I can cover the highs and lows of the recent legislative budget session and only discuss one bill.

One terrible zombie monstrosity from out-of-state that didn’t succumb to popular opposition until a week after the Legislature should have adjourned.

How bad was Senate File 74? It threatened our free speech rights by proposing to criminalize protest and impeding “critical infrastructure” — a sweeping category that would have included gas and oil pipelines, refineries and mines but also cable TV lines, cell towers and irrigation ditches. One would be hard pressed to spit in Wyoming without hitting “critical infrastructure” by the bill’s definition. And if a prosecutor decided your expectoration damaged or impeded the operation of the facility in question, SF-74 called for 10 years in prison and fines of up to $10,000.

For organizations that “aided and abetted” protests that caused damage, the Senate called for a fine up to $1 million. The House lowered it to a maximum of $100,000, which is still more than the fine for any criminal state statute on the books and a defacto deathblow to most advocacy groups.

Why on earth would we need such a bill? The bill’s proponents said it was to prevent a Dakota Access Pipeline style mass-protest from happening in Wyoming.

In 2016 the Standing Rock Sioux Tribe and hundreds of supporters protested the completion of the DAPL, claiming the oil and gas transport line threatened their water supply, sacred lands and ultimately their sovereignty. The peaceful protest morphed into a months-long, sit-in style obstruction campaign amid an especially bitter northern plains winter.

It got ugly. Demonstrators and journalists endured attack dogs, pepper spray, arrests, strip searches and fire-hoses in sub-zero weather.

The Obama administration eventually responded by using the permitting process to require the company to explore a safer, less sensitive route for its project. It was a short-lived victory for tribal and conservation advocates — the Trump administration reinstated DAPL’s permits shortly after taking office — but the affair spooked Wyoming’s resource barons and their puppets in Cheyenne all the same. 

Wyoming has never remotely had a situation like Standing Rock, but that didn’t stop the conservative think-tank the American Legislative Exchange Council from creating so-called model legislation to punish protests against industry and shopping here and in other states. Sen. Leland Christensen (R-Alta) sponsored the bill, but opponents charged it was taken verbatim from the ALEC proposal.

The Senate passed SF-74 by a 25-5 vote then sent the bill to the House where it was heard by the House Minerals Committee.

House minerals killed it on a 4-4 vote — majority support is required for a bill to proceed out of committee. That should have put the issue to rest but in a nearly unprecedented move, committee chairman Mike Greear (R-Worland) used a technicality — he’d failed to sign the bill’s jacket and thus officially complete the committee process — to weasel out of the panel’s decision and call a revote the next day. Two legislators, Rep. Bill Henderson (R-Cheyenne) and Rep. Tom Crank (R-Kemmerer), flip-flopped and the “zombie bill” went to the full House for debate. The two men cracked under industry pressure, outraged bill opponents said.

SF-74 went on to pass the House 36-23, heavily amended, with much heart-felt debate.

I was stunned by the twisted, illogical support for SF-74. Conservative legislators who continually rant about outsiders, including other governmental entities, telling Wyoming what to do embraced the ALEC bill with an almost religious fervor, even absurdly denying its origin.

Democrats and a few Republicans raised concerns about citizens’ free speech rights, and a contingent of ranchers led by Rep. Eric Barlow (R-Gillette) questioned the bill’s negative impact on property rights.

“This isn’t even our bill,” said Rep. Cathy Connolly (D-Laramie). “Just vote it down today.”

Rep. Jared Olsen (R-Cheyenne) said he wanted to “dispel the myth” that the bill came from out of state. He said he co-sponsored it because a refinery in his district asked a law firm to help put together a bill. “It just so happens that there is model legislation that they looked to, but that’s not uncommon in our legislative process,” he said. “We shouldn’t reinvent the wheel and we didn’t. But we made this bill Wyoming.”

No, what the sponsors likely did was nothing more than click a few computer keys, open the ALEC website and download a bill it copied word-for-word. Or maybe they just opened an ALEC envelope or email. However it got here, SF-74 is no more a Wyoming bill than a drugstore cowboy is a rodeo champ.

