Trespass Law Stands
by Cat Urbigkit, Pinedale Online!
July 11, 2016
A federal judge in Wyoming has dismissed a lawsuit challenging the constitutionality of a pair of trespass statutes passed by the Wyoming legislature prohibiting the collection of resource data (including photographs) on private lands without express permission or authorization.
The court concluded: "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. To the contrary, the United States Supreme Court ‘has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned.’ The ends, no matter how critical or important to a public concern, do not justify the means, violating private property rights."
The lawsuit was filed by Western Watersheds Project, National Press Photographers Association, National Resource Defense Council, People for the Ethical Treatment of Animals, and the Center for Food Safety.
These plaintiffs alleged that the law infringe upon their First Amendment rights, and has hindered the work of "whistle-blowers" and "citizen scientists."
The court noted: "In this case, Plaintiffs challenge the statutes based upon their restriction of creation of speech by illegal means. 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."
The court didn’t buy the plaintiffs’ claims that the law was too broad because it is difficult to determine what is private land and what is public land.
"Plaintiffs' asserted inability to determine their location and land ownership during data collection creates somewhat of a conundrum. The Amended Complaint presents an exhaustive list of data collection activities they have engaged in the past, and have recently refrained from engaging in. These activities involve collecting water samples, recording locations of purported environmental or permitting violations, photographing and recording the location of wildlife, monitoring air-quality near oil and gas developments and recording locations of violations, etc. Each of these activities involves Plaintiffs and their members determining and recording the locations (by GPS or other means) of purported environmental violations or data findings. The ability to pinpoint and record the location of alleged environmental violations is essential to Plaintiffs' mission and goals. Coincidentally, the same information would be essential to a successful prosecution or civil action brought under these statutes.
"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. … In any event, any perceived burden or hardship associated with determining property rights does not translate into a First Amendment right to go upon lands, blissfully ignorant of their ownership."
Here is how the new statutes read:
(a) A person [is guilty of trespassing/commits a civil trespass] to unlawfully collect resource data from private land if he:
(i) Enters onto private land for the purpose of collecting resource data; and
(ii) Does not have:
(A) An ownership interest in the real property or statutory, contractual or other legal authorization to enter the private land to collect the specified resource data; or
(B) Written or verbal permission of the owner, lessee or agent of the owner to enter the private land to collect the specified resource data.
(b) A person [is guilty/commits a civil trespass] of unlawfully collecting resource data if he enters onto private land and collects resource data from private land without:
(i) An ownership interest in the real property or, statutory, contractual or other legal authorization to enter the private land to collect the specified resource data; or
(ii) Written or verbal permission of the owner, lessee or agent of the owner to enter the private land to collect the specified resource data.
(c) A person [is guilty of trespassing/commits a civil trespass] to access adjacent or proximate land if he:
(i) Crosses private land to access adjacent or proximate land where he collects resource data; and
(ii) Does not have:
(A) An ownership interest in the real property or, statutory, contractual or other legal authorization to cross the private land; or
(B) Written or verbal permission of the owner, lessee or agent of the owner to cross the private land.
The court explained: "Thus, a person can violate the revised statutes in one of three ways: (1) if he enters private land with the purpose of collecting resource data and without authorization or permission to enter the land or specific permission to collect resource data; (2) if he enters private land and actually collects resource data without authorization or permission to enter the land or specific permission to collect resource data, or; (3) if he crosses private land without authorization or permission to do so and collects resource data."
A first-time offender under the revised criminal statute faces imprisonment for not more than one (1) year, a fine of not more than $1,000, or both. A repeat offender of subsections (a) or (b) of the criminal statute faces imprisonment for not less than ten (10) days, but not more than one (1) year, a fine of not more than $5,000, or both. Under the civil statute, one who violates the statute is liable in a civil action by the owner or lessee of the land for all consequential and economic damages proximately caused by the trespass. The violator will also be liable for litigation costs, reasonable attorney fees and costs.
The court noted that these statutes were enacted "to provide a more effective deterrent to protect private property rights" than existing statute.
To violate Wyoming's existing criminal trespass statute an entrant must enter or remain on the land of another, with knowledge that he has no right to do so, or after being notified to leave or not trespass. The court noted: "Constituents raised the issue to legislators that individuals seeking to collect resource data were trespassing upon their private lands, but could not be charged under the existing criminal statutes. In other words, the existing criminal trespass statutes were not adequate deterrents for these trespassers." The newly enacted statutes correct that problem – including the problem of members of these plaintiff environmental groups who trespass to collect data on private property.
The case was decided by U.S. District Judge Scott W. Skavdahl.