Some current and former employees of the Bureau of Land Management are probably breathing a little easier thanks to a decision just handed down by the U. S. Supreme Court. In Wilkie et al. v. Robbins, (No. 06-219, 6/25/07), the court reversed the lower court decisions that had allowed a Wyoming land owner to sue BLM employees in their personal capacity for constitutional tort as well as violations of RICO (Racketeer Influenced and Corrupt Organizations Act).
Plaintiff Frank Robbins owns the High Island Ranch, a commercial guest facility, in Hot Springs County, Wyoming. Robbins accused several BLM employees of a campaign of harassment and intimidation against him, which he claims was designed to get him to agree to an easement for the government across his ranch. He sued the BLM employees personally, alleging they had committed a constitutional tort against him as recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). He also sued them under RICO (18 U.S.C. §§1961-1968).
As Justice Souter succinctly stated in the court’s 7-2 opinion, “We hold that neither action is available.” (Opinion p. 1)
Apparently the former owner of the ranch had worked out an arrangement with the federal government, granting it an easement across part of a road on his property in return for granting him access to a government right-of-way. The former owner signed the easement, but the government failed to record it. When the ranch was sold to Robbins, he received clear title and knew nothing about the easement or the agreement. He did continue to operate the ranch in reliance on certain grazing and use permits that had been issued by BLM to the previous owner.
BLM officials discovered their mistake in failing to record the easement and one of them (Vessels) called Robbins and “demanded an easement.” Robbins declined but said he would discuss working out some kind of reciprocal arrangement. Supposedly Vessels informed Robbins “the Federal Government does not negotiate.” (p. 2)
This led to the several years of harassment and intimidation that Robbins claimed was designed to force him to grant the easement.
The court’s decision describes the various activities of BLM employees—trespassing on Robbins’ land to photograph his guest operations and to conduct a survey even though he had specifically refused to grant permission for it; internal agency remarks (reported by an agency insider) to “look closer” and “investigate harder” to find violations by Robbins on his BLM permits, and references to Robbins as “the rich SOB from Alabama;” BLM’s cancellation of Robbins’ right-of-way permit; intervening with the local sheriff to encourage that Robbins be prosecuted in connection with a fight with a neighbor; citing him for multiple trespass and permit violations and changing his permit to a one-year renewal versus 5-year; filing administrative charges against Robbins and fining him for trespass; charging Robbins with impeding a federal official and prosecuting him under 18 U.S.C. §111 (it took a jury less than 30 minutes to acquit Robbins. They told a reporter they were “appalled at the actions of the government…that Robbins could not have been railroaded any worse…”); etc. (pp. 3-7)
You get the idea. And it’s been ongoing since Robbins bought the ranch in 1994.
Along the way, Robbins fought back with administrative appeals and complaints. In some instances he met with some success; in others he failed to file or he filed too late. He tried to get the trial judge in his criminal case to order the government to pay his attorney’s fees, arguing that the U.S. position was “vexatious, frivolous, or in bad faith.” The judge denied the motion and Robbins appealed that denial too late. (p. 7)
The fact that there were avenues of redress available to Robbins weighed heavily in the Supreme Court’s refusal to carve out a Bivens remedy for “retaliating against the exercise of ownership rights.” Where there are adequate remedies available, the court has consistently declined to permit a constitutional tort action to be brought. As stated by Justice Souter, “…[W]e have also held that any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee; it is not an automatic entitlement no matter what other means there may be to vindicate a protected interest, and in most instances we have found a Bivens remedy unjustified.” (p. 10)
Even so, the court acknowledged that there might be cases where it would permit a Bivens action. However, this is not one of those cases. The decision points out that the BLM employees were motivated to get an easement for the government, and not for any personal gain: “…trying to induce someone to grant an easement for public use is a perfectly legitimate purpose.” Robbins argued that the point is not the legitimacy of the goal, but the fact that the government employees “simply demanded too much and went too far.” The court was troubled by this, however: “A ‘too much’ kind of liability standard…can never be as reliable a guide to conduct and to any subsequent liability as a ‘what for’ standard, and that reason counts against recognizing freestanding liability in a case like this.” (p. 17)
Without delving into more detail in what the court refers to as “this factually plentiful case,” suffice it to say that the court declined to permit the federal employees to be sued individually for their campaign attacking Robbins’ ownership rights.
Perhaps this concluding passage in the opinion sums it up best: “The point here is not to deny that Government employees sometimes overreach, for of course they do, and they may have done so here if all the allegations are true. The point is the reasonable fear that a general Bivens cure would be worse than the disease.” (p. 22)
As for Robbins’ RICO claim, the court agreeed with the government’s position that when the federal government is the “intended beneficiary of the allegedly extortionate acts,” then the act does not apply. (p. 24)
The court reversed and remanded the case to the 10th Circuit Court of Appeals.