A legislative committee voted Monday to rescind an unconstitutional “data-trespass” law that Wyoming unsuccessfully tried to defend and, in the process, was ordered to pay $582,138 in opponents’ attorneys’ fees.
The Legislative Service Office will prepare a measure to repeal two unconstitutional portions of the controversial statute, the Joint Judiciary Committee unanimously agreed Monday. The Legislature could consider the issue when it meets early next year.
The Wyoming law, passed first in 2015, criminalized the collection of “resource data” — such as water-quality samples or photographs of range conditions — from public land if the person collecting the data trespassed on private land in the process. The criminal trespass statute has a companion civil measure.
“The First Amendment’s guarantee of free speech in this case leads the Court to find [data trespass laws] are facially unconstitutional,” U.S. District Judge Scott Skavdahl wrote in a 2018 order.
The 2015 criminal statute created “heightened penalties” — beyond those for mere trespass — of up to a year’s imprisonment and a $1,000 fine for persons convicted of a first offense, LSO attorney David Hopkinson wrote in a memo to the committee.
“The law was put forward pretty passionately regarding digital [data] trespass concern by many major landowners.”
Sen. Tara Nethercott
The Wyoming Liberty Group called for rescinding the entire criminal data-trespass statute, “to avoid confusing citizens about the law’s enforceability,” according to a memo from a Liberty Group representative, Steve Klein.
The illegal data-trespass measure has lingered on the books for four years for reasons Hopkinson told the panel he couldn’t explain. Sen. Tara Nethercott (R-Cheyenne) offered a theory.
“The law was put forward pretty passionately regarding digital [data] trespass concern[s] by many major landowners,” she said. “…[P]rimarily the plaintiffs were … many out-of-state interests. Pretty touchy subject there for a while.
“Obviously, the provisions still stand that have been determined to be unconstitutional,” she said. Court orders also introduced Wyoming to the premium rates of D.C.-Beltway attorneys.
“The federal court levied significant attorney fees against the state which the taxpayers had to pay to out-of-state lawyers,” Nethercott said.
Court challenge
Western Watersheds Project, a group that monitors public lands grazing, the Natural Resources Defense Council, which also monitors public lands and the National Press Photographers Association challenged the Wyoming criminal law in 2015 and were joined by animal welfare groups. Agriculture groups entered the action on the state’s side. The photographers’ association challenged the measure on First Amendment free-speech grounds.
(Disclosure — this reporter submitted an affidavit to the NPPA regarding the case.)
The law emerged at a time when Western Watersheds was collecting water samples across public grazing allotments to see whether state and federal regulators were meeting required environmental standards. Ranchers sued that organization in 2014, alleging that Jonathan Ratner, an employee, trespassed on private ranch land to reach the public allotments where he took samples. The plaintiffs said that Ratner and WWP’s actions posed an existential threat to their livelihoods, noting that WWP’s stated goals included “get all cows and sheep off public land ASAP” and “end public land grazing.”
The defendants and their supporters argued that the suit had no legal merit and was instead a thinly veiled “SLAPP” — a strategic lawsuit against public participation — brought to forestall future data collection through intimidation.
The judge ruled that the plaintiffs would not get punitive damages, effectively pulling the suit’s teeth. But Wyoming’s Department of Environmental Quality rejected data the environmental group wanted to submit.
The Legislature passed its first data trespass law the following year.
The $582,138 price tag for Wyoming’s defense of the data-trespass laws doesn’t include time and expenses on the part of state attorneys. The state paid the sum from its state self-insurance claims fund that totaled $47.4 million at the end of 2018, $42.3 million at the end of 2020.
Judiciary Committee member Rep. Dan Zwonitzer (R-Cheyenne) said he was one of the five legislators who in 2015 “said it was unconstitutional … said we can’t do this — and [no one] wanted to listen to us.
“[I] got my tail handed to me,” he told the committee.
Although the Wyoming Liberty Group wants the criminal statute completely repealed, committee members focused on criminal and civil subsections relating to public land.
Could the state repeal only the part of the criminal statute found to be unconstitutional, along with the companion subsection in the civil law, Rep. Karlee Provenza (D-Laramie) asked LSO attorney Hopkinson, in reference to the elements successfully challenged by Western Watersheds and others.
“If we just were to repeal those provisions, does that lead to an absurd result?” she asked. An absurdity in law refers to contradictory, nonsensical or illogical outcomes from a particular interpretation, or things that are “obviously and flatly against clear truth.”
Essentially, Provenza asked whether the federal court’s ruling also affected other parts of the data-trespass laws, effectively undermining them. “Are we not looking at it as broadly as perhaps we should?” she asked.
Hopkinson said he believes “the subsection that has been held unconstitutional … is severable from the rest of that statute.”
“I don’t see an issue with just repealing that particular [public-land] section.”
That would appear to leave in place an enhanced penalty for collecting environmental data on private land — a penalty above and beyond a mere trespass penalty — while using that data as a form of speech.
