Bush Administration: No Freedom From Government Harassment

Radley Balko | March 20, 2007

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.)

Comments

Guy Montag|3.20.07 @ 9:26AM|#

Maybe that list of fired fed lawyers should be expanded to 9*.

*Unless this guy is not in the group of lawyers that the AG was firing from, in which case this comment is null and void in all States and Territories except Nevada and Hawaii.

VM|3.20.07 @ 9:32AM|#

Thanks, Tim S, for bringing this to our attention!

|3.20.07 @ 9:40AM|#

AOBP
It's amazing what government actions the shee people are perfectly fine with, as long as they're imposed gradually.

Thomas Paine\'s Goiter|3.20.07 @ 9:45AM|#

Wait wait wait. So there are provisions against personal harassment, but government harassment is cool?

Fuck every single fucking worthless douchebag that works for the fucking government. Fuck them all. I hope you all die in a grease fire.

I. Self. Divine.|3.20.07 @ 9:52AM|#

TPG: Grease fire = way too painless. I'm hoping that they all die of a nasty infection after the fleas of 10,000 camels infest their pubes.

|3.20.07 @ 9:57AM|#

"No court," said Solicitor General Paul Clement in his brief, has "ever recognized a constitutional right against retaliation . . . in the context of property rights."

Translation: Anyone with a badge and a grudge can make your life precisely as difficult as he wants to.

As disheartening as it is for a US Solicitor General to use that as his argument, I guess it's a natural extension of thinking that people who ask for a trial deserve a more severe punishment the those who plead out.

Besides, it's true. As the Rack & Roll case shows, if those in authority want to screw with you, you're pretty much screws.

dhex|3.20.07 @ 9:59AM|#

"Head shots, head shots.... Kill the sons of bitches."

oh coo coo choo, mr. liddy-san,
wyoming needs you more than you could know
oh oh oh

Guy Montag|3.20.07 @ 10:03AM|#

Translation: Anyone with a badge and a grudge can make your life precisely as difficult as he wants to.

Unless they shoot an illegal alien, then they get beaten in prison.

|3.20.07 @ 10:04AM|#

Tough cases make bad law. The BLM really needs a good bitch slap from SCOTUS on this but I have no idea what rule(s) they can lay down to prevent this sort of thing. How do you tell the difference between action motivated by vindictiveness and legitimate law enforcement? Yes, its pretty obvious in this case. Hell, they seem to be admitting it. But can you tell the local cops they must turn a blind eye to blatent violations simply because enforcement would look suspicious after someone refused a state demand? With so many laws and regs on the books, everyone is guilty of something so harrassment is easy to carry out under the color of law.

I predict we'll get yet another "totality of the circumstances" test with a dozen disparate elements to confuse first year law students in property class. What we won't get is any clear restriction on people with badges acting like thugs.

|3.20.07 @ 10:06AM|#

Guy Montag | March 20, 2007, 10:03am | #
Translation: Anyone with a badge and a grudge can make your life precisely as difficult as he wants to.

Unless they shoot an illegal alien, then they get beaten in prison.

So, in your opinion, it's perfectly fine for them to shoot unarmed people in the back, regardless of citizenship, as they are fleeing??

Thomas Paine\'s Goiter|3.20.07 @ 10:10AM|#

So, in your opinion, it's perfectly fine for them to shoot unarmed people in the back, regardless of citizenship, as they are fleeing??

THEY TAKE OUR JOBS AND WELFARE!

*sigh*

I'm so glad I have Guy filtered.

|3.20.07 @ 10:12AM|#

""No court," said Solicitor General Paul Clement in his brief, has "ever recognized a constitutional right against retaliation . . . in the context of property rights."

Utterly astonishing.

Timothy|3.20.07 @ 10:22AM|#

I've always wondered how Guy afforded internet access on a fruit-picker's wages, but I guess now that he's lost his job he's got nothing to do but sit around and post on H&R. Oh, and to his blog, you know he has a blog, right?

|3.20.07 @ 10:28AM|#

So I RTFA, and one thing's not exactly clear: did the original owner, the putative grantor of the easement to the government, get money or an easement swap or other consideration for the easement in question, or did they receive "an offer they couldn't refuse", Godfather style? If the prior owner had granted the easement out of intimidation, the whole thing's a mess... but I suppose that we'd have heard it in the post. If the prior owner got paid, they in the end got something for nothing, and whether or not the title was properly updated, I don't believe the government has the right to unilaterally give away public assets or other considerations of value without statutory instructions to that effect. The government, as trustee of public assets, has a duty to complete or roll back the transaction.

