BY ANTHONY CLARK AND DAVID REED

The Wyoming state legislature recently passed a data trespassing law that has many environmentalists concerned about the law’s scope, and also its motives. Concerns involve the ambiguous and expansive language found in the law, and because the law’s backers – the ranching community and local coal interests – swing a big political stick. They will use this law to chill environmental whistleblowers and avoid liability they should bear.

In short, the law prevents any data collection, or “data trespassing”, on nearly all federal, state and private lands outside of municipalities. Data trespassing is when someone collects environmental data or samples from land they did not have authorization to cross or enter. While federal and many state environmental laws explicitly authorize citizens to bring lawsuits against violators, Wyoming’s data trespassing law may have a chilling effect on citizen participation since citizens can now face both criminal and civil liability merely for the act of taking a picture.

The Law
The data trespassing law was passed through the Wyoming legislature as Senate File 12[1] and Senate File (SF) 80.[2] SF 12 is the criminal enforcement statute, while SF 80 creates civil liability. The law was in response to a state lawsuit where ranchers sued employees of the Western Watershed Project (WWP) for trespassing, when they crossed private land to collect water samples.[3]

Ranchers often allow their cattle to graze on public lands and by streams. When this occurs it can lead to cattle contaminating the water with fecal matter resulting in high E. coli levels. WWP intended to present samples to the Department of Environmental Quality, to reveal the high E. coli bacteria levels and water pollution occurring in Wyoming. And WWP didn’t collect these samples on private land, but only crossed private land to reach the public lands. The data trespass law states that a person is guilty of trespassing to unlawfully collect resource data if he (1) enters onto open land for the purpose of collecting resource data; and (2) does not have “either an ownership interest in the real property or, statutory, contractual or other legal authorization to enter or access the land to collect resource data” or “written or verbal permission of the owner… to enter the land to collect the specified resource data.”

The original version of the bill specified that trespassing penalties applied only to data collected on “private open land.”[4] However, the final version of the bill uses the term “open land” which seems to be an extremely broad term – given its definition – and could apply to public, private, state, and federal lands. ‘Open land’ is defined as any “land outside the exterior boundaries of any incorporated city, town, subdivision, or development approved pursuant to Wyoming zoning laws.” That definition encompasses most of Wyoming both public and private. Because ‘open land’ leaves room for such broad interpretation, arguably even Google Maps could be liable for any of its images that are viewed by the government. This reasoning stems from the fact that the statute has no exception for federal property, nor does it explicitly limit application to private or state lands.

Another troubling component of the statute is how broadly it defines the terms “collect” and “resource data.” In the statute ‘collect’ means “to take a sample of material, acquire, gather, photograph, or otherwise preserve information in any form from open land which is submitted or intended to be submitted to any agency of the state or federal government.” Further, ‘resource data’ means “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.” Such an expansive definition leaves little room for any activities, regardless of the intent. This means that a tourist who accidently walks across a private property – or an easement between private property and public lands – and takes a picture, gathers a soil sample, acquires a historical artifact, takes notes on the habitat, or intends to preserve information in any kind, and intends to submit that data to a state or federal agency, is criminally liable under Wyoming state law. As noted above, there is no exception for federal land, and there is no exception for education. Therefore, tourists taking pictures of Yellowstone could be liable, and students collecting data for research and scientific purposes could be liable.

Perhaps, the greatest chilling effect comes from the harsh penalties in the law which state that violators will be punished “by imprisonment for not more than one year, a fine of not more than one thousand dollars, or both; or by imprisonment for not less than ten days nor more than one year, a fine of not more than five thousand dollars, or both, if the person has been previously convicted…” In an interesting twist, the law also demands that if it is violated, any data collected shall be expunged from any government agency’s database and cannot be used as evidence in any criminal or civil proceeding. Enforcing these harsh penalties combined with the ambiguity and broad scope of the law will surely deter concerned citizens from collecting the data needed to protect the people of Wyoming from high E. coli levels, or any other pollutant in their air, land, and waters.

The Motive
The data trespass law is more than a legislature failing to address sources of pollution. The law goes well beyond private property rights, or trespass law- which are already firmly rooted in Wyoming law. It insulates any and all potential polluters from even an accidental discovery of flagrant violations of the law, by imposing criminal punishment to anyone who even intends to call attention to such illegal behavior.

