A federal judge has rejected the state of Wyoming’s motion to dismiss a lawsuit aimed at striking down a pair of laws that make it illegal to collect data from public lands without first gaining permission.
U.S. District Court Judge Scott Skavdahl issued the order on Monday, finding that Wyoming’s “data trespass” laws may unconstitutionally criminalize activities such as photography on public lands.
Groups suing the state say the case strikes at the heart of free speech and the right to petition the government as protected under the First Amendment, as well as equal protection under the Fourteenth Amendment. “A law that makes sharing photos of Devil’s Tower or Yellowstone a punishable offense just isn’t consistent with Americans’ right to Free Speech,” Natural Resources Defense Council senior attorney Michael Wall said in a prepared statement.
Earlier this year, the Wyoming Legislature passed Senate File 12 creating the crime of trespassing to collect data, and Senate File 80, which made the practice a civil violation. Key in the language of the statutes is the application to all “open lands” outside of municipalities.
“At this stage, the Court finds it difficult to conceive a permissible rationale for preventing the collection of resource data on lands which the public has the right to be upon,” Skavdahl wrote in the 38-page order. “Nothing indicates this activity is more disruptive, destructive, or problematic than other uses.”
Attorneys for the state insisted during a hearing before Skavdahl earlier this month that the laws apply only to private lands. That’s little assurance, however, based on the language in the statutes, Skavdahl wrote in his Dec. 28 order.
“Having the right to access the land is not enough to remove the threat of criminal and civil liability under the trespass statutes,” Skavdahl wrote. “The trespass statutes prevent activity on lands even where the public would not be trespassing.”
The lawsuit was filed by Western Watersheds, National Press Photographers Association, Natural Resources Defense Council, People for the Ethical Treatment of Animals and the Center for Food Safety. Defendants in the case include Wyoming’s Attorney General, the director of the Wyoming Department of Environmental Quality and three county attorneys in the state. In denying the motion to dismiss, Skavdahl also granted the state’s motion to remove Gov. Matt Mead (R) as a defendant in the case.
Justin Pidot, attorney for the plaintiffs, said Skavdahl’s order reveals a careful skepticism of the state’s data trespass laws. He said the judge appears to have “grave concerns about the state telling people who can lawfully go on public lands that they can’t collect data, information,” Pidot said.
“The first intuition that people have when they hear what the state of Wyoming did is, ‘That can’t be right — people can’t collect truthful information about the environment?’ And, ‘That’s a crime?’ And I think he [Skavdahl] might share some of that intuition,” Pidot said.
The judge obviously sees a problem with the language of the statutes, Wyoming Stock Growers Association executive vice president Jim Magagna said. A proponent of the data trespass laws, he said he believes that the state can clarify the intent of the laws.
As for the need for data trespass laws, Magagna said, “Because some of those environmental organizations, including the plaintiffs, were trespassing on private land.” He added that stockgrowers also have concerns about state employees crossing private lands without permission.
Plaintiffs, however, see the state’s data trespass laws as an attempt to block the public from knowing about violations of environmental regulations.
“I think that’s the strategy, and it’s a deeply cynical strategy,” Pidot said. “A country where the politically powerful can make it difficult to reveal their wrongdoing is fundamentally a different country than the country I thought I lived in.”
For more read these WyoFile stories:
State defends data trespass laws before court, Dec. 11, 2015
WyoFile showcases potentially illegal photos of Wyoming, Oct. 19, 2015
Lawsuit challenges constitutionality of data trespass laws, Oct. 2015
Groups sue Wyoming over “data trespassing” law, Sept. 2015
Critics say Wyoming data trespassing law criminalizes science, May 2015
Data trespassing bill is aimed at public lands grazing battle, May 2015
High-stakes suit pits ranchers against water-sampling greens, by E&E, Nov. 2014
Apparently the judge has a hard time reading the phrase “private open land.” The statute defines open land, but limits the application of the law to the subset of that land that is “private.” The uptake, if it’s not your land, or public land, stay off unless you have permission. It’s pretty basic.
And it’s not odd that the federal judiciary has a such hard time reading such simple language, when their bosses at SCOTUS see the word “penalty” and read “tax,” or “the States” and read “Federal Government.”