Rep. Jim Byrd (D-Cheyenne), a Minerals Committee member, said industry couldn’t take the defeat at Standing Rock. “So the result of this is to truncate your First Amendment rights to go in and do what you think is necessary underneath that thing we hold very dear, that binds the basics of our country, the Bill of Rights,” he said.

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For pure sarcasm no one could touch Rep. Lloyd Larsen (R-Lander), who scoffed at those who raised concerns. “I’ve had to choke back the tears on the [sight] of my rights being trampled right in front of my eyes,” he said mockingly. “I hope that my emotions will hold as I venture to discuss this in further detail.” Larsen, it’s worth noting, owns a pipeline construction company.

Rep. John Eklund (R-Cheyenne) claimed the bill protects free speech but warned protesters about their conduct. “You’d better stick to the law. Go out there and have a friendly protest, that’s great,” he said. “But don’t damage things, don’t impede an ongoing operation that costs or could damage or injure people or industries. Or our income streams in Wyoming — after all, it does fund our education.”

I wonder what Eklund and other legislators would think if they had family members who had been injured by “security” thugs hired by DAPL. Would industry still be all-important, or would people matter too?

“The East India Tea Company would have loved SF-74,” said Rep. Charles Pelkey (D-Laramie), drawing an apt comparison to the historic protest in Boston Harbor that was prelude to the Revolutionary War.

It went unmentioned during House debate, but Bull Connor — commissioner of public safety for the city of Birmingham, Alabama, during the civil rights protests of the 1960s — would have loved it too. Had he been empowered to lock up Rev. Dr. Martin Luther King Jr. for a decade and fine the Southern Christian Leadership Conference $1 million, things may have turned out very differently.

A court challenge seemed certain if the bill became law, but Republican Gov. Matt Mead vetoed the misguided measure, which he called “flawed” and said needs more work. Mead — who is unencumbered by political concerns after deciding not to seek elected office again — said he agrees it is necessary to ensure critical infrastructure is safe and secure.

But he criticized the bill for its protection of what he called “ordinary” facilities like hay barns and irrigation dams. Mead said existing Wyoming laws already cover attempts to impede or damage critical infrastructure. We already have laws against trespass and damaging property.

I was initially confident that Mead’s arguments, combined with increasingly forceful public opposition, would finally seal the measure’s fate. But the Senate voted to override the veto without breaking stride, 20-5. That left it all up to the House. Since House backers only needed to add four more votes to get to 40, two-thirds of the chamber, chances of keeping it from becoming law looked bleak.

I was even more pessimistic when Republicans caucused immediately before the vote. The GOP closes all of its caucus meetings — the laissez faire attitude toward free speech doesn’t extend to doing the public’s business in private — so there’s no telling what they discussed, but such secret sessions are often the vehicle for party leaders to press for a unified stand on an issue.

Early in the voting, though, it was clear that party lines weren’t going to hold. Conservatives like Cheri Steinmetz (R-Lingle) and Mark Kinner (R-Sheridan) refused to extend their support to the veto override, despite having voted for the bill’s passage. A bloc of five Casper Republicans –— House Speaker Steve Harshman, Bunky Loucks, Joe MacGuire, Jerry Obermueller and Tom Walters — also rejected the override effort, which failed by an unexpectedly lopsided 20-33 vote.

What made the difference? Loucks said Mead’s veto message that explained the bill wasn’t ready to become law “resonated with me.”

“We amended it a lot,” he recalled. “At one point someone asked if we even knew exactly what was in the bill, and I admitted I didn’t.”

The bill’s failure could be chalked up as a temporary loss for supporters who vowed to sponsor a similar measure in 2019. Or it could be permanent if opponents get on the ball and launch a year-long campaign against this and all ALEC bills. Most Wyoming voters will reject the idea that our state should mindlessly adopt prototype bills of any stripe. And consideration of the basic un-American attitude the bill takes toward the First Amendment and our cherished rights should doom it.

Kerry Drake

Veteran Wyoming journalist Kerry Drake has covered Wyoming for more than four decades, previously as a reporter and editor for the Wyoming Tribune-Eagle and Casper Star-Tribune. He lives in Cheyenne and...

