank Robbins also had a home on some private property over which he had to cross BLM land. BLM would not allow him to get to his second home, even though his home was on his private property, and the government is required under the Alaska National Interest Lands Conservation Act to grant you access to your private property.

Frank Robbins had a city slicker’s kind of business where he would take guests from all over the world and take them on cattle drives up to the upper lands. They would be three days sleeping out under the stars, all that stuff that sounds really glorious unless you grew up doing that and you know it is not all that glorious. Well, he’d take all these guests on these trips. The BLM started following his trips in green trucks where the guests could see them and, you know, kind of taking away from this great experience. They’d videotape people using the bathroom. They’d videotape people sleeping, and when Frank would go in and talk to the BLM, the BLM would say, if you would just give us an easement, this will all go away. But Frank was not one to be pushed around.

The BLM issued eighteen adverse trespass decisions against him, trying to get this easement. The BLM broke into his private home on his private property and snooped around. This is actually all stuff we can prove.

Probably the biggest thing that they did to Frank Robbins is that Frank had told them they did not have access across his private property. One day, he was up on a horse, gathering some cattle and here comes a BLM green truck driving up the road. So Frank rides over and says, what are you doing? They handed him an easement to a fence, and said, we have access across your private property. And he said, this is a fence easement. No you don’t. He gave it back to them, told them to turn around and go home. They turned around, went home. They filed criminal charges against Frank for intentionally interfering with an officer in pursuit of his duties. We did a three-day jury trial on criminal charges right before Thanksgiving for Frank Robbins. After three days of not knowing what was going to happen, the jury acquitted him in twenty minutes. In interviewing the jurors later, the jurors said, and I quote, “Frank Robbins couldn’t have been railroaded any more had he worked for the Union Pacific.”

But that’s what they were going to do to get an easement across private property. Finally Frank couldn’t take it anymore, and we filed a RICO complaint. RICO is the Racketeer Influenced and Corrupt Organizations Act. Under RICO, any individual engaged in a pattern in racketeering activity can be sued for treble damages. Now, a pattern means more than one activity. So just because somebody does something bad once doesn’t mean you fit within RICO. You have to have a pattern like I described to you. Actually, I could have taken another hour to describe additional patterns of activity of stuff they did to this poor guy for standing up for his property rights. Racketeering activity is a crime under either state law or federal law, punishable by a year in prison. In Frank’s case, the crime is extortion. Federal employees cannot attempt to extort private property from individuals. It is punishable under both Wyoming state law and under the federal Hobbs Act.

So we go to court. The Justice Department is representing the individual BLM employees that we are suing. We’re not suing the agency. We are suing individuals that engaged in the activity, but your tax dollars are paying for their defense. They filed two motions to dismiss, and we’ve been to the Tenth Circuit Court of Appeals twice. We have won every case.

The latest, though, is the one that’s the most important to you, because, in the latest move, the federal government argued that individuals do not have the right to exclude the federal government from their private property. We are not even talking about eminent domain. We are talking about before eminent domain even starts. We’re talking about whether the federal government can simply say, we’re going on your property. We’re going into your house. And it doesn’t matter that we are talking about Frank Robbins’ ranch in the middle of nowhere in the middle of Wyoming. We are talking about whether you guys across your front lawn can tell the federal government, no, you cannot trespass on my property. It wasn’t like the government went in and got a court order or could show that Frank was doing anything wrong, or that they were chasing criminals or some other activity. They simply wanted to be on his property, and they’re arguing they have that right. The Tenth Circuit, though, ruled in our favor.

For you guys, the most important three parts of that ruling are that the Fifth Amendment includes a right to exclude the government from your private property. The second most important ruling is that the Fifth Amendment prohibits federal officials from retaliating against you for exercising your Fifth Amendment right. And the third most important is that a reasonable federal official ought to know that he cannot just trespass on your private property, that he ought to know that the Fifth Amendment applies to him.

Now, I am normally a very conservative Republican. Such that it is. This Administration, however, has applied for certiorari to the United States Supreme Court to overturn that Tenth Circuit Court decision. This is our Justice Department under this Administration. We are obviously strongly opposing that petition for cert. Quite frankly, I would love to argue this case in front of the United States Supreme Court, but that’s not the point. The point is that Frank Robbins gets a jury trial under RICO. We have never gotten him his trial. We filed this case in 1998, and we’re still fighting over whether we get a jury trial. I think the U.S. Supreme Court certiorari brief, though, raises some questions that should frighten every American concerned with ownership of private property.

The concept of private property is absolutely fundamental to the United States of America. If you read the Federalist Papers, they talk about how the Bill of Rights includes all of these rights that we are protected from, but that the ownership of private property is the most fundamental right upon which all other rights are based including freedom of speech, including freedom to worship, including the right of association. Private property ownership is the basis for all of those other rights.

It’s sort of off the topic, but, while I am on here, I also want to say that we have to understand about the U.S. Constitution is that the U.S. Constitution does not grant rights. The United States Constitution is the document that stops the federal government from taking our rights. So when people talk about “my constitutional right,” you really need to remind them that what they are talking about is our constitutionally protected rights because it’s not the constitution that gives you rights. It is God who gives you rights.