State Senator Larry Hicks was a sponsor of the bill. He was also responsible for amending the law from reading “private open land” to reading “open land.” Hicks is known for opposing any federal government involvement and has supported proposed legislation that would arrest federal agents seeking to enforce federal gun laws in Wyoming.[5],[6] Hicks is also known to support the ranching community, and he is on the advisory board of the Family Farm Alliance, which advocates for reliable and affordable irrigation supplies for ranchers and cattle farmers.[7] Other sponsors of the bill include State Rep. David Miller and State Senator Ogden Driskill. Senator Driskill is a life-long rancher and runs a cow/calf and sheep operation. He was the vice president of the Wyoming Stock Growers Association, which is a lobbyist group that advocates for the interests of the cattle industry and specifically lobbied for this law.[8]

Rep. Miller’s interest in this legislation does not stem from his interest in ranching, but appears to stem from his interest in coal. Miller owns shares and sits on the board of County Coal Limited – a company with an exporting interest in Powder River Basin coal. Miller authored legislation that expanded the Wyoming Infrastructure Authority’s purview to include the promotion of coal export docks that will help Powder River Basin coal producers’ ability to tap Asian markets.[9] This connects to the data trespass law because environmentalists strongly oppose coal export docks and their effects on the Powder River Basin; therefore the enactment of this law protects not only ranchers, but also coal mining operations from environmental scrutiny.

However, now with this data trespass law in place environmentalist will be deterred from collecting data samples around the Powder River Basin, due to the fear of criminal prosecution and civil liability. Miller’s interest in protecting the coal industry from environmental enforcement may explain why minerals and geology are explicitly included in the definition of resource data.

Hicks has stated that the intent of this legislation is to “safeguard private property rights.”[10] Notwithstanding his rhetoric, there are a couple of troubling issues with his proffered reasons. The first is there are already trespassing laws in place to protect property rights.[11] Criminal trespass in Wyoming states that a person is guilty of a trespass if “they enter or remain on or in the land or premises of another person, knowing he is not authorized to do so, or after being notified to depart.”[12]

Second, if the goal is to protect private property rights then the legislation should have not been amended from “private open lands” to “open lands.” ‘Private open lands’ would have indicated that the goal of the statute was to protect property owners from people entering their land and taking samples from their land. ‘Open lands,’ on the other hand, is defined far too broadly and has a chilling effect on all scientific data collection whether it’s on private land or not. It makes it so any land beyond a municipality is off limits to anyone looking to do more than stare at their surroundings, even if that means taking pictures or notes!
Third, if the goal is to protect private property rights, why does the law expunge all the data even if it was not collected on private property? If a rancher’s cattle graze on public lands and contaminate a public stream – a stream he or she has no private ownership rights in – the data should be preserved in order to educate citizens that a particular parcel of public land is dangerous. However, this law prohibits the data from ever reaching the public and therefore leaves them vulnerable to harmful E. coli levels. The only explanation is that the Wyoming lawmakers intended to shield violators of environmental statutes from liability at all costs – much more than merely protecting private property rights.

Similar “Ag-Gag” Laws and Potential Constitutional Challenges
States such as Utah, Idaho, and Iowa[13] have similar laws that punish activists who seek to expose unlawful activities being committed by agricultural industries. These laws are referred to as “ag-gag” laws. In the case of Iowa, Idaho, and Utah, laws were enacted that make it illegal for anyone to record video or sound from an agricultural facility. These laws were enacted because animal rights activists were filming employees abusing and grossly mistreating animals on factory farms and other agricultural facilities. In scope, these laws are far more limited than the Wyoming data trespass law. While the ag-gag laws prohibit video or sound recording, Wyoming prohibits the preservation of information in any way.

The enactment of the ag-gag laws was met with constitutional challenges by animal rights groups. The laws were challenged on both First and Fourteenth Amendment grounds. In the Utah lawsuit, the judge dismissed the federal preemption cause of action at a pretrial motion, but did allow the lawsuit to proceed on First Amendment grounds. In the case of Wyoming’s law, supremacy clause and preemption arguments may be stronger because of the direct authority given to citizens pursuant to the federal Clean Water Act (CWA).

Under the CWA, any affected citizen can commence a civil lawsuit on his own behalf against anyone who is in violation of standards set by the EPA.[14] WWP found E. coli levels that were over 200 times higher than the acceptable standards in some of Wyoming’s streams.
The Supremacy Clause invalidates state laws that “interfere with, or are contrary to federal law.” [15] Preemption can either be express or implied. Implied preemption arises when state law actually conflicts with federal law.[16] Wyoming’s trespass law interferes and is contrary to the citizen suit provision in the CWA because the CWA gives citizens the right to bring suit against violators of the statute, while the Wyoming law attempts to take that right away by making it a crime. That is in direct conflict and interference with the goal of the CWA.

