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Is Property Protected from Government Retaliation?

Morse v. Frederick, the "Bong Hits 4 Jesus" case, captured most of the media attention at the Supreme Court yesterday. The other case on the Court's Monday docket, Wilkie v. Robbins, is potentially just as significant. One of the issues in the case is whether the Fifth Amendment protects private property owners against retaliation by government officials for exercising their constitutional right to exclude others from their land. The U.S. Court of Appeals for the Tenth Circuit said yes. The Justice Department says no.

The facts of the case are straightforward: The federal Bureau of Land Management acquired an easement on a ranch, but neglected to record it. Robbins subsequently purchased the ranch and, due to the BLM's mistake, acquired the property sans easement. BLM officials demanded that he sign it over anyway, and when Robbins refused the government officials sought to give him a "hardball education" and retaliated by, among other things, harassing Robbins and his guests, filing trumped up charges against him. After this conduct continued for some time, Robbins had enough and sued the BLM agents involved for damages, and won [the right to pursue his claims in federal court].

R.S. Radford and Tim Sandefur of the Pacific Legal Foundation (an amicus supporting Robbins) write about the importance of the case in the Legal Times:

It'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 — thus, in Blackstone's words, "abridging man's natural free will." . . .

. . . To have a right to something means to be free to act without fear of injury or prosecution: to be free to choose for oneself, rather than being coerced. When government intimidates people into acquiescing to its demands, their rights are rendered meaningless.

While there are seven amicus briefs supporting the landowner in this case, mostly from various property rights or resource user groups, the lone brief supporting the government is this one from the National Wildlife Federation. According to NWF, protecting landowners from this sort of action could negatively impact federal land management and environmental protection.

The various briefs are available here. The transcript is here.

UPDATE: While "the facts of the case are straightforward" as I wrote above, the procedural issues are certainly not, and this may prevent the Court from reaching the issue I discuss in this post. For a concise and readable summary of the legal issues, see here.

Related Posts (on one page):

  1. Wilkie v. Robbins and the Second Class Status of Constitutional Property Rights:
  2. Is Property Protected from Government Retaliation?
David Maquera (mail) (www):
A government harassing one of its citizens via trumped up charges??? I'm shocked! (Sarcasm intended.)
3.20.2007 11:12am
Sparky:
Is there some reason why traditional tort remedies are not adequate in this situation? I note from the briefs that the property owner is also pursuing Hobbs Act (extortion) and RICO claims.

It would be a much more interesting case if all of the government's coercive actions had been wholly legal, but for their assertedly unconstitutional purpose.
3.20.2007 12:04pm
SeaLawyer:
Well the ranch owner wanted to deny the BLM use of a road that crossed his property so they could access BLM and other federal land but still wanted to use BLM land to access parts of his ranch. Then the BLM denied him that right and then did not renew grazing permits on federal land.
3.20.2007 12:13pm
Scotus Watcher (mail):
Regrettably, Robbins will probably lose. I suspect a majority of the Court wiould support the Fifth Amendment theory in principle. However, given the Court's hostility to Bivens, I don't think a majority will permit Mr. Robbins to bring a Bivens action when he has administrative remedies (though, as was pointed out at oral argument, those remedies are useless in practice). I doubt the Court will go for the RICO claim either. Bivens's brief had some clever jurisdictional arguments which would allow the Court to remand without deciding these issues (related to the fact that it was an interlocutory appeal) but these did not come up at oral argument.

