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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