Land's End

Posted 4/3/2007

Property Rights: The federal government is making a novel argument in the Supreme Court in a Fifth Amendment case. If the justices buy it, then the state will be granted the powers of trespass and intimidation.

The Court likely won't issue a ruling until early summer, but what it heard in the March arguments in Wilkie v. Robbins is enough to boil the blood of any property rights advocate.

The roots of this case go back to 1993 when Harvey Frank Robbins bought the High Island Ranch in Hot Spring County, Wyo. The previous owner had agreed to give the Bureau of Land Management an easement on his land. There was no record of the agreement, however, and Robbins, who was not aware of the deal at the time of purchase, did not want the government using roads on his property. Because of his refusal, Robbins says the government began a campaign of retaliation against him to extort the easement.

Writing in Legal Times, Robbins' lawyers R.S. Radford and Timothy Sandefur of the Pacific Legal Foundation said the government "repeatedly harassed the guests at (Robbins') ranch, cited him for minor infractions while letting similar violations by his neighbors go unnoticed, and brought him up on criminal charges of interfering with federal agents during their duties. The jury acquitted him after deliberating for less than 30 minutes."

There are also charges that BLM agents videotaped guests at Robbins' ranch, told him that his refusal to allow the government on his land would "come to war," and threatened to give him a "hardball education." One, Robbins claims, said he would "bury him."

Robbins' lawsuit against Charles Wilkie and other BLM agents on Fifth Amendment grounds, and racketeering and organized crime law, has not yet been to trial because the government has been tied up in appeals seeking a dismissal. So it's difficult to separate the facts from the accusations made by both sides.

But this much we do know, and it is disturbing:

In representing the government, Solicitor General Paul Clement wrote a brief that includes the heading:

"There Is No Fifth Amendment Right Against Retaliation For The Exercise Of Property Rights."

Or, in less legalistic terms used by Harvard law professor Laurence Tribe when arguing on Robbins' behalf before the Supreme Court, "The position of the government here is that there is no constitutional limit on the kind of retaliation they can engage in."

Last June, the Supreme Court gravely erred when it ruled in Kelo v. New London that governments are free to seize private land and sell it to private developers. If it strays from the Constitution yet again by taking the government's position, it will have done more to erode property rights in the last 24 months than had been done in the previous 200 years. We hope this time there are more justices than jesters on this court.