What exactly happened in the case, anyhow: the article is oddly passive voice and not at all detailed about the agents' neglect here. It's unimportant to the corporeal harassment issues, but it is important to how I view what actually should shake out. How long a time passed between the agreement and the 1993 sale? A month? A decade? Did the BLM make a good-faith attempt that failed at a state or county registrar or something, simply incompetently not follow up; was it working through due process at some level, and the title search fail to catch it? Details!

If the deal was an easement swap and the cancelled easements across government land were completely and entirely the consideration for the private easement, that one part of the whole mess seems fair. Roll back the entire agreement. The rest of the harassment, not fair.

Do libertarians support the principle that an original owner of stolen or fraudulently obtained goods should be able to recover the property from an otherwise innocent third-party buyer of the stolen goods, after investigation?

|3.20.07 @ 10:32AM|#

Point well made, Keith. I was thinking the same, but too busy to type out. If it was purchased from prior owner, they should be able to reclaim it. However, harassment is not the way to handle it...and that is what this story is really about: their harassment.

Dave W.|3.20.07 @ 10:41AM|#

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.

It should be pointed out that this is somewhat dishonorable conduct on Robbins' part.

I wonder how clean your hands have to be in equity to maintain a harrassment action.

VM|3.20.07 @ 10:44AM|#

"Timothy | March 20, 2007, 10:22am | #
I've always wondered how Guy afforded internet access on a fruit-picker's wages, but I guess now that he's lost his job he's got nothing to do but sit around and post on H&R. Oh, and to his blog, you know he has a blog, right?"

he does? What sorts of stuff does he blog about? I'm not sayin', but I think his blog and wacko's blog have been living in sin for the past 9 and 1/2 weeks. I mean, I'm not sayin' they are, but you gotta wonder.

(hilarious post. Your Durbin Watson score is 2 here!)

Guy Montag|3.20.07 @ 10:49AM|#

I forgot, every illegal drug runner is really a victim because neither should be illegal.

Gotcha.

|3.20.07 @ 10:49AM|#

Oh, come on. Guy's not THAT bad that you need to filter him, is he? There's other candidates more deserving, surely.

Oh well. I guess I don't see why anyone filters anyone with anything other than their eyes and brains...

dhex|3.20.07 @ 10:53AM|#

hey, i'm not saying guy blogs a lot, but this guy, he blogs...he blogs so much

(how much does he blog?)

he blogs so much the only thing missing is compassion for brown people!

(raucous laughter from audience)

but seriously folks, he's been a good sport. let's give him a hand!

|3.20.07 @ 11:02AM|#

Someone needs to tell lonewhacko that in the time it took him to write his latest blog post, I was able to hire a couple Mexican immigrants who were able to wash my windows and mow my lawn.

I s'pose they took 'is jerb.

Grotius|3.20.07 @ 11:02AM|#

VM,

I've got a blog too! ;)

|3.20.07 @ 11:03AM|#

Again, Guy, in your opinion, is it justifiable for the feds to shoot any unarmed person that poses no imminent threat to them?

You make it sound as if being an illegal alien is just as dangerous as being a mooninite in Boston...they could detonate at any second!!

Grotius|3.20.07 @ 11:03AM|#

VM,

Oh, and did you notice how almost all the advertising on my page is about Greece?

VM|3.20.07 @ 11:05AM|#

Gro: Ad filter. :)

Unlike many blogs here (wacko's one, for example), I do check yours out.

that pic you have from four years ago is amazing.

Grotius|3.20.07 @ 11:12AM|#

VM,

Yeah, once I saw it I knew I had to put it on there. It is really, well, otherwordly.

|3.20.07 @ 11:14AM|#

isn't guy montag the same guy who bragged about keeping his shotgun chambered so there'd be no racking it and scaring would-be burglars away before he blows their head off?

