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The Honolulu Advertiser
Posted on: Thursday, July 5, 2007

Little-noticed decision erodes property rights

By Robert H. Thomas

Imagine this: You own land, and federal officials ask you to allow the public to cross over it, but they don't offer you anything in return. Their bargaining position is blunt: Give us the easement, or else. So you politely say, "No, thanks." It's your land, and the U.S. Constitution's Fifth and 14th Amendments recognize your right to keep others off your property, even government officials.

The Fifth Amendment provides that "nor shall private property be taken for public use, without just compensation," which means if the government wants an easement, it needs to pay for it. But an official tells you, "The federal government does not negotiate." So instead of backing off, or purchasing the land, the officials turn up the heat and begin a deliberate campaign of retaliation, harassment and intimidation right out of an episode of "The Sopranos."

They trespass on your land. They break into your house. They comb your file for permit violations. They institute proceedings to revoke your permits. When they don't fix nearby public roads that you use to access your land and you do it yourself, you are fined. You are charged with a crime and threatened with one year in federal prison for threatening a federal employee (but the jury acquits you after less than 30 minutes).

If you go to court to object to the retaliation, you think you should win. If you can't do anything to prevent retaliation for exercising a constitutional right, what kind of "right" is it? That's why they're called "rights," and federal courts are supposed to protect us when officials trample on federally recognized rights.

Yet amazingly, the Supreme Court recently decided that a landowner in this situation cannot bring those officials to justice in federal court. In Wilkie v. Robbins, a decision that unfortunately has not garnered much attention, the court held that a Wyoming rancher has no claim against federal Bureau of Land Management officials after they retaliated against him for refusing to donate a public easement across his land.

In the court's view, the Bureau of Land Management officials were just hard-knuckle negotiators.

Negotiation with a hammer, more like it.

Although the court did not approve of the officials' conduct, it said that the landowner could have fought each illegal action one at a time the proverbial "death by a thousand cuts." While the court acknowledged it would have required a huge investment in money and time to do so, it refused to recognize a comprehensive federal remedy that protects virtually every other right in the Bill of Rights.

Officials interfere with your First Amendment right to stage a nude protest? Go to federal court. Officials retaliate against you for practicing your religion? Go to federal court.

But if those same officials undertake a campaign of harassment, intimidation, and outright illegal conduct for exercising your property rights? Go away.

After Wilkie, and the court's 2005 decision in Kelo v. City of New London, it would be understandable if property owners felt under siege. Kelo reminds us that our homes and businesses absent any evidence of a backroom deal can be seized by the government with little objection. If this isn't enough, Wilkie now tells property owners that if government officials retaliate against a landowner who refuses to surrender property without compensation, there is no worthwhile remedy.

What is most troubling about Wilkie is it seems to relegate the right to private property in the Fifth Amendment to a lesser footing than other constitutional rights. The drafters of the Bill of Rights understood that the right to own and make use of property was the foundation on which all other rights rest. For without property protections, the rights of free speech and freedom of worship, for example, would be hollow.

The Constitution, therefore, does not recognize a hierarchy of protection: it is inconsistent for certain rights to be afforded priority status, with only property shut out from the federal courthouse.

This is not a partisan or ideological issue. In Wilkie, the court's conservatives sided with the government, while Justices Ruth Bader Ginsburg and John Paul Stevens the court's liberal wing would have ruled for the property owner. Those justices correctly recognized that when federal officials cross the line and become "government gone wild," the rights in the Fifth Amendment deserve as much protection as those in the First.

Robert H. Thomas is an attorney with a Honolulu law firm and the managing attorney for Pacific Legal Foundation's Hawai'i Center, a nonprofit organization devoted to protecting private property rights and individual freedoms. He wrote this commentary for The Advertiser.