Data Trespass

Sheep graze in Carbon County in this 2011 file photo. A recent court of appeals ruled Wyoming's data trespass laws are unconstitutional.

File, Star-Tribune

Wyoming’s data trespass laws could violate First Amendment rights, the federal appeals court in Denver ruled Thursday.

The Wyoming statutes, first passed in 2015, made it a criminal and civil offense to trespass in order to collect research data, such as photographs, soil or water samples.

The laws were immediately criticized as prohibiting whistleblowers or citizen scientists that may cross private land to collect data on public lands and submit it to state and federal authorities. Lawmakers that supported the laws have said the laws were not intended to block lawful data collection, but to protect private property.

Both statutes carry penalties for convicted trespassers that are greater than the state’s existing trespass laws, and both laws then instruct agencies to expunge any collected data from the record.

The laws were updated in 2016 to address some concerns, but the 10th Circuit Court of Appeals still found them unconstitutional.

“We conclude that the statutes regulate protected speech under the First amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property,” the decision reads. “Although trespassing does not enjoy First Amendment protection, the states at issue target the ‘creation’ of speech by imposing heightened penalties on those who collect resource data.”

The People for the Ethical Treatment of Animals, Center for Food Safety, National Press Photographers Association, Natural Resources Defense Council and Western Watersheds Project brought the suit. They lost in a Cheyenne federal court last year, before winning in appeals Thursday.

The matter is not finished. The case has been remanded to district court where it will be reconsidered with the appeals court findings.

The statutes were originally meant to protect property owners and were updated in 2016 to address concerns that the laws went too far, proponents say.

They were in part instigated by a conflict between an environmental group and landowners in Fremont, Sublette and Uinta counties.

Fifteen Wyoming ranchers sued the Western Watersheds Project in 2014 for trespassing on their property to reach streams on public land.

The group claimed its sampling found that the streams were polluted with E. coli due to cattle ranching, and that trespassing to collect the data had been unintentional. Ranchers felt the groups were specifically targeting the agriculture industry with intent to put them out of business. Western Watersheds had been before the Bureau of Land Management multiple times about the issue of polluted streams.

The two sides reached a settlement in September of last year. As part of the deal the group was prohibited from crossing the ranchers’ land again, which is technically already the law.

The settlement was considered a win for the ranchers and private property rights, said their lawyer at the time, Karen Budd-Falen. The Cheyenne attorney has been floated as the next director of the Bureau of Land Management.

The state of Wyoming asked a federal court in Casper to dismiss the free speech suit against the 2015 versions of the statutes in January of last year. But U.S. District Court Judge Scott Skavdahl denied that request, saying there were “serious concerns and questions” regarding constitutionality.

During the 2016 legislative session, democratic lawmakers, including Sen. Chris Rothfuss, Laramie, tried and failed to repeal the controversial statutes.

Instead, legislators amended the original laws. Then Senate President Phil Nicholas, R-Laramie, told lawmakers at the time to be cautious in their choice of updated language, or risk legal conflict with the statute.

“If your bill, in any form, criminalizes conduct which is legal, then it’s over-broad,” the lawyer explained. “And you run the risk that the bill will be stricken because you’ve criminalized what is noncriminal conduct.”

Rep. Charles Pelkey, D-Laramie, said he was pleased by the court’s decision, but had yet to read through their arguments. The statutes, even as amended, carried serious implications, he said.

“It would prevent people from recording quite obvious violations of law on private land,” he said. “If you had a drilling rig that was spewing toxic materials, but those were leaching into the ground before they got to public land, you would be in violation by photographing it. That’s just not right.”

Supporters of the statutes were disappointed by the ruling Thursday.

“It is important to note this decision does not mean the statute is automatically unconstitutional,” said Brett Moline, Wyoming Farm Bureau Federation’s director of public and government affairs in a statement Thursday.

Jim Magagna, executive vice president for the Wyoming Stock Growers Association, supports the statutes, but said he believes a solution can still be found that satisfies both sides.

“The court indicated that they have a first amendment concern with it, and I respect that,” he said. “But that’s a difficult thing. First amendment rights, while they are critical, they don’t take precedence over private property rights. We have to deal with this in a way that balances those.”

Though the final outcome on the Wyoming laws is unclear, the environmental and animal rights groups and the press association were celebrating their victory Thursday.

“In this moment where science and the free press are under attack, the federal court upheld the essential role of public participation and free speech in our democracy,” said Michael Wall, litigation director for the Natural Resources Defense Council, in a statement.

“This decision will rightly put one of the most egregiously un-American laws I have seen in recent years on the scrapheap with other censorship laws, where it belongs.”

The bills supporters, like Moline of the Farm Bureau, are holding out for a favorable decision in district court.

“The Wyoming Farm Bureau felt this law was a step in the right direction as it would raise the bar of integrity for the data submitted to the government by ensuring the data will not be accepted if it is illegally collected through trespassing across private lands.”

Follow energy reporter Heather Richards on Twitter @hroxaner

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Star-Tribune reporter Heather Richards covers Wyoming's energy industry and related issues.

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