Guy Montag|3.20.07 @ 11:18AM|#

Again, Guy, in your opinion, is it justifiable for the feds to shoot any unarmed person that poses no imminent threat to them?

You make it sound as if being an illegal alien is just as dangerous as being a mooninite in Boston...they could detonate at any second!!

Actually, I was using it as an example of where cops did not get to just screw with people because they have a badge.

D.A. Ridgely|3.20.07 @ 11:18AM|#

Taken out of context, Clement's quote seems far more audacious than it reads in the context of the government's entire argument. The legal question there is whether the BLM officials' acts constituted a violation of Robbins' 5th Amendment rights against a taking "for public use without just compensation," and if so, whether that gives rise specifically to a so-called Bivens action against those officials. In that specific context, what Clement is arguing is that the Supreme Court has not previously held that a Bivens action (as opposed to any other remedies that might be available to Robbins here) is an available remedy for the specific sort of 5th Amendment violation being alleged.

Now, having read only the Respondent's Brief and Petitioner's Reply Brief, I am inclined to think the Court is likely to rule in Robbins' favor here, albeit quite possible for fairly technical reasons regarding whether one of the Petitioner's Bivens defenses is properly before the Court for review (see Res. Br., pp. 32-41). However, Clement's argument is not nearly as outrageous in context (except in the sense that most legal argument of any sort is outrageous) as Sandefur's and Balko's quote fragment makes it appear. Based on what I have read so far, I would be surprised if the Court didn't affirm the 10th Circuit's decision but only on narrow grounds that fall far short of a sweeping repudiation of the substantive arguments raised by the government on the Biven question.

VM|3.20.07 @ 11:28AM|#

"Mr. Steven Crane | March 20, 2007, 11:14am | #
isn't guy montag the same guy who bragged about keeping his shotgun chambered so there'd be no racking it and scaring would-be burglars away before he blows their head off?"

No, Mr. Steven Crane. That was you. Remember, you claimed this after you, by mistake, squirted Formula 409 in your eye after you slipped when you were defrosting yer freezer.

Dave W.|3.20.07 @ 11:28AM|#

I would be surprised if the Court didn't affirm the 10th Circuit's decision but only on narrow grounds that fall far short of a sweeping repudiation of the substantive arguments raised by the government on the Biven question.

???

I think DAR is saying that Robbins will win a small or incomplete victory against the government on his harrassment-is-a-taking claim.

Assuming I parsed that okay: then why did SCOTUS take cert on this particular case?

|3.20.07 @ 11:31AM|#

It should be pointed out that this is somewhat dishonorable conduct on Robbins' part.


Not necessarily. It doesn't say whether Robbins knew about the easement. If he was unaware, it may have been somewhat dishonorable conduct on the previous owner's part, but on the other hand the previous owner may have assumed that it would come up in the title search.

|3.20.07 @ 11:34AM|#

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.


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.

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.

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.

|3.20.07 @ 11:36AM|#

oh yah. thanks for reminding me VM.

see i hit my head on the floor and i have a hard time remembering these things.

NATURE TO BE COMMANDED MUST BE OBEYED, etc

VM|3.20.07 @ 11:37AM|#

DEMAND CURVE!!!

Go 'way! 'Bating!

|3.20.07 @ 11:40AM|#

oh man VM. you watching that mom jeans video again?

mom jeans! ...mom jeans.

you'll love that nine-inch zipper!

|3.20.07 @ 11:42AM|#

I wonder what the easement was for - if for some sort of vital resource, then some sort of eminent domain action could be argued.

Hypothetically, suppose someone owned a piece of land which did have the only access to a vital resource needed by the larger community. Similarily the government has an easement on the land. He sells it to someone else but the government then fails to record it. The new owner fails to grant the easement. But in this hypothetical case that means great deprivation for the rest of the community. This is not arguing a purist utilitarian position that one person or his property can be sacrificed to the greater good - only that a passage through the property should be allowed.

