Alaina Stedillie’ s practice emphasizes commercial and complex civil litigation involving business entities of various sizes. Her experience includes litigation in a wide range of substantive areas, including natural resources and energy law, administrative law, and defense of various tort and contract claims. Alaina has represented multiple client...s in the public and private sectors before regulatory and governmental agencies, from both litigation and compliance perspectives. She also enjoys providing pro bono services to individuals and non-profit organizations. More

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

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Don’t Slay the Drones – New FAA Guidance for Recreational and Commercial use of Unmanned Aerial Vehicles

Lately, it seems like drones are everywhere. From flying over crowds at concerts to monitoring pipelines for leaks, drones are here to stay. As popular as drones have become, however, there is little consistent regulation from state to state, causing confusion and potential legal consequences for users, casual and commercial alike.

For example, in early 2017, a man using a drone to film elk on the National Wildlife Refuge in Wyoming spooked the herd, causing a stampede of over 1,500 animals; he was fined by the U.S. Fish and Wildlife Service for disturbing wildlife.1 Elsewhere, a suit filed in the Sixth Circuit against William Merideth, a/k/a the “Drone Slayer,” who shot down a recreational drone that was hovering over his backyard and invading his privacy, was dismissed for failing to raise a federal issue, not involving federal parties, and not being important to the federal system.2 The drone’s owner brought the suit after charges of criminal mischief and wanton endangerment against Mr. Merideth were dismissed in state court. The Federal District Judge felt that the case was more appropriately a state tort case concerning trespass and invasion of privacy. Unfortunately for Mr. Boggs, the drone pilot, Kentucky is one of several states that currently lack enacted legislation concerning Unmanned Aerial Vehicles (UAVs).3 The absence of such legislation makes it difficult for those who use drones, whether for commercial or recreational purposes, as well as those who disapprove of drones, to understand their rights when it comes to where, when, and how they may operate their UAVs.

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Wyoming Legislature Rejects Attempts to Penalize Wind Energy Industry

In a state that has been described as having “world class wind,” a boast hard to ignore during a winter that featured days upon days of wind gusts reaching 80 mph at times, wind energy has struggled to find a secure toehold due to the vice-like grip traditional extractive mineral industries have on the energy sector in Wyoming.  That may be changing, however.

This year, bills were proposed in both the Wyoming House and Senate that sought to limit the ability of wind producers to market their product within the State.  Luckily (or not, depending on your point of view), each bill failed in committee before being introduced on the floor of either house.  House Bill 127 sought to increase the tax on wind energy from $1.00/megawatt hour to $5.00/megawatt hour.  This bill was defeated by a 7-2 vote by the House Revenue Committee on January 23, 2017.  In the Senate, Senate File 71 proposed that utility companies that use wind or solar power would incur a penalty of $10.00/kilowatt hour starting in 2019.  After widespread public opposition to this bill reached the desks of the Senate, it died in committee.  So, while Wyoming is the only state in the U.S. to tax wind1, and while wind producers still face a more difficult permitting process before the Industrial Siting Council than their traditional extractive mineral counterparts, the State legislature prevented two significant roadblocks to future development from being erected.

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2016 Wyoming Energy Plan – Doubling Down on Coal

In the face of a radically altered economic and energy picture for Wyoming, Governor Matt Mead released an updated energy strategy for the State on March 14, 2016. Titled “Leading the Charge: Wyoming’s Action Plan for Energy, Environment, and Economy,” the plan is an update of a similar report issued by the State in 2013, the first of its kind in the nation. The State is facing significant budget challenges from the loss of royalty income, severance taxes, and jobs from low oil and gas prices and the even more dramatic decline of coal mine revenue as key coal mining companies in the State seek bankruptcy protection. Approximately 60% of State government revenues come from mineral development.

Gov. Mead proposes to meet the budget challenges by addressing the backbone of the State’s economy – energy development. The 2013 report set forth 45 initiatives, 28 of which have been completed, and the 2016 strategy adds several new priorities. Emphasizing his commitment to the coal industry, the Governor summed up his approach as “a doubling down on coal and a very good start on renewables.” Specifically, the energy plan includes:

• A “carbon innovation” effort for the development of “clean coal” technologies by building on the success of the Integrated Test Center, a public-private partnership with the XPRIZE, to develop and test new technologies for the capture of CO2 emissions.
• Harnessing Wyoming’s Class 5-7 wind energy resources with a new Wind Energy Manufacturing Initiative, led by the Wyoming Business Council. The goal would be to attract wind turbine manufacturing to the State.
• Hosting a symposium to explore how to turn the devastation caused to Wyoming forests by the Pine Beetle on its head by integrating biomass energy into the State’s overall energy plan.
• Forming a National Environmental Policy Act Team to work with federal agencies to expedite the NEPA process to work more collaboratively with BLM in land use planning and combatting invasive species on public land.
• Identifying and working to reduce areas of duplication in State and Federal regulations.
• In light of coal company bankruptcies and self-bonding the State had permitted earlier, Wyoming must urgently address coal mine reclamation liabilities. The energy strategy accordingly calls for an examination of the adequacy of reclamation formulas, reviewing reclamation goals and definitions, and analyzing the self-bonding program.
• Diversifying the State’s economy by increasing the emphasis on international exports including coal, oil and gas (LNG), uranium and other resources.
• The strategy also addresses rulemaking proposals, including baseline groundwater testing before oil and gas drilling, setback requirements, a review of flaring rules, and mitigation banking and additional efforts for the protection of Greater sage-grouse.

Gov. Mead hopes that this year’s plan will continue to allow the State to be proactive in planning its future energy development, which will in turn create additional economic and business opportunities for both new and existing industries. The Governor asked for $500,000 to implement the energy strategy in the 2017-2018 budget, which was rejected by the Legislature, so it remains to be seen how much of the plan he will be able to implement.

The full text of Wyoming’s Action Plan can be found here: http://governor.wyo.gov/media/news-releases/2016-news-releases/governormeadannouncesupdatedenergystrategy.

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