The most striking thing about both of yesterday's oral arguments was Chief Justice Roberts's aggressively statist views. In Morse v. Frederick, he was the only Justice who really gave credence to the broad government theory that would grant schools near-unlimited discretion to censor any message counter to their institutional policies. Even Justice Scalia seemed to prefer a theory where students could not advocate illegal conduct -- which is much narrower -- and Justice Alito appeared similarly hostile to the government's broad theory. In Wilkie v. Robbins, in extremely sharp contrast to Justice Scalia (who was outraged at the government conduct), Chief Justice Roberts again held the torch for the government. And remember how the Chief Justice was more solicitous of the government's position in the than Justices Scalia, Thomas, or Alito in Randall v. Sorrell (though he did end up voting that the campaign finance statute was unconstitutional). Chief Justice Roberts is, in my view, the most hostile Justice to individual rights on the Supreme Court.
3.20.2007 12:17pm
liberty (mail) (www):
No more using NWF stickers on my envelopes! sickos
3.20.2007 12:30pm
Steve:
It would be a much more interesting case if all of the government's coercive actions had been wholly legal, but for their assertedly unconstitutional purpose.

I had a case along those lines many years back, where the government's retaliatory acts were legal (denial of permits and such) but done with, we alleged, an improper purpose.

We wound up basically relying on a Section 1983 civil rights claim. There was actually a deep circuit split on the issue; some courts hold that you can base a Section 1983 claim on allegations of personal animus on the part of government officials, while other courts hold that you need to allege membership in a suspect class. If the same standard applied to this case, the question would be whether the plaintiff has successfully alleged retaliation for an exercise of constitutional rights (which gets you in the courthouse door under Section 1983) or whether it's basically a personal animus case, which leaves you in the circuit-split situation.
3.20.2007 1:44pm
J. F. Thomas (mail):
So this guy is pissed because he won't allow the government to use a road on his property and then turns around and complains because the government won't maintain his access road and pulls his subsidized leases for grazing his cattle on public lands? I imagine that this guy had to wheel his balls into the Supreme Court in a wheel barrow.

This really should fall into the man who kills his parents and then begs for the mercy of the court because he is an orphan rules of jurisprudence.

It is a typical western attitude though. "I hate the government. What have they ever done for me other than give me land, cheap electricity, water, grazing rights, roads and give away mineral and timber rights for pennies on the dollar."
3.20.2007 2:01pm
liberty (mail) (www):
J. F. Thomas,

So, if you buy property which you believe to be privately owned and hence your own to with as you please, but it turns out that the government had some rights over it which they failed to file papers on, then government should be able to file false criminal charges against you and intimidate and harass you and your guests along with taking away permits you had already purchased, otherwise you have a bad western attitude and massive balls?

"Unbeknownst to Robbins at the time, BLM -- which controls the federal land adjoining the ranch -- had granted his predecessor-in-interest a right-of-way over federal land in exchange for an easement over his private property. Although Robbins's predecessor had properly recorded his right-of-way over the federal land, BLM had not yet recorded its easement when Robbins purchased the ranch. Thus, under Wyoming law, BLM's easement was nullified when Robbins recorded the deed. Soon thereafter, a BLM employee asked Robbins to reinstate its easement without offering him any compensation. According to Robbins, when he declined, BLM employees embarked on a series of retaliatory acts and harassment to coerce him into granting the easement: for example, they brought false criminal charges, revoked his grazing and recreational use permits, trespassed on his property, and harassed his guests during their cattle drives."

Please defend this - I see it as a pretty clear cut case of rights violation.
3.20.2007 2:13pm
J. F. Thomas (mail):
then government should be able to file false criminal charges against you and intimidate and harass you and your guests along with taking away permits you had already purchased, otherwise you have a bad western attitude and massive balls?

I don't agree with harassment, no. But if you hate the government so much that you won't even grant them a road easement over your land (which I would imagine he knew about, but decided to be a dick about when he discovered some weinie at BLM had forgotten to register), you shouldn't complain when the government decides it no longer wants to maintain your access road or renew your grazing rights.
3.20.2007 2:28pm
wolun:
J.F. Thomas:
Robbins has two complaints in the case:
First, the government demanded that he give them an easement - i.e., part of his property, and offered nothing in return. They couldn't offer him a right of way over government land because he already purchased that when he bought the land from his predecessor in interest.

