Wyoming’s new data trespassing law made national headlines last week when an opinion column in Slate raised the question of whether it attempts to criminalize data collection activities among citizens, including taking photos on public lands such as Yellowstone National Park.
That was the argument of Justin Pidot, a University of Denver assistant professor of law. He’s not an uninterested bystander in the issue, because he represents the Western Watersheds Project. The group has raised the hackles of Wyoming ranchers and lawmakers, who allege the group has trespassed on private land to collect water quality data to support an agenda of curtailing public lands grazing.
That controversial cause has made WWP the subject of a recent lawsuit in Wyoming, and one of the key reasons agricultural groups lobbied for the passage of the data trespassing law.
The law makes it a crime to collect data on “open land” outside of towns and subdivisions if the data collector lacks written or verbal permission to both access the land and collect data.
It provides for a fine of up to $5,000 for a second violation, requires the expungement of illegally collected data from state agency databases, and prohibits the use of the data in court except as evidence to bring conviction.
Importantly, the law is not explicit in limiting the trespassing charge to private land.
At issue is that the law portends to apply to state public lands, and that it creates a question of whether it attempts to apply to federal public lands, as the non-profit Western Watersheds Project believes.
Pidot’s client has a strong interest in opposing the data trespassing law because it is one of the West’s most active environmental groups engaged in water quality monitoring on public lands. Its efforts to track water quality on public grazing allotments and to file lawsuits to push for cleaner watersheds have made made WWP highly unpopular among ranchers and agriculture interest groups.
“There are other powerful interests in Wyoming that would like to prevent citizens from poking around too much, and would prefer citizen scientists to stay home rather than go on public lands,” Pidot said.
Opposition to WWP is evident in the Legislature and in state courts.
While lawmakers debated a data trespassing bill last summer, 15 ranchers sued Jonathan Ratner and the WWP for allegedly trespassing on private land to access Bureau of Land Management parcels to collect water samples. Ratner denies the accusations, saying he only crossed private lands using roads with BLM easements for public travel.
Ratner, Pidot, and the WWP attended a court hearing in Lander yesterday in which they attempted to have the case dismissed. The case awaits a ruling from Judge Norman E. Young, 9th Judicial District Court for Fremont County, expected in the next few weeks.
Pidot believes the lawsuit fits the definition of a strategic lawsuit against public participation, also known as a SLAPP suit — which are used to rack up legal bills to the point that an individual or organization can no longer remain active on an issue.
Two themes run deep in both the lawsuit against WWP and Wyoming’s data trespass law: private property rights, and the right of citizens to collect data to inform the management of public lands.
From Pidot’s perspective, WWP pushes state and federal agencies to fully enforce the Clean Water Act — an action that the organization believes would result in better public lands grazing management, as well as an overall reduction in public lands grazing. The group participates in a public process to inform management, Pidot says, but the lawsuit and the data trespassing law seem designed to hinder these types of efforts.
“The mere fact that you have a criminal statute that applies to this conduct sends a real chilling message to citizens who might like to engage in these [data collecting] activities,” Pidot said. “I can’t read anyone’s mind, but my sense is they would like to stop citizen groups from monitoring public lands to uncover violations of federal law.”
Bobbie Frank, director of the Wyoming Association of Conservation Districts, lobbied for the data trespassing law, and supports the ranchers in the lawsuit against WWP. Her husband, Dan Frank was one of the attorneys who argued for the ranchers against WWP during the hearing in Lander yesterday.
“The article in Slate tries to portray this as ‘Wyoming landowners trying to hide from this environmental group,’” Bobbie Frank said. “I certainly disagree with the notion that landowners are trying to hide something.”
She called Pidot’s column a selective reading of the legislation. “It is inflammatory, and my assumption is that was its purpose,” Frank said.
In her view, the law protects landowners who face incursions from unauthorized data collectors. The state law leaves the door open for data collection on federal lands according to existing laws and regulations, she said.
“When you collect data, if you are going to cross private property you should ask permission to do so,” Frank said. “That seems fairly basic and it brings some integrity back to data collection.”
