High noon for Hot Springs Rancher at Supreme Court

Groundbreaking U.S. Supreme Court Case starts today...

"Such issues as federal wolf management on private property; the durability of civil rights in an era of expanding federal power; the relevancy of eminent domain; and whether Joe Blow can sue Don Rumsfeld are now poised for game-changing precedents."

By GIL BRADY
The Cowboy Picayune-Sunny Times

Filed 3.19.07

THERMOPOLIS, Wyo. (CT) – For a man widely viewed as an ungrateful troublemaker and unsung folk hero, nestled among 100,000 or more pristine acres of ancient tribal lands and dinosaur graves, there is a primal logic in the fact that Harvey Frank Robbins’ case before the U.S. Supreme Court today will beg the justices to excavate the very bones of the 5th Amendment.

Among other considerations, the high court will have to decide whether the 5th Amendment, like the 1st and the 4th, protects citizens from unlawful retaliation for exercising a presumed right.

Cheyenne attorney Karen Budd-Falen argues her client has an “embedded” right under the 5th Amendment’s “Takings Clause” to exclude Uncle Sam from Robbins’ property after Robbins declined a land swap offer he judged “unjust” -- preventing the government from regaining a preexisting easement.

Court documents show BLM forgot to record the right-of-way before Robbins, 52, bought the land in question.

Though the national media tends to view these western “get-off-my-land” disputes as another quaint, age-old comedy of manners such ornery contemporaries as Nevada rancher Wayne Hage, and now Robbins, are forcing serious jurists to wring their hands where none so high beforehand have even waved.

What has been most overlooked in Robbins’ backwater feud—besides the uniquely western intimacy between large property owners and federal range managers—is that more is riding here than some born to the manor hobby rancher’s macho posturing.

Depending on how the nine justices rule in Wilkie v. Robbins many raging national controversies could be exposed to a sea change of new legal intrigue.

Such issues as federal wolf management on private property; the durability of civil rights in an era of expanding federal power; the relevancy of eminent domain; and whether Joe Blow can sue Don Rumsfeld are now poised for game-changing precedents.

Robbins’ mixed reputation

While one guiding light to aiding the court’s decision will likely require divining the constitutional framers’ ‘original intent’, over the course of his 13-year battle with federal officials Robbins’ critics have wondered as much about the soul of a rubber-flooring scion from a wealthy, well-connected Alabama family.

Wyoming news archives and pressure group newsletters have portrayed Robbins’ one-man range war with the Bureau of Land Management as a rogue rancher recklessly throwing his money and influence around to gratify his land-grabbing egoism.

For some public domain activists, Robbins evokes comparisons to an archetypal throwback from the age of the greedy cattle baron.

And much of Robbins’ biography and lifestyle fits his detractors' profile of a moneyed southerner who, upon arriving from afar, exploited Wyoming’s vast open ranges while blowing off such homespun virtues as neighborly cooperation and normal federal range management practices.

However, none of their characterizations will likely impress the justices.

Where lesser mortals would have been litigated into penniless obscurity, Western Watersheds Director Jonathan Ratner sees in Robbins’ case complexity.

“You couldn’t have picked a worse place in all of Wyoming than Robbins’ three ranches,” Ratner said by phone Thursday. “It’s an incredibly complex land ownership structure.

“You’ve got small patches of private and BLM all mixed-up. This is way worse than just checkerboard. On private lands, sure he can do just about anything. But when you’re talking about public lands the whole thing shifts to a totally different framework. These are our public lands we are talking about.”

Robbins maintains that once denied, BLM targeted him with “false documentation,” stacked allegations and “non-willful” violations. Earlier this month, during a national press conference, Budd-Falen told a reporter evidence—including e-mails—allegedly shows BLM rewarded its employees through “bonuses and raises” for attempting to extort the easement from Robbins.

Robbins said last week that a ranch hand on horseback once caught unknown persons trespassing in a car before driving off. The tag number, he said, was later traced to the Interior Department.

Arriving in the dead of night

For a guy whose reputation for evicting strangers precedes him, Robbins appeared to be sound asleep inside his discreetly lit Southern-style farmhouse hours before a scheduled interview on the Saturday morning he was to leave for Washington.

“Just come on in the front and make a left at the top of the staircase,” Robbins instructed the photographer well before his arrival at around 2:30 a.m.

