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A July 2016 federal court decision has upheld Wyoming laws that impose criminal and civil penalties for collection of “resource data”[1] when the collection involves trespassing on private lands, even when the trespass is unintentional, and even when the trespass is incidental to the collection.

The Wyoming legislature enacted these laws in 2015, outlawing the collection of “resource data” on any “open land” when the data was submitted or intended to be submitted to the government.  The statutes defined “open land” as “land outside the exterior boundaries of any incorporated city, town, subdivision . . . or development.”  There was confusion as to whether this meant private land only, or whether state or even federal land also qualified.

In 2015, the Western Watersheds Project, a conservation non-profit that monitors water quality in Wyoming and other states, filed a suit challenging the new laws, accompanied by other groups including the National Press Photographers Association and the Natural Resources Defense Council.  The Plaintiffs claimed that these data trespass laws amounted to unconstitutional censorship, violating the First Amendment’s Free Speech clause and the Fourteenth Amendment’s Equal Protection clause, and they argued that Wyoming’s data trespass laws were preempted by various federal environmental statutes.

It has been alleged that these laws were specifically designed to stop the Western Watersheds Group, and similar organizations, from monitoring pollution caused by Wyoming’s ranching industry.  The Washington Post wrote that the law was written because “Wyoming doesn’t want you to know how much cow poop is in its water.”  The Wyoming Outdoor Council also criticized the law, saying it is “so risky for wildlife researchers.  We’re worried about people making honest mistakes and being guilty of this crime.”  The University of Wyoming lobbied, unsuccessfully, for an academic exemption.

In an initial December 2015 decision, the District of Wyoming federal court dismissed Plaintiffs’ claims that public participation provisions in various federal environmental statutes preempted the Wyoming data trespass law.  The Court held that certain federal environmental statutes may authorize public participation, but they “do not permit or encourage the public to participate and submit data by whatever means necessary, and certainly do not authorize trespass.”  Thus, the Court concluded, there was no conflict.

However, the December 2015 decision allowed Plaintiffs’ other arguments to stand, stating that “this Court has serious concerns and questions as to the Constitutionality of the various provisions of these trespass statutes.”  The Court held that preventing trespass was a legitimate government interest, but the statutes did not seem to be sufficiently narrowly tailored.  Moreover, given Plaintiffs’ allegations that the government was trying to shut down environmental groups, the Court “finds Plaintiffs have cast doubt that the trespass statutes were passed merely to prevent trespass.”  The Court concluded that, while the data laws may be “facially neutral,” they also may “simply be a façade for content or viewpoint discrimination.”

In 2016, the Wyoming legislature revised the statutory provisions, Wyo. Stat. § 6-3-414 (criminal) and § 40-27-101 (civil).  While most of the language was kept identical, there were three important changes: 1) the revised statutes clarified that they applied only to private lands (eliminating any reference to “open lands”); 2) they only required that data be “collected,” not that the resource data be submitted or intended to be submitted to the government; and 3) “collect” was defined to mean “to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form and the recording of a legal description or geographical coordinates of the location of the collection.”

The Western Watersheds Plaintiffs amended their complaint, and the Defendants filed another motion to dismiss.  This time, in a July 6, 2016 opinion, the Court granted the Defendants’ motion to dismiss in full.

The Court concluded that the revisions had addressed the Constitutional concerns.  Because the laws now applied only to private land, the Court held that the statutes rationally furthered the legitimate government interest of protecting private property from trespass.  The Court also held that the revised laws were appropriately tailored, because they did not require the data be submitted or intended to be submitted to the government, and thus “the statutes are aimed completely at deterring trespassing.”

Plaintiffs argued that these laws would impinge on their abilities to monitor environmental problems, and that these laws would unfairly criminalize accidental trespass, but the Court was not persuaded.  The Court stated that the “ability to pinpoint and record the location of alleged environmental violations is essential to Plaintiffs’ mission and goals. . . .  To say that Plaintiffs are incapable of utilizing the same GPS tools, methods, and research to determine their own location during, and en route to, such data collection activities is borderline disingenuous.”  The  Court also noted that “there is strong evidence, based on Plaintiffs’ own admissions, that existing trespass laws do not deter them from entering private lands to collect data or to access other lands to collect data.”  The Court concluded that the “ends, no matter how critical or important to a public concern, do not justify the means, violating private property rights.”