Chris Smith
Chris- it appears you have somewhat mis-read or mis-interepted the letter of the Data Trespass law as passed. The statute describes two situations that it defines as illegal trespass…only one of them – section B-(b) mentions ‘ private open land ‘ and is not attached to the A section which purtains to ANY open land. Section B falls under an ” or” condition not an ” And” qualifier, so in one sense the law contradicts itself by trying to have it both ways. You can read the letter of the law at : https://legiscan.com/WY/text/SF0012/id/1151882
Having said that , I have a question for you based on your comment. Your ” pretty basic” point seems to be adequately covered by existing Wyoming trespass statutes and SF0012 would have been redundant , therefore unneeded. Do you agree that existing trespass laws were sufficient ?
Let me be blunt. SFOO12 was not a trespass law— it is an Ag Gag law with an aside to other resource user situations -I presume here that the Wyoming Data trespass statute could be applied to mining, drilling, timbering etc. although it was targetted driectly at preventing data collection of livestock producers’ misfeasances by creating an umbrella over everything….
Ag Gag laws are seriously flawed, and have in fact been thrown out by the Courts. Such as Idaho’s very similar law from 2-3 years ago which was nixed, and rightly so. By way of review SF0012 was actually crafted to hammer Western Watersheds. The entire Wyoming legislative process was brought to bear on one guy on behalf of the stockgrowers, who either perceive a genuine problem or else have something to hide or fear from having their grazing practices exposed. personally , I believe it to be the latter since the former is imaginary.
Dewey Vanderhoff
I agree – I missed the lack of the qualifier “private” in 6-3-414(a). It should probably be struck as unconsitituional, unless it’s found that any person has an “ownership interest” in public land. The real impact (in my opinion) is in 6-3-414(e) which says that the data so procured will be inadmissable, (and so, any data derived from the inadmissable data would be inadmissable as “fruit of the poisoned tree).
This may be an “Ag Gag” law, which probably has a meaning beyond the term. But as I see it, this statute is a response to environmental activists who regard their activism as sacrosanct and above any other law, in conjunction with the criminalization of environmental statutes.
So perhaps, prior existing tresspass laws should be sufficient. Shouldn’t the consititutional process of establishing reasonable cause and getting a search warrant prior to entering private land to gather evidence also be sufficient?
Chris Smith
I hear these conversations from people about how much Wyoming has lost in public access. We are truly losing Ma and Pa Kettle on the ranches and their children have faded into sun set. Leaving their only opportunities to sell out, or their children will in the future. Even though they don’t like these words, who is going to work for $8.00 a day as ho-hum cow hand.
In turn the rich out of state boys come in and have nothing to do with Wyoming. They want so-call private owned land and land lock vast amounts public and state ground and abuse the Wyoming wildlife and the Wyoming Grass lands. Case in point: Elk mountain today has probably close to 3,000 head of elk wintering on the corporation lands, which for the most part is a safe haven and over pastured in the Summer. The game and fish screams that we must have a harvest for the herds will not maintain at such high numbers. In turn they start seasons in August on private lands and hunt these animals till January. Yet they put out don’t hassle these animals in the Winter, for it takes away the animals body reserves.
Therefore it leads me to this question, if these animals will not have the winter environment due to poor grazing, then how come Wyoming Game and Fish and the data collection people are not insisting proof be found? Why is no one questioning ruffly 14,000 steers grazing off the grass in height summer season, leaving very poor forage in hardest times?
I though Wyoming Wildlife was State property, another false hood. Want data collected, what good is it if no one is allowed to utilize the information. Want proof then the landowner on Elk mountain should be held accountable, for his private property only, and his grazing leases raised to compensate the miss use of not allowing a true harvest on Elk Mountain. Otherwise reduce the numbers,or utilize the state laws. Game wardens escort hunters onto state and public lands or trap the animals and harvest the elk. Taking the numbers down to the managed herd numbers, giving that harvest to the Wyoming food bank.
I agree with the judge. Public land is not just for title only, we all have a stake. The Jim’s and Hank’s of Wyoming grazing associations do not own, nor control public land they lease, nothing more.
Ken Casner