Court will hear case against data trespass laws

A federal judge rejected the state of Wyoming’s attempt to dismiss the lawsuit.


This article was originally published at

A federal judge has rejected the state of Wyoming's motion to dismiss a lawsuit aimed at striking down a pair of laws that make it illegal to collect data from public lands without first gaining permission.

U.S. District Court Judge Scott Skavdahl issued the order on Monday, finding that Wyoming's "data trespass" laws may unconstitutionally criminalize activities such as photography on public lands.

Groups suing the state say the case strikes at the heart of free speech and the right to petition the government as protected under the First Amendment, as well as equal protection under the Fourteenth Amendment. "A law that makes sharing photos of Devil's Tower or Yellowstone a punishable offense just isn't consistent with Americans' right to Free Speech," Natural Resources Defense Council senior attorney Michael Wall said in a prepared statement.

Earlier this year, the Wyoming Legislature passed Senate File 12 creating the crime of trespassing to collect data, and Senate File 80, which made the practice a civil violation. Key in the language of the statutes is the application to all "open lands" outside of municipalities.

"At this stage, the Court finds it difficult to conceive a permissible rationale for preventing the collection of resource data on lands which the public has the right to be upon," Skavdahl wrote in the 38-page order. "Nothing indicates this activity is more disruptive, destructive, or problematic than other uses."

Photographers at Oxbow Bend in Grand Teton National Park.
National Park Service

Attorneys for the state insisted during a hearing before Skavdahl earlier this month that the laws apply only to private lands. That's little assurance, however, based on the language in the statutes, Skavdahl wrote in his Dec. 28 order.

"Having the right to access the land is not enough to remove the threat of criminal and civil liability under the trespass statutes," Skavdahl wrote. "The trespass statutes prevent activity on lands even where the public would not be trespassing."

The lawsuit was filed by Western Watersheds, National Press Photographers Association, Natural Resources Defense Council, People for the Ethical Treatment of Animals and the Center for Food Safety. Defendants in the case include Wyoming's Attorney General, the director of the Wyoming Department of Environmental Quality and three county attorneys in the state. In denying the motion to dismiss, Skavdahl also granted the state's motion to remove Gov. Matt Mead (R) as a defendant in the case.

Justin Pidot, attorney for the plaintiffs, said Skavdahl's order reveals a careful skepticism of the state's data trespass laws. He said the judge appears to have "grave concerns about the state telling people who can lawfully go on public lands that they can't collect data, information," Pidot said.

"The first intuition that people have when they hear what the state of Wyoming did is, 'That can't be right — people can't collect truthful information about the environment?' And, 'That's a crime?' And I think he [Skavdahl] might share some of that intuition," Pidot said.

The judge obviously sees a problem with the language of the statutes, Wyoming Stock Growers Association executive vice president Jim Magagna said. A proponent of the data trespass laws, he said he believes that the state can clarify the intent of the laws.

As for the need for data trespass laws, Magagna said, "Because some of those environmental organizations, including the plaintiffs, were trespassing on private land." He added that stockgrowers also have concerns about state employees crossing private lands without permission.

Plaintiffs, however, see the state's data trespass laws as an attempt to block the public from knowing about violations of environmental regulations.

"I think that's the strategy, and it's a deeply cynical strategy," Pidot said. "A country where the politically powerful can make it difficult to reveal their wrongdoing is fundamentally a different country than the country I thought I lived in."

High Country News Classifieds