Decision impacts only small part of trespass law
On Oct. 29, United States District Judge Scott Skavdahl released his decision on the final portion of Wyoming’s hotly contested trespass to collect data law.
Skavdahl’s decision concluded, “The First Amendment’s guarantee of free speech in this case leads the Court to find Wyoming statutes 6-3-414(c) and 40-27-101(c) are facially unconstitutional.”
After the ruling, Western Watersheds Project claims, “A federal court judge overturned and permanently blocked Wyoming’s bad laws that sought to prevent the public from accessing and documenting land and land use decisions in the state by imposing civil and criminal penalties.”
While environmental groups publicized a loss for the State of Wyoming, Wyoming Senior Assistant Attorney General Erik Petersen clarifies, “We prevailed with two sections of the law in district court 18 months ago. The only part of the trespass to collect data law that was struck down is subsection C.”
Into the details
Petersen says it’s easiest to understand Skavdahl’s latest ruling by looking at the background of the law.
In 2015, the Wyoming Legislature passed a set of laws that would make the collection of resource data from private lands illegal. The laws also made it illegal to cross private land to reach public land for the purpose of collecting resource data.
“This law has three provisions in subsection A, B and C,” he explains. “Subsections A and B relate to the collection of resource data from private property. One subsection relates to intent, and one relates to the actual collection of data.”
After Western Watersheds Project, the National Press Photographers Association and Natural Resources Defense Council contested the law, the District Court of Wyoming ruled against the groups on all three subsections. Then, the groups appealed the decision of the District Court of Wyoming only on subsection C of the law.
In September 2017, the 10th Circuit Court ruled unanimously on the appeal, reversing the District Court of Wyoming’s decision – again, only on subsection C. The 10th Circuit Court also remanded the case to Judge Scott Skavdahl for further action.
The Oct. 29 ruling reflects Judge Skavdahl’s final decision on subsection C of Wyoming’s law regarding trespass to collect data.
“If someone goes and collects data from private property without permission, that is still illegal,” Peterson emphasizes. “These laws are alive, on the books and will remain there unless the Wyoming Legislature takes action on them. We prevailed with respect to the suit against these laws in the District Court of Wyoming 18 months ago.”
Affected provisions
Skavdahl’s latest decision, Petersen comments, relates to subsection C, which applied to people who crossed private property to collect data on public lands.
“Subsection C both criminalized and imposed civil penalties for people who cross private property without permission to access adjacent property to collect resource data,” he explains. “This law has been struck down.”
Ultimately, this portion of the law was the one that caused the most concern.
“The thought was if a person inadvertently trespasses on private land on their way to public land, they would find to be committing a crime unwittingly,” Petersen explains. “However, folks are still not allowed to go onto private property to collect resource data.”
Specifically, Skavdahl struck down the law on the grounds of infringement of the Freedom of Speech.
“The government has not proven a strengthening of the state’s trespass laws would not accomplish the same goals without infringing on protected speech,” he wrote in his decision.
“There is simply no plausible reason for the specific curtailment of speech in the statutes beyond a clear attempt to punish individuals for engaging in protected speech that at least some find unpleasant,” Skavdahl added. “The laws are not narrowly tailored and fail strict scrutiny.”
Other portions of the law
Petersen also mentions that there are numerous other parts of the law that also stand.
“Provisions of the law that say resource data collected in violation of the law will be expunged from the record,” he explains, noting that both state and federal agencies cannot use illegally collected data in decision making. “All of the ancillary stuff related to the trespass laws is still alive and on the books.”
“My encouragement to people is, under our general trespass statutes, it’s still illegal for people to trespass,” says Bobbie Frank, Wyoming Association of Conservation Districts executive director. “Regardless, if landowners are concerned of people trespassing, then we have to notice them and say, you’re not allowed on. Trespassing is still illegal.”
Saige Albert is managing editor of the Wyoming Livestock Roundup. Send comments on this article to saige@wylr.net.
