‘Data trespass’ laws stay on the books, for now

Judge rules portions violate freedom of speech

WYOMING – After a Wyoming judge determined part of the state’s set of “data trespass” laws violate the constitutional right to free speech, that portion cannot be enforced – but the rest of those laws remain in effect unless legislators decide to repeal them.

Contrary to some reports, the Oct. 29 decision U.S. District Court Judge Scott Skavdahl did not overturn the entire laws as unconstitutional – only the portion the judge was asked to examine under the legal challenge filed by Western Watersheds Project and other watchdog groups.

The “data trespass” laws were passed in the Wyoming Legislature first in 2015, designed specifically to prevent advocacy groups such as WWP from trespassing to collect environmental data and submitting it to government agencies or publicize their findings.

They were passed and ranchers sued Western Watersheds for trespassing on and across private property “to other land” to collect environmental information. That could be another private property or public lands.

The Wyoming Legislature had “tried to clean them up” in 2016, according to Pinedale’s Rep. Albert Sommers, and with the ruling against the new subsections, the data trespass laws might stay on the books.

“I don’t know yet if there will be any more attempts to clean them up,” Sommers said, adding he did not know if legislators would bother to bring them up again.

“We have not lost our old trespass laws,” he said. “I have not heard if this issue will be brought back (during the Wyoming Legislature’s next session), but after two court decisions, the odds are not good for passing another enhanced penalty trespass bill.”

He added lawmakers do not want to turn trespassing hunters into felons but considered advocacy groups’ attempts to go on private property in search of “probable cause” is an authority they should not have.

“If you’re going to violate my private property rights, there has to be a very good reason,” Sommers said. “And it has to be done by the proper authorities.”

Subsections (c)

Wyoming’s first U.S. District Court decision on the Western Watersheds’ lawsuit dismissed it in favor of the laws. Western Watersheds appealed the ruling to the 10th Circuit Court of Appeals, which reversed and remanded the case back to U.S. District Court. There, the judge reexamined the small section of the data trespass laws challenged by the watchdog groups.

The portions Judge Skavdahl found unconstitutional are subsections (c) of Wyoming State Statutes 6-3-414 and 40-27-101 that imposed heightened penalties above and beyond the state’s longstanding general trespass laws. These violate their First Amendment right to freedom of speech, he ruled.

The laws’ other elements were not contested and thus are not part of the ruling – the judge’s decision points out it was not within his scope to determine if the entire statutes are or are not unconstitutional.

David Muraskin of Public Justice was the lead attorney for Western Watersheds, National Press Photographers Association and Natural Resources Defense Council throughout the legal challenge.

“No, invalidating one provision, here subsections (c), does not strike down the entire statute,” Muraskin explained in an email. “That is a legal concept called severability, and Wyoming has a presumption in favor of severability; that is that you can strike down one part of the law without striking down the entire thing.”

Scope of ruling

Jim Magagna, executive vice president of the Wyoming Stock Growers Association, said his reading of the decision indicates “(Judge Skavdahl) only found one specific provision of the statutes to be unconstitutional.”

“That is the provision, in both the criminal and civil statutes, that made it unlawful to trespass across private land to collect resource data on other land,” he explained.

“If the trespass and the data collection occur on the same parcel of private land, the law and the much higher penalties still apply,” he added. “No posting (as private) or prior notice is necessary.”

Muraskin also discussed the latest ruling’s focus: “At the same time, the decision does not support or endorse the constitutionality of the other sections. When we appealed the (U.S.) District Court’s decision dismissing the case, which was later reversed by the 10th Circuit allowing us to proceed, we limited our challenge to subsection (c). Thus, the 10th Circuit’s decision and the district court’s more recent summary judgment opinion do not review the constitutionality of the other provisions.”

Western Watersheds’ state director Jonathan Ratner said in an email that the judge’s ruling does invalidate the two entire data-trespass laws.

“Because the data censorship laws, passed in animus toward the work I do, have been ruled to violate the U.S. Constitution, the state can neither prosecute people under them nor can people such as Karen Budd-Falen use them to harass people such as myself who provide oversight of the federal land management agencies,” he wrote.

What’s next?

They agreed that the general trespass law still protects landowners to some degree.

Under WSS 6-3-103, “A person is guilty of criminal trespass if he enters or remains on or in the land or premises of another person, knowing he is not authorized to do so, or after being notified to depart or to not trespass. For purposes of this section, notice is given by: Personal communication to the person by the owner or occupant, or his agent, or by a peace officer; or posting of signs reasonably likely to come to the attention of intruders.”

The misdemeanor has maximum penalties of up to six months in jail, a fine up to $750, or both.

“Trespassing across private land to reach other land for any purpose is still a trespass under the long-standing general trespass laws,” Magagna said. “The challenge with these laws is that they require either posting of the land or being told that you are in trespass and refusing to leave the land. I believe that we will need to look at strengthening this general trespass law.”

Ratner said, “The issue has nothing to do with private lands as is made clear in both rulings. The state’s longstanding trespass law makes it illegal to trespass. Nothing has changed regarding that statute.”

Rep. Sommers said he was not sure what will happen next with the data-trespass statutes but “they would still be on the books,” he said.

As for increasing general trespass penalties, as a legislator he said he must consider “unintended consequences” of turning a trespassing hunter, hiker or fisherman into a felon.


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