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