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Judge hears arguments in landmark data trespass case

A judge in a high-profile civil trespass suit that pits ranchers against an environmental activist said Friday he didn’t expect the facts would justify punitive damages against Western Watersheds employee Jonathan Ratner.

During a three-hour hearing, Ninth District Judge Norman Young also said he thought the facts would show that Ratner did in fact trespass when he was collecting environmental data. Young made his comments after arguments on a variety of legal motions in Lander on Friday in the case Frank Ranches v. Jonathan Ratner. He said he would rule on the motions in coming weeks.

But he indicated to attorneys, defendant, and the thirty observers present from the agricultural community how he was leaning. “I think when we comb through the facts of the case we’ll find that Ratner probably trespassed, but when I come to damages … It’ll be nominal and that that won’t support punitive damages,” Young said.

Young also reminded all parties of their obligation to pursue an equitable settlement through mediation before the court action proceeds further.

Fifteen Fremont and Lincoln county ranchers sued Ratner and his employer, Western Watersheds Project (WWP) on June 13 2014 for multiple counts of civil trespass. Ratner is WWP’s Director for Wyoming, Utah and Colorado.The environmental group collects water samples and seeks enforcement of state and federal environmental standards — but stockmen say Ratner has collected environmental data illegally.

They’ve asked the court to award monetary damages — both actual and punitive —and to permanently bar Ratner, and any other Western Watershed personnel, from their properties. The request for punitive damages, were it to proceed to trial, would also give the plaintiffs access to Ratner’s and WWP’s sensitive financial information.

Ratner denies that he trespassed to collect the water samples, and asserts that, excepting one instance, no plaintiff has offered any evidence to the contrary. He claims that the charges are politically motivated.

Before the case’s first hearing Friday it had already inspired, in part, the controversial 2015 legislation barring “data trespass” on open lands in Wyoming. That legislation is itself the subject of ongoing litigation.

The arguments

Friday’s hearing focused on which elements of the lawsuit should, and should not, be allowed to proceed to jury trial.

Cheyenne attorney Karen Budd-Falen argued on behalf of the stockmen that four of Ratner’s 12 defenses should be disallowed.

The legality of traveling certain roads, including some mapped and maintained by the BLM, was argued by both sides in Friday's hearing. (Photo by Matthew Copeland)

The legality of traveling certain roads, including some mapped and maintained by the BLM, was argued by both sides in Friday’s hearing. (Photo by Matthew Copeland)

Her arguments against the defense of “Permissive Use” — the idea that, in the absence of a no trespassing sign, or verbal notification to the contrary, a person can legally use a mapped, publicly maintained road across private property — received the most attention, and skepticism.

Judge Young asked Budd-Falen if, by her reasoning, a girl scout who came to his door selling cookies, would be guilty of trespass.

“Yes,” she replied.

When pressed, she clarified, saying “It’s reasonable for the girl scout to assume implied consent, but not Mr. Ratner.”

“So you’re saying he’s no girl scout?” Young joked, easing the tense atmosphere in the courtroom.

“Permission can be explicit or implied,” he said to Budd-Falen, reading from the standard jury instructions for a Wyoming trespass trial. “It appears the right of possession is not as absolute as you’ve stated.”

Young asked another hypothetical question, this one concerning a road through his own rural housing development, a section of which is owned by him. “There is no way of people reasonably knowing where the road becomes private,” he said. “Are people traveling my road committing civil trespass?”

“If you choose to enforce it, or pick one [traveler] out of 75 because you know they’re bad, that’s your choice,” Budd-Falen answered.

“You seem to think there is no situation for implied consent,” Young said.

Ultimately Budd-Falen agreed that it was a matter for a jury to decide, effectively ceding the argument.

Speaking to the other three defenses her clients would like thrown out, Budd-Falen challenged the validity, applicability, and in one case the existence of specific easements and rights of way that Ratner claimed as legal access to sampling sites.

Justin Pidot, a University of Denver Associate Professor of law serving as one of Ratner’s two lawyers rebutted Budd-Falen’s motions primarily on procedural grounds.

Addressing her arguments’ merits, however, he argued that permission can be assumed in some instances. It’s reasonable to think one has permission, for example, to cross someone’s lawn to ring their doorbell, but not to take firewood.

Budd-Falen countered, “Taking data is the same as taking wood or something else of value.”

Ratner and WWP also had motions in front of Young Friday, asking him to rule on four elements in the case.

They asked in their written filing that he toss out all claims of trespass, except one instance from June 19 2013 on Frank Ranches’ property.

The plaintiffs, they argued, have offered no evidence whatsoever to support the claims. No accuser, they say, even alleges to have such evidence. There are no claims that Ratner was seen on private property, or that anyone found any sign of his passage. Rather, the accusations rely solely on likely routes of travel and conjecture.

Ratner has provided sworn descriptions of routes either over public land, or utilizing what he claims to be legal public rights of way.

The Ratner-WWP brief also asks the judge to rule that a disputed easement for a BLM road does exist.