Second, let's assume that you think its ok for the government to cancel his right of way, and take a host of actions that might individually have been reasonable but were, by stipulation and testimony, part of an orchestrated campaign to "bury him." How is it still ok for the BLM officials to harass him for the easement after they have canceled all his rights. At that point, they surely had no right to continue to harass him for an easement (i.e., trespass, malicious prosecution, inciting assualt on him) without giving him something in return.

As to the question of whether he had individual remedies for each action. He may have, but as Scalia emphasized in the argument, the attorney's fees for litigating each individual instance of trespass and harassment would probably be higher than the remedy. What he wanted, was for the BLM officials to stop the whole campaign of harassment.
3.20.2007 2:32pm
SeaLawyer:

First, the government demanded that he give them an easement - i.e., part of his property, and offered nothing in return. They couldn't offer him a right of way over government land because he already purchased that when he bought the land from his predecessor in interest.


What the Govt wanted was for Robbins to live up to the original deal in which he gain access to government land. In return for the govt to use and maintain a road.
3.20.2007 2:54pm
magoo (mail):
Wolun -- That's not quite right. On your first point, Robbins easement over public land was cancelled. At all relevant times, the govt stood ready to reinstate this if Robbins offered a easement on his land. In other words, the govt wanted to enter the same reciprocal arrangement with Robbins that it has with 1000s of other western landowners. It's not true to say the feds insisted on an easement and offered "nothing in return."

Second, no one defends the idea that the govt should be able to engage in malicious, retaliatory prosecution and other acts of harassment. The question is one of remedy. Robbins brought a malicious prosecution lawsuit and lost. He pursued other legal remedies for the other alleged acts of harassment and lost. Now he want to bring an extortion claim under the federal racketeering laws. Arguing that RICO is not a good fit does not translate into support for harassment.

The procedural posture (sum j.) compels the court to assume Robbins factual allegations as true. Those familiar with the actual facts tend to agree with J.F. Thomas's take on the case. Presumably, that why his other efforts to obtain a remedy were unsuccessful.
3.20.2007 3:07pm
AppSocRes (mail):
J.F Thomas: Let's assume one of your neighbors asked you for an easement to cross your property and, when you refused to grant it, began maliciously harrassing you. Are you telling me you wouldn't seek injunctive relief and compensation? If so, I doubt your honesty. Why should we hold the government to a lowe standard of behavior than we expect of our neighbors? That seems to me to be one sure road to tyranny.
3.20.2007 3:08pm
wolun:
The original deal was indeed that the government would give the Robbins's predecessor in interest access to government land and the predecessor in interest would give the government an easement. But as it says in the post, BLM screwed up and, by failing to register the deed, they lost their rights under state property law. Robbins's predecessor in interest did not screw up, and Robbins therefore purchased the right to access to government lands. The trial court and appellate court both held this. I don't see why people insist on fighting the facts.
3.20.2007 3:11pm
SeaLawyer:
Also lets not forget the fact that this easement is not just for the BLM to be able to access federal land it also provides the public (that would be you and I) access to this land as well. What has always been a big issue is ranchers wanting to treat BLM land as their own and prevent all public use, mainly hunting. If a rancher can prevent all access to BLM land he basically has exclusive use of it. That is what Robbins was trying to do in this case.

This case is really about the publics property rights.
3.20.2007 3:15pm
magoo (mail):
Wolun -- All of that is right, and then BLM cancelled Robbins's easement over public land. And it remained ready to reinstate his easement once he agreed to provide the reciprocal easement. He declined.
3.20.2007 3:16pm
wolun:
Magoo:

From the tenth circuit's description of the facts:

"When BLM learned its easement had been extinguished, it contacted Robbins to discuss obtaining a right-of-way across the ranch. Robbins refused. . . . Robbins alleges Defendants refused to maintain the road providing access to his property; threatened to cancel, and then cancelled, his right-of-way across federal lands; stated they would "bury Frank Robbins"; cancelled his special recreation use permit and grazing privileges; brought unfounded criminal charges against him; trespassed on his property; and interfered with his guest cattle drives." 433 F.3d 755, 760.

