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Trespassing is Trespass

Written by Dennis Sun

     When one wants to change a Wyoming statute, you need to give it a good deal of thought. It is similar to going to court before a judge. One really never knows what the final outcome will be. Some state statutes, especially those concerning Wyoming’s water laws, should be left alone, as they are some of the best water laws in the country.

But, if there is not a real threat to the intent of the statute or it is archaic, maybe our legislature needs to take a look at it. That is, if they can bring that statute up to date safely and keep the intent.

So, the question I have for you is, should we modernize Wyoming’s trespass laws? I’m not talking about the hunting or antler collecting trespassing laws. I’m referring to the original trespass statutes in our state constitution.

The last couple of years, trespass has come up in court cases concerning trespassing across private lands to gather data. The ranchers won their case, and now, it is under appeal. Western Watersheds Project, National Press Photographers Association and Natural Resource Defense Council brought a suit against the state of Wyoming over the new statutes. Just last week, the 10th Circuit Court of Appeals still found the laws may be unconstitutional, saying they may violate First Amendment rights. The case has been remanded back to district court in Wyoming, where it will be reconsidered with the appeals court findings.

So, as to not muddy the waters, we should most likely not try to change the old trespass laws until all of this get settled first. When we look at it, our new laws and the old laws are apples and oranges. The new laws were just trying to protect private property rights and were not intended to block lawful data collection.

When is trespass not trespassing?

The court, in the latest case against the state, said, “We conclude that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property. Although trespassing does not enjoy First Amendment protection, the states at issue target the ‘creation’ of speech by imposing heightened penalties on those who collect resource data.”

That means we need to clean up the First Amendment parts and still keep a balance with private property rights. They are both guaranteed under the Wyoming statutes

At the proper time, we do need to modernize our trespass laws to protect our private property rights. Under the current trespass law, the trespasser is guilty of criminal trespass if he or she enters or remains on or in the land or premises of another person, knowing he or she is not authorized to do so or after being notified to depart or to not trespass. Notice must be given by personal communication to the person by the owner or occupant, by his agent or by a peace officer or the posting of signs reasonably to come to the attention of intruders.

As you can see, it is up to the landowner to tell a trespasser he or she is trespassing and prove it. If the old laws were like today’s hunting laws, it is up to the trespasser to know where they are located. That is easy today with modern GPS technology.

Judges are too lenient today with trespassing. They come down hard on someone found trespassing in town but easy on people found trespassing on your ranch or farm.

Remember, ranchers and farmers are just like people in towns. They just have bigger backyards.