None of his perfect instructions, however, included how to heel Robbins’ pack of barking old dogs that circled curiously around the unfamiliar Jeep. That is until one militant young spotted mutt, with eyes like a ghost, nearly leapt through the vehicle’s open window. After a few minutes of yapping and leaping, the mutt moseyed off to join the others, yawning into their places on the sheltering porch.

2 hours with Robbins

At 7:15 a.m. a herd of antelope wandered in the tawny knee-high grass well-beyond the huge fishbowl rear window of Robbins’ cathedral-like shrine to hunting—its living room walls a Valhalla to game animals worthy of shooting, stuffing and hanging.

Upstairs in the open den, a massive buffalo torso, mounted vertically on the spit polish hardwood balcony, overlooked Robbins sipping coffee in a chair below. One glassy eye in the beast’s huge head stared somewhere between heaven and earth. Bookcases of bibles and inspirational tracts stood respectably beside neatly framed photographs of Robbins’ handsome family.

Space, lots of it, was big around here, as was Spic and Span cleanliness.

The interview began with Robbins standing while looking out the fishbowl of high desert plains and grazing wildlife before speaking of the government. His open-necked red flannel shirt and one of his white tube socks looked a little loose.

“They’re not all bad,” Robbins said of federal employees. “But I swear someone needs to rein them in some.”

Asked if a black man in his shoes would have gotten as far as the United States Supreme Court with the same case, Robbins said, “Yeah, I think so. And probably quicker.”

Bad blood

Upon moving to Wyoming in 1994 and buying up three parcels, the last in 2000, Robbins dream to hunt and ranch on the 117, 962 acres—of which 47 percent are private, 47 percent are BLM leases and 6 percent are state leases—ran afoul of bureaucratic policies involving access to federal lands, monitoring reports, grazing plans, permit applications and obeying rules and regulations.

Robbins’ combined spread spans about 45 miles and runs along the Wind River Reservation and Owl Creek Mountains. For over 20 years, people have sought better access to this highland oasis of spectacular beauty and recreational opportunities.

Officials considered providing public access to the South Fork Owl Creek Road. But neither the state nor the federal government owned the road, which cuts through Robbins’ property.

From the get go, Robbins and the Worland BLM field office clashed with Robbins accusing range managers of “blackmail” for denying him a right-of-way permit unless he surrendered the reciprocal easement across his land so officials could reach public grazing allotments.

“They wanted a reciprocal easement ½ mile for their land and 6 miles of my land. I would have to maintain the road and have to pay them to maintain. But (they) would (not) negotiate a more equitable arrangement, Robbins said about BLM’s alleged unjust land swap offer.

As the standoff escalated, Robbins claims now-deceased BLM boss Joe Vessels warned:“The federal government does not negotiate.”

Between 1997 and 2003, Ratner and others allege BLM files and photographs show Robbins’ cattle trespassing on his neighbors’ property and on his neighbors’ BLM grazing allotments; placing too many head on his allotments; obstructing a neighbor’s use of a cattle trail; claiming his cattle were on private pasture when they were on BLM pastures; dude ranching over BLM lands without permits; and refusing to modify his grazing practices to protect drought-starved rangelands from further damage.

But his federal-sized dust-up would gain national notoriety when the Interior Department’s own inspector general said Bush administration officials had intervened on Robbins’ behalf and brokered an unusual deal.

While decrying the erosion of civil liberties under prior administrations Robbins bowed his head when asked if such Bush White House initiatives as the Patriot Act and the NSA’s warrantless spying on Americans had also contributed.

“Yes,” Robbins said.

The Sweetheart Deal

According to a U.S. Interior Department report, Robbins settlement “circumvented” normal negotiation processes, excluded the BLM from the negotiations, and ignored concerns about the settlement raised by the Justice Department.

The 2002 deal pardoned Robbins’ 16 trespassing violations and said only BLM’s director could cite him for future violations—taking the unusual step of defanging both the Worland, Wyo., BLM office and its headquarters in Cheyenne.

Robbins did not outright deny his influence-pedaling through a well-connected friend. Rather he insisted: “This is not just about what I did. This is about what they did too.”

The Conspiracy Paradox

And it is here where more than one court backs Robbins’ contention that BLM’s harassment campaign exceeded their regulatory powers to aggressively enforce regaining the easement.

According to court papers, after Robbins refused the easement “his relationship with BLM deteriorated.”

After more run-ins with officials, Robbins was criminally charged with “two counts of knowingly and forcibly impeding and interfering with a BLM employee.” A Wyoming jury deliberated for 25 minutes before acquitting him, court records show. Afterward, jurors reportedly said they were “appalled by the actions of government.”

