Students plant trees along Bitter Creek on Bureau of Land Management land. A new law in Wyoming makes it illegal to cross private land to collect data on public land. (BLM photo)

A recent opinion piece published by Slate magazine states that a new Wyoming law makes it illegal to collect data on public lands like Yellowstone. That somewhat overstated claim comes from an interpretive reading of a new state law passed earlier this year.

However, some language in the law is ambiguous enough to invite wide interpretation.

The author of the Slate piece is Justin Pidot, a Colorado law professor who does pro-bono work for Western Watersheds Project, an environmental activist group that could be affected by the law. In the scenario Pidot describes, a public citizen who takes a picture in Yellowstone and uploads it to an online contest sponsored by the federal National Weather Service could be charged under this law.

What’s this all about?

Last year 12 Wyoming ranchers from Lincoln County and Fremont County filed a lawsuit in state court in Fremont County with representation from Cheyenne attorney Karen Budd-Falen. The ranchers accused employees of Western Watersheds Project of trespassing on private land to collect water samples.

By plotting the locations of sample collections by WWP Wyoming director Jonathan Ratner, ranchers say he must have crossed private land in order to collect the samples. In three cases they allege he collected samples on private land.

Ratner claims he collected the water on public lands after using a road with an easement for public access. He aimed to send the water to the state Department of Environmental Quality, which could add the rivers to a list of impaired streams under the Clean Water Act, potentially leading to management actions by the state and the Bureau of Land Management to keep cows away from streams.

In the wake of the lawsuit’s filing, Wyoming’s Joint Judiciary Committee took up legislation making it a crime to collect data on private land or access public land through private land without permission, with the intent of collecting data.

The original version of the bill specified trespassing penalties only applied to data collected on “private open land.” After going through a conference committee between the chambers, the final version of the bill that became law instead used the term “open land” — which Justin Pidot interprets to include all lands: public, private, state, federal.

The Legislature overwhelmingly passed the bill, Senate Enrolled Act 61, during the 2015 session that ended in March. One champion of the bill was Sen. Larry Hicks (R-Baggs). Rep. Marti Halverson (R-Etna) who lives in Lincoln County and Rep. David Miller (R-Riverton) of Fremont County also championed the bill.

The state already has trespassing laws that make it a penalty for anyone to access private land without permission.

What does the law actually say?

The law is aimed at those who trespass on private land to get to public land, where they then collect data. But the language is so unclear it leaves the door open wide to interpretation.

For example, the law states that a person is guilty of “trespassing with intent to collect data” if he doesn’t have statutory, contractual or other legal authorization to access “open land.” The law avoids saying trespass applies exclusively to private lands. Instead, it refers to open land, which the law defines as:

“… land outside the exterior boundaries of any incorporated city, town, subdivision approved pursuant to W.S. 18-5-308 or [cluster] development approved pursuant to W.S. 18-5-403.”

While the intent of the law may have been to strengthen trespass laws to apply to those who may unknowingly or inadvertently cross private lands, lawmakers also used ambiguous language. It has left data collectors wondering in what situations they could be charged for collecting data on public lands.

“We thought it was a flawed piece of legislation from the start,” said Gary Wilmot, executive director of the Wyoming Outdoor Council. “One of our early arguments against this was it’s very different than criminal trespass. Criminal trespass you have to knowingly be on private land. This law, you don’t have to trespass knowingly, and that’s why we saw it as so risky for wildlife researchers. We’re worried about people making honest mistakes and being guilty of this crime.”

The law also bans data collection on private land without permission from the landowner.

The law requires that data collected illegally be expunged from public databases and not used in management decisions by government agencies.

Legislators who championed the bill were not immediately available for comment.

So, is it true I could be prosecuted for taking a picture — in Yellowstone?

Not exactly. A person would have to access Yellowstone by trespassing on private land to be penalized under this law.

The law only criminalizes “trespassing with intent to collect data” if a person has no legal authorization to enter or access that land.

That said, in many cases scientists already have to acquire permits to collect data on public lands, whether the land is managed by BLM, the Forest Service, or the National Park Service.

What do scientists say about this?

WyoFile spoke with a number of scientists at the University of Wyoming who say they are already extremely cautious about knowing whether they are on public or private land when they collect data. Many seek to have permission at all times to avoid confrontation with a private landowner or leaseholder of public land.

Still, some have questions about whether under this law they would be prohibited from collecting water samples from a free-floating boat, or a bridge on a public roadway, if the stream itself was flowing through private property.

Chris Boswell, University of Wyoming vice president for governmental and community affairs, said he lobbied unsuccessfully for an exemption so that the law would not apply to university researchers.

“This means that our researchers need to be sure they have permission on private land and they need to be darn sure they know where they are,” Boswell said. “In the Legislature the attitude was this is the same thing that is expected of hunters in Wyoming and it should be expected of researchers too. … Our folks will need to be very vigilant in order to not run afoul of it.”

