U.S. Supreme Court Associate Justice Ruth Bader Ginsburg, who died Sept. 18, was renowned for her dissenting opinions, a lesser-known example of which found the liberal justice siding with a classically western-conservative cause in the case of a controversial Wyoming ranch operation.
Ginsburg believed her dissents would become a blueprint for future court decisions, legal positions and even legislation, according to numerous analyses of her career. In one of those dissents, she explained why Hot Springs County ranch owner Frank Robbins should have been allowed to sue the government for harassment, extortion and vindictive use of federal power.
The case stemmed from Robbins’ fight with the U.S. Bureau of Land Management over road easements, grazing, trespass and other issues. The BLM had sought to trade easements with the previous owner of Robbins’ ranch to allow public access to public property. But the government failed to record its easement before Robbins bought the property. That was “a careless error,” Ginsburg wrote, and the genesis of years of bureaucratic and legal wrangling.
Robbins eventually sued the government, claiming, among other things, the BLM used its authority over permits to extort an easement from him in violation of the Fifth Amendment of the Constitution and the Racketeer Influenced and Corrupt Organizations Act.
His fight ended up in the Supreme Court in 2007, where a 7-2 majority decided the suit could not advance, overturning a lower court decision along the way. Ginsburg, “dissenting in part” along with Justice John Stevens, wrote why she wanted to give Robbins a chance to bring his case to trial. The Fifth Amendment basis for the complaint guarantees, among other things, the right not to be deprived of property without due process.
“The Fifth Amendment,” Ginsburg wrote, “…must be read to forbid government action calculated to acquire private property coercively and cost-free…” In her view, the Constitution also forbids “measures taken in retaliation for the owner’s resistance to uncompensated taking.”
Introducing … the case
When she wrote opinions for the majority, “Ginsburg excelled at introductions,” wrote Ross Guberman in SCOTUSblog, a web page about the Supreme Court. She called an introduction “a press-release account,” that was essential orientation at the beginning of an opinion, Guberman’s blog reads.
Ginsburg’s colleagues who prevailed in the Robbins case fell short of that mark, Ginsburg wrote at the start of her dissent: “The full force of Robbins’ complaint … is not quite captured in the Court’s restrained account of his allegations.
“A more complete rendition of the saga that sparked this suit is in order,” Ginsburg wrote, and then penned her own four-and-a-half-page story. She wove the seven-year saga with the patois of a Zane Grey pulp Western.
Careful to characterize Robbins’ claims as allegations, she wrote of a “dustup,” and warnings of “war, a long war,” out on the Wyoming range.
There were cattle drives, and trespasses at a water hole. Robbins was metaphorically “roughed up.” There were “rough and tumble” negotiations and physical confrontations, including at the water hole where Robbins claimed a neighbor drove a pickup truck into his horse.
“Something need[ed] to be done [with him],” one government official allegedly said of Robbins. The BLM, Ginsburg wrote, “was not content with the arrows in its own quiver,” and tried to enlist law enforcement from the neighboring Wind River Indian Reservation to join the fight against Robbins.
Ginsburg’s task in her introduction was not to paint a complete picture but to tell Robbins’ story alone.
“Taking Robbins’ allegations as true, as the Court must at this stage of the litigation, the case presents this question,” she wrote: “Does the Fifth Amendment provide an effective check on federal officers who abuse their regulatory powers by harassing and punishing property owners who refuse to surrender their property to the United States without fair compensation?
“The answer should be a resounding ‘Yes,’” she wrote.
Right to sue
Ginsburg then explained Robbins’ legal predicament. “He may not proceed unless he has a right to sue,” she wrote.
To establish that right, the ranch owner and his attorney relied on a case known as “Bivens.” In that case, the Supreme Court ruled that a victim of a Fourth-Amendment rights violation (protection from unreasonable search and seizure) by federal officers can claim monetary damages.
In Robbins’ case, the majority didn’t want to expand the Bivens precedent, saying among other things, that was the purview of Congress. Robbins, Ginsburg wrote, had no alternative remedy “for the relentless torment he alleges.”