The Court reviewed the statutes’ definition of “collect” and noted that there were ways to report findings without triggering a “collection” that would violate the revised statutes.  “Simply calling emergency personal, or verbally reporting findings to law enforcement, even providing geographical coordinates, would not violate the revised statutes.”

The Court briefly analogized the data trespass law with Wyoming’s hunting trespass law, Wyo. Stat. § 23-3-305(b), which also criminalizes unintentional trespass when it relates to hunting, fishing, or trapping.  However, the Court did not compare the punishments under the two laws.  Under the hunting trespass law, an offender is punished with a $1,000 fine and/or up to six months’ imprisonment.  The data trespass law has harsher penalties, and also distinguishes between first-time and repeat offenders:  under the data trespass law, a first-time offender is punished with a fine of up to $1,000 and/or a prison sentence of up to one year (no minimum sentence).  A repeat offender under the data trespass law is punished with a fine of up to $5,000, and/or a prison sentence with a minimum of 10 days up to a maximum of one year.

In comparison, under Wyoming’s general trespass provisions, intentional trespass carries a maximum penalty of a fine of $750 and/or six months’ imprisonment.  (Unintentional general trespass is not considered criminal.)

The data trespass penalties are intended to have a deterrent effect.  Larry Hicks, a Republican state Senator and the lead architect of the law, has said that the law was necessary 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 . . . . This is about people taking your information and doing something that was going to damage you, and done in an illegal fashion,” said Sen. Hicks.

Following the July 6 order, the Wyoming Farm Bureau Federation issued a statement that it was “pleased with the strengthening of private property rights.”  An attorney for Plaintiffs commented that “We think [the decision] fails to recognize the state is seeking to limit the speech and government participation of a variety of groups.”

The Western Watersheds Project and co-Plaintiffs are currently considering whether to appeal.  Under the Federal Rules of Appellate Procedure, a notice of appeal must be filed on or before August 5.

Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund.

 

[1] “Resource data” is defined in the statutes as “data relating to land or land use, including but not limited to data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species,” with exceptions for data for determining property values or property boundaries, or data collected by a peace officer in the course of official duties.

4 comments

  1. Can people collect data if they obtain the permission of the private landholders? How much of the state is held by private landholders and/or corporations?

  2. The law does not apply if the data collector receives “written or verbal permission” from the private landowner — i.e., just as with general trespass, it is not considered trespass if there is landowner permission.

    According to the Wyoming Farm Bureau Federation, 42% of Wyoming’s land is privately owned — http://www.wyfb.org/education/ag-facts

  3. Since the law defines “collect” to mean “to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form and the recording of a legal description or geographical coordinates of the location of the collection.”, does this mean that private landowners will be taking (or could take) Google Earth, DigitalGlobe, the Farm Service, NASA, NOAA, USGS, BLM et al. to court for using satellite imagery acquired over their land?

    I hesitate to ask. Perhaps researchers using these tools will all have to become peace officers?

  4. That is an interesting question! The law prohibits “enter[ing] onto private open land and collect[ing] resource data from private land” without the appropriate permissions — but it does not define what exactly constitutes “entering.” So this is an another area where the law is unclear.

    Generally speaking though, landowners only have limited control over the airspace over their land. In 1946, U.S. Supreme Court decided in United States v. Causby that a landowner can only control “as much of the space above the ground as he can occupy or use in connection with the land” — i.e., not infinite control upwards, and a landowner can’t stop aircraft from flying overhead.

    The Wyoming Farm Bureau put out a statement in 2014 that acknowledges that above 500 feet, landowners generally do not have authority to control the airspace (but it also questions how the federal government has dealt with regulating drones) — http://www.wyfb.org/news-center/farm-bureau-views/447-who-owns-the-airspace-july-aug-2014

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