The Supreme Court heard argument in a curious case this week. No, I’m not talking about the celebrated “Bong Hits for Jesus” case. The second case on Monday’s docket involved an Alabaman turned Wyoming rancher claiming that government bureaucrats had engaged in extortion by enforcing the letter of the law.
An appellate court in Denver, Colo., ruled that Harvey Frank Robbins (the rancher) could sue Charles Wilkie and other Bureau of Land Management employees under the Racketeer Influenced and Corrupt Organizations Act (also known as RICO) — a law used to prosecute mobsters involved in organized crime.
Now the chance for the Supremes to weigh in, and maybe hint at what they’re thinking …
Rumble at the High Island Ranch
This case, Wilkie v. Robbins, involves the High Island Ranch, a 40-mile stretch of Hot Spring County, Wyoming, nestled against the Shoshone National Forest. Before Harvey Robbins owned the ranch, the BLM and a prior owner agreed to allow each other to use roads going across each other’s lands.
This neighborly exchange of “reciprocal easements” is common in the West, where public and private lands are often interspersed. In fact, BLM has explicit authority to enter into just such arrangements.
This is where the trouble starts. The federal government never recorded its right-of-way over the High Island Ranch. We’re not sure why. But because of this misstep, Harvey Robbins didn’t have to honor the agreement when he purchased the Ranch in 1994.
Then the fracas began. Because this case landed in the Supreme Court before a trial occurred, we’re not exactly sure what happened.
What we do know is that BLM wanted that easement and Harvey wasn’t interested in giving it to the government. What we also know is that Harvey’s cattle kept wandering onto federal land, and the BLM kept hitting him with fines for trespass.
Rather then neighborliness, we now have the Hatfields and the McCoys (at least according to Harvey’s allegations).
In one instance, Harvey accuses BLM of videotaping customers at his ranch taking part in an old fashioned cattle drive, even when the customers “sought privacy to go to the bathroom.” BLM says it was making sure that Harvey didn’t once again trespass on federal land.
From the Range to the Court Room
The current legal controversy comes on the heels of a host of others. At one point, BLM had Harvey arrested for interfering with a federal employee. After a jury acquitted him, Harvey sued BLM for malicious prosecution. He lost.
Harvey fought the trespass citations issued by BLM, appealing to the Department of Interior’s Appellate Board on numerous occasions. He generally lost those too.
In fact, neither the courts nor the Interior’s Appellate Board ever found that any BLM employee broke the law.
But now, Harvey’s in court arguing that BLM employees have been engaged in extortion under RICO and also violated his rights under the Fifth Amendment to the U.S. Constitution.
The RICO Claim
RICO is your stereotypical law aimed at gangsters. It authorizes criminal and civil liability for bribery, kidnapping, money laundering, and extortion.
Harvey argues that the BLM employees are liable for “extortion” if they singled him out when they enforced the law in order to force him to give the government access to his property.
The Fifth Amendment Claim
Harvey also argues that the BLM employees are liable under an old Supreme Court case called Bivens v. Six Unknown Federal Narcotics Agents, which allows suits against federal employees who violate Constitutional Rights. Bivens actions are only authorized if Congress hasn’t provided another avenue for redress.
He argues that the Fifth Amendment, which prohibits the federal government from taking private property without paying just compensation, protects him from retaliation for keeping the government off his land.
Making It Harder to Manage Federal Land
The feud between Harvey and the BLM is troubling. I don’t really want federal employees going around trying to make people’s lives miserable. At the same time, I do want them to be rigorously enforcing the law, and protecting public lands, without the fear of getting hauled into court.
What makes this case unique is that even if BLM did everything Harvey claims, it never broke the law. Instead, Harvey’s lawyers argue that government employees should be liable for their state of mind: they should have to cough up when they maliciously enforce the law (and under RICO they could face treble damages).
Courts typically shy away from imposing liability based only on thoughts and require objective, verifiable actions before they’ll intervene. That avoids a lot of invasive questioning and frivolous litigation.
Three environmental groups, National Wildlife Federation, Public Lands Foundation, and Wyoming Wildlife Federation, filed a brief in the case making this very point. They note that if such liability stands, “an aggressive official duly performing his or her job will be personally liable for extortion, yet the underachieving official will be rewarded.”
This is a dangerous precedent, especially in the West where public land managers often face difficult challenges (and ornery neighbors). If land managers face liability, they may shy away from doing their jobs.
The Justices’ Take on the Situation
Of course, my thoughts about this case are ultimately of little importance. The Supreme Court had a chance to hint at their thoughts during Monday’s oral argument.
Justice Ginsburg started the morning off by grilling the government about what rights Harvey had in the face of alleged government harassment. She, Justice Kennedy, and Justice Scalia expressed concern that piecemeal litigation didn’t adequately protect Harvey’s rights.
However, the justices seemed uncomfortable with finding liability under either RICO or Bivens.
Considering the Bivens issue, Justice Breyer noted that he’s worried about claims being brought against government employees enforcing “vast numbers of regulations … the possibility of the legal imagination becomes endless.”
Justice Alito later noted that the Rico claim didn’t have “a lot of authority, considering the long history of extortion.” Justice Breyer suggested that there was a big difference between an government employee abusing her power for personal gain and trying to secure something for the government.
The court’s questions suggest that on the one hand, they feel some sympathy for Harvey. If his allegations are true, he’s had a pretty rough time of it and the BLM is at least partially to blame.
At the same time, the Court seemed to understand that the theories of liability currently involved in this case will harm the ability of the government to enforce the law. Justice Scalia even suggested that he had little problem with the government “playing hardball” to convince a landowner to exchange easements.
I’m hopeful that, in the end, the Court will affirm that, while the government may act badly at times, it’s not a criminal syndicate. Federal employees should be held responsible when they violate people’s rights. And other statutes and doctrines (the Administrative Procedure Act and Federal Torts Claims Act) provide means of doing this.
However, the government also needs to be able to go about the people’s business (our business) without getting constantly hauled in to court.