Kortlander v. United States

• Decision Date: 16 August 2012
• Docket Number: No. 11-601C,11-601C
• Parties: CHRISTOPHER KORTLANDER, et al., Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

CHRISTOPHER KORTLANDER, et al., Plaintiffs,

v.UNITED STATES, Defendant.

No. 11-601C

United States Court of F ederal Claims

Filed: August 16, 2012

Takings; Motion to Dismiss; Lack of Subject Matter

Jurisdiction; Failure to State a Claim.

Andrew T. Miltenberg, Nesenoff & Miltenberg, LLP, New York, NY, for the plaintiffs.

Ryan M. Majerus, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for the defendant.With him were Steven J. Gillingham, Assistant Director, Jeanne E. Davidson, Director, Commercial Litigation Branch, and Stuart F. Delery, Acting Assistant Attorney General, Civil Division.Of counsel, Karan L. Dunnigan, Field Solicitor's Office, United States Department of the Interior, Billings, MT.

OPINION

HORN, J.

Plaintiffs, Christopher Kortlander, Historical Rarities, Inc., the Custer Battlefield Museum, Inc., and the Elizabeth Custer Library and Museum, Inc., bring claims for compensatory damages arising from alleged misconduct by federal officials employed by the United States Department of the Interior, Bureau of Land Management and the United States Fish and Wildlife Service.¹Plaintiffs' complaint is rambling, disjointedand, in many respects, it is difficult to sort relevant information from colorful background details.Plaintiffs appear to allege violations of multiple Amendments to the United States Constitution, various tortious and potentially criminal conduct by government officials, without citing to any specific federal statute or Amendment, save for quoting from the Fifth Amendment and mentioning the Sixth Amendment right to a speedy trial, although they concede that a trial never occurred.Plaintiffs claim jurisdiction based on "the existence of a federal question pursuant to 28 U.S.C. § 1346(b) and the Federal Tort Claim [sic]Act…and the deprivation of civil rights pursuant to 28 U.S.C.[§]1343(a)(3)."²

FINDINGS OF FACT

According to the complaint, Mr. Kortlander owns Garryowen, Montana, a private town located within the perimeter of the Custer Battlefield at the site of Sitting Bull Camp.Mr. Kortlander purchased Garryowen in the early 1990s, built the Custer Battlefield Museum, Inc. and headed a for-profit corporation, Historical Rarities, Inc., through which Mr. Kortlander "bought and sold Custer collectibles."It appears, however, that Mr. Kortlander had plans to develop Garryowen to include a second museum, which was to house the largest extant collection of Custer manuscripts.Garryowen also included a Subway sandwich shop, a Trading Post, a United States Post Office, a Conoco gas station, and a convenience store.

Plaintiffs allege in their complaint that an investigation of Mr. Kortlander "began in2003, with complaints from an unnamed source," and was "reopened" in the same year at the urging of another unnamed former Bureau of Land Management employee, "who felt that the use of the Lingard Letter [a copy of which was filed with plaintiffs' complaint] was inappropriate by Kortlander."The complaint states that the Lingard Letter was written in 1994 by Bureau of Land Management, undercover agent Lee Lingard, the ex-husband of a woman Mr. Kortlander later dated.³According to the plaintiffs' complaint, the Lingard Letter, written on official Bureau of Land Management letterhead, provided the "government's opinion" that certain artifacts obtained by Jason Pitsch from his father's land, which borders Mr. Kortlander's Garryowen property and is located inside the exterior perimeter of the Custer Battlefield, "were legally obtained, ostensibly because the items in this collection were found on private, not federal land."Plaintiffs claim that the Lingard Letter "would later serve as evidence of legitimacy for many - including Pitsch, Kortlander and others - in the sale of artifacts acquired from private fee land around the battle site owned by Pitsch and others."According to plaintiffs, Mr. Lingard used Mr. Pitsch to interact with Mr. Kortlander and to spy on Mr. Kortlander's relationship with Mr. Lingard's ex-wife.

The complaint states:

From 1995 to 1998, Pitsch functioned as something of a "double agent" and provided information to his BLM [Bureau of Land Management] handlers, while slipping information to Kortlander, among others.During these years, whenever Pitsch was coming to Garryowen with then undercover BLM agent Lee Lingard(his BLM handler), Pitsch would advise Kortlander of Lingard's intent to visit Garryowen to look for any activity dealing in contraband artifacts.There was never any such activity at Garryowen, but Pitsch was interested in parlaying his "informant" status into whatever ego-boost or potential prestige that would serve to enhance his perceived personal value and credibility.

