Motion to Dismiss Filed in Kortlander Case - US Court of Federal Claims Issues Show Cause Order for Party's Failure to Appear

Little Bighorn River.  Courtesy NPS.

Federal lawyers recently filed a motion to dismiss Christopher Kortlander's multimillion dollar claim against the government, while Kortlander's attorney reportedly failed to appear for a January 26 court status conference.  The United States Court of Federal Claims therefore issued an order for a show cause hearing, stating: "The court reached defendant’s counsel and agency counsel, but was unable to reach plaintiffs' counsel at the appointed time, although the court attempted to reach plaintiffs' counsel twice. Therefore, on or before Monday, February 13, 2012, plaintiffs' counsel, in writing, in the electronic filing system, shall show cause why this case should not be dismissed for failure to prosecute and comply with the rules of this court ...."

Kortlander, owner of the Custer Battlefield Museum in Montana, was once under federal investigation after the Bureau of Land Management (BLM) received complaints that he was selling artifacts on eBay that were claimed to have been recovered from the Little Big Horn battlefield.  The battlefield is a protected national memorial dedicated to the U.S. Army's 7th Cavalry and the Sioux and Cheyenne.  It is the site of George Custer's famous "last stand."  The investigation of Kortlander led to the execution of search warrants by authorities in 2005 and 2008. But the prosecution in 2009 declined to prosecute.

Since then Kortlander has engaged in litigation, including filing an action against the government in the court of federal claims on September 19, 2011 for $188,500,000 in damages.  That action was filed days after a federal district court in Montana dismissed Kortlander's lawsuit against a BLM agent.

Attorneys for the United States filed a motion to dismiss Kortlander's tort, criminal, and constitutional law claims on January 17, 2012.  They contend in their pleading that Kortlander's case lacks jurisdiction, fails to state a claim upon which relief may be granted, fails to meet the statute of limitations, and fails to meet certain pleading standards.  Some of the arguments the government puts forward in the motion are the following (legal citations in the original have been omitted):

"Plaintiff [Kortlander] appears to allege that Federal agents violated his Fourth Amendment rights to be free from unreasonable searches and seizures.... He also alleges throughout his complaint that the search warrants justifying the 2005 and 2008 searches of his property in Garryowen [Montana] were not supported by probable cause.... However, the law is well established in the Court of Federal Claims that the 'Fourth Amendment provides no right to money damages for its breach.'"

"The Court also lacks jurisdiction over plaintiff's allegations that Federal agents violated his Fifth Amendment due process rights, because the Due Process Clause is not a 'money-mandating provision.'"

"The tort claims of slander and defamation fall outside the jurisdiction of the Court."

"Any effort by plaintiff [Kortlander] to allege a claim of tortious interference with business relationships by the Federal agents does not fall within the Court’s jurisdiction, for the same reasons."

"Further, any efforts by plaintiff to allege tortious invasion of privacy, or tortious harassment and intimidation by another person, fall outside the Court’s jurisdiction."

"Mr. Kortlander has failed to state any claims upon which relief may be granted. The majority of his claims are barred by the six-year statute of limitations."


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Custer Battlefield Museum Lawsuit Against Federal Agents Dismissed in District Court

While a September 30, 2011 decision by the Ninth Circuit Court of Appeals may have breathed life into Christopher Kortlander’s challenges to the government (see October 19, 2011 blog entry), the US District Court for the District of Montana closed a door on the Custer Battlefield Museum owner and operator by dismissing his lawsuit against multiple federal agents. Kortlander argued that his rights were violated as a result of law enforcement raids that resulted in no criminal charges against him.

In a September 12, 2011 opinion, Judge Richard Cebull dismissed Kortlander’s claims saying they either violated the statute of limitations, were “implausible,” or “frivolous.” The court entered the dismissal with prejudice, meaning the matter could not be brought forward again. The reason given was “futility alone.”

The federal investigation began into Kortlander and the museum after “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,” according to the district court opinion. The investigation broadened to include potential illegal activity involving eagle parts. Bureau of Land Management and US Fish and Wildlife took the lead in the investigation, and the agencies gathered information that led to the issuance of two court authorized search warrants in 2005 and 2008. The prosecution decided in 2009 not to pursue indictments.

See the district court’s full opinion at http://docs.justia.com/cases/federal/district-courts/montana/mtdce/1:2010cv00155/38767/34/.


CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Ninth Circuit Sends Custer Battlefield Museum Case Back to Lower Court - Lawsuit Seeks Unfettered Public Access to Search Warrant Affidavits

With no charges filed in a case targeting the Custer Battlefield Museum in Montana, the Ninth Circuit Court of Appeals has ruled that sealed search warrants and affidavits may be accessible to the public. Law enforcement officers from the Bureau of Land Management and other agencies searched the museum in 2005 and 2008. Court records reveal that the investigation focused on attempts to sell migratory bird parts as well as misrepresentation of provenance surrounding the sale of cultural artifacts.

Christopher Kortlander, owner and operator of the museum, has complained in lawsuits and public statements that the law enforcement raids were excessive and that he was unfairly targeted. As a result, he made seven Freedom of Information Act requests for investigative information regarding himself, Historical Rarities, Inc., Elizabeth Custer Museum and Library, Inc., Custer Battlefield Museum, and local stores. In 2010, Kortlander requested copies of search warrant affidavits. These affidavits normally contain the details of a police investigation.

The US Attorney’s Office in Montana eventually assented to the release of the material, but prosecutors urged the court, as reported in the Ninth Circuit opinion, to “’limit dissemination of the material to Kortlander’s personal review and/or for inclusion in any future court filings,” citing privacy interests of third parties.’ The government said: [C]oncerns have been raised that information collected by Kortlander may be posted on web sites. The Ninth Circuit has explained that ‘the privacy interests of the individuals identified in the warrants and supporting affidavits’ supports the conclusion that warrant-related material not be made available for public dissemination. Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989).’” (quoting the government’s legal brief).

The lower court originally sided with the government. The federal district court authorized the release of the documents to Kortlander in particular, but restricted them from further public view. The court of appeals, however, overruled the district court and sent the case back to the district court, ruling: “We hold that the public has a qualified common law right of access to warrant materials after an investigation has been terminated. . . . [T]he matter is remanded to the district court to reapply the common law standard to Kortlander’s request. We decline to decide whether the public has a qualified First Amendment right of access to warrant materials after an investigation has been terminated. In the event that the court denies Kortlander unrestricted access to the warrant materials under the common law, the court should decide in the first instance whether the First Amendment right applies to post-investigation warrant materials and, if so, whether Kortlander is entitled to unrestricted access under the First Amendment . . .”

The full opinion can be found here: http://www.ca9.uscourts.gov/datastore/opinions/2011/09/30/10-30222.pdf.


CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.