D.A. Ridgely|3.20.07 @ 11:45AM|#

It is uncontested that respondent [Robbins] was unaware of the BLM's easement when he completed the purchase and recorded his warranty deed, thereby extinguishing the unrecorded easement. (Respondent's Brief, p.4)

Dave W., what I'm saying based on what little I've read is that Robbins will probably win in the limited sense that the Supreme Court will not specifically hold in favor of the government's position on Bevins actions here. Beyond that, I have no idea. (I do, however, think that Robbins' use of RICO against the BLM officials is iffy.)

D.A. Ridgely|3.20.07 @ 11:47AM|#

er, Bivens ... [must have more coffee!]

Grotius|3.20.07 @ 11:56AM|#

DAR,

Isn't it the case that contexts in which one can bring such an action have been viewed narrowly over the years? If so, why wouldn't the government prevail on that issue?

Dave W.|3.20.07 @ 11:57AM|#

It is uncontested that respondent [Robbins] was unaware of the BLM's easement when he completed the purchase and recorded his warranty deed, thereby extinguishing the unrecorded easement. (Respondent's Brief, p.4)

Then again, the easement related to an existing road, to which the previous owner had been granted some reciprocal easement rights. So, it is possible that the Respondent's attorneys are being disingenuous in that quote. being unaware is not the same thing as lacking constructive notice.

From the petitioner's brief, it looks like the case is more about immunity (can Robbins bring the suit), rather than the ultimate, substantive merits of Robbins claim (was there really harrassment here or not). I don't like government immunity much so I hope Robbins wins on that. On the other hand, if Robbins and the previous owner engaged in a scheme to get an easement on the road without granting a reciprocal easement, based on a technicality of dubious legality, then I hope the district court hands those dirty hands a bill for the government's costs in this litigation, along with a phat easement in favor of the gov't.

The Wine Commonsewer|3.20.07 @ 12:01PM|#

Translation: Anyone with a badge and a grudge can make your life precisely as difficult as he wants to.

That isn't new, it's just that in this case, the government is freely admitting the truth.

Kid Handsome|3.20.07 @ 12:06PM|#

Hypothetically, suppose someone owned a piece of land which did have the only access to a vital resource needed by the larger community. Similarily the government has an easement on the land. He sells it to someone else but the government then fails to record it. The new owner fails to grant the easement. But in this hypothetical case that means great deprivation for the rest of the community. This is not arguing a purist utilitarian position that one person or his property can be sacrificed to the greater good - only that a passage through the property should be allowed.


If the above were true, then community members could negotiate with the owner to get to that resource. The owner could make a tidy profit. The private purveyors of whatever resource gathering business could run the resource gathering more efficiently, and the government wouldn't have to be involved (other than to get Caesar's due). Certainly the government wouldn't have to corruptly selectively enforce, at gunpoint, one of the myriad laws that, isolated among the thousands, not many people would know exists. Certainly no one posting on this comment thread claims to know every tiny law and minor regulation out there.

|3.20.07 @ 12:14PM|#

alcrane,

It's just access to a road that crosses the property, it seems from one federal parcel to another. The 10th circuit brief I found from the other link doesn't fully satisfy the questions I posed in an earlier post. It's still unclear to me if Robbin's other rights and permits were in exchange for this one, or existed previously.

http://www.kscourts.org/CA10/cases/2006/01/04-8016.htm

"...Robbins purchased the ranch from George Nelson who had granted to BLM a non-exclusive access easement along a road on the ranch. BLM failed to record the easement, however, and Robbins had no notice of it when he purchased and recorded his interest in the ranch. Thus, under Wyoming's recording statute, Robbins took ownership of the ranch unencumbered by the easement. Robbins also had various BLM preference rights, livestock grazing permits, and a special-recreation use permit allowing him to use federal lands adjacent to his property. "

Dave W.|3.20.07 @ 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.

D.A. Ridgely|3.20.07 @ 12:17PM|#

Grotius:

That certainly appears to be the government's position, but it's not an area of law about which I know much and I'm not about to go weeding through the case law.

Dave W:

As you have purported on occasion to be a lawyer, you must certainly know (or should I say be on constructive notice?) that the Court is not going to engage in fact questioning but will take the undisputed facts of the case as certified and consider only questions of law.

Guy Montag|3.20.07 @ 12:19PM|#

Are we getting to the part where the watery tart tosses swords at people?

