Sheep and cattlemen won a legal volley in Wyoming this month with the dismissal of a lawsuit brought by free speech, environmental, anti-grazing and animal rights activists aiming to strike down the state’s data trespass laws.
After first rejecting the state’s motion to dismiss the lawsuit in December 2015, U.S. District Court Judge Scott Skavdahl granted a second motion to dismiss on July 6, noting that several of his initial concerns with the data trespass laws were relieved after they were amended during the 2016 legislative session.
But the dismissal hardly resolves several key legal questions for a set of state statutes that activists say are meant to chill or “gag” those who seek to expose wrongdoing in agricultural practices, and that may still violate constitutionally protected activities such as free speech.
“They say you can’t speak while you’re trespassing in any way,” said David Muraskin of Public Justice, among the plaintiffs’ legal counsel. “It’s basically giving the state leverage to suppress speech in the most blatant way because they tie the regulation [trespass] to conduct [speech] that is protected by the First Amendment.”
Activists and citizen-scientist proponents do not seek to sidestep traditional trespass laws that protect private property rights, Muraskin said. However, Wyoming’s data trespass laws target the actual gathering and sharing of such information — which is protected under the First and Fourteenth amendments — as crimes themselves if associated with trespass.
“That then puts the fear in freedom of speech,” Muraskin said. “So when the government regulates trespass by tying it to speech, it puts fear into all citizens of Wyoming about communicating and participating in public discourse.”
Champions of Wyoming’s data trespass laws say the agriculture industry has nothing to hide when it comes to citizen science and the application of environmental laws and regulations related to agricultural operations. The laws simply uphold traditional trespass statutes, and add that data collection can be part of a trespass or a trespass itself, and therefore such information must be expunged from government agencies.
“To me the law is pretty straightforward, and plenty of cases uphold this idea; free speech doesn’t give you a right to trespass,” said Jim Magagna, executive vice president of the Wyoming Stockgrowers Association.
Evolution of Wyoming’s data trespass laws
Wyoming’s new data trespass laws passed in 2015 quickly gained national notoriety as critics published articles about the laws’ wide-reaching language. Senate File 12 made it a crime and SF 80 made it a civil violation to collect data without prior consent on private and even all “open land” outside of municipalities.
In a Slate article, attorney Justin Pidot wrote that even a visitor to Yellowstone National Park who took a photograph then entered it in a government sanctioned photo contest could be found guilty of data trespass.
“Wyoming doesn’t, of course, care about pictures of geysers or photo competitions,” Pidot wrote in Slate. Instead, he alleged, the state is interested in suppressing scientific data that can be submitted to government agencies with the authority and duty to enforce environmental regulations.
“The state wants to conceal the fact that many of its streams are contaminated by E. coli bacteria, strains of which can cause serious health problems, even death,” he wrote.
Pidot represented Western Watersheds Project, which was joined by plaintiffs National Press Photographers Association, Natural Resources Defense Council, People for the Ethical Treatment of Animals and the Center for Food Safety in filing a lawsuit against the state of Wyoming.
One of the defendants named in the lawsuit, Wyoming Department of Environmental Quality director Todd Parfitt, butted heads with environmental groups over E. coli — the fecal coliform bacteria that comes from wildlife and agricultural operations and can cause severe illness in humans. Wyoming DEQ faced pushback in 2015 from environmental groups for its reclassification of 87,775 miles of stream segments to allow for up to five times the current allowable concentration of E. coli — a move championed by the same ag industry supporting the new data trespass laws.
Judge Skavdahl heard initial arguments in the data trespass case in December 2015 and later that month issued an order denying the state’s motion to dismiss, citing the “open lands” language among the court’s concerns.
“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.
Revised laws and court dismissal
The laws’ lead sponsor Sen. Larry Hicks (R-Baggs) headed a revision of the statutes during the 2016 Legislative session, carving out the words “open land.” The revision also clarified that a trespass of private land to get to public land to collect data is a violation of the data trespass laws.
Plaintiffs revised their complaint and the state revised its motion to dismiss. In the July 6 order granting the dismissal, Judge Skavdahl wrote, “In this case, Plaintiffs challenge the statutes based upon their restriction of creation of speech by illegal means.
“Plaintiffs’ First Amendment right to create speech does not carry with it an exemption from other principles of law, or the legal rights of others,” Skavdahl continued. “Plaintiffs’ desire to access certain information, no matter how important or sacrosanct they believe the information to be, does not compel a private landowner to yield his property rights and right to privacy.
“ …The revised statutes do nothing to the legal rights of members of the public; they only emphasize and increase punishment for the unlawful entry of private lands en route to engage in protected activity.”
Muraskin of Public Justice said all of the plaintiffs were surprised by the court’s decision, because in his December order denying motion to dismiss Skavdahl expressed concern that the laws inhibit speech and equal protection.
“Even if you incidentally burden free speech, that deserves scrutiny,” Muraskin said. “Even if you believe the state here — and we do not believe it’s a trespass law — what the court should have done is applied the second-tier level scrutiny.”
Magagna of Wyoming Stockgrowers Association said he felt confident the Legislature’s revision of the data trespass laws would withstand judicial scrutiny. As for whether the heart of the issue is an agricultural community that wants restricted access to its environmental impacts, he said no.
“Ninety-five percent of the time I fault us for not doing a good enough job of telling the public how well we’re taking care of our public resources,” Magagna said.
“If a public party or anybody feels there is an environmental violation taking place they have a remedy of going to the proper legal authority and reporting that,” he said. “And that authority can seek authorization from the court to go on private land to investigate those alleged violations.”
Read Judge Scott Skavdahl’s July 6, 2016 order to dismiss:
For more, read these WyoFile stories:
Senate leader says data trespass fix doesn’t go far enough, Feb. 16, 2016
Judge hears arguments in landmark data trespass case, Jan. 26, 2016
Court will hear case against data trespass laws, Dec. 29, 2015
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