Plaintiffs also indicate that Mr. Pitsch's bank required the Lingard Letter in order to accept artifacts found on the Pitsch property as collateral for a federally funded Small Business Administration loan for Mr. Pitsch to build a fort-style building next to Garryowen.According to plaintiffs' complaint, the Bureau of Land Management claimed it had sent Mr. Kortlander a letter instructing him to cease use of the Lingard Letter because Mr. Lingard "had no legal standing to make such an authentication claim for the pieces in question, because he had not seen them physically removed from non-federal lands."According to the complaint, in 2005, "the letter [sic] Lingard letter would be a key element of the BLM's case against Kortlander when the BLM went before afederal magistrate to obtain a Search Warrant…."

Plaintiffs allege that in 2005, the Bureau of Land Management sought a search warrant against Mr. Kortlander, and the application for the search warrant stated that "he buys, sells, and appraises artifacts."Plaintiffs also allege "this is a completely legal activity, but was used to imply that something was happening that was improper or even illegal."According to plaintiffs, the Bureau of Land Management had previously engineered an operation to "entrap" Mr. Kortlander, which was used to justify the search warrant.Regarding plaintiffs' explanation of this alleged "entrapment,"plaintiffs state that a Bureau of Land Management undercover agent attempted to sell items to Mr. Kortlander under the ruse of being stranded and out of gas, and, thus, needing money.Plaintiffs allege that Mr. Kortlander purchased three buttons and a suspender buckle from the agent.Plaintiffs do not identify the origin or type of buttons and suspender buckle Mr. Kortlander purchased.Plaintiffs also state that federal agents made repeated phone calls to Historical Rarities, Inc., seeking "uniform civil war/Indian war" buttons.One of the agents identified himself as the father of a United States soldier serving in Iraq.According to the complaint, Mr. Kortlander "did not pay any attention to the multiple solicitations, but finally acquiesced," to the father, suggesting that Mr. Kortlander sold the father a button.Plaintiffs also claim that a second button was purchased by the Bureau of Land Management personnel, which was delivered to an undercover buyer.Plaintiffs state, however, that "the button was not the button that had been offered for sale as being from the battlefield."

Plaintiffs' complaint also states:

More than a month later while working undercover, agent Brian Cornell contacted Kortlander by phone complaining about paperwork.He asserted that Kortlander then agreed to sell another, additional button.However, no button was sold, no money was tendered and that transaction for an additional button was never completed.No other paperwork was ever provided by Kortlander and no other sale occurred, despite the assertion of Cornell that an additional transaction had taken place.

Reviewing the button count, between 2004 and 2005, two buttons were sold and delivered, no false signed certifications were delivered, and no crime was committed, except for false statements made by the BLM and the BLM's illegal entrapment procedures.

The BLM obtained a search warrant asserting that Kortlander was "any person to knowingly defraud, or devise a scheme to defraud, using wire in interstate commerce or through the mail."The problem with the search warrant is that no crime had been committed, as had been alleged by the federal agents.The only truth is that the BLM and its agents, including Special Agent-in-charge Bart Fitzgerald and Special Agent Brian Cornell, created a scheme to entrapment [sic] of Kortlander.

Plaintiffs' complaint further indicates that on March 31, 2005, pursuant to the search warrant, armed federal agents, conducted a raid and apparently searched the premises of the Trading Post, the Custer Battlefield Museum, Mr. Kortlander's private residence located on the upper floor of the museum, the basement vault of the museum, additional, unattached buildings and Mr. Kortlander's truck.Plaintiffs insist that the search warrant authorized entry only into the Trading Post and museum, and that the federal agents obtained entry into the other areas through intimidation and threats.Plaintiffs assert that the federal agents seized hundreds of items and artifacts that belonged to plaintiffsKortlander, Historical Rarities, Inc., and the Custer Battlefield Museum, Inc.Plaintiffs state that the items were not illegal to possess, nor evidence of a crime, although one of the special agents, Brian Cornell, accused Mr. Kortlander of "getting rich off this 'scheme,' and said something about Kortlander lining his pockets with cash.Cornell continued his diatribe about Kortlander's supposed knowledge of an intention to attribute false documentation with historical artifacts for personal profit and gain."

According to the complaint, as a result of the 2005 raid, "a fundraising and lobbying company in Washington, D.C.," with whom Mr. Kortlander had been working to secure funds for a new museum in Garryowen, withdrew from the project, costing $15,000.00...