— Read Justin Pidot’s column here. The site Wonkette also published an opinion piece on the same topic.

— WyoFile editor-in-chief Dustin Bleizeffer contributed to this article.

University of Wyoming Research Office FAQ for researchers

 

 

Gregory Nickerson

Gregory Nickerson worked as government and policy reporter for WyoFile from 2012-2015. He studied history at the University of Wyoming. Follow Greg on Twitter at @GregNickersonWY and on www.facebook.com/GregoryNickersonWriter/

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5 Comments

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  1. Jonathan Ratner of Western Watersheds – Wyoming division- must be doing something right if he got the entirety of the Wyoming legislature to pass a draconian bill against him…

    Can anyone from the Wyomng Stockgrowers, the Farm Bureau , Karen Budd Falen’s office–or anyone at all — cite a single documented instance other than the unproven allegations against Ratner that would demonstrate the need for this law? I do not believe they can , unless those animal rights folks have been sneaking into the industrial hog farms with their iPhones again. Please be specific.

    I ask that , because the Wyoming law is a boilerplate copy of the law passed in Idaho 2 years ago , where Western Watersheds has been much more proactive. Yet to date, no prosecutions there.

    SF0012 was an Ag Gag law, and all that goes with that . A special law written for special interest groups such as Stockgrowers and agribiz legislating protections apart from the rest of us, and draconically at that. But data is data; truth is truth. Forbidding hard data to be used because it may have been gathered illegally does not change its validity or make it any less relevant. E. coli bacteria in surface water do not similarly discriminate.

    It’s Wyoming after all, We still have one foot fiirmly planted in the 19th century. Cows have more rights and protections than people who are not stockgrowers

    Dewey Vanderhoff

  2. “I’m not sure you’d be able to find that latter authorization in many federal regulations.”

    Perhaps, professor, you could shore that up before writing an inflammatory Slate piece next time?

    Steve Klein

  3. I thought I’d way in since I was the author of the Slate piece. I approach the law from the perspective of trying to assess who should be worried about potentially violating its letter — because those are the people who may change their behavior for fear of getting into trouble.

    The fact that the final version of the law includes an (a) section that discusses “open lands” and a (b) section that discusses “private open lands” — sections which are otherwise virtually identical — makes it pretty clear to me that section (a) would have to be read to apply to public land.

    The story suggests that the law wouldn’t apply, however, if someone has permission to enter the relevant parcel of land. But the statutory text is somewhat more subtle. Section (a)(ii)(A) says that you have not violated the law if you have legal authorization “to enter . . . to collect the specified resource data.” That’s quite different than having simply having legal authorization to enter. To my eye, defending against prosecution would require you to prove both that you have express legal authorization to be on the relevant land and also that you have express legal authorization to collect resource data. I’m not sure you’d be able to find that latter authorization in many federal regulations. When it comes to data collection, I believe the Forest Service regs would only expressly authorize taking a still photograph. Take a water sample (or even a video) would not be expressly authorized, and thus you would not fall within (a)(ii)(A).

    Justin Pidot

  4. One question I do have about this law is when you cross private land on the way to public land for purposes of data acquisition. Many public (e.g. county) roads cross private lands to achieve BLM/State/FS access. If you travel on one of these public county roads across private property, would you still need to obtain permission from the landowner, or is the public road access ‘enough’ to stay within the boundaries of the law?

    I don’t have any need to collect data – scientific or otherwise – and am a proponent of private property rights, but I’m just curious how this will be treated in this case. Anyone know?

    Jared Kail

  5. I read Justin Pidots piece on Salon on-line early today and thought his reference to “open land” was over-broad. As someone who has worked on wilderness and roadless inventory for conservation groups I was very aware of the implications of the legislation the made the collection of data a special class of trespass. I had to bypass areas like the North Fork Wilderness Study Area because I could get permission to cross the private lands surrounding it to look at lands wit wilderness characteristics that surrounded the WSA or the illegal road in the wilderness constructed by a leassor.
    I take the “open land” provision to mean it is the responsibility of the data collector to know exactly where they are. The technology to do so via modern global positioning satellites and the open assessor records now available on-line in most Wyoming counties make ignorance no excuse. the collectors need to do their homework. Many areas in mixed deeded and public lands are not fenced or the land survey markers from 100 years ago are poorly positioned and new cadastral surveys have taken place. I vehemently disagree with the idea that a grazing allotment on federal public land or State Trust land constitutes a property and the holder needs to be notified prior to any collection or record if the access is lawfully gained. In every instance of my surveys I did make the calls and do the follow-up to get permission from private landowners. You have to be transparent and head-up on the truth of your intent. The truth does open doors and two tracks. But if you don’t get it, move on.

    Rob Davidson