So, BLM canceled the right of way, which Robbin's had already purchased when he bought the ranch, as retaliation for not giving the easement. BLM may have had a right under the contract to cancel the right of way for specific reasons, but the failure to give a second time what Robbins's predecessor had already given was simply not one of them. As a reminder, the case is on appeal from the government's motion for summary judgment, and Robbins alleged (and had testimony by a BLM official who resigned in protest), that the right of way was canceled as retaliation for Robbins's refusal to give the easement away for free.
3.20.2007 3:22pm
liberty (mail) (www):
I don't agree with harassment, no. But if you hate the government so much that you won't even grant them a road easement over your land (which I would imagine he knew about, but decided to be a dick about when he discovered some weinie at BLM had forgotten to register), you shouldn't complain when the government decides it no longer wants to maintain your access road or renew your grazing rights.

Lets assume for a moment that he wasn't lying - after all, even if he happened to have known its quite possible that someone else wouldn't and would be in the same situation (maybe the seller was trying to pull a fast one!)

So, suddenly government wants an easement over his land and offers no compensation. He doesn't think that this is fair since he purchased his land at fair market value as private land, with no easement. Then government harasses him and his guests, brings false charges against him and revokes his permits. Yet, you think this is okay because you would rather assume that this guy is lying and decide government has the right to harass him into complying with its wishes? It sounds to me like a defense of tyranny.

Even if he was lying, it doesn't justify what the government did -- but since when does the law assume that someone is lying when they are technically in the right? Should we assume that someone is guilty too, when we think they probably are since it would be so easy to lie?
3.20.2007 3:24pm
wolun:
Magoo,
I have been one post behind in responding, but would you agree that before the right of way was canceled, the gov't had no right to demand the easement for nothing? Because, in point of fact, this is what they did.
3.20.2007 3:28pm
scarhill:
Magoo said:

BLM cancelled Robbins's easement over public land. And it remained ready to reinstate his easement once he agreed to provide the reciprocal easement. He declined.



Translation:
BLM stole his property (the properly recorded easement), then offered to sell it back to him. He declined.
3.20.2007 3:29pm
liberty (mail) (www):
also J. F. Thomas,

You keep pretending that this guy's complaints are that he wants government handouts (maintaining his road, etc) but that isn't it at all. Things that he paid for were being taken away (a right of way that he purchased from the government) and he wasn't being compensated for property which the government wanted to take from him (which if he wasn't lying he also paid for in that he was unaware of the easement) in addition to the harassment, etc.
3.20.2007 3:30pm
rarango (mail):
IANAL caveat; could not the government simply exercise the right of imminent domain for its easement? sounds like a rather bizarre way to go about settling a legal question. or have I over simplified it?
3.20.2007 3:32pm
magoo (mail):
I was responding to the suggestion that the govt insisted on an easement and offered nothing in return. They did offer something, namely the easement they had cancelled. I think we differ on whether the govt properly cancelled. We've both noted the procedural posture here, but the govt's right to cancel is an issue of law. I think DOJ has the better argument on this. Bottom line, once the dust settled, BLM wanted to enter into the same reciprocal agreement with Robbins that it has with many others.
3.20.2007 3:32pm
magoo (mail):
Wolun -- I'm a few posts behind too. I agree you're on much stronger ground if BLM had no right to cancel. If it had right to cancel, it's not "stealing" (as the other commenter put it). Robbins's factual allegation probably won't affect the resolution of this issue, which is primarily an issue of law. We'll see how the court rules.
3.20.2007 3:36pm
wolun:
magoo,
I agree with your description of where we disagree. And I also degree that the case will turn (rightfully) on legal grounds. I suspect that although Robbins may have the votes on the 5th A issue, he will lose on the Bivens issue. (i.e., Thomas and Scalia dislike the prospect of revitalizing Bivens more than they like this narrow brand of property right)

