That’s one of the three questions the US Supreme Court will consider on Monday, March 19 2007, when it hears arguments in Wilkie v. Robbins.
The case involves a Wyoming rancher who sued officials of the federal Bureau of Land Management, claiming they began “a campaign of harassment and coercion designed to force [him] to give the Government a property interest in his landwithout just compensation.”
The property owner sued the BLM officials under federal Racketeer Influenced and Corrupt Organizations (RICO) laws, asserting their attempts to coerce him to surrender an easement over his land was “extortion.” Those efforts included filing false criminal and administrative charges against the property owner, harassing ranch guests, and cancelling the owner’s right-of-way across neighboring BLM land. The BLM officials claimed they were immune from suit, arguing their behavior did not violate “clearly established” law. Northwestern U’s School of Journalism has posted a summary of the facts of the case.
The Tenth Circuit ruled in favor of the property owner, see Robbins v. Wilkie, 433 F.3d 755 (10th Cir. 2006), and the Supreme Court granted review on an expedited briefing schedule.
The Supreme Court will decide, among other issues, whether the Fifth Amendment protects against retaliation for exercising the right to exclude the government from property, or whether just compensation is the sole remedy for extortionate government conduct in land regulation. The Court will also tackle the question of whether that rule is so “clearly established” that government officials lack their usual immunity when they violate it.
I think so, for a couple of reasons. First, the Fifth Amendment is a normative proscription, not just a remedial device — it provides a framework for how government and its officials are supposed to behave, not merely an after-the-fact compensation remedy. As in other areas of constitutional law, the government is not permitted to retaliate against those who choose to exercise their rights. Second, the right to exclude others — government included — is perhaps the most fundamental element of property ownership, so the BLM officials should not have expected that their conduct was immune.
The merits briefs of the parties, the joint appendix, and the amicus briefs may be accessed here. More on the case after Monday’s argument.