WWP water sampling efforts
For 10 years Ratner has collected water samples on public lands to measure e coli levels in streams, which he says directly correlate to the presence of domestic livestock. He regularly submits the data to the Wyoming Department of Environmental Quality.
If a stream exceeds the e coli water standard set by the Clean Water Act, Wyoming DEQ could add it to the 303(d) list of impaired streams. Such an action could prompt the Bureau of Land Management or the Forest Service to take management actions and require grazing leaseholders to clean up streams, which could include the curtailment of grazing.
So far, WWP data has played a role in the listing of two Wyoming streams in 2012, according to Ratner. Wyoming DEQ did not use any third-party data in creating the 303(d) list for 2014, according to agency spokesman Keith Guille. The agency is currently drafting a response to comments on its 2014 draft 303(d) report.
“Some of the samples they [WWP] have taken indicate e coli levels at 200 times the compliance standards,” Pidot said. “Rather than come into compliance, the effort [from agriculture and lawmakers] seems to hide the violation, and therefore not have to deal with the problem.”
Frank accused Ratner of “blatant trespasses,” and questioned WWP’s technical ability to collect accurate data.
“I think you’d be hard pressed to say that Western Watersheds is collecting data in an unbiased fashion,” Frank said.
In June 2014, Cheyenne attorney Karen Budd-Falen filed a lawsuit on behalf of 15 landowners in Fremont, Sublette, and Lincoln counties alleging that WWP and Jonathan Ratner trespassed on private land to collect water quality data.
A release posted on the Wyoming Farm Bureau Federation website that month stated that the Farm Bureau supported the plaintiff ranchers in the lawsuit, as did the Wyoming Association of Conservation Districts, the Wyoming Stock Growers Association, and the Wyoming Wool Growers Association.
While data trespassing law champion Sen. Larry Hicks (R-Baggs) may not have made the connection between the bill and the WWP trespass lawsuit in drafting legislation during the 2013 and 2014 interims, these agriculture-affiliated groups certainly did.
All of those groups, with the exception of the Wool Growers, later voiced their support for the data trespassing bill before the Judiciary Committee. Frank lobbied in favor of the bill, noting the lawsuit against WWP.
The Office of State Lands and Investments also supported the bill, noting that WWP collected data on state land without permission. While members of the public can access state land for recreation, collecting data on state land requires a permit, according to Office of State Lands and Investments rules 14-3(k) and 16-4(a).
On April 1, 2014, the agency sent a cease and desist letter to Jonathan Ratner, who had collected water samples on state land without a permit on one occasion. Ratner later submitted a research permit application to the state, but it was not approved.
Jason Crowder, assistant director of Land Management with the Office of State Lands and Investments, said the agency advised Ratner that it needed more information. It asked Ratner to submit a survey permit application with specific grazing allotment information, rather than the research permit application used for university and educational purposes. Ratner told WyoFile the Office of State Lands never contacted him in writing or by phone about submitting the new survey permit application.
“As long as [WWP] went through the proper channels there wouldn’t be a reason that we would deny it,” Crowder said.
During the 2015 session the data trespassing bill was introduced as two mirror bills, both sponsored by the Joint Judiciary Committee. Senate File 12 created the crime of data trespassing, and Senate File 80 made data trespassing a civil violation.
For much of the session, Senate File 12 specified that the data trespassing charges only applied to “private open land.”
After the bill passed the Senate and the House, a conference committee met to iron out differences between amendments passed by each house. The conference committee, which included Sen. Larry Hicks (R-Baggs), amended the bill to strike the word “private” from the phrase “private open land.”
That change was intended to expand the bill to apply to state land, Hicks said.
Hicks said he agrees the bill cannot apply to federal land, since state can’t tell private citizens they aren’t legally allowed to enter lands like Yellowstone.
“We don’t have the authority to tell you what you can or can’t do on federal lands, that’s not in our legislative purview,” Hicks said. “If you legally access federal lands, that doesn’t apply. You are not captured under this law. … As long as [Ratner] stays off private property he can do any damn thing he wants….”
