Bush Administration: No Freedom From Government Harassment
Radley Balko | March 20, 2007, 9:00am
The latest property rights case to hit the U.S. Supreme Court is a doozy. Quick background: Harvey Frank Robbins bought a piece of land in Wyoming. The previous owner had agreed in principle to give the federal government an easement over the land. But the government agents neglected to record the easement, so Robbins obtained the land without it. The federal government came back to reclaim the easement, and Robbins refused.
In the Legal Times Tim Sandefur explains what happened next:
“The federal government doesn’t negotiate,” one official told him. Instead, they promised that Robbins’ refusal would “come to war” and that they would give him a “hardball education.” Then they began a vendetta against him that would last to the present day.
They cancelled his right of way over government-owned land, repeatedly harassed the guests at his 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.
After enduring years of such treatment, Robbins sued, arguing, among other things, that the BLM agents had violated his Fifth Amendment right to exclude others from his property.
The 10th Circuit ruled for Robbins, but the federal government appealed. Conservatives in particular should take note of the stunning argument from U.S. Solicitor General Paul Clement:
“No court,” said Solicitor General Paul Clement in his brief, has “ever recognized a constitutional right against retaliation . . . in the context of property rights.”
As Sandefur notes, this is a truly astonishing (and revealing) argument. Clement is basically arguing that there is no right against the government harassing you for asserting your constitutionally-protected rights.
But every right is a "right against retaliation." That's sort of the whole point. A citizen of the most repressive regime on earth can still criticize the government, assemble with anti-government activists, and practice his religion. What separates free societies from oppressive ones is what happens to him afterward.
(Via Cato-at-Liberty.)
Dave W. | March 20, 2007, 12:14pm | #
The previous owner had agreed in principle to give the federal government an easement over the land.
Translation: He said, sure, I'll give you an easement, but never actually did. That's what "agreement in principle" means.
No, the previous owner signed an easement. Despite the fact that there was some kind of issue with a "corporate seal," the easement almost certainly would have been enforceable against the previous owner.
But the government agents neglected to record the easement, so Robbins obtained the land without it.
Meaning, when he got the land, there was no easement and he was under no obligation to grant one.
Unless he had actual or constructive notice of the easement. the timing of the sale may indicate actual notice. The fact that the easment was for an existing road indicates constructive notice. So does the fact that Robbins seems to have known about a reciprocal easement over the existing road may be a very strong indicator of constructive notice.
It should be pointed out that this is somewhat dishonorable conduct on Robbins' part.
Why? He got land that was not burdened with an easement, and said he didn't want to give one. I don't get what's "dishonorable" about that.
The government could have been a hardass about the reciprocal easement deal with the previous owner. Annoying everybody, and driving up legal fees, by making sure that the reciprocal easements were signed and recorded at the same time, even if it meant denying the previous owner access to the very property he was then trying to sell.
The government didn't do that. And Robbins is effectively exploiting that kindness on the part of the government to try to have a one way easement over a road he knew was there when he purchased the property.
Maybe, ultimately, the existing road and existing easment in the landowner's favor ultimately give no rise to a duty of inquiry on the part of Purchaser Robbins. But, I would not slide as blithely to that conclusion as you do here.
It is no mystery why the gov't decided to go after this particular landowner aggressively.
I wonder how clean your hands have to be in equity to maintain a harrassment action.
Not very. And Robbins' hands are sparkly clean as far as I can tell.
Somehow I get the feeling if the roles were reversed, and the government was apparently playing fast and loose with the recording law and practices to get easements over the land, but deny reciprocal easements to Purchaser Robbins, effectively denying him access to his newly-purchased land, then you would suddenly understand this point about clean hands a whole lot better than you do now. For you, RCD, it is all about whose ox is being gored. You are not invisible, you know.
