Kortlander v. Cornell

• Citation: 816 F.Supp.2d 982
• Decision Date: 12 September 2011
• Docket Number: No. CV 10–155–BLG–RFC.,CV 10–155–BLG–RFC.
• Parties: Christopher KORTLANDER, Historical Rarities, Inc. and The Custer Battlefield Museum, Inc., Plaintiffs, v. Brian CORNELL, Bureau of Land Management Special Agent in His Individual Capacity, et al., Defendants.
• Court: U.S. District Court — District of Montana

816 F.Supp.2d 982

Christopher KORTLANDER, Historical Rarities, Inc. and The Custer Battlefield Museum, Inc., Plaintiffs,

v.Brian CORNELL, Bureau of Land Management Special Agent in His Individual Capacity, et al., Defendants.

No. CV 10–155–BLG–RFC.

United States District Court, D. Montana,Billings Division.

Sept. 12, 2011.

Harold G. Stanton, Stanton Law Office, Hardin, MT, for Plaintiffs.

Victoria L. Francis, Timothy J. Cavan, Office of the U.S. Attorney, Billings, MT, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

RICHARD F. CEBULL, District Judge.I. Introduction

Plaintiff Christopher Kortlander, and his businesses Historical Rarities, Inc. and Custer Battlefield Museum, Inc., have brought this Bivens action for deprivation of constitutional rights secured by the First, Second, Third, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment to the United States Constitution. The claims arise out of an investigation during the years 2003–09 by law enforcement agents of the Department of the Interior related to the sale of fraudulent historical artifacts and the illegal possession of eagle parts. Although his property was seized during two searches, Kortlander was never arrested or charged and all items were eventually returned except those that the Government claims are contraband.

Defendants have moved pursuant to Rule 12(c) Fed.R.Civ.P. for judgment on the pleadings on the grounds that all claims are barred by qualified immunity and that claims arising out of a March 2005 search are barred by the statute of limitations. Doc. 18. After an exhaustive review of the Complaint, the proposed Amended Complaint, and the applicable law, the only conclusion is that the Complaint must be dismissed with prejudice. First, the vast majority of claims relate to the March 2005 search and are barred by the statute of limitations. Second, even if the 2005 claims were not time barred, they must be dismissed because they are implausible in that they do not allege the violation of a constitutional right. Further, many claims relating to the 2005 search are utterly frivolous because they are not recognized causes of action. Finally, all of the remaining claims relating to the 2008 search are implausible because they do not allege violations of constitutional rights and the proposed amendments do not cure these deficiencies.

II. Factual Background ¹

Christopher Kortlander operates the Custer Battlefield Museum (the “Museum”) in Garryowen, Montana, near the site of the Battle of the Little Bighorn in 1876. Garryowen is located at Exit 514 on Interstate 90 in southern Montana, about 62 miles from Billings. The Museum is located in a group of several buildings, including a gas station, a U.S. Post Office, a Subway sandwich shop, and Kortlander's offices and personal residence. Historical Rarities, Inc., is a Montana corporation controlled by Kortlander that deals in historical artifacts.

Defendant Brian Cornell is a Special Agent with the Department of the Interior's (“DOI”) Bureau of Land Management (“BLM”). Cornell was responsible for initiating the Kortlander investigation. Defendant Bart Fitzgerald is also a Special Agent with the BLM. He is the Cornell's supervisor and was the BLM Agent in charge during the time period relevant to this lawsuit. Defendant Doug Goessman is a Special Agent with the DOI's Fish and Wildlife Service (“FWS”). The 21 additional John Doe Defendants are other federal and state law enforcement officers employed by the named Defendants to execute the March 2005 and September 2008 searches of Kortlander's property in Garryowen, MT.

In 2003 or before, Plaintiffs allege Defendants commenced an investigation without any evidence of criminal activity because they had a personal vendetta against him. According to Cornell's affidavit seeking a search warrant, the Bureau of Land Management Office of Law Enforcement and Security began receiving complaints that Kortlander was selling artifacts on Ebay that he claimed were recovered from the Little Big Horn battlefield. The artifacts allegedly sold were small items, such as ammunition casings, bullets, and buttons that were accompanied by a certificate signed by Kortlander proving the date and location on the battlefield where they were found. The artifacts were also accompanied by a letter written on BLM letterhead. Cornell alleges the letter refers to artifacts recovered on private land and was written in 1994 for another purpose. The Ebay auction listings referred to the letter as evidence of the items' authenticity.