D.A. Ridgely|3.20.07 @ 12:28PM|#

Grotius:

Sorry, I didn't entirely answer your question. I don't think the Supreme Court will tackle the Bivens point head on because of the procedural history of the case. The government apparently failed to raise some of the relevant questions and arguments involved at various stages of the lower court proceedings and so may not be able to persuade the Court that those questions are now properly before it for resolution.

Dave W.|3.20.07 @ 12:28PM|#

As you have purported on occasion to be a lawyer, you must certainly know (or should I say be on constructive notice?) that the Court is not going to engage in fact questioning but will take the undisputed facts of the case as certified and consider only questions of law.

Do you suspect that I am not really a lawyer, somehow, DAR? (Side note to Grylliaders: I never claimed to be working on a degree in ComP Sci -- don't know where that came from.)

To answer your charge, like I said: I hope that SCOTUS confirms Robbins right to sue on the immunity issues (that is, legal issues) properly before SCOTUS. Then I hope the district court or tribunal does what it is supposed to do to litigants that come to court w/ unclean hands. Presumably, facts would be involved at this future stage.

No, I don't want SCOTUS wasting their time with what Robbins knew and when he knew it. More preferably, I would prefer SCOTUS not to be wasting its time with this case at all. I don't half wonder whether they granted cert primarily so that they could look like they are developing 5th amendment law favorable to property owners without setting any dangerous precedents. Political pressure running counter to jurisprudential pressure, etc., etc.

Grotius|3.20.07 @ 12:32PM|#

DAR,

...that the Court is not going to engage in fact questioning but will take the undisputed facts of the case as certified and consider only questions of law.

Well that's how the theory works, right?

In that specific context, what Clement is arguing is that the Supreme Court has not previously held that a Bivens action (as opposed to any other remedies that might be available to Robbins here) is an available remedy for the specific sort of 5th Amendment violation being alleged.

That doesn't keep them from raising it sua sponte though.

|3.20.07 @ 12:34PM|#

Guy,

Strange women lying in ponds distributing swords is no basis for a system of government.

D.A. Ridgely|3.20.07 @ 12:43PM|#

That doesn't keep them from raising it sua sponte though.

Although strictly speaking sua sponte isn't quite the right phrase here, sure, the Court can always decide any point of law including jurisdictional questions any way it chooses. I just don't see that happening in this case.

Guy Montag|3.20.07 @ 12:44PM|#

Pro Libertate,

Well, it sure does not sound like an autonomous collective!

|3.20.07 @ 12:44PM|#

"isn't guy montag the same guy who bragged about keeping his shotgun chambered so there'd be no racking it and scaring would-be burglars away before he blows their head off?"

[Gun Nut Pedantry]

Um, the whole "racking the bolt scares off a criminal" is one of the most persistent myths of self defense ever to drill itself into the popular psyche.

Besides, if your HD shotgun is a semi-auto (as Guy's evidently is) you're better off leaving one up the snout as the bolt handles on semi's are smaller than the grip on a pump action.

[/Gun Nut Pedantry]

Guy Montag|3.20.07 @ 12:47PM|#

Besides, if your HD shotgun is a semi-auto (as Guy's evidently is) you're better off leaving one up the snout as the bolt handles on semi's are smaller than the grip on a pump action.

I have one of each. A Benelli Nova Pump and a Saiga-12.

Guy Montag|3.20.07 @ 12:49PM|#

Oh, and I agree with you about that myth. It just lets them know where you are and wastes time.

fyodor|3.20.07 @ 1:01PM|#

Then I hope the district court or tribunal does what it is supposed to do to litigants that come to court w/ unclean hands.

So, "unclean hands" are a proper basis for government harrassment?? I think if there was something improper in Robbins's purchase of the land and/or his denial of easement, the proper (though I hate using that word so much!) thing for the government to do is to take him to court and prove they're right about that and he's wrong. The proper (ouch!) thing for the government to do is NOT to harrass him with unequal and vindictive law enforcement.