The Wyoming data trespass law is also subject to a First Amendment challenge. The law potentially violates the First Amendment and its right to petition the government. The Supreme Court has acknowledged “the First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances.”[17] The ability to advocate ideas and to speak freely is significantly hindered by this law. In fact, simply intending to speak with a federal or state official about anything included in the extensive definition of “resource data” is a crime!
In regards to the ‘right to petition’ provision of the First Amendment, the Court has said “The right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government.”[18] In the case of Wyoming’s law, citizens are directly prohibited from going to the courts or any other government agency for redress of wrongs because they cannot report evidence of violations of environmental statutes without being subject to criminal prosecution or civil penalties.

Along with federal constitution challenges, this law may also be vulnerable to state constitution challenges. For example, unlike the United States Constitution, the Wyoming Constitution specifically enumerates the right to education under its declaration of rights.[19] The education provision states “the right of citizens to opportunities for education should have practical recognition. The legislature shall suitably encourage means and agencies calculated to advance the sciences and liberal arts.”[20] The Supreme Court of Wyoming has held that the right to a quality education under the state constitution is a fundamental right, therefore that right must be construed broadly.[21] The data trespass law may be open to an education challenge because the law does not grant an exception for education purposes. In fact, Chris Boswell, the University of Wyoming vice president for governmental and community affairs, lobbied unsuccessfully for an exemption so that the new law would not apply to university researchers. [22] Because the education right is reviewed broadly, the Wyoming Supreme Court could hold that the law is unconstitutional because it deprives students the opportunity to freely study important environmental issues.

The Wyoming data trespass law is an unprecedented attempt to impede citizens from reporting violations of important environmental statutes. It attempts to justify itself as a law enacted to protect private property rights, but yet it is far broader in scope than needed to accomplish that goal. And this law surpasses any “ag-gag” law by leaps and bounds, effectively removing the public’s ability to protect its downstream, or downwind resources.

Unfortunately, the actions of the Wyoming legislature seem to insulate a certain group of property owners from environmental laws while intimidating its citizens from acting to protect Wyoming’s environment.

[1] http://legisweb.state.wy.us/2015/Enroll/SF0012.pdf

[2] https://legiscan.com/WY/text/SF0080/2015

[3] See Justin Pidot’s piece in Slate: http://www.slate.com/articles/health_and_science/science/2015/05/wyoming_law_against_data_collection_protecting_ranchers_by_ignoring_the.html?wpsrc

[4] http://legisweb.state.wy.us/2015/Introduced/SF0012.pdf

[5] http://www.washingtonexaminer.com/wyoming-lawmakers-propose-bill-to-nullify-new-federal-gun-laws/article/2518133

[6] It’s ironic that state congressmen, like Hicks, advocate strongly against federal government involvement, but at the same time Wyoming’s state and local government budgets pull $2.356 billion from the federal government annually. Wyoming also relied on federal funds for 41 percent of the state’s funding in the 2011-2012 biennium. See Gregory Nickerson, Wyoming: Where independent people rely on federal funds, Gillette News Record (May 14, 2013, 12:00 am) http://www.gillettenewsrecord.com/news/article_e9b925fc-8518-5326-a4db-bf5c01d67933.html

[7] http://www.familyfarmalliance.org/home

[8] https://www.hcn.org/articles/data-trespassing-bill-is-aimed-at-public-lands-grazing-battle

[9] http://trib.com/business/energy/rep-david-miller-a-coal-company-board-member-authors-law/article_8101c060-043c-5da8-aa10-0ab080f19276.html

[10] https://www.hcn.org/articles/data-trespassing-bill-is-aimed-at-public-lands-grazing-battle

[11] WY Stat § 6-3-303 (1997).

[12] WY Stat § 6-3-303

[13] See Idaho gag law hides horrors of ag industry: http://america.aljazeera.com/opinions/2014/5/idaho-ag-gag-lawagribusinessfreespeech.html and Activists target Utah’s ‘agricultural-gag’ law: http://www.ksl.com/?sid=26102171

[14] 33 U.S.C. § 1365

[15] Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985).

[16] English v. Gen. Elec. Con., 496 U.S. 72,79 (1990).

[17] Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 286 (1984).

[18] Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896-897 (1984).

[19] Wyo. Const. art. I, § 23.

[20] Id.

[21] Campbell County School Dist. v. State, 907 P.2d 1238, 1258 (Wyo. 1995).

[22] http://www.wyofile.com/blog/critics-say-wyoming-data-trespassing-law-criminalizes-science/