SCOTUS Eminent Domain: 5th Amendment and fighting government retaliation in Wilkie v. Robbins

Robbins Feb 2000 Northern Wyoming Daily NewsIt’s hard to imagine what else property rights might mean, other than that an owner can refuse the government’s demands without fear of reprisal. The defining characteristic of property is that it insulates us from others — creating a locus of security, privacy, and autonomy. Official retaliation for the assertion of property rights violates their very essence by piercing that shield and striking at the independence that private property protects. - R.S. Radford and Timothy Sandefur 


The decision in the United States Supreme Court case Wilkie v. Robbins has the potential to be more important and far reaching than the Court's decision in Kelo v. New London (June 23, 2005). The Court heard oral argument in the case on Monday March 19 to consider three questions:

  1. Whether government officials acting pursuant to their regulatory authority can be guilty under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq., of the predicate act of extortion under color of official right for attempting to obtain property for the sole benefit of the government and, if so, whether that statutory prohibition was clearly established.
  2. Whether respondent's Bivens claim based on excercise of his alleged Fifth Amendment rights is precluded by the availability of judicial review under the Administrative Procedure Act, 5 U.S.C. 701 et seq., or other statutes for the kind of administrative actions on which his claim is based.
  3. Whether the Fifth Amendment protects against retaliation for exercising a "right to exclude" the government from one's property outside the eminent domain process and, if so, whether that Fifth Amendment right was clearly established.

The case involves Harvey Frank Robbins, a Wyoming rancher, who purchased his property in 1993 not knowing that the prior owner had negotiated an access easement with the Bureau of Land Management (BLM). The BLM agents never recorded the easement, so when the Bureau contacted Robbins ordering him to sign over the easement, he refused. This precipitated a 14-year battle between Robbins and the BLM. They gave him a "hardball education" by canceling his right of way over adjoining government land, denying him permits, citing him for minor infractions, and bringing him up on charges of interfering with federal agents doing their duties. He was acquitted of these accusations by a jury. After all this bullying, Robbins sued the agents in federal court for violating his constitutional rights to use, control and enjoy his property, and for trampling his due-process rights. The 10th Circuit Court of Appeals decision affirmed for Robbins on the merits.  The government appealed.

The critical issue for Robbins and other property owners asserting their 5th amendment rights is whether they can do so without fear of retaliation by government officials. Many property owners affected by eminent domain are reluctant to speak out, fearing government retaliation, which may come in the form of code enforcement, health and safety inspections -- all done with an objective to force them to give up their property rights for redevelopment before, or even resisting, the eminent domain process. We will monitoring developments in this case and will report immediately regarding the decision of the United States Supreme Court.

Pacific Legal Foundation attorneys R.S. Radford and Timothy Sandefur, who filed an amicus brief in the case, posted an excellent article about the issues at excerpted here:

Although this doctrine is complicated, the Court made clear in Nollan v. California Coastal Commission (1987) that bureaucrats can’t demand unlimited concessions from property owners who seek permission to build on their land.

Solicitor General Clement has responded to these arguments by claiming that the rule against retaliation applies only to free-speech cases. Although he admits that “the Fifth Amendment is of course entitled to equal footing with the First,” his brief goes on to argue just the opposite: There are “a variety of . . . legal doctrines that apply in the First Amendment context alone,” he claims. The Supreme Court has allowed “a degree of permissible governmental interference with property rights that is wholly alien in the context of First Amendment speech rights.” Thus the state has “substantial leeway” to interfere with property rights, while freedom of speech has greater protection.

Of course, it’s true that, since the 1930s, courts have accorded property rights only grudging protection, thanks to the theory of “rational basis review” — a concept that appears nowhere in the Constitution but was adopted by a politically motivated Court in the 1930s.

Nevertheless, the Court has admitted in
Lynch v. Household Finance Corp. (1972) that “the dichotomy between personal liberties and property rights is a false one,” because “the right to enjoy property without unlawful deprivation . . . is in truth, a ‘personal’ right. . . . In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other.”

In fact, when it comes to property rights, the rule against retaliation should apply at least as forcefully as with speech.

The reason government retaliation is banned in the First Amendment context, for example, is that retaliation might chill expression by the speaker and others. But property rights are not just chilled but actually destroyed by government retaliation. A person who suffers retaliation for speaking out can still have his message heard. But since the most basic element of property rights is the ability to say “no” to those who would take one’s land, any action that deprives a person like Frank Robbins of the freedom to say “no” isn’t merely a threat but actually destroys his property rights completely.

Two years ago, the nation was outraged by the Kelo decision’s insensitivity to the rights of property owners. But if the Supreme Court rules against Frank Robbins, Americans will face an even graver threat than misuse of eminent domain.

Without constitutional rules against official manipulation and abuse, officials will be free to intimidate property owners into simply giving up their land without just compensation and without legal protection. Why would bureaucrats buy land through eminent domain if they could just pressure people into giving up their land for free?

Wilkie v. Robbins represents an important opportunity for the Supreme Court to scale back the scope of government power and to ensure security for people who simply want the freedom to say “no.”  

Written By:tony gregorio On June 22, 2007 2:35 PM

In reading the oral argument, it would seem that the Court is concerned with the infinate liability of using a RICO claim against governement officials. Justice Roberts questioned whether an extortion claimed against other officials like IRS agents who are trying to collect taxes would be inevitable. What would prevent a flood of litigation from opening a door like this?

Written By:tony gregorio On June 22, 2007 2:42 PM

The Attorney representing the BLM said that Robbins would have remedies available to contest any government action. In response the Court asked what happens to a typical plaintiff that is bombarded with actions by the government and each requires its own seperate remedy? If I remember correctly, that analogy was a death by a thousand cuts. What type of resolution could the Court possibly say to resolve this incongruity between authorized government action yet adverse to individual rights? Admittedly I'm not an expert on a Bivens claim, but isn't it a narrow claim against officials that is hard to show?

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