rarango,

You're exactly right, the government could have exercised its eminent domain power, but then they would have had to pay just compensation. The whole point is that they were trying to avoid that. My guess is that the local BLM officials were embarrassed about their screw up and were trying to cover their butts rather than going to their bosses to ask for money and authorization for eminent domain.
3.20.2007 3:40pm
Robert Lutton:
What has this got to do with property rights? If he is being harassed, the courts should order the government to stop. I believe that this is common in selective enforcement cases...no?
3.20.2007 4:01pm
SeaLawyer:
Liberty,

You keep pretending that this guy's complaints are that he wants government handouts (maintaining his road, etc) but that isn't it at all. Things that he paid for were being taken away (a right of way that he purchased from the government) and he wasn't being compensated for property which the government wanted to take from him (which if he wasn't lying he also paid for in that he was unaware of the easement) in addition to the harassment, etc

I don't think you understand what happened. All the public wanted was access to public land via a road that crosses Robbin's property. The public did not want to take anything from Robbin's we just want access to property we own. In return for use of the road we will let Robbin's graze his cattle on our property.

Robbin's refusal to grant access to public land is in effect stealing that land for himself.
3.20.2007 4:03pm
liberty (mail) (www):
SeaLawyer,

Robbins bought that land. The government does not own the land that he bought, they did not have an active easement on it, its not "the people's" oops I mean "the public's" (its not government's) if they don't have an active title.

Because they screwed up and he was unaware that they wanted an easement on it until after he purchased their land, the least that he was entitled to is compensation. He had a right to deny their offer and they had no right to begin taking things he that he owned or harassing him.
3.20.2007 4:16pm
dearieme:
Surely the burden of proof should fall on anyone using so loathsome an expression as "negatively impact"?
3.20.2007 4:17pm
HLSbertarian (mail):
SeaLawyer said:

I don't think you understand what happened. All the public wanted was access to public land via a road that crosses Robbin's property. The public did not want to take anything from Robbin's we just want access to property we own. In return for use of the road we will let Robbin's graze his cattle on our property.


You're proving a bit too much here. If "the public" isn't taking anything from Robbins and is just rectifying his "theft" of public land, then "the public" should be able to seize an easement without compensation any time such an easement is needed to reach public land.

SeaLawyer also said:

What the Govt wanted was for Robbins to live up to the original deal in which he gain access to government land. In return for the govt to use and maintain a road.


If your point is that the government DID offer something in exchange (and HAD to to obtain the easement), then you have to get around the fact that Robbins was not a party to this deal. And he was not a party to this deal BECAUSE the gov't screwed up. Is the state entitled to some special fundamental fairness workaround to state property laws?
3.20.2007 4:21pm
rarango (mail):
wolun, thanks for 'splaining! I suspect your avoiding the appearance of error is probably the correct explanation.
3.20.2007 4:25pm
Stacy (mail) (www):
It seems to me that the government should sue the incompetent clerk who threw their investment out the window, not persecute the landowner who, afterall, has no obligation to sell an easement just because it's the government that wants to buy. The fact that the government can't get to its public land is the government's problem, not the landowner's, and it's frankly dumb to suggest that he has any obligation to help solve it.
3.20.2007 4:28pm
Angus:
I don't think anyone is defending the extralegal harrassment here -- phony criminal charges, etc. Agents who did anything against procedure or illegal ought to be disciplined or fired. However, he seems to claim that even lawful actions taken against him are some form of retaliation (like citing him for his cattle straying illegally onto public lands), and I think he's on shaky ground there.

The public land around his ranch and the ability to use it for private gain is not Robbin's property, but a privilege. Losing that special privilege is not harrassment, nor is it an infringement of private property rights.

