Property Rights Foundation of America®

reprinted by permission of Wyoming Agriculture, Wyoming Farm Bureau

Private Property Protected From Bureau of Land Management Employee Retaliation

On Jan. 11, 2006, the U.S. Tenth Circuit Court of Appeals held that employees in the Bureau of Land Management (BLM) cannot retaliate against a ranch owner for refusing to grant the agency a right-of-way across his private land. In its ruling, the Court found that (1) an individual has the right to be free from retaliation when exercising a Fifth Amendment property right, and (2) the right to exclude someone from using private property includes the right to exclude the federal government. Robbins v. Wilkie, No. 04-8016 (January 11, 2006).

The Plaintiff in the case, Harvey Frank Robbins, filed suit against employees in the Worland, Wyo. BLM office pursuant to the Racketeer Influenced and Corrupt Organizations Act (RICO) and under the Fourth Amendment of the Constitution. RICO is usually used against organized crime. However, in this case, RICO is being used against BLM employees who Robbins said attempted to use the power of the federal regulations to extort a right-of-way across his private land in Wyoming. Robbins refused to grant the BLM an easement and so certain BLM employees retaliated against him by cancelling his grazing privileges and permits, his right-of way across federal land and his special use permits, as well as bringing unfounded criminal charges against him.

One past BLM employee boasted that some of the other BLM employees said they would "bury Frank Robbins." They then trespassed on his private property and even broke into his private lodge, Robbins stated in his pleadings. To protect his civil liberties, Robbins hired the Budd-Falen Law Offices in Cheyenne, Wyo. and filed suit against the BLM's employees.

"I have been representing Frank for 12 years," Karen Budd-Falen explained. "Initially when I met Frank, I just assumed that we were only dealing with livestock trespass charges. It took several years to realize that the BLM was just using those trespass charges to try to get Frank to give up his property rights. We filed this complaint 7 years ago, based upon that realization. Since I have been representing Frank, the BLM has filed 18 individual adverse decisions against him."

The government has fought Robbins' claims on various grounds, including arguing that "there was not a clearly established constitutional right to exclude others from one's property, and that they could not be held liable under RICO for actions authorized by BLM regulations because those actions are not 'wrongful.'" However, the Tenth Circuit Court disagreed. "A property owner's right to exclude extends to private individuals as well as the government," the Court said. "Defendants' assertion that BLM could have taken Robbins' property for public use after providing the just compensation is correct. BLM, however, did not exercise or attempt to exercise eminent domain power in this case," the Court explained. "Instead, Robbins alleges, Defendants attempted to extort a right-of-way to avoid the requirement of just compensation. If the right to exclude means anything, it must include the right to prevent the government from gaining an ownership interest in one's property outside the procedures of the Takings Clause."

In a refusal to let the government stretch its regulatory role beyond constitutional limits protecting civil liberties, the Court used strong language upholding private property rights. The Court emphasized that a government agency, such as the BLM, is not above the law. "If we permit government officials to retaliate against citizens who choose to exercise this right [to exclude others from private property], citizens will be less likely to exclude the government, and government officials will be more inclined to obtain private property by means outside the Takings Clause. The constitutional right to just compensation, in turn, would become meaningless," the Court explained. "Because retaliation tends to chill citizens' exercise of their Fifth Amendment right to exclude the government from using their private property, the Fifth Amendment prohibits such retaliation as a means of ensuring that the right is meaningful."

Additionally the Court ruled that federal agency employees could not hide behind the power of their offices to avoid Robbins' case. The Court stated that even if the actions taken by the individual employees were lawful, if they were done for an improper motive, Robbins could maintain his case. The Court stated, "Nevertheless, we conclude that if Defendants engaged in lawful actions with an intent to extort a right-of-way from Robbins rather an intent to merely carry out their regulatory duties, their conduct is actionable under RICO."

The case will now go to a jury trial in Cheyenne, Wyo. The jury will examine the facts and determine whether the BLM employees used their power as BLM officials to retaliate against Robbins when he would not give them access to his private property.

"This (jury trial) is where we wanted to get all along," Budd-Falen said. "It has been years of legal maneuvering to stop us from getting to a jury."

"We will be able to present live witnesses to testify about the harassment and live witnesses to testify about the economic damages that Frank has incurred," Budd-Falen continued. "We have a BLM employee who has testified under oath, twice, that certain employees were out to get Frank Robbins. He took early retirement stating he was tired of playing that game."

Since the original lawsuit was filed seven years ago, there have been four other related RICO decisions based on the Robbins case. "These decisions have given us what we needed in a complaint to beat a motion to dismiss and get the BLM employees to testify."

According to Budd-Falen, the impact of this decision will be case specific. "There will not always be a RICO charge in all cases," She explained. "You have to have the bottom-line motive, not just adverse decisions."

"This case will certainly make it a lot easier for the next person," She continued. "Frank has incurred a lot more difficulty and expense because we did not have a roadmap. Now we do."

"This latest decision by the Tenth Circuit Court of Appeals has very powerful language protecting private property," Budd-Falen said. "We are glad to finally get to a jury trial."

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