In his 2018 ruling, Skavdahl wrote that “[t]he government has no legitimate explanation for the specific targeting of data collectors over other types of individuals engaged in trespass.
“They have failed,” he wrote, quoting precedent, “to identify any reason why the curtailment of speech is ‘actually necessary to the solution’ of the identified problem.
“There is simply no plausible reason for the specific curtailment of speech in the statutes beyond a clear attempt to punish individuals for engaging in protected speech that at least some find unpleasant,” Skavdahl wrote.
That punishment included a mandatory 10-day sentence for a second offense and up to a $5,000 fine. The law called for expungement of any data so-collected in the possession of a government entity and mandated that it not be considered in any agency action.
The Legislative Service Office outlined the data-trespass statute and its troubled history in a memo to the committee as lawmakers assembled to address their No. 1 topic — trespassing — before next year’s legislative session.
Klein’s memo explained that “because the law targeted a protected speech and press activity — which includes researching, or collecting data as much as it includes writing or speaking about that data — the law went too far beyond protecting property interests and amounted to unconstitutional censorship.”
the enhanced penalty is constraining free inquiries into unlawful environmental activities. This also must be withdrawn.
So, some “landowners” don’t want data on public lands to be viewable by all? So, if Joe “welfare” Rancher completely overgrazes a parcel of BLM down to the dirt and rocks, trample the streambed into mud, cow excrement and sludge, it’s not the business of the public landowner? Seems like this law was created to hide things from the public.
Which is almost the exact scenario that spurred the creation of this law. The North Labarge Common grazing allotment has been destroyed by grazing for 50 years with no changes made.
Honestly, it appears most of this state’s elected legislators and poorly educated, xenophobic fools desperately clinging to a fading by-gone era.
Unfortunately it’s not just the elected folks that are this way….
And they were elected by….. poorly educated xenophobic fools desperately clinging to a fading by-gone era.
So what happened to the data? I worked closely with DEQ in the 90s. I never felt they were political in this way.
The data trespass law should never have included public lands in the first place. How that provision got included in the law is beyond me other than to say that whoever wrote the law had no practical experience with land access issues. I have extensive experience in this matter and have been totally dismayed at the lack of knowledge shown by about 90% of the people out there collecting data, archaeological and paleontological material. Personally, I have layed the blame on university curriculum which do not teach the most basic concepts and laws related to private property rights, public property access, court rulings, state statutes, what constitutes trespass, legally accessioning museum objects, donations to non profit entities, etc. 90% of the university employees and museum employees don’t have a clue when they go to the field. I’ve had to educate a lot of them including BLM employees and FBI agents who don’t know the fundamentals.
In the mid 1990s – during the revision of the Newcastle District RMP – Niobrara County citizens found unbelievable ignorance of the basic fundamentals. We found the BLM including archaeological resources on private land in the draft RMP such as two indian quarry sites and the Cheyenne-Deadwood trail. We finally submitted a FOIA request concerning data collected on private land – and after a wait of over a year – the documented information proved trespass on private land – 4 ranches – during a statewide survey of rare plants. The Niobrara County Commissioners invited Newcastle District Manager Bill Hill to a meeting, presented our findings, and Bill admitted it was collected by trespass on private land in some cases ( no issue was found with respect to BLM land ). If I remember right, he thought all of the data collected statewide should be thrown out. Why? The organization contracted by BLM to survey the plants had employed a university graduate who had never taken a course on basic private property rights, etc.
This was going on all over the state. Many, many private property owners found university employees and students and museum employees out on their private land without permission. The worst case I remember was an ivy league school excavating a large Indian mass burial of hundreds of skeltons on the Cheyenne- Eagle Butte Reservation without getting a permit from the tribal council. All hell broke loose when the tribe found found out their ancestors had been excavated without their permission. They demanded the return of the skeletons and the matter led to the passing of Federal legislation requiring the return of Indian skeletal remains and religious objects. Again, unbelievable ignorance by university personnel including on the doctorate level. The amount of trespass occurring on private land and tribal land was out of control. Ultimately, it led to the Wyoming legislature passing the data collection statute; however, it must have been written by someone who didn’t understand the basics – one of the 90%.
If the legislature revises the existing statute they had best find someone who has practical experience like myself to correct it – and recent graduates of law schools don’t have the experience necessary. As far as I’m concerned, most of the blame lies with the university curriculum’s which do not require the students to learn the basics – and this applies to the wildlife management school also – and the engineering schools. We simply need to start educating our graduates about these matters, however, that’s almost impossible to do since the professors don’t have a clue. Believe me, 90% don’t know the basics.
Sensible commentary Mr. Campbell. Since the days prior to administrative law and then FLPMA/NFMA being enacted almost 5 decades past, most people that I have come across, but not all, in the employ or under direction of state or federal government entities have only modicums of knowledge when it boils down to fee simple, split-estate, real estate, real property, personal property, let alone the various jurisdictions. Perhaps Wyoming’s legislature should take you up on your offer; it appears that “[d]ata-trespass” in the future could have more federal legal implications coming down the pike.