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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Wyoming Trespass Statutes Survive Constitutional Challenge

What do you do when someone enters your property to collect information about its status with the intent to convey that information to a governmental or regulatory agency without your permission? In Wyoming, you contact your local legislator.

In 2015, the Wyoming legislature enacted two statutes, Wyo. Stat. §§ 6-3-414 and 40-27-101 (the “Trespass Statutes”), in an attempt to regulate the issue of “Trespass to Collect Resource Data.” These statutes were deemed necessary to deter individuals from trespassing on private lands to collect resource data, because often those individuals could not be charged with trespass under the existing criminal statutes. Thus, the Trespass Statutes imposed criminal penalties and civil liability for the unauthorized collection or recording of information relating to land and land use, and the submission of that information to a governmental agency. The Western Watersheds Project, National Press Photographers Association, National Resource Defense Council, People for the Ethical Treatment of Animals and Center for Food Safety (collectively, the “Challengers”) challenged the constitutionality of Wyo. Stat. §§ 6-3-414 and 40-27-101 in the United States District Court for the District of Wyoming.

After briefing and oral argument, and a decision of the Court that questioned, in part, the constitutionality of the two statutes, the Wyoming legislature amended the statutes in 2016. As amended the statutes generally provide:

The revised statutes still define “resource data” as “data relating to land or land use, including but not limited to data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species,” … The new statutes clarify they apply only to entry onto private lands … and no longer require data be submitted or intended to be submitted to a governmental agency … [and] [t]he definition of “collect” has been modified to mean “to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form and the recording of a legal description or geographical coordinates of the location of the collection.” (citations omitted)

See Order Granting Motion to Dismiss dated July 6, 2016 (D. Wyo.) at p. 5. After the 2016 amendments, the Challengers amended their complaint to challenge the constitutionality of the amended statutes. However, the Court dismissed.

In summarizing its holding, the Court notes “[Challenger’s] First Amendment right to create speech [by gathering resource data] does not carry with it an exemption from other principles of law, or the legal rights of others.” Order at p. 13. Specifically, “[Challenger’s] desire to access certain information, no matter how important or sacrosanct they believe the information to be, does not compel a private landowner to yield his property rights and right to privacy.” Id. “The ends, no matter how critical or important to a public concern, do not justify the means, violating private property rights.” Order at p. 26.

The Challengers have yet to determine if they will appeal the Court’s decision. So, for now, the Court’s Order stands and both Wyo. Stat. §§ 6-3-414 and 40-27-101 remain the “law of the land.” The District Court’s Order can be accessed on its website at http://www.wyd.uscourts.gov/htmlpages/docs.html.

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