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America Outdoors E-Bulletin
February 6, 2006

Online Legal Services for Answers to Issues Encountered By Every Small Business AO to Consider Participation in Lawsuit against FERC Rules
Guest Ranch Owner Wins Day in Court against BLM Employees for Extortion and Retaliation   Submit Comments in Support of the New NPS Management Policies

Online Legal Services for Answers to Issues Encountered By Every Small Business
  During the course of doing business, most small businesses have questions about legal issues, usually defined by state or federal law on a variety of matters. What do you do if a full-time employee quits and expects to be paid for unused sick leave, for example? A few states require employers to pay for unused sick leave. Two credible websites have legal resources available to small businesses and individuals for answers to issues from employment practices to actual preparation of legal documents. Findlaw.com for small business is a great resource for information on various legal issues regarding employment, small claims, hiring, protection of intellectual property, and contracts. Don't be thrown off by the lawyer search function. There's some great information on this site for answers to every day business issues. http://smallbusiness.findlaw.com

Another on-line service that offers inexpensive legal services is http://www.legalzoom.com Nationally renowned attorney Robert Shapiro is a cofounder of the site, so it is legit. A small claims court filing costs $69 on legalzoom.com. (It's not available in all states.) Shapiro is offering a free living will on the site. Neither site turns you into a lawyer, so don't neglect your real attorney for most legal issues.
AO to Consider Participation in Lawsuit
against FERC Rules
AO is considering signing on as a plaintiff to the lawsuit filed by Trout Unlimited, American Whitewater, and others regarding new hydropower licensing rules that were recently issued by the Federal Energy Regulatory Commission. These rules deal with the process for issuing new hydropower licenses and relicensing existing projects. The rules took effect on November 17, 2006. No public comment was taken before they were put into place although a brief comment period was allowed while the rule took effect. Many of our members operate below FERC-licensed hydro projects with licenses that mandate releases for recreation and for fisheries.
Guest Ranch Owner Wins Day in Court
against BLM Employees for Extortion and Retaliation
On January 11, 2006, the U.S. Tenth Circuit Court of Appeals held that employees in the Bureau of Land Management ("BLM") cannot retaliate against a ranch owner for refusing to grant the agency a right-of-way across his private land. In its ruling, the Court found that (1) an individual has the right to be free from retaliation when exercising a Fifth Amendment property right, and (2) the right to exclude someone from using private property includes the right to exclude the federal government. Robbins v. Wilkie, No. 04-8016 (January 11, 2006).

The Plaintiff in the case, Harvey Frank Robbins, filed suit against employees in the Worland, Wyoming BLM office pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO") and under the Fourth Amendment of the Constitution. RICO is usually used against organized crime. However, in this case, RICO is being used against BLM employees who Robbins said attempted to use the power of the federal regulations to extort a right-of-way across his private land in Wyoming. Robbins refused to grant the BLM an easement and so certain BLM employees retaliated against him by canceling his grazing privileges and permits, his right-of way across federal land and his special use permits, as well as bringing unfounded criminal charges against him.

One past BLM employee boasted that some of the other BLM employees said they would "bury Frank Robbins." They then trespassed on his private property and even broke into his private lodge, Robbins stated in his pleadings. To protect his civil liberties, Robbins hired the Budd-Falen Law Offices in Cheyenne, Wyoming and filed suit against the BLM's employees.

The government has fought Robbins' claims on various grounds, including arguing that "there was not a clearly established constitutional right to exclude others from one's property, and that they could not be held liable under RICO for actions authorized by BLM regulations because those actions are not 'wrongful.'" However, the Tenth Circuit Court disagreed. "A property owner's right to exclude extends to private individuals as well as the government," the Court said. "Defendants' assertion that BLM could have taken Robbins' property for public use after providing the just compensation is correct. BLM, however, did not exercise or attempt to exercise eminent domain power in this case," the Court explained. "Instead, Robbins alleges, Defendants attempted to extort a right-of-way to avoid the requirement of just compensation. If the right to exclude means anything, it must include the right to prevent the government from gaining an ownership interest in one's property outside the procedures of the Takings Clause."

In a refusal to let the government stretch its regulatory role beyond constitutional limits protecting civil liberties, the Court used strong language upholding private property rights. The Court emphasized that a government agency, such as the BLM, is not above the law. "If we permit government officials to retaliate against citizens who choose to exercise this right [to exclude others from private property], citizens will be less likely to exclude the government, and government officials will be more inclined to obtain private property by means outside the Takings Clause. The constitutional right to just compensation, in turn, would become meaningless," the Court explained. "Because retaliation tends to chill citizens' exercise of their Fifth Amendment right to exclude the government from using their private property, the Fifth Amendment prohibits such retaliation as a means of ensuring that the right is meaningful." Additionally the Court ruled that federal agency employees could not hide behind the power of their offices to avoid Robbins' case. The Court stated that even if the actions taken by the individual employees were lawful, if they were done for an improper motive, Robbins could maintain his case. The Court stated, "Nevertheless, we conclude that if Defendants engaged in lawful actions with an intent to extort a right-of-way from Robbins rather an intent to merely carry out their regulatory duties, their conduct is actionable under RICO."

The case will now go to a jury trial in Cheyenne, Wyoming. The jury will examine the facts and determine whether the BLM employees used their power as BLM officials to retaliate against Robbins when he would not give them access to his private property.

For more information contact Karen Budd-Falen, Esq. at karen@buddfalen.com
Submit Comments in Support of
the New NPS Management Policies
After a careful review, America Outdoors has decided to support the revised NPS Management Policies because it balances visitor use and enjoyment of National Parks with resource preservation. These new policies were reviewed and developed with participation by NPS staff and are not just the product of political appointees in the Administration. According to NPS, when the comment period closes February 18, the comments will be reviewed, analyzed, and organized by policy staff together with NPS subject matter experts and other staff who participated in the drafting process. Recommendations for how, or whether, the comments necessitate refinements to the current draft will then be presented to the senior leadership team to determine appropriate action. NPS has set up a website to easily enable you to make comments.

To review the AO letter in support of the new management policies, click on AO letter

To submit electronic comments prior to February 18th, go to http://parkplanning.nps.gov/commentForm.cfm?projectID=13746&documentId=12825
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