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  1. So much is made of Standing Rock, as if some big bad Indians ganged up on a poor little helpless corporation. Although Donald Trump approved the project and it went forward, the lawsuit challenging the permit also went forward. The court found that the permit had indeed been issued illegally and that requirements for consultation with tribes and environmental impacts and impacts on historical sites had not been adequately investigated and weighed. It was Energy Transfer Partners, not the tribes, who violated the law. It was Energy Transfer Partners who brought paid mercenaries in the form of a security company with war zone experience to the scene to use tactics to fight American people that had previously only been used in third world countries. That happened in the United State of America. And again, after the fact, it turns out the security company was not licensed to operate in North Dakota, so all of their use of attack dogs and flash grenades and infiltration and spying was illegally done, besides being morally repugnant. North Dakota committed huge resources to trying to stop the protests, and arrested more than a hundred people, including journalists. Most of the charges had to be dropped for lack of evidence, but true to the spirit of SF 74, it cost people a lot of money to hire lawyers and pay fees to get out of jail. The most amazing thing of all is that so many people could protest for so long and maintain non-violence. The only gun found was one that belonged to an FBI infiltrator. And of course there have been several leaks from this “very safe” pipeline since it began operation. What is troubling about the legislature’s approach to SF 74, is that they assumed, like North Dakota, that there is only one side to the story, that energy companies are naturally innocent and virtuous and that their contribution to the stater’s economy is the only thing that matters, In fact, if you look at Standing Rock as the example, what is needed are laws that prohibit corporations from behaving like mobsters, not laws to penalize protest and put a bullseye on groups who want to protect water, air, and wildlife. SF 74 is about the most one sided piece of legislation I have ever seen. What it says is that Wyoming supports energy corporations 100%, and that if Wyoming citizens have to be jailed and bankrupted to give corporations free rein to exploit state resources and damage the environment without hindrance, then that is what we should do. What needs to happen is for lawmakers to look at the whole story and the future of our state, where farming, ranching, and recreation are also important parts of the economy, and they depend on healthy water, land, air, wildlife, and livestock. And all of us deserve the right to speak and be heard without coercion.

  2. Kerry Drake does us a huge service by tracking the source and course of SF74 thru Wyoming’s wholly misguided Legislature. Unfortunately , Wyoming’s somewhat subversive industry stooge solons are for once not alone on the high plains in their exertions. You can read the sordid history of these so-called ” Infrastructure protection ” bills at this very well researched article from The Intercept reported by Alleen Brown,
                https://theintercept.com/2018/02/02/ohio-iowa-pipeline-protest-critical-infrastructure-bills/

    At the time, Wyoming would havew been the third state to adopt an infrastructure protection bill. Okalhoma did it first with two complementary bills that were later considered by lawmakers in Iowa and Ohio. I’m not sure at what point the ALEC cart was hitched to the horse, or the ALEC horse enlisted to haul the loathesome cart. Currently , five more states have similar bills on their docket.

    While Wyoming’s version of infrastructure protection was , at first , excessively heavy handed and just plain mean spirited, it did not go to the extent of some other proposed laws that created a whole new type of felony. Whatw as proposed in Pennylvania made Wyoming’s version seem reasonable or moderate by comparison . But truth be told ALL of these verious infrastructure protection bills are wretched. In Wyoming’s case , infrastructure protection was already under the umbrella of existing trespass and property damage laws and thus was mostly unnecessary. But when you have delusional ideologues such as Leland Chistensen trying to put the solution cart out in front of a problem horse, it’s inevitable the drover will run off the road into the weeds and get stuck in many cases.

    It is good that SF 74 failed to pass. Even though the Wyo Senate was nearly in lockstep when it came time to overrule the Governor’s hollow veto, the Wyo House surprised us all by breaking the ALEC spell and waking from the nightmare to throw it down. Whoo….dodged a cannonball. Except a bill like this had no business being given top billing during a critical budget session in the first place.

    But infrastructure reverse demonization in Wyoming law is not dead and gone. Something like SF74 will very likely be resurrected for next year’s seassion , by whence several other states may have already passed their version of this sorcery. Goats will have been sacrificed on ALEC altars. Will Wyoming cave to the Dark Side and do industry’s bidding next year ? I would not bet the ranch against that.