On May 24, 2004, the Associate State Director for the BLM in Montana wrote Kortlander explaining that the BLM disavowed the findings of the author of the 1994 letter and the Kortlander should not use it to sell artifacts. Regardless, Kortlander continued to sell artifacts with the letter.

The BLM then conducted an undercover operation. Cornell acquired several artifacts, including ammunition casings, uniform buttons, and uniform suspenders, seized during the execution of a search warrant in 1993. These items had no provenience—meaning source of origin in archaeological terms—according to the BLM. Cornell attached a microscopic “data dot” to each artifact. On December 14, 2004, an undercover BLM agent went to the Museum and met with Kortlander. Kortlander purchased four marked artifacts, three buttons and a suspender buckle, for $50.

On December 25, 2004, another undercover BLM agent placed a bid on a uniform button Kortlander was auctioning on his Ebay site. The button was represented to have been found on the Little Big Horn battlefield. Although the agent was outbid in the auction, the agent was later contacted by Kortlander via email and offered an identical button for $500. The agent asked if it was the same button earlier offered on Ebay and Kortlander wrote back inferring that it was. The agent bought the item and upon receipt determined that it was not the same button offered on Ebay. It was, however, accompanied by a certificate providing the location on the battlefield where it was allegedly found, as well as a copy of the 1994 BLM letter.

On February 14, 2005, the same undercover BLM agent bought another uniform button for $500 from Kortlander on Ebay. It looked like—and was in fact—one of those sold to Kortlander by the undercover agent. It was accompanied by a blank provenience certificate and a copy of the BLM letter Kortlander had been told to discontinue using. On March 17, 2005, Cornell called Kortlander in an undercover capacity at the Museum. Kortlander told Cornell that the button was recovered with a metal detector on private land in the 1990's. Kortlander also agreed to replace the blank certificate with a completed one and offered to sell Cornell another button.

Cornell used the results of the undercover operation to acquire a search warrant for the Custer Battlefield Museum and Store, and all attached offices, living quarters, and storage facilities. On March 31, 2005 approximately 24 federal agents, including some local law enforcement officers involved at the direction of the federal agents, executed the search warrant. The search was underway when Kortlander arrived in Garryowen. He was immediately detained and searched and he was restricted in his movement during the remainder of the search. The Complaint also alleges the agents were armed with automatic weapons, which they used to threaten Museum employees and coerce Kortlander into signing consent-to-search forms. Again, no specific details of threats or coercion are provided. Similarly, the Complaint avers the agents “verbally and emotionally attacked and abused” Kortlander with threats of lengthy imprisonment if he did not consent to the search, but no specific details are alleged. The Complaint also avers that numerous items of personal property were seized, but again, no specific items are listed. Although the investigation of Kortlander continued, he was not arrested and was not charged with any crimes.

In September of 2008, Cornell acquired a second search warrant for the Museum. In the affidavit ², Cornell avers that while executing the March 2005 search warrant to recover evidence of the artifact scheme, the agents observed numerous artifacts containing eagle and migratory bird parts and feathers. Cornell believed many of these artifacts had been donated to Kortlander's non-profit Custer Battlefield Museum.

Cornell further averred that an investigation revealed the Museum was accepting donations of items containing eagle and migratory bird parts in exchange for tax benefits for the donor. Agents had interviewed some of the donors and reviewed documents relating to the donations. One individual was interviewed and revealed that he provided Kortlander with fraudulent appraisals for some of the donated items containing eagle feathers and that Kortlander had purchased eagle parts and feathers from him. A search of this individual's residence revealed a file containing evidence of an 1999 offer by Kortlander to sell his collection of artifacts, including the eagle feather artifacts. The investigation also revealed Kortlander offered to sell his collection again in 2004 and 2007 through his for-profit business Historical Rarities, Inc. Interviews with the purported buyers confirmed that items containing eagle parts were part of the contemplated sale.

Cornell also avers that in April of 2007, Kortlander contracted with Heritage Auction Galleries of Dallas, Texas to auction the entire town of Garryowen, including the collection of artifacts in the Museum. The sale was to be through Historical Rarities, Inc., Kortlander's for-profit business.

Cornell also averred that he recently visited the Museum and saw three eagle-feathered war bonnets on display in the Museum.

Finally, the search warrant affidavit notes that pursuant to 16 U.S.C. §§ 703, 707 it is a felony to sell or offer to sell any part of a migratory bird or...