She criticized her majority colleagues who were wary that siding with Robbins would result in a flood of suits “in every sphere of legitimate governmental action affecting property interests.” But an appeals court had considered that worry before, Ginsburg wrote, and had dismissed it.
The majority also found that even if federal officials went “too far” in the pursuit of their objectives, those objectives were “perfectly legitimate” — trying to secure an easement. The majority of justices found that developing a legal test to determine what “too far” was would be “endlessly knotty.”
Ginsburg didn’t buy that reasoning. “BLM officials may have had the authority to cancel Robbins’ permits or penalize his trespasses,” she wrote, “but they are not at liberty to do so selectively, in retaliation for his exercise of a constitutional right.”
Robbins’ case stands out, Ginsburg opined, because it is based on “agents’ vindictive motive.” As such, the likelihood that his case, if successful, would result in a flood of suits, or even a new temerity among government officials doing their jobs, was overstated by her majority colleagues, she argued.
Ginsburg also supported her opinion by referring to court precedents set in her favored field — equal justice on the basis of sex. A Bivens suit would give Robbins a remedy because, like already settled sexual equality cases, he would have no trouble showing “a pattern of severe and pervasive harassment in duration and degree well beyond the ordinary rough-and-tumble one expects in strenuous negotiations.”
The BLM was administering death by a thousand cuts, she said, although it had other options. At loggerheads over the road easement, “BLM might have sought to take Robbins’ property by eminent domain … or it might have attempted to negotiate with him,” Ginsburg wrote. “Instead, the agents harassed Robbins and tried to drive him out of business,” according to the ranch owner’s claims.
Taking Robbins allegations at face value, “BLM agents plainly violated his Fifth Amendment right to be free of … coercion,” Ginsburg wrote.
“Thirty-six years ago, the Court created the Bivens remedy,” Ginsburg wrote. “In doing so, it assured that federal officials would be subject to the same constraints as state officials in dealing with the fundamental rights of the people who dwell in this land.
“Today, the Court decides that elaboration of Bivens to cover Robbins’ case should be left to Congress,” she wrote. “Unless and until Congress acts, however, the Court should not shy away from the effort to ensure that bedrock constitutional rights do not become ‘merely precatory.’”
The other side
Ginsburg’s support for Robbins didn’t mean his allegations were true. Throughout seven years of bureaucratic and legal machinations leading up to Robbins’ suit and even afterward, federal officials, neighbors and others challenged Robbins’ claims and assertions. Robbins did not respond to a request for comment on this story.
Robbins came to Wyoming via Montana and Alabama, according to reporting by the Casper Star Tribune, and has been in the cattle business for more than four decades. He bought several Wyoming ranches, amassing tens of thousands of acres of private land, some in a patchwork pattern interspersed with public property. He obtained grazing leases on BLM and U.S. Forest Service property.
“Scion of a wealthy Alabama family with solid Republican Party connections,” is how High Country News described him in 2003. Some have called him a hobby rancher. The Supreme Court opinion says he got most of his ranch income from dude operations.
Conflicts between Robbins’ ranch interests, some of which are now handled by his son-in-law Josh Longwell, and public officials have continued. Recently they involved the Wyoming Game and Fish Department and Commission over compensation for stock losses to grizzly bears.
Critics accuse the family of using domestic sheep, which carry pathogens that can infect native bighorns, as a blackmail tool in their fight with the Game and Fish, assertions the family has denied. Domestic sheep are part of the Robbins’ ranching operation and their recent presence on private grazing pastures near bighorn habitat forced the Game and Fish to open an early bighorn sheep hunting season in the area.
The goal is to thin out the bighorn herd in the area and reduce the chance it would become infected with the deadly domestic pathogens. Infection could endanger a prized native bighorn herd that stretches from Dubois to Montana.
Meantime Game and Fish has rejected most of the damage claim Longwell submitted for depredations of stock by grizzly bears. That disagreement, too, is now in court.