Tuesday, June 26, 2007

Retaliation and the Takings Clause

The Supreme Court yesterday decided Wilkie v. Robbins, a case that involved assertions that officials of the Bureau of Land Management had harassed and intimidated the owner of a Wyoming guest ranch in order to extract an easement that had been lost by the BLM's failure to record prior to a transfer of ownership.  In an opinion by Justice Souter for a 7-2 majority, the Court held that the landowner had neither a private right of action under Bivens v. Six Unknown Federal Narcotics Agents nor a claim under RICO.

One interesting aspect of the case is the contrast between Justice Souter and Justice Ginsburg in a partial dissent (joined by Justice Stevens) in their evaluation of the owner's argument that the BLM had retaliated against him for "standing on his right as a property owner to keep the Government out" of his property (because the government was, he asserted, trying to force him to grant an easement without compensation).  Justice Souter rejects the argument in part with the proposition that, unlike other instances of retaliation the Court had recognized, "trying to induce someone to grant an easement for public use is a perfectly legitimate purpose."  To the majority the acts of the officials in this instance amount to "hard bargaining."  In the course of discussing qualified immunity, Justice Ginsburg asserts, by contrast, that the Takings Clause "surely" contemplates "the right to refuse to submit to a taking where no compensation is in the offing."  Justice Ginsburg offers a cf. to Dolan and Nollan, raising an intriguing link to exactions. 

Rejecting a Bivens claim does not say much about other avenues of relief (and the Court makes clear that the owner had recourse to a variety of administrative and judicial remedies), but the Court does in fairly broad terms question the concept of relief for retaliation based on the assertion of rights under the Takings Clause.

Nestor Davidson

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» ▪ Government Gone Wild: More on Wilkie v. Robbins and the Right to Exclude from inversecondemnation.com
More on the US Supreme Court's opinion (400kb pdf) in Wilkie v. Robbins (No. 06-219, June 25, 2007) (also posted here in HTML), a decision that unfortunately has not garnered much attention, despite the fact that its this year's version [Read More]

Tracked on Jun 26, 2007 9:15:13 PM


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