Sounds to me like Robbins tried to do some extorting here as well. "Pay me off or I'll make sure you can't access your public lands over here. Meantime, you let me have access to public lands whenever I want."
3.20.2007 4:45pm
SeaLawyer:

It seems to me that the government should sue the incompetent clerk who threw their investment out the window


Here is what happened with the original agreement:

When Nelson acquired the right-of-way over the road on public land, he signed a document granting the United States a reciprocal right-of-way over the road on his land. But, apparently because a corporate seal was missing, BLM returned that document to Nelson. Before Nelson sent the document to BLM with a corporate seal, he sold the ranch to respondent, who recorded the deed. BLM determined that this recording of the deed without the easement in favor of the government rendered the easement unenforceable.
3.20.2007 5:00pm
Hattio (mail):
Robert Lutton,
Common? The government actually decreasing its own power...I don't think so.
3.20.2007 5:01pm
SeaLawyer:

And he was not a party to this deal BECAUSE the gov't screwed up.


The only thing the government screwed up was granting the grazing rights and right of way to federal property before Nelson (the original property owner) sent the correct documents.
3.20.2007 5:04pm
XON:
Whatever happened to implied easements here? I remember my prop. law professor saying that if you own a parcel that is completely surrounded, you automatically have a right to an easement to the nearest point of public access. If that route was through Robbin's property, no problem. If it isn't, that's surely not Robbins' problem.
3.20.2007 5:08pm
SeaLawyer:
Liberty,

Robbins bought that land. The government does not own the land that he bought, they did not have an active easement on it, its not "the people's" oops I mean "the public's" (its not government's) if they don't have an active title.


Robbins did not purchase any BLM land. Yes BLM land is government property and the public is able to use it. You should look at the map which shows the High Island ranch property and the BLM land.
3.20.2007 5:10pm
David Walser:
The public land around his ranch and the ability to use it for private gain is not Robbin's property, but a privilege. Losing that special privilege is not harrassment, nor is it an infringement of private property rights.

Except, Robbins had a permit for his cattle to graze on the BLM land and it appears that that lease was canceled early. To the extent the lease was canceled because Robbins refused to grant an easement -- not because Robbins was violating some material lease term -- it would appear canceling the lease would have been improper. If I'm leasing my car from Last National Bank, can LNB reposes my car just because I move my checking account to Feelings Mutual? LNB may think they've given me a screaming deal on my lease and that I ought to keep all my accounts at their fine institution; but, unless the lease requires my keeping my checking account at LNB, they cannot cancel my lease just because I prefer Feelings Mutual for my checking account. Neither should the government cancel a cattle grazing lease because a rancher does not play ball on another matter. (This is different from a question of whether the failure to grant an easement should be taken into account in determining whether to renew a lease.)
3.20.2007 5:11pm
Richard Aubrey (mail):
Next is to get somebody to assert Robbins is growing marijuana on the property, do a combat assault, kill him, and take the land as civil forfeiture.
3.20.2007 7:47pm
liberty (mail) (www):
"Robbins did not purchase any BLM land."

Yes he did - he bought property that included a right of way over federal land which the government then re-possessed illegally.
3.20.2007 8:43pm
SeaLawyer:
liberty,
Just because he had a right of way does mean that a transfer of ownership of BLM land occurred. Therefore he did not buy BLM land. Also his right of way was denied because of repeated violations. The so called harassment of his guests was really evidence gathering of his repeated violations and that occurred on BLM land.
All of this was a result of Robbins being an asshole and unwilling to grant the public use of a road to access public land, but he wanted to use public land to run a dude ranch, graze cattle and run a high dollar big game hunting operation. So the BLM was very zealous in going after infractions in trying to ensure public access to public land. All the BLM wanted was to be able to drive down a road and even was willing to maintain it.
3.20.2007 9:32pm
Porkchop (mail):
In the oral argument, there was a brief mention that the recorded easement was subject to a BLM regulation that required BLM permission to transfer it, even if the property to which the easement was appurtenant was sold. Is there a Supremacy Clause issue lurking here? If the regulation is valid, then the transfer of the recorded easement is still subject to the discretion of the BLM. Wouldn't the buyer be presumed to have notice of the applicable regulation? Even if easements otherwise run with the land, the BLM regulation would trump state law where the easement is granted by BLM over public land, wouldn't it? If that's the case, then the "cancellation" might have been a valid exercise of BLM's authority.
3.20.2007 11:07pm
Brian K (mail):
A few comments:
1) Didn't Robbin's know what the road was for? It either seems to me that he was a) too stupid to ask the seller why there was road going through the property, b) he did ask and the seller lied to him or c) he knew but figured out a way to game the system and extort money from the government. If it was a) then "buyer beware", if was b) then shouldn't robbin's being suing the seller? and if it was c) then robbin's got/is getting what he deserved.

