Wyoming’s Data Trespass Laws Trample First Amendment Rights: A Preview

Summary: In 2015, the Wyoming Legislature passed two new laws creating criminal and civil causes of action for trespassing to collect resource data. Over the last year, the laws have undergone intense public scrutiny, culminating with several NGOs suing Wyoming to have the laws repealed on First Amendment grounds for restricting environment-based speech.

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By Hannah Solomon

“Wyoming just criminalized citizen science,” the media declared in May, 2015 after Wyoming passed two controversial new trespass laws. The first created the crime of trespassing to collect resource data; the second is its civil counterpart. Under these laws, a person trespasses to unlawfully collect resource data when she enters onto open land to collect resource data without permission or statutory authority and intends to submit that data to a government agency. The “data trespass laws” also forbid courts and government agencies from using any unlawfully collected evidence against polluters.

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Wyoming enacted the laws in response to an ongoing dispute between a group of 15 ranchers and the Western Watersheds Project (“WWP”). The ranchers claim WWP must have crossed over their lands to collect water samples—which revealed E.coli levels that exceeded the federal limit by up to 200 times. “This legislation should help to discourage illegal collection of data by those completely disrespectful of private property rights,” argue the legislation’s supporters. Critics, however, view the laws as a means of silencing people who report pollution from the cattle industry. In late September, 2015, WWP and several other NGOs sued Wyoming government officials, challenging the laws on First Amendment grounds.

The Data Trespass Laws Violate the First Amendment

The First Amendment’s Free Speech Clause stringently protects speech on public property. The data trespass laws entered the public realm by not limiting “open lands” to private open lands. Under the statutes’ over-broad definition of open lands, a person can face penalties for collecting resource data on public property. Because the laws restrict the content of speech—resource data—they must be narrowly tailored to further a significant government interest to survive under the First Amendment. The government has a significant interest in preventing illegal trespass, but the statutes are not narrowly tailored to fulfill that interest. “Deterring people from collecting resource data on public lands does nothing to deter people from trespassing,” reasoned the Wyoming District Court.

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The laws also violate the First Amendment’s Petition Clause because they are not triggered until a person submits or intends to submit resource data to a government agency. In other words, a person who wanders across open land without collecting anything, or who takes a water sample on open land but does not intend to submit the sample to an agency, is not guilty of trespass under the statutes; communication with the government is an essential element of the crime. The laws impermissibly target citizens who report environmental violations.

The Problem of Accidental Trespass

While ranchers are entitled to their private property rights, and concerned citizens should not be given a free pass to trespass for the sake of protecting the environment, the law should not single out environmentalists for separate treatment. The practical effect—and express purpose—of the data trespass laws is to discourage citizens from entering or crossing over private lands to collect evidence of pollution. Citizen scientists fear they will be punished even if they inadvertently cross over private land to access a public stream. Unlike Wyoming’s general trespass statute, the data trespass laws do not require that a person knew they were stepping foot on private property. The checkerboard pattern of public and private ownership that plagues much of the West increases citizens’ concerns that they will be penalized for an unintentional trespass. Much of Wyoming’s public lands are inaccessible because they are privately land-locked. Consequently, people are left to puzzle out what lands are public and private and what public easements allow them to cross private lands. Instead of risking fines and possible jail time, many citizen scientists will opt out of participating—allowing pollution to flow through the state’s waterways undetected.

The Laws Hinder Public Participation

Federal and state agencies lack the resources to catch every violation and rely on public participation to enforce pollution standards. For example, WWP’s water quality samples caused the Wyoming Department of Environmental Quality to add three streams and five creeks to the Clean Water Act’s (“CWA”) §303(d) list of impaired waterways. The CWA and other statutes compel the government to encourage and facilitate public participation. The public furthers the CWA’s goals by bringing citizen suits against polluters, holding hearings, and submitting comments on permits decisions. Wyoming’s new trespass laws make it more difficult for citizens and public interest groups like WWP, who have no statutory authority to enter open lands, to gather evidence against irresponsible facilities. Citizen scientists now need express permission from the landowner to enter open land—whether the land is posted as private or not. The laws do not flat out deny citizens the opportunity to partake in decision-making processes; instead, they artfully weaken that right by making people think twice before collecting data to inform their decision.

Proponents of the data trespass laws trumpet private property rights as the motive behind the laws. However, the practical effect of the laws to discourage concerned citizens from reporting pollution in their communities. The statutes’ overbroad language violates the First Amendment’s Free Speech and Petition Clauses by singling out environmentalists for disparate treatment. Of course, the First Amendment does not entitle people to trespass on private land in the name of environmental protection. On the other hand, private landowners are not entitled to pollute the state’s waterways and escape detection because nobody can decipher what lands are private or public, and what public easements allow them to cross private lands. Wyoming lawmakers missed the mark when they prioritized private property interests over safe and clean water.

For the full First Amendment analysis, a history of land ownership in Wyoming, and information on Wyoming’s livestock grazing industry, look for the full article in VJEL Volume 18.

Update: The Wyoming Legislature amended the data trespass laws in February, 2016 to limit their scope to private lands. On July 6, 2016, the U.S. District Court for the District of Wyoming dismissed the case between WWP and Wyoming, reasoning that the First Amendment does not grant the right to trespass on private property.

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Hannah is entering her 3rd year at Vermont Law School where she is pursuing a Juris Doctorate. She is currently working with Columbia Riverkeeper in Hood River, Oregon to protect and restore the waters of the mighty Columbia River.