Members of the Wyoming Native Plant Society inspect the world's only known population of the endemic plant Yermo xanthocephalus in central Wyoming. Separately, a coalition of groups has sued the state of Wyoming over its data trespass laws, which the plaintiffs say harm free speech and public participation in data gathering. (BLM Wyoming)

UPDATED

Wyoming’s new data trespass laws are unconstitutional, violating free speech, equal protection and other basic freedoms, according to a lawsuit filed by conservation, animal welfare, and media groups in U.S. District Court on Sept. 29.

The laws, passed in the 2015 session, apply to anyone who enters “open land” — including public lands — to collect data without statutory authorization or explicit permission to gather data. If the data (including photographs) is submitted or intended to be submitted to a government agency, then the collector is guilty of data trespass.

Plaintiffs in the suit include the National Press Photographers Association, Western Watersheds Project (a group that has come under fire for its controversial water-sampling efforts aimed at showing cattle contaminate streams with E. coli) and the Natural Resources Defense Council, which also monitors public lands.

Joining are People for the Ethical Treatment of Animals, and Center for Food Safety, two national groups that actively monitor animal welfare in Wyoming.

The suit largely turns on the definition of “open land” in the bill, which the plaintiffs say is broad enough to include any land outside of incorporated towns or subdivisions, whether it be private, state, or federal land. That definition was crafted after Senate File 12 passed the Wyoming Senate and the House, when a conference committee met to iron out differences between amendments passed by each chamber. The conference committee, which included Sen. Larry Hicks (R-Baggs), amended the bill to strike the word “private” from the phrase “private open land.”

Hicks told WyoFile the change was requested by committee members from the House who meant to expand the bill to include state land. “We don’t have the authority to tell you what you can or can’t do on federal lands, that’s not in our legislative purview,” Hicks said in an interview with WyoFile last May. “If you legally access federal lands, that doesn’t apply. You are not captured under this law.”

Hicks maintains that stance, saying the laws in no way prevents data collection on federal public land. The laws exempt from prosecution anyone who has “ownership interest,” and every U.S. citizen has ownership interest in BLM and Forest Service lands.

“It was always my intent and my belief that you have an ownership interest,” Hicks said. “That gives you the right on the public domain to be able to collect data.”

While that may have been the intent, the letter of the law does not exclude federal land, the plaintiffs argue.

According to the lawsuit (see below), those subject to prosecution could include a Wyoming public school student who submits a photo for a class assignment, or someone who reports GPS coordinates for an alleged crime committed on public land to any government agency.

Under that broad interpretation, it’s possible even submitting a photo to the Game & Fish Department’s annual Wyoming Wildlife magazine photo contest could be illegal — if you didn’t have statutory authorization or permission to access the land to take photos.

The plaintiffs argue the data trespass laws fail to clearly define the phrase “statutory authorization,” leaving citizen data collectors in a legal gray area. They say the uncertainty causes citizens to avoid collecting any data at all, which effectively chills free speech and the right to petition the government on public lands issues.

“A random tourist is unlikely to be scared, but if you are engaged in political activity that is unpopular in the state, that’s a different situation,” said Justin Pidot, legal counsel for the plaintiffs in the case. “People who feel like they are being targeted by this law are afraid that the local prosecutor might decide to prosecute. There is a real chilling effect as a result, and that is one of the things the First Amendment is designed to protect against.”  

Gene Policinski, chief operating officer of the Newseum Institute’s First Amendment Center, said he hadn’t reviewed Wyoming’s data trespass laws, but that at first glance they seem to have similarities to “ag-gag” bills from other states.

“[It] would seem to be a way to restrain people not just from hobby photography, but getting information to pursue later complaints,” he said. He compared the laws to other states’ efforts to curtail flying drones without permission from the surface owner.

“The status of these is very uncertain in terms of the constitutionality,” Policinski said, referring to “ag-gag” and drone laws. “There are some questions you have to ask about what is the practicality of getting permission, identifying an agent at any time.”

Proponents of the laws — Senate File 12 and Senate File 80 — said they were needed to stop alleged trespassing — in the traditional sense — on private lands to access public lands for data collection. But since the moment they were passed, the laws have sparked an outcry from conservation and animal welfare groups who see them as intended to silence their watchdog efforts.

A tussle between agriculture and an anti-grazing advocacy group has now spilled out to cause concerns with Wyoming’s data trespass laws for even the casual public lands visitor. The National Press Photographers Association said it joined the lawsuit because it sees the laws as a direct attack on free speech and freedom of the press.

“The First Amendment to the U.S. Constitution does not allow any state to directly restrict expression in this manner,” the suit argues.

Plaintiffs say taking photos and collecting data are an act of free speech, and citizens have a right to submit such information to their government under the Petition Clause of the First Amendment. “Plaintiffs have no choice but to sue to invalidate these Statutes, because the laws are aimed directly at Plaintiffs’ and their members’ constitutionally protected activities,” the suit states. “Preventing Americans from communicating with their government is not an interest that the Constitution recognizes as legitimate.”

Plaintiffs argue the data trespassing laws also violate other parts of the U.S. Constitution. For example, the laws “do not prohibit unauthorized entry onto open land unless a person collects or intends to collect resource data.” The suit argues such language singles out data collectors, and violates the Equal Protection Clause of the 14th Amendment.

A suite of federal environmental laws, including the Clean Water Act, the Federal Land Management Policy Act, and the Endangered Species Act among others, have specific provisions enabling citizens to submit data to inform management decisions. Curtailing citizens’ rights to participate in such regulatory actions violates the Supremacy Clause of the U.S. Constitution, which says federal laws have precedence over state laws, the suit argues.

In its original version, Hicks said SF 12 was designed to stop data collection only on private land, in an effort to protect landowners. “If somebody comes on your private land [without permission] and collects information about your property, that belongs to you — it is no different than stealing your social security number,” he said.

He compared illegal data collection on private land to a breach of private phone records by the National Security Agency. “This is about people taking your information and doing something that was going to damage you, and done in an illegal fashion,” he said.

The lawsuit is a predictable strategy of groups that “make their living by litigating,” Hicks said.”This bill to them is not trespass. It is about their ability to exclude other uses of the land other than what comports with their view of the world.”

The lawsuit notably avoids mention of groups that supported the laws, such as Wyoming Association of Conservation Districts, Wyoming Farm Bureau Federation, Wyoming Stock Growers Association, and the Wyoming Wool Growers Association.

Instead, it names as defendants members of the executive branch and those tasked with enforcement. Those include Gov. Matt Mead, Attorney General Peter Michael, Wyoming Department of Environmental Quality director Todd Parfitt, and the attorneys for Lincoln, Sublette, and Fremont counties.

According to federal rules, the state must respond to the lawsuit before the end of October, either by filing an answer to the lawsuit or a motion to dismiss the case. The Wyoming Attorney General’s office reviewed the laws before Gov. Mead signed it, and Hicks said he expects the office to do its best to uphold the laws.

“We’ll let the courts shake it out,” Hicks said. “At the end of the day, lets assume they [the plaintiffs] have a small victory. We’ll tweak the law. They still won’t like it. Anything we do to impede their authority to regulate someone off the land they will not like, and they will litigate, and we should have no expectation other than that.”

Flickr Creative Commons photo by U.S. Fish and Wildlife Service.

Data Trespass Lawsuit

 

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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