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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