▪ Property Owner Brief in Land Use Extortion Case

SCOTUSblog posts the brief for the landowner in Wilkie v. Robbins, a land use case to be heard by the US Supreme Court on March 19.  The appeal arose after federal officials used their regulatory power to coerce a Wyoming rancher to give the government an easement without just compensation.  Among other claims, the rancher sued the government officials in their individual capacities for extortion under "RICO" laws.

The Court accepted review of these questions (from the cert petition):

1. Whether government officials acting pursuant to their regulatory authority can be guilty under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq., of the predicate act of extortion under color of official right for attempting to obtain property for the sole benefit of the government and, if so, whether that statutory prohibition was clearly established.

2. Whether respondent’s Bivens claim based on the exercise of his alleged Fifth Amendment rights is precluded by the availability of judicial review under the Administrative Procedure Act, 5 U.S.C. 701 et seq., or other statutes for the kind of administrative actions on which his claim is based.

3. Whether the Fifth Amendment protects against retaliation for exercising a “right to exclude” the government from one’s property outside the eminent domain process and, if so, whether that Fifth Amendment right was clearly established.

Laurence Tribe of Harvard Law represents the landowner, and frames the case as follows:

Petitioners in this case, official of the United States Bureau of Land Management (BLM), engaged in a campaign of harassment and coercion designed to force respondent, a Wyoming rancher, to give the Government a property interest in his land without just compensation.  The principal question before the Court is whether that brazen attempt to circumvent both the limitations on petitioners' regulatory authority and the requirements of the Fifth Amendment violated respondent's clearly established rights under the Constitution and state and federal statutes prohibiting extortion under color of official right.

The U.S. Solicitor General will argue for the government officials, whose brief is posted here.  The decision of the 10th Circuit is here. 

More about the case from Northwestern U's School of Journalism.