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Continuous BLM Harassment to Extort an Easement is Merely a Lot of Separate Events
Justice Ginsberg Issues the Sole Dissent

On June 25 the U.S. Supreme Court handed down a mercurial decision in Robbins v. Wilkie reversing the original jury verdict that officials of the Bureau of Land Management violated the Fifth Amendment private property rights of Frank Robbins by repeatedly harassing him to retaliate because he refused to grant the agency a free right-of-way easement across his Wyoming ranch. Only one judge of nine, ironically Justice Ruth Bader Ginsberg, who has sometimes been faulted for being too liberal, held the opinion that Robbins' Fifth Amendment property rights deserved the court's protection in this situation.

In voicing the sole dissent, Justice Ginsberg summarized the record for over six pages, particularly the testimony of Edward Parodi, a BLM range technician, who swore that, from the very beginning, agency employees referred to Robbins as "the rich SOB from Alabama [who] got [the Ranch]." Trouble started immediately, she wrote.

The BLM employees followed along after Robbins' ranch guests with trucks, videotaping. On one occasion, BLM employees videotaped several female guests who were seeking privacy so they could relieve themselves. Although Parodi was instructed to "look closer" for trespass violations, he said that he did not have problems with Robbins. Parodi testified that he was asked to "do things [he] was not authorized to do."

Justice Ginsberg wrote, "the record is replete with accounts of trespasses to Robbins' property, vindictive cancellations of his rights to access federal land, and unjustified or selective enforcement actions…"

The justice wrote that the BLM sought to enlist other agencies to harass Robbins. "In one troubling incident, a BLM employee pressured a Bureau of Indian Affairs (BIA) manager to impound Robbins' cattle, asserting that he was a 'bad character' and that 'something need[ed] to be done with [him].'"

"[T]here was sufficient evidence," she wrote, "…to support Robbins' allegation that BLM employees filed false criminal charges against him." A jury—that was appalled at the actions of the government—quickly acquitted him, "one of them commenting that 'Robbins could not have been railroaded any worse…if he worked for Union Pacific.'"

The BLM's seven-year campaign of harassment had a devastating impact on Robbins' business. His cattle drive guests declined from 120 to 21 and his legal costs to fend off the BLM mounted to hundreds of thousands of dollars, she wrote.

However, typical of the 28-page majority opinion issued by Justice Souter is his pointing to "the difficulty of defining a workable cause of action."

He continued, "Robbins's claim of retaliation for exercising his property rights to exclude the Government does not fit this Court's retaliation cases, which involve an allegation of impermissible purpose and motivation—e.g., an employee is fired after speaking out on matters of public concern…and whose outcome turns on 'what for' questions—what was the Government's purpose in firing the employee and would he have been fired anyway."

The majority opinion falsely states the facts of the case: "Robbins alleges not that the Government's means were illegitimate but that the defendants simply demanded too much and went too far. "

Continuing in that wrongful vein, Justice Souter wrote: "However, a 'too much' kind of liability standard can never be as reliable as a 'what for' one. Most of the offending actions are legitimate tactics designed to improve the Government's negotiating position."

But Justice Ginsberg met this argument. Referring to the majority's rejection of Robbins' claim for unlawful retaliation denying his constitutional rights under the Supreme Court's ruling in Bivens v. Six Unknown Fed. Narcotics Agents, she wrote, "The Court's opinion is driven by the 'fear' that a 'Bivens cure' for the retaliation Robbins experienced may be 'worse than the disease.' … This concern seems to me exaggerated. Robbins' suit is predicated upon the agents' vindictive motive, and the presence of this element in his claim minimizes the risk of making everyday bureaucratic overreaching fare for constitutional litigation."

She addressed the Court's opinion that a tide of suits for Fifth Amendment retaliation claims would threaten "legitimate initiative on the part of the Government's employees." She wrote, "[W]here a plaintiff could prove a pattern of severe and pervasive harassment in duration and degree well beyond the ordinary rough-and-tumble one expects in strenuous negotiations, a Bivens suit would provide a remedy. Robbins would have no trouble meeting that standard."

Justice Ginsberg's discussion of the Takings Clause, which instructs that no "private property [shall] be taken for public use, without just compensation," is her grand finale:

"The constitutional guarantee of just compensation would be worthless if federal agents were permitted to harass and punish landowners who refuse to give up property without it. The Fifth Amendment, therefore, must be read to forbid government action calculated to acquire private property coercively and cost-free, and measures taken in retaliation for the owner's resistance to uncompensated taking."

This is a sorry day indeed, when only one lone, eloquent Supreme Court justice stands up for private property rights.

By Carol W. LaGrasse
August 4, 2007

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