No matter how sure one’s doubts about whether Robbins dealt squarely with federal range managers, one federal appeals court and a jury have now decided the man with deep-pockets and friends in high places has substantiated enough allegations of a Podunk conspiracy to warrant a civil jury trial in a U.S. District court in Wyoming. But the government appealed the 10th Circuit Court’s 2006 decision to the Supreme Court, stalling the lawsuit before it could proceed.

“Nevertheless, we conclude that if Defendants engaged in lawful actions with intent to extort a right-of-way from Robbins,” the justices of the 10th U.S. Circuit ruled, “rather than with intent to merely carry out their regulatory duties, their conduct is actionable under RICO.”

Known as the “Racketeer Influence and Corrupt Organizations Act,” the U.S. Justice Department’s Web site says RICO’s aim is “the elimination of the infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce.”

Originally, RICO was designed to bust the mob by holding “Godfathers” accountable for patterns of crime suggesting an illegal enterprise regardless of whether they participated in actual crimes.

Signed into law as the centerpiece of President Richard Nixon’s 1970 crime bill, RICO strengthened the government’s hand to also crack white-collar criminal rings by folding older racketeering laws into a new scheme that gave stiff jail times.

Generally, but not always, an offender must violate two or more serious crimes within 10 years. They include: murder; kidnapping; gambling; arson; robbery; bribery; extortion; money laundering, drug running or dealing; forgery; smuggling; counterfeiting; hijacking; stealing from pension and welfare funds; extortionate credit transactions, wire and securities fraud; and other organized crimes including obstructing justice, witness tampering, and slavery.

Besides criminal statutes, RICO contains civil provisions allowing triple monetary awards. The law has rarely been used against the government. However, in 1984 Key West, Fla., officials were prosecuted under RICO when the FBI declared its police department “a criminal enterprise.”

About this apparent paradox of Robbins’ case suggesting both high-level political collusion and a backcountry conspiracy, Ratner did not disagree. However, he did offer an explanation for how such an improbable state of affairs could have arisen.

“Though only 1.5% of Wyoming’s population is involved in agriculture, the vast majority is sympathetic with ranchers and anti-federal government sentiment runs throughout the state.”

Ratner added that he perceived in Robbins an “an anti-federal attitude,” which he also found ironic. “He’s the top recipient of federal farm subsidies in Hot Springs County.”

Between 1995 and 2005, Robbins received $226,118 in federal farm subsidies, the Environmental Working Groups reported.

Western Watersheds, Ratner’s advocacy group, had sued BLM to enforce their alleged trespass violations against Robbins before dropping litigation after the bureau revoked Robbins' grazing permits.

Addressing his reputation for disliking the government, which surfaced during a national press conference this month, hosted by the Pacific Legal Foundation, Robbins said, “I wasn’t offended by CNN’s ‘anti-government question’. The way I read it is: ‘They have concluded government hasn’t done anything wrong by virtue of (me) being wrong’.”

PLF has also briefed the high court in support of Robbins.

RICO & Robbins’ Can of Worms

Ratner worries about the Supreme Court giving Robbins a chance to sue federal employees under RICO for allegedly trying to shake an easement out of him. He also says BLM employees were just doing their jobs.

“This will open a massive can of worms, he said.

“Federal servants will just sit in a chair, afraid to take any action fearing personal liability. It will paralyze federal regulators ability to do their jobs,” he predicted, “because they fear they could be put up for RICO.”

Ratner added that only after “The Department of Justice realized (anyone) could use (Robbins’) suit to sue Donald Rumsfeld and his crew” did government lawyers “start to speed up defending their employees” in Wyoming.

The public waterways advocate added that if BLM employees have to face a Wyoming jury, they will not stand a chance at a fair trial. He also said two BLM employees named in Robbins' suit that he knew were decent public servants.

In a 2003 press release on Robbins' situation, Ratner wrote: "In truth, a major part of the impetus to open an office in Wyoming is the result of desperate pleas from federal agency personnel with professional integrity. They are getting ground up between the proverbial rock and hard place by pressure from Washington, D.C. to do all manner of illegal activities on our public lands."

Asked whether he would sell the ranch and how much he and Budd-Falen intended to sue for, Robbins said he hoped to reunite his family and grandchildren, some of whom currently live out-of-state. Should his lawsuit proceed, Robbins said more than likely it would be for tens of millions of dollars “but not a $100 million or anything like that.”

