Wyoming’s data trespass laws remain defeated

The state did not appeal a ruling striking down portions of the laws over free speech.

 

This story was originally published at WyoFile.com and is republished here with permission.

The deadline for Wyoming to appeal a judge’s ruling that struck down portions of the controversial data trespass laws has passed without rebuttal from the state, according to a lawyer who challenged the law.  

“We’re pleased defendants have not sought to prolong their unconstitutional conduct,” wrote David Muraskin in an email to WyoFile. Muraskin is a staff attorney with Public Justice who represented plaintiffs Western Watersheds Project, the Natural Resources Defense Council and the National Press Photographers Association.

The state had 30 days to file its appeal in the district court that ruled against it, a deadline that expired on Nov. 28 at midnight, according to Muraskin.

The decision to let the Oct. 29 ruling go unchallenged was relatively simple, said the governor’s chief of staff, Mary Kay Hill, on Friday. “There wasn’t an awful lot of conversation about that,” she said. “The governor’s position is that if there is a solution that it would be best addressed by the Legislature,” she said.

Students survey 800 acres of land near Central Wyoming College, providing the Bureau of Land Management with valuable information for a multiple-year fire fuels reduction project.

Legislative champions of the measure remain in office, Hill said. “There was a pretty strong group advocating in favor of (data trespass laws) and they are still here.”

The statutes, passed by the Legislature in 2015 and amended in 2016, made illegal and enforced steep penalties for the collection of research data, photographs and other information from private lands and from public lands if private lands had been crossed to reach data-gathering sites.

Environmental, animal rights and food safety groups joined with the National Press Photographers Association to challenge the data trespass laws in court in 2015, claiming they violated constitutional rights of free speech and equal protection under the law.

Judge Scott Skavdahl of the District Court of Wyoming issued a summary judgement upholding plaintiffs’ free speech concerns. “The government has not proven a strengthening of the state’s trespass laws would not accomplish the same goals without infringing on protected speech,” Skavdahl wrote.

The judge struck down the section of the law that made it illegal to collect data from public lands if private lands had been crossed to reach them. In doing so, Skavdahl upheld concerns from witnesses that included WyoFile reporter Angus M. Thuermer Jr. along with environmental researchers.

In his affidavit, Thuermer wrote that the complex mosaic of public and private lands in Wyoming made for a high likelihood of inadvertently crossing a boundary. As such the threat of imprisonment or harsh fines for doing so had a chilling effect on his deadline driven work as a news photographer. Skavdahl agreed with that assessment.

The court found “plausibl(e)” the advocacy groups’ arguments that the inaccuracies of maps and GPS and the “intertwined nature of public and private lands in Wyoming” have led to some parties refraining from practicing their First Amendment rights out of a fear of the law, he wrote in his judgement.

Opponents of the law had argued it was written in part to deter science or other data collection that might cast ranching practices in a negative light. Though the state had tried to argue otherwise, Skavdahl concluded that the statutes had been written to curtail a certain type of free speech — “the collection of resource data relating to land or land use.”

“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 wrote.  

While the judge ruled on the section dealing with crossing private land to reach public land, Wyoming’s traditional private land trespass laws remain intact and weren’t affected by the ruling. The judge did not rule on other sections of the controversial data trespass laws, meaning enhanced penalties for data collection made while trespassing on private land remain for now.  

“The decision did not strike down those provisions,” Muraskin said. The judge did not issue any ruling endorsing the constitutionality of the other provisions either, Muraskin previously told the Sublette Examiner. The plaintiffs’ challenge focused on the crossing of private land to reach public land, considered the most onerous section of the law.

The judge’s ruling had sent a strong statement to Wyoming’s policy makers that the state chose not to appeal, Muraskin said.

“The district court correctly held that Wyoming’s laws targeting environmental data collection were some of the most repugnant attacks on free speech a state can pass,” Muraskin said. “It explained Wyoming offered no legitimate rationale for its efforts to suppress environmental advocacy, and that the state’s explanation that it was protecting private property, seemed to be nothing more than a façade.”

Andrew Graham reports for WyoFile from Laramie. He covers state government, energy and the economy. WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy. 

Email HCN at [email protected] or submit a letter to the editor.

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