▪ Government Gone Wild: More on Wilkie v. Robbins

More on the US Supreme Court's opinion (400kb pdf) in Wilkie v. Robbins (No. 06-219, June 25, 2007) (also posted here in HTML), a decision that unfortunately has not garnered much attention, despite the fact that its this year's version Kelo.  The following items have been posted so far:

• Associated Press (as reported in the Casper, Wyoming Star Tribune) - Justices say rancher cannot bring action against federal workers.  Same story on law.com.
• Supreme Court Times' summary of the opinions.
• Conglomerate's take on the case.
• The Los Angeles Times writeup.
• The thoughts of Tim Sandefur of Pacific Legal Foundation here.
• PropertyProf blog's thoughts here.
• Volokh Conspiracy's post on the case here.

My previous posts on the case:

Bong Hits, Pull My Finger Fred, and Remedies for Fifth Amendment Violations (about the oral arguments)

Links to Further Wilkie Analysis

More on Wilkie: Is Property A Personal Constitutional Right?

Wilkie Transcript Posted (transcript of oral arguments)

Supreme Court Preview: Is There a Right to be Free From Government Retaliation For Defending Your Property Rights? (with links to the merits briefs).

After yesterday's decision in Wilkie, and the infamous 2005 Kelo v. City of New London, it would be understandable if property owners felt under siege.  Kelo told property owners that their property -- absent unusual circumstances -- could be seized by the government and there was little they could do to object.  If that wasn't bad enough, the Court today in Wilkie tells property owners that if government officials go "too far" and retaliate against someone who refuses to voluntarily surrender property for public access, she does not have a federal claim against the officials.  A concise summary of the case has been posted on SCOTUSblog, but I'll detail of few of the key facts below, because they illustrate the situation the Court was willing to overlook.

"The Federal Government Does Not Negotiate"

Officials of the federal Bureau of Land Management failed to record a public easement across land that they had negotiated with Robbins' predecessor.  Thus, when Robbins took title, the easement didn't exist.  When the BLM officials discovered their mistake, they took a not-unusual bargaining position (for the government): give us the easement, or else.  According to Robbins, the BLM official told him "The Federal Government does not negotiate."  Slip op. at 2. 

The Government's "Bargaining" Strategy: Turn Up The Heat

And negotiate it did not.  Instead, according to Robbins, the BLM officials began a campaign of retaliation, harassment and intimidation that could have come right out of The Sopranos.  BLM officials ignored Robbins' refusal to allow access to his property for a survey, but the officials simply entered anyway (in other words, trespassed), and "later boasted about it."  The officials turned up the heat and began looking for possible instances of Robbins' permit violations.  The Bureau canceled Robbins' right-of-way over public land, and instituted administrative actions to revoke his BLM permits.  It fined him when he repaired public access roads that the Bureau refused to fix.  It charged him with a federal crime, claiming he threatened a federal employee.  The jury acquitted Robbins after deliberating less than thirty minutes.  (Procedural note: the Court accepted Robbins' factual allegations as true for purposes of the appeal, since the lower court had dismissed his complaint for legal insufficiency.)

RICO, Extortion, and Bivens

Off to federal court Robbins went, where he sued the government officials, seeking an order that they stop the harassment campaign, as well as money damages.  He claimed that under federal anti-racketeering laws (RICO), the officials were trying to extort the easement from him.  He also claimed that he had a private rights of action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) because the officials violated his Fourth and Fifth Amendment rights.  The federal district court rejected his claims, holding that even if Robbins' factual allegations were true, the officials' conduct could not be redressed under either RICO or Bivens.  The Supreme Court, in a majority opinion authored by Justice Souter and joined by the remainder except Justices Ginsburg and Stevens, affirmed. 

The bottom line: Mr. Robbins has no claim for the officials' course of conduct, either under RICO or Bivens.  To the Court, the actions of the BLM officials were not "extortion," they were simply hard-knuckle negotiation tactics.  (Negotiation with a hammer, more like it.)

Besides, the Court held, Robbins had the chance to contest each and every one of those actions in separate proceedings.  While the Court acknowledged that it costs huge amounts of time and money to fight what it referred to as "death by a thousand cuts," it held there is no comprehensive federal remedy available to a landowner so victimized.  Lesson: mess with the federal government at your own risk.  The federal courts will give federal officials wide latitude when it comes to their behavior, even when it crosses way over the line.  While the Court did not outright approve of the BLM officials' conduct, it held that they would not be accountable in federal court for it, which is very nearly the same thing.  What good are federal "rights" after all, if there is little you can do to defend them from what appears to be a concerted official effort to undermine them? 

The decision seems more concerned with the effects of opening the federal courthouse door to such claims, and what the majority viewed as problems of proof.  It's funny how this argument only comes up when property is the Constitutional right we are talking about.  In San Remo Hotel, L.P. v. City & County of San Francisco, 545 U.S. ___ (2005), for example, the Court held that federal courts are not competent to adjudicate federal constitutional property rights claims unless and until a property owner has exhausted state remedies; and then, the federal court will be bound by the result in state courts.  I can't conceive of a similar reasoning if a First Amendment right were at stake.  A local law interferes with your right to protest nude?  Go straight to federal court.  A local ordinance interferes with your exercise of religion?  Go straight to federal court.  But if a local ordinance interferes with your property rights?  Go to state court.  And stay there.  And now, after Wilkie, if federal officials undertake a campaign of harassment, intimidation, and outright illegal conduct?  Go away.  What is most troubling about this decision is that it seems to relegate the right to private property in the Fifth Amendment to a lesser footing than other Constitutional rights.

First we had Kelo.  Now we have Wilkie.