Tenth Circuit Finds Wyoming Statutes Concerning Data Collection on Public Lands Violate First Amendment

In what is being hailed as a victory for conservation groups, the Tenth Circuit recently held that Wyoming Statutes¹ concerning data collection on public lands violate the First Amendment. The statutes at issue were passed after fifteen Wyoming ranchers settled with Western Watersheds Project (“WWP”) after filing a lawsuit accusing the group of trespassing on private lands in Fremont, Sublette, and Uinta Counties in order to access public lands to sample water for fecal coliform. The statutes imposed both criminal and civil liability on any individual who entered “open land for the purposes of collecting resource data” without permission of the owner. “Resource data” is broadly defined and includes “numerous activities on public lands, such as writing notes on habitat conditions, photographing wildlife, or taking water samples, so long as an individual also records the location from which the data was collected.”² In order to fall under the statutes, resource data must have also been submitted to a government agency.³ The criminal statute imposed a maximum penalty of a year in jail and a fine of $1,000.00 for first-time offenders and a minimum of ten days’ imprisonment (maximum of one year) and a $5,000.00 fine for repeat offenders; notably, the fine and imprisonment term were greater than those imposed under Wyoming’s preexisting general trespass statutes.⁴ The civil statute imposed liability for proximate damages and litigation costs, including attorneys’ fees.⁵ Additionally, any government agency that received resource data collected after a trespass occurred was required to expunge any collected data from its records.⁶

Several conservation groups, including the WWP, National Press Photographers Association, Natural Resources Defense Council, PETA and Center for Food Safety, sued the State in Federal District Court⁷, arguing that the imposition of these greater penalties amounted to a violation of several constitutional rights, including the Free Speech and Petition Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, and argued that they were preempted by Federal law. After the State filed a Motion to Dismiss the claims, the Federal District Court allowed the Plaintiffs’ claims regarding the First Amendment and Equal Protection Clause to go forward, but held that the Plaintiffs failed to state a preemption claim.⁸

In response to this ruling, Wyoming changed the statutes in 2016. Despite several lawmakers expressing concerns with the statutes’ criminalization of conduct that is protected by the First Amendment⁹, only small revisions were made, including changing the focus from “open lands” to entering or crossing private land for the purposes of data collection, and removing the requirement that “resource data” be submitted to a government agency.¹⁰ The penalty stiffer than that in the general trespass statutes still applied, however. The Plaintiffs once again brought suit in Federal District Court in Wyoming, and this time the State’s Motion to Dismiss was granted. On appeal, however, the Tenth Circuit reversed.

As opposed to the District Court, which held that individuals generally do not have a First Amendment right to engage in speech on private property of others, the Tenth Circuit focused on “whether the act of collecting resource data on public lands qualifies as protected speech…. The fact that one aspect of the challenged statutes concerns private property does not defeat the need for First Amendment scrutiny.”¹¹ Comparing taking photographs or notes to someone who records public officials, such as police officers, in public, the Tenth Circuit held that collecting resource data was, in effect, creating speech that was protected by the First Amendment.¹² The Court held that the statutes violated the First Amendment by increasing the penalty for trespassing simply because someone creates speech after the trespass occurs, in effect sanctioning differential treatment based on the creation of speech.¹³ The Tenth Circuit reversed the District Court’s decision to dismiss the case and remanded the case. It will now proceed in District Court.

While conservation groups consider this decision to be a big win to further their ability to gather and submit data essential to forming public policy decisions and holding industry accountable, private landowners, agricultural groups, and various industries see things differently.¹⁴ The lawsuit between ranchers and the WWP that spurred the passage of these laws was based on a belief that conservation groups were targeting the ag industry with the intent to put cattlemen out of business.¹⁵ Others believe that private property rights trump First Amendment rights, and still others believe that the laws will help increase the integrity of data submitted to government agencies by ensuring it is collected without the taint of trespass.¹⁶

Regardless of the view one takes of the tactics of conservation groups may use when accessing public lands to collect data, it is hard to argue with the Court’s reasoning: increasing the penalty for trespass based on an individual’s exercise of free speech violates the First Amendment.

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¹Wyo. Stat. §§ 6-3-414; 40-20-101.

²Western Watersheds Project, et al. v. Michael, et al., 869 F.3d 1189, 1191-92 (10th Cir. 2017).

³Wyo. Stat. § 6-3-414(d)(i).

⁴See Wyo. Stat. § 6-3-303 (criminal trespass); Edgecomb v. Lower Valley Power & Light, Inc., 922 P.2d 850, 859 (Wyo. 1996) (civil trespass).  A conviction of criminal trespass is subject to not more than six months imprisonment and a $750.00 fine.

⁵Wyo. Stat. § 40-20-101.

⁶Wyo. Stat. §§ 6-3-414(g).

⁷D.C. No. 2:15-CV-00169-SWS.

⁸Western Watersheds Project, et al., 869 F.3d at 1192-93.

⁹Heather Richardson, Denver Court Rules Against Wyoming Data Trespass Law, CASPER STAR-TRIBUNE, Sept. 7, 2017; http://trib.com/news/state-and-regional/denver-court-rules-against-wyoming-data-trespass-law/article_34209d2b-65cd-53e4-84cc-e3ba5691a71a.html

¹⁰Western Watersheds Project, et al., 869 F.3d at 1193.

¹¹Id. at 1194.

¹²Id. at 1196-97.

¹³Id. at 1197.

¹⁴Richardson, supra at n. 9; Amanda Reilly, Court rules citizen water sampling is free speech, E&E NEWS (Sept. 7, 2017, 4:35 PM), https://www.eenews.net/eenewspm/stories/1060060025/search?keyword=water+sampling

¹⁵Richardson, supra at n.9.

¹⁶Id.