Wednesday, June 27, 2007

SCOTUS: No Protection from Ongoing Overzealous Government Actions

The U.S. Bureau of Land Management discovered, in June 1994, that its failure to record an easement had cost it an easement across Robbins’s property under Wyoming law. Subsequently, the Bureau requested a new easement from Robbins. Talks broke down, and over the next several years, current and former employees of the Bureau (“defendants”), carried on a campaign of harassment and intimidation aimed at forcing him to re-grant the lost easement. Robbins’s brought a RICO claim charging defendants with repeatedly trying to extort an easement from him, as well as a similarly grounded Bivens claim that defendants violated his Fourth and Fifth Amendment rights. The U.S. Supreme Court held neither claim gives Robbins a cause of action in Wilkie v. Robbins, 551 U. S. ____ (2007).

Bivens claims are judicially created constitutional causes of action. Here, the court held that a Bivens claim was not warranted because Robbins had an administrative, and ultimately a judicial, process for vindicating virtually all of his complaints. These complaints included incidences where the defendants threatened the loss of grazing rights, prosecution, and broke into his lodge. The court also considered the Bivens claim from the perspective that pressure by the defendant’s was ongoing and over a period of six years. To this the court concluded that

The proposal . . . to create a new Bivens remedy to redress such injuries collectively on a theory of retaliation for exercising his property right to exclude, or on a general theory of unjustifiably burdening his rights as a property owner, raises a serious difficulty of devising a workable cause of action. A judicial standard to identify illegitimate pressure going beyond legitimately hard bargaining would be endlessly knotty to work out, and a general provision for tortlike liability when Government employees are unduly zealous in pressing a governmental interest affecting property would invite an onslaught of Bivens actions.

Thus, the court directed the issue to Congress, who “is in a far better position than a court to evaluate the impact of a new species of litigation.”

Robbins’s RICO claim was also not successful. In short, RICO penalizes patterns of racketeering. One the elements of RICO is the showing of a predicate act; in this case, Robbins’s looked to the Hobbs Act, which criminalizes interference with interstate commerce by extortion. The court opined that the Hobbs Act does not apply in this case because “the crime of extortion focused on the harm of public corruption, by the sale of public favors for private gain, not on the harm caused by overzealous efforts to obtain property on behalf of the Government.” Since the defendant’s actions were for public benefit and not private gain, the Hobbes Act does not apply to this case, and therefore, it could not be a predicate act for RICO purposes.

In light of Wilkie, a landowner’s only remedy for a pattern of overzealous efforts to take his property is the existing administrative processes and individual judicial administrative appeals. Over the six year course of defendant’s conduct, Robbins filed 16 administrative appeals, judicial administrative appeals, and this Supreme Court case to protect his property rights. And still, nothing would stop the defendants from continuing their conduct until the easement they desire is exacted from Mr. Robbins: death by a thousand cuts.

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