When you talk about property and property ownership, you want to look at property as a bundle of sticks. There are all sorts of pieces of property rights. One of those sticks is the right to exclude others whether you’re talking about individuals or you’re talking about the federal government. In fact, some courts have held that the right to exclude the government is even more important than the right to exclude a stranger from your private property.

In the government’s Supreme Court brief, the government contends that the Fifth Amendment is a poor relation to all of the other amendments, that the right to freedom of speech is more important, that the right to due process is more important, and that the Fifth Amendment really should be relegated to some poor relation to all the other amendments. That’s their argument. And courts have recognized that the federal government cannot retaliate against you for freedom of speech, for freedom to petition the government, but the courts have never actually looked at property. They’ve never ruled against it, but they have never ruled for us either, so it is going to be an important decision to watch. Obviously our argument is that the Founding Fathers did not say, these rights are more important and these rights are less important. They listed the rights that were to be protected, and the property ownership is one of them.

Another of the government’s contentions is that the government can stomp all over your civil liberties, including property ownership, as long as the individual members of the government, the individual employees, don’t receive personal gain. That’s not what the courts have said. Under the federal and state law prohibiting extortion, we don’t have to show that a BLM district manager or some range con actually got personal gain. Interestingly, though, we actually can show that in our case. Through Freedom of Information Act we were able to get documents that showed that when people would go out and trespass Frank Robbins’ cows or videotape his guests, that they would get these merit service raises. I mean, it didn’t say this is for picking on Frank Robbins, but the timing was just really fascinating. The courts have said, you don’t have to show individual gain. The fact that you are working for the government and the government is getting a “benefit” is enough.

Another government contention, which I really love, is that the Justice Department is arguing that the federal government is just acting like any other landowner trying to get access to his property. Now, the government is not any other landowner. The government under the Fifth Amendment has the right to buy property. The government, whether you believe it abuses it or not, has got the right of eminent domain, but we’re not even getting that far in Frank’s case. Not once have they ever said, we need this right-of-way, and we are going to go through the condemnation process. Not once have they ever gone to Frank Robbins and offered him payment to buy a right-of-way across his private property. They’re just simply saying that because we’re the government and we’re way bigger than you are and we have all this authority, we can force you into granting an easement. And Frank Robbins has just simply said no. So the federal government is not a normal private property owner in this case.

We have an employee, or actually an ex-BLM employee, who is going to testify on behalf of Frank Robbins. This employee is a guy named Ed Parody. Ed Parody was working in the BLM office when this whole problem started. When Frank Robbins said, no, I am not giving you an easement, no you can’t survey my property, the BLM started sending out memos to everyone, even people who didn’t have anything to do with Frank Robbins, and telling them go check on Frank Robbins’ cows. If a cow crawls through a fence, trespass him. Even though anybody who has ever seen a fence and seen a cow knows that a cow can crawl through a fence. It’s just how it is. If we ever get to trial, Ed Parody will testify that the BLM willfully and intentionally decided they were going to break Frank Robbins, that they were going to take his business, and that they were going to take his livelihood. The BLM has not actually refuted those statements, as we’ve done hundreds of depositions in this case. The federal government and these individuals are simply using their authority as federal officials to take something they have no right to take.

Now, I’m not saying that every federal person that enforces the laws is in violation of RICO. And I am certainly not saying that every person that works for the federal government is a bad person, is trying to do the wrong thing, is trying to take your property. In fact, after this RICO decision came out, I got lots of phone calls. There wasn’t another legitimate RICO case in all the phone calls that we got, because a lot of times federal officials need to do their job. What this case says, though, is that these five individuals in this situation are trying to take private property.

The U.S. Justice Department is arguing that, if we win this case, it is going to hamstring the federal government, that no more negotiations will ever occur, that rails to trails and other legitimate functions, other access issues, all of that, is going out the window and we will destroy the federal government. That is not what we are arguing. We’re saying, in our case it has gone too far.

The problem is, though, that, if you don’t stand up when it goes too far in your case, that just leaves more room for the next guy to go too far. All of a sudden that pendulum has moved way farther than you ever intended. So in our case, Frank is determined that the pendulum isn’t going to move any farther than his issues.

In conclusion, I honestly believe that this is one of the most important private property decisions that we will ever see. I understand how bad Kelo was. The problem is that if Frank doesn’t win his case, we won’t even get to Kelo and eminent domain, because they’ll take the property before they ever get around to jumping through eminent domain procedures. That’s why this case is so important.

Our petition opposing certiorari will be filed next week. If the Supreme Court decides they do want to hear this case before our jury trial, I can assure you I will be knocking on every private property rights group’s door I can find to get amici briefs and to get support for Frank Robbins to get through the Supreme Court fight, because this is a case that property owners in America cannot afford to lose. Even though Frank isn’t here, I would ask that all of you think about Frank and that, if you ever get to meet this really great Alabama cowboy with a long southern drawl, that you thank him for what he’s done, because putting up with this kind of litigation, as Jim Chilton can tell you, is extremely painful and very draining. He is a wonderful, wonderful person for standing up for my children’s property rights, as well as yours. Thank you very much.

***

Notes:

(1) BLM - Bureau of Land Management

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