The high price tag under RICO’s triple damages Robbins said was to cover his financial losses due to what he says was BLM’s campaign to ruin him. He hoped the money would help prevent having to split up his ranch into “40-acre lots,” which he believed activists working with the federal government desired.

Busying herself nearby after serving sugary hot buns from the oven, Karen, his wife of over 30 years, talked on the phone and fed jelly toast to their two grandchildren at a small plastic table. Two young men in cowboy hats and jeans entered and said good-morning. Robbins introduced his son-in-law and promised a ranch hand that he would return from Washington in time to attend his Air Force graduation ceremony.

Since 1997, Robbins said none of his Hot Springs ranches, situated about 30 miles outside Thermopolis, have turned a profit. Still, his ambition to resume serious ranching runs deep. His cow/calf operation so far this year he said had produced about two-hundred and fifty head, including many prized heifers. But the BLM’s yanking of his grazing permits has hurt his bottom line.

“We used to run about 3,500 pairs. Now we’re around 800 cow-calf pairs. So we’re at about 25%, he said.

“I think God has made it work for us. I can’t go back and tell you how he has made it possible for us. I haven’t made money since 1997. It’s hard to push yourself without making a dime.”

Eminent Domain and Original Intent

In his primer, Legal Reasoning and Political Conflict, University of Chicago law professor Cass R. Sunstein argues that many debates on legal interpretation are “highly dependent on context and role.”

Because Robbins’ case stems from the implied “right to exclude” others from one’s land under the 5th Amendment, the nine justices will probably have to ask whether that implied right is what the constitutional framers intended without actually saying it.

The 10th Circuit Court of Appeals wrote about the potential “chilling effect” if a citizen’s right to be “free from retaliation” did not also extend to the 5th Amendment. Outside the context of eminent domain proceedings, the 10th Circuit found the government’s argument that Robbins’ right to exclude “free from retaliation” as not established under the 5th Amendment “unpersuasive.”

The 10th Circuit also worried about ignoring this implied “right to exclude” because, they reasoned, “government officials will be more inclined to obtain private property by means outside the Takings Clause. The constitutional right to just compensation would become meaningless.”

The court’s reasoning may help to explain why the Justice Department's appeal before the Supreme Court turns in part on the idea of BLM's official role. Records show the government will likely argue on Monday that since BLM workers were trying to get back the easement on behalf of the government, and not themselves, they should be held immune from Robbins’ lawsuit.

Depositions in the case include alleged reports of ex-BLM employees saying their colleagues planned to give Robbins “a hardball education.”

A final twist?

The 2.2 million acres of Wind River Reservation lands—home to over 23,000 Northern Arapaho and Eastern Shoshone Indians—encompass much of this Wyoming outpost. And in light of the issues governing Robbins' case, one question remains, for now, unknown.

If the high court gives Robbins his shot to sue federal officials for allegedly attempting to extort his land without "just compensation", what will that mean for Native American property rights?

Would reparations or some other deal on an unprecedented scale be in order? Or has the clock run out for Indians?

In 1996, President Clinton signed an executive order on Indian Sacred Sites that declared that each executive branch with federal land management powers allow Native Americans full access to these religious sites and avoid altering these tribal lands' physical makeup. Critics say this shows the liberal democratic habit of symbolically accommodating the needs of Native Americans without offering real economic benefits.

Asked the Indian question by phone Friday, Robbins said: “Yeah, well, they got some complaints there. (The Wind River Indians) have about 1.5 million acres or so. But that doesn't mean they wanted to be there.” Having just concluded a “moot court” with law students in Washington on his groundbreaking case, Robbins continued: “But to the victors go the spoils. And that’s the difference between conquers and a constitution.”

Budd-Falen has said Harvard constitutional scholar Laurence H. Tribe will deliver oral arguments on Robbins’ behalf. The U.S. Supreme Court is not expected to rule on Wilkie v. Robbins before its summer break in June.

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Photo Captions & Credits: 1) "Southwest view, across Wind River Reservation tribal lands, at Owl Creek Mountains"; 2) "Harvey Frank Robbins, Jr., earlier this month at his Highland Ranch in Hot Springs County, Wyo.,"; 3) "Cows (on-line stock)"; 4) Owl Creek Mountains, southwesterly view, across Wind River tribal lands," Photos 1, 2, 4 by Andrew Wyatt