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Trespass law: Judge grants motion to dismiss

by Wyoming Livestock Roundup

Casper – On July 6, Judge Scott W. Skavdahl granted the motion to dismiss by the State of Wyoming in the case where a series of environmental and activists groups alleged that Wyoming’s data trespass law violated the First Amendment of the Constitution.

“This is excellent for Wyoming ag,” says Bobbie Frank, Wyoming Association of Conservation Districts executive director. “This decision says that the legislation, as amended in the 2016 session, was upheld, and individuals and entities cannot expect that they can trespass onto private property to collect data.”

Plaintiffs in the case included Western Watersheds Project, National Press Photographers Association, Natural Resources Defense Council, Inc., People for the Ethical Treatment of Animals and Center for Food Safety.

Law suit

The Plaintiffs in this case argued that a pair of statutes passed by the Wyoming Legislature in 2015 and amended in 2016 to prohibit the collection of resource data on open lands was unconstitutional.

“In their original compliant, Plaintiffs argued the 2015 statutes: violated the Petition Clause of the First Amendment; violated the Free Speech Clause of the First Amendment; were preempted by federal laws; and violated the Equal Protection Clause of the Fourteenth Amendment,” wrote Skavdahl in his decision.

Later, the Wyoming Legislature adapted the 2015 laws during their 2016 session to eliminate reference to open lands and no longer required that the data be submitted or intended to be submitted to a governmental agency. The Plaintiffs maintained their suit, despite the changes, asserting that the statutes still violated the Constitution on their face.

Free speech

Skavdahl explained his decision in two parts – free speech and equal protection.

First, Dan Frank, attorney at Frank Law and cattle producer, explains, “Judge Skavdahl affirmed and said that even if we have a first amendment right, it doesn’t say we can go anywhere we want to exercise those rights, and if we have private land, we can exclude people from going there.”

Skavdahl wrote, “Plaintiffs’ First Amendment right to create speech does not carry with it an exemption from other principles of law or the legal rights of others. Plaintiffs’ 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.”

Further, Skavdahl noted that the assertion by Plaintiffs that they were unable to determine location and land ownership during data collection, while it creates a conundrum, is invalidated by the necessity that data collected is recorded with its location.

“The ability to pinpoint and record the location of alleged environmental violations is essential to Plaintiff’s missions and goals,” Skavdahl added. “To say Plaintiffs are incapable of utilizing the same GPS tools, methods and research to determine their own location during and en route to such data collection activities is borderline disingenuous.”

Equal protection

The second half of the argument dealt with equal protection analysis.

“Equal protection analysis is always tricky,” says Dan. “It’s hard to understand.”

Skavdahl explained that, because no first amendment rights were violated, the statute was not subject to a strict scrutiny test. At that point, a rational basis test becomes the standard by which equal protection is compared.

“Then, Judge Skavdahl gets into legitimate state interests under the rational basis test, and he compares these statutes to the ag gag laws in Idaho,” Dan explains. “Skavdahl precluded trespassing to collect any resource data, whether it is favorable or unfavorable data. He said the statute is content neutral and a legitimate government interest.”

Ultimately, Skavdahl noted, “Plaintiffs’ claims are erroneously premised upon their perceived First Amendment right to trespass upon private property to collect resource data. No such constitutional right exists.”

“The ends, no matter how critical or important to a public concern, do not justify the means, violating private property rights,” he concluded.

Ag perspective

Dan says, “The biggest problem with the old criminal trespass statutes was that the fine was so small that it was worth it for certain elements to trespass and collect data. Usually, that data is used against landowners.”

The new legislation provides a large enough penalty to dis-incentivize trespass for the collection of data.

He also notes, “This decision basically says, no matter what they are trying to do or what they’re trying to monitor for or how important they think it is, they don’t have a right to trespass on private land.”

All in all, Dan notes that this decision is positive for the ag community, and while there are options for appeal, either in an appeal up to the 10th Circuit Court or on an as-applied basis as it relates to a specific enforcement of the statute, any further action has not been seen at this point.

“It’s a much better result than when Judge Skavdahl said he had some concerns with the initial version of the statute,” Frank comments. “It took some courage on the part of the legislature to change it, clean it up and push forward with this statute.”

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at

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