Pidot says his reading of the law is not hyperbole.
“I think as a matter of law the Senator is wrong,” Pidot said. “The way the [data trespassing] law is phrased, there is no exemption for federal land, and a local sheriff could try to prosecute someone [for collecting data] on federal land.”
Open land means everywhere?
Pidot and Ratner believe the law’s term “open land” and its definition to include all land outside of incorporated cities and subdivisions is an insinuation that the data trespass bill applies to all lands — private, state, and federal.
“If the intent was really what [Hicks] says, it wouldn’t be written how it is written, because it is very plain that it covers all unincorporated lands within the state of Wyoming,” Ratner said. “Why they couldn’t have put in those three additional acronyms [for private, state, and county land]?”
Pidot says legal precedent shows federal lands don’t always preempt state laws. For example, driving on BLM land without a state-issued driver’s license is an enforceable crime under state law. He cited the United States Supreme Court case California Coastal Commission v. Granite Rock Co. as an example that state law can apply on federal land. That means the data trespassing law could very well apply on federal lands, he said.
University of Wyoming law professor Debra Donahue thinks federal access law would likely preempt the state data trespassing law, “but to make that conclusion official, the courts would have to rule,” she said. “Defending a trespass claim or charge would be costly — the tactic of a SLAPP suit.”
For Hicks, the intent of the legislation makes clear that it doesn’t apply to federal lands.
“You can spin this any way you want, but this was designed to safeguard private property rights,” Hicks said.
Since the law will be interpreted by law enforcement and the courts, Hicks’ intent is irrelevant if the letter of the law says otherwise, Ratner said.
“It is a fascinating story and particularly fascinating because it sounds like the sponsors of the bill are saying they meant to do less than they did,” Pidot said. “Lawmakers made a law with a lot of unintended circumstances, and then the question becomes, ‘what do you do about that law?’”
A chilling effect
Regardless of Hicks’ interpretation, Ratner says attorneys have advised him not to collect any data on federal public land without express written permission from management agencies.
That’s because Wyoming’s data trespass law states that citizens must have legal authority to enter open land and have written or verbal authorization to collect data. If it applies to federal land, that requires getting permission from the BLM or Forest Service to collect data.
Pidot said the Forest Service doesn’t issue tickets for collecting water data, but neither does it issue blanket authorization to collect data, or offer “express” permission. That means WWP may need to have Forest Service permission to collect water on a case-by-case basis.
Meanwhile, the BLM says it is still reviewing the law. “From the BLM perspective, we are still in the process of having our solicitor look at the implications of the data trespassing bill,” BLM Wyoming spokeswoman Kristen Lenhardt said. “The preliminary view is that it doesn’t change the existing authorizations for access and use of federal public lands.”
Ratner is also wary of collecting data because of the lawsuit filed by Karen Budd-Falen on behalf of the 15 ranchers. The suit accuses WWP of trespassing, and asks for damages and legal fees. WWP has spent significant amounts of time and money fighting the lawsuit, which he believes has no merit. He sees it as an effort to silence the organization and make it wary of doing anything that could bring another costly lawsuit.
All of those factors lead Pidot to characterize the lawsuit as a SLAPP suit.
“Since they are seeking punitive damage, they are looking at WWP as a business, and making sure that everyone else is on notice that if you engage in water quality activities monitoring ranching, you may very well end up getting sued,” he said.
Ratner characterized the data trespassing laws as “SLAPP legislation.”
“The ag industry needed to come up with a solution to avoid any future listing of streams ever again,” Ratner said, referring to Wyoming’s data trespass law. “The intent is to eliminate the ability of citizens to collect the water quality data necessary to list streams ever again. … It is a perfect way to completely get out from any accountability under the Clean Water Act.”
Editor’s Note: For more on this topic, see this Capitol Beat post from May 12.
Amended complaint against Western Watersheds Project
Motion to dismiss lawsuit filed by Western Watersheds Project
Correction: This article was corrected on May 19, 2015 to reflect that Wyoming DEQ is drafting a response to comments on the 303(d) list. — Ed