It seems to me that the problem here is essentially the fault of the seller as sealawyer has pointed out. The seller either failed to disclose relevant information or robbin's is trying to get something for nothing. either way the government should keep its easement. (note that this does not excuse their allegedly illegal actions, which courts have already ruled were not in fact illegal). This is analogous to what happens when u buy "stolen" property. If you buy a house from someone who doesn't actually own it, you don't have the right to kick the actual owners out.

2) David Walser, your analogy is incorrect. This situation is more similar to when someone stops paying for a car. When you stop payment on a lease, the dealership has every right to take the car back. This is essentially what robbin's as done. He stopped paying (i.e. providing the easement) and still demanded the use of the car (i.e. access to federal land). But this isn't quite true. Because Robbin's then demanded a second car in return for continuing payment on the lease. The fact that robbin's didn't know, or at least claims he didn't know, that the government owned the easement is irrelevant. he should have known. is the fact that i didn't know murder was illegal a valid defense? i think not.

brian
3.21.2007 2:20am
David M. Nieporent (www):
Brian K, it's your analogies that are incorrect. Property law doesn't work the way you think it does. If the state recording act is some form of Notice law, then whether he knew or not is entirely relevant.

When you don't record interests in land, you're penalized under real property law. It's not "buyer beware." It's owner-who-doesn't-record-beware.
3.21.2007 6:05am
Stacy (mail) (www):
"All of this was a result of Robbins being an asshole and unwilling to grant the public use of a road to access public land,"

Robbins' asshole-ness is a matter of your opinion. A few minutes of driving around my neighborhood confirms that being an asshole is not currently against the law.

" ... he wanted to use public land to run a dude ranch, graze cattle and run a high dollar big game hunting operation. So the BLM was very zealous in going after infractions in trying to ensure public access to public land."

You say "very zealous", I say "selective enforcement", let's call the whole thing off. If it were me I'd have probably granted the easement, but while the screwup may not have been BLM's fault (in the version where the individual who sold the ranch to Robbins apparantly failed to timely do his paperwork, causing the deed to be recorded without the easement,) it is also clearly not Robbins' fault, short of their being some kind of collusion between Robbins and the seller. If someone can show such, I'll change my view.

As to Robbins' use of the neighboring public land, he apparantly did this properly under the permits issued to him. You may say he was being an asshole, and you may have a case for that, but that still doesn't make it ok for the government to try to harass and intimidate him into making up for someone else's mistake. Instead, they should go after the person who made the mistake. That seems straightforward to me.
3.21.2007 10:08am
Mr. Mandias (mail) (www):
What disturbs me is the commenters who are not in the least reluctant to think that the government should be able to take away permits and rights to use public land if private individuals don't deed over property rights gratis. Should the state government be able to take away my permit to use the public roads (we typically call them drivers' licenses) if I don't hand over property?

Also, what really would the rancher have gotten for granting an easement? An "easement" over public land that the government could cancel at will and that typically only lasts for 10-20 years. The government wants actual property rights, immune to adverse possession, in return for nothing.
3.22.2007 1:12pm