VM|3.20.07 @ 1:07PM|#

"Pro Libertate | March 20, 2007, 12:34pm | #
Guy,

Strange women lying in ponds distributing swords is no basis for a system of government."

you're just saying that 'cuz a watery tart never lobbed a scimitar at you..

neener neener :)

Dave W.|3.20.07 @ 1:19PM|#

So, "unclean hands" are a proper basis for government harrassment?? I think if there was something improper in Robbins's purchase of the land and/or his denial of easement, the proper (though I hate using that word so much!) thing for the government to do is to take him to court and prove they're right about that and he's wrong. The proper (ouch!) thing for the government to do is NOT to harrass him with unequal and vindictive law enforcement.

No, I am saying that the dirtiness of somebody's hands is a proper basis for the government excercising selectivity in the enforcement of its pre-existing laws. In other words, I think the government should get a lot more discretion to selectively enforce laws against one with unclean hands than one with clean hands.

I think there is a powerful economic efficiency argument there because lawsuits are expensive.

There are limits to the foregoing, of course. However, and pending more information about the full factual background of this case, it is possible that Robbins deserved the selective enforcement he suffered.

In this case, from what I can tell, there was an existing paved road that meandered over public lands and the privately owned parcel at issue. There was a new, recorded easement in favor of the property owner for the parts of the road on public land. Yet there was an absence of a recorded easement in favor of the public on the parts of road on private land. I don't think you have to be a real estate mogul to know what the colour of the flag is here.

|3.20.07 @ 1:47PM|#

Racking a pump shotgun may not scare off the intruder but man, it sure does bring a smile to my face...

|3.20.07 @ 1:52PM|#

The Supreme Court's Takings Clause jurisprudence recently seems to have been a rash of these weird little cases discussing issues that affect very few landholders.

It's almost as if they are purposely avoiding taking on the partial takings problem or the Williamson County exhaustion requirement--which are the issues that bedevil most litigants trying to assert their rights under the Takings Clause. But they're glad to take a case featuring a disgruntled inholder...

|3.20.07 @ 1:54PM|#

In other words, I think the government should get a lot more discretion to selectively enforce laws against one with unclean hands than one with clean hands.

You assume a lot of good faith on the part of law enforcement agencies. I don't think the record here particularly supports that assumption.

Selective enforcement of the law based on something as nebulous and subjective as who has "clean hands", who is a "good citizen", is a very dangerous road to go down.

|3.20.07 @ 2:12PM|#

*Peeks out from behind the filter.*

*Sees that Dave W. is still posting.*

*Yep, still crazy.*

Dave W.|3.20.07 @ 2:18PM|#

Selective enforcement of the law based on something as nebulous and subjective as who has "clean hands", who is a "good citizen", is a very dangerous road to go down.

I agree that this is a hard line to draw, in general.

In this particular case, maybe not so much.

If I were a judge, I would be thinking along the lines of "willful blindness" law and whether I thought Robbins was being willfully blind to the gov't easement. I am open to the idea that he was not being willfully blind. I am also open to the idea that he was being willfully blind.

Judges make these kinds of calls all the time, of course.

fyodor|3.20.07 @ 2:18PM|#

No, I am saying that the dirtiness of somebody's hands is a proper basis for the government excercising selectivity in the enforcement of its pre-existing laws. In other words, I think the government should get a lot more discretion to selectively enforce laws against one with unclean hands than one with clean hands.

Seems like deciding who has clean or dirty hands outside of a court of law is contrary to our entire legal system and to the concept of rights.

I'll grant you this much. If the situation at this property that made the government want the land in the first place is such that it warrants differential enforcement, then ipso facto. That should apply to anyone with land with similar attributes.

But if the government is doing this as a punitive measure in lieu of taking the guy to court, I don't care how expensive litigation is, that's fucked up. It's taking the law into one's own hands. And just because it's the government doing it don't make it any more excusable.

LarryA|3.20.07 @ 3:46PM|#

If I were a judge, I would be thinking along the lines of "willful blindness" law and whether I thought Robbins was being willfully blind to the gov't easement. I am open to the idea that he was not being willfully blind. I am also open to the idea that he was being willfully blind.

IANAL, nor do I play one on TV. However, this case, which remember was brought by Robbins against the government, is about harassment, not the lease.

If the government has a legal argument that it owns the right of way it should go to court and press it. If the government can prove Robbins defrauded BLM, nail him on that cause. The "willful blindness" argument belongs in that case, not this one.

If not, then the government should negotiate in good faith to secure the right of way.

If the government lost the right of way because a bureaucrat screwed up, then come down on the bureaucrat, not Robbins.

From the article: It is unfortunately common for officials, especially at the local level, to use their power to intimidate property owners. Licensing requirements, safety and sanitation regulations, inspection requirements, and other rules give ambitious bureaucrats plenty of opportunities. It then cites several other cases where propertyowners were officially harassed.

That's just wrong. And in a free country, illegal.

LarryA|3.20.07 @ 4:04PM|#

[More Gun Nut Pedantry]

Um, the whole "racking the bolt scares off a criminal" is one of the most persistent myths of self defense ever to drill itself into the popular psyche.

Amen. I've been teaching this stuff for a quarter century now, and this loser's right there with "If he falls outside your house, drag him inside." Hello? CSI is at least based on fact.

Keep a self-defense shotgun or handgun fully loaded. If you have an opportunity to warn the predator, simply say "I have a gun" in a loud, clear voice. He will believe you. (Unless you live someplace with gun laws so retarded you can't have the firearm in the first place, like D.C. or Chicago. I live in Texas, where warning someone breaking into your castle that you have a gun is redundant.)

That way you don't have to give away 1/6 of your ready ammunition. (In the case of most shotguns. With my handgun it's 1/11 rounds.)

I have one of each. A Benelli Nova Pump and a Saiga-12.

I also have a Benelli Nova. Aren't they great?

[/More Gun Nut Pedantry]

|3.20.07 @ 4:36PM|#

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.

A-fuckin'-men.

|3.20.07 @ 6:05PM|#

Solidarity Brother!

/closes gate

/runs away

Guy Montag|3.20.07 @ 6:52PM|#

I have one of each. A Benelli Nova Pump and a Saiga-12.

I also have a Benelli Nova. Aren't they great?

Truly awsome.

|3.20.07 @ 7:41PM|#

LarryA,
Always with the sound advice. If I'm ever in your part of Texas, I would love to take some gun-using lessons from you.

h: What's this?

L: That's the trigger.

h: What's this?

L: That's the barrel.

h: What's in there?

L: Don't point that at your eye!

h: You never told me what the trigger does.

[BLAM!]

Maybe I should stay away from guns.

|3.20.07 @ 10:15PM|#

highnumber - You should always assume a gun is loaded and has a round in the chamber and would be advised not to point the barrel of the gun at your head at any time unless it was taken apart and you were cleaning it.

Sounds like Guy could be a fine gun lesson provider, although in my experience, I've often been one of the most safety conscious persons around, which can be kind of uncomfortable. Except at the range, of course, where the guys who work there are generally total professionals.

|3.21.07 @ 1:39AM|#

"Oh, and I agree with you about that myth. It just lets them know where you are and wastes time."

Oh please. Don't gimme that shite.

You act like you're home is invaded on a regular basis and you've had to cap quite a few bad guys to keep your stuff safe.

Your advice is logical and true, but ignores the fact that most people will never. I repeat. Never have the need to use deadly force for self defense. Your willingness to state that you would kill to protect your possessions is just posturing and silly. Until faced with the situation you don't know what you would do.

I hope you can follow LarryA's advice.

Guy Montag|3.21.07 @ 8:25AM|#

Your willingness to state that you would kill to protect your possessions is just posturing and silly.

I am not protecting my possessions, I am protecting me. They will not die because of a television; they will die for violating the sanctity of my home.

I really don't care who else is never bothered by people breaking into their homes, I care what happens if it happens to me. Most people will never be injured in a car accident either but it does not mean they should not pay attention to what other drivers are doing. No that is not the central point, see above for that.

Dave W.|3.21.07 @ 9:39AM|#

I'll grant you this much. If the situation at this property that made the government want the land in the first place is such that it warrants differential enforcement, then ipso facto. That should apply to anyone with land with similar attributes.

Here is a hypo:

Imagine that you had just bought your house and had a real estate attorney thorough re-review the status of all the easements. Your attorney informs you that there is a defect in the easement for the portion of your property that is the street running past the front of your new house. The defect, whatever it is, is so severe that there is no legally binding easement -- although it was clear that all parties had intended for the easement to exist.

Your attorney also informs you that they will not pay you for a new easement because the city takes the position that the existence of the street itself creates an easement by course of conduct as it were.

Given the city's stance, your attorney further informs you that if you immediately shut down the street in front of your house, then the following outcomes have the following probabilities:

75%: you win a lot of money (either from increased property value for keeping the street shut, or else from an eventual payment from the city after they have been convinced that it is the only way to re-open the street).

or

25% a court will decide that the existence of the street itself legally provides an easement, despite the recording defect.

What would you do -- close the street or leave it open? Would ethical concerns enter into your decision?

|3.21.07 @ 10:22AM|#

Hypothetically, suppose someone owned a piece of land which did have the only access to a vital resource needed by the larger community. Similarily the government has an easement on the land. He sells it to someone else but the government then fails to record it. The new owner fails to grant the easement. But in this hypothetical case that means great deprivation for the rest of the community. This is not arguing a purist utilitarian position that one person or his property can be sacrificed to the greater good - only that a passage through the property should be allowed.


If the above were true, then community members could negotiate with the owner to get to that resource. The owner could make a tidy profit. The private purveyors of whatever resource gathering business could run the resource gathering more efficiently, and the government wouldn't have to be involved (other than to get Caesar's due). Certainly the government wouldn't have to corruptly selectively enforce, at gunpoint, one of the myriad laws that, isolated among the thousands, not many people would know exists. Certainly no one posting on this comment thread claims to know every tiny law and minor regulation out there.

That's standard libertarian theory where everyone isa rational actor. But how well does it hold up in practice?

Dave W.|3.21.07 @ 10:37AM|#

Hypothetically, suppose someone owned a piece of land which did have the only access to a vital resource needed by the larger community. Similarily the government has an easement on the land. He sells it to someone else but the government then fails to record it. The new owner fails to grant the easement. But in this hypothetical case that means great deprivation for the rest of the community. This is not arguing a purist utilitarian position that one person or his property can be sacrificed to the greater good - only that a passage through the property should be allowed.

I don't know every law and detail, but I think a paved road through the land should either create an easement, regardless of recording, or else put the land purchaser on notice that an unrecorded easment may be there.

I would feel differently about the equities in this case if the defective "easement" didn't have such a tangible manifestation on the property at the time of purchase.

If this were an easement to build a future road where none existed, then I would feel differently, but, in that case it is impossible to say whether the state would be playing hardball with Purchaser Robbins here.

|3.21.07 @ 12:16PM|#

FYI,

There is no paved road any where near the contested easement. There is a rough dirt road accessible only by high clearance vehicles. These type of roads exist all over private property.

Even without the road there is still access to the BLM land that is on the other side of the private property. Not by pickup, but a horse or your feet can get you there without ever trespassing on private property.

Dave W. (admitting defeat)|3.21.07 @ 1:14PM|#

There is no paved road any where near the contested easement. There is a rough dirt road accessible only by high clearance vehicles. These type of roads exist all over private property.

Actually, Ralphie is correct. there is no paved road. I read the briefs carelessly and thought the reference to the road "crown" in the Petitioner's Brief implied a paved road. Upon closer inspection, the Petitioner's Brief specifies that the road was a dirt road at the time of Robbins' purchase.

Still, it is quite possible that the facts tat the dirt road also ran over public land, and, more tellingly, that there was a brand spanking new easement in favor of the land owner to maintain the road for commercial use may have been enough to put Robbins on effective notice of the easement.

That said, upon my more careful review of the Petitioner's Brief, I now also see that the BLM admitted at some point that the easement the previous owner gave in favor of the government was legally ineffective. To me, that admission means the BLM should lose, not just on the immunity claim before SCOTUS, but also on any substantive defense that the BLM had a proper basis for selective enforcement of the grazing laws and such.

[b]You guys have convinced me that the government should lose here on everything. Good lawyering![/b]

If the BLM wanted to go after anyone, then maybe they had a claim against the previous owner, but not Purchaser Robbins.