Robert Southard, co-counsel for Ratner who spoke in support of the defense’s motions, restricted his oral arguments to the assertion that there were no grounds for awarding punitive damages against Ratner and Western Watersheds.

Punitive damages require “wanton and willful” disregard for the law involving “outrageous and malicious conduct,” Ratners’ lawyers said. Defense attorney Robert Southard described the requirement as an “extremely high bar.”

“With all due respect to opposing counsel, they’re not even in the ballpark,” he said.

Young agreed that punitive damages are difficult to justify in Wyoming law, noting that the example case cited by the plaintiffs as justification — known to him and his staff as “the .357 case” — involved massive property damage, fist-fighting and gunplay.

He asked Budd-Falen if any of her clients were alleging any “actual damages.”

“No,” she said.

Young indicated that he would likely require disclosure of the defendants’ financial records, but only to himself, until their use by the plaintiffs might be warranted.

The stakesRatnerFileMCopeland1000

In legal terms Frank Ranches et al vs. Ratner et al is a “simple civil injunction” to prevent further trespass, and punish past trespasses. But its implications are far from simple, and it has engendered fears that strain the bounds of civility statewide.

The ranchers and their supporters view Ratner and WWP’s alleged trespasses as an existential threat to their livelihoods and their ways of life. They claim in their lawsuit that Ratner’s goal for water sampling was to “get all cows and sheep off public land ASAP” and “to end public land grazing.” Both are, in fact, publicly stated goals of WWP.

Ratner and his supporters claim that the case isn’t, at heart, a trespass suit at all, but rather a Strategic Lawsuit Against Public Participation (SLAPP Suit) — a hijacking of the court’s power in an effort to punish Ratner for his political views, quash his right to free speech, gain access to sensitive financial and methodological information, and intimidate others from future participation in environmental monitoring and advocacy.

If the court action is allowed to proceed as filed, they argue, the state’s ability to enforce existing environmental regulations will be severely curtailed, and private citizens will be effectively barred from contributing to public resource decision-making processes.

Southard argued on Friday that the case could also have dramatic negative impacts on the public’s use of public lands for other purposes. Would a hunter who mistakenly crossed private property on a BLM road be made to “bare his financial soul,” and pay damages for an honest mistake, he asked the court? Would the credible threat of such prosecution, indicated by a finding for the plaintiffs, keep him from hunting on public land?

Anti-SLAPP suit legislation has been adopted in 28 states, but not in Wyoming.

The case’s scope is also reflected in its physical embodiment. The file included 99 filings as of Friday, and stood more than a foot tall. Young said the last time he had to perform such a volume of research he was preparing for the bar exam.

Then, before adjourning Friday, he made a gentle request for restraint.

“It seems to me,” he said, “that what the plaintiffs really, truly want and what they are truly right to say, is that they don’t want Mr. Ratner on their property. That’s something that can be accomplished a lot more easily than what we’re about to embark upon here.”

 

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7 Responses to Judge hears arguments in landmark data trespass case

  1. Tim Smyth January 27, 2016 at 12:24 am #

    I think people have to remember that, in this case, it wasn’t BLM land that they claim trespass upon. It was private property that the activist took samples from, or crossed private property to get there. I’m all for letting “concerned citizens” (in other words, activists) take samples in public… but they cannot just walk onto someone else’s land. The “you can’t prove I was on your land because you didn’t see me” defense shows that he’s less concerned about the law than he is about getting his way. And when both sides are gaming the system, I side with the person who actually owns the property.

    St. Peters, Missouri

  2. Dave Capps January 26, 2016 at 4:17 pm #

    My family has had large state and BLM leases for as long as leases have existed. I know by law that we can’t keep the public off the government land even though we have it leased. This is as it should be. Living on a big ranch in Wyoming is a privilege that most of the people in this world never get to experience, but with that comes the responsibility to remember we are not “The exalted few”. We are all citizens of the United States, with the same rights as anyone, but not more. The problem being we also have to take care of the land entrusted to us. Sometimes people don’t understand that and can be very destructive when using public lands. Some citizens don’t even care if they do trespass on deeded ground. Once they lock her in four wheel drive they go brain dead and blind. Not much excuse for a trespass when you can get an accurate GPS for less than $100. I guess the bottom line is, be a good neighbor and ask before you go driving around on someones ranch.

    Dave Capps

    Newcastle, Wyoming

    • Dewey Vanderhoff January 28, 2016 at 12:13 pm #

      Dave Capps – I’d like to add an aspect to your comment , concerning water. Nobody owns any water in Wyoming. The State of Wyoming by way of its State Engineer’s office with asides to Wyo DEQ will grant a permit to use water. It’s what we call a Water Right. It conveys rights to a holder for specified uses, but the user never gets ownership of said water. It is rightly expected that water will return to the commonwealth , by evaporation , aspiration , return flow or some other process. Water is transient.

      What precipitated the Stockgrowers ire and gestated the Data Trespass law was one guy , Jonathan Ratner of advocacy group Western Watersheds , who was gathering water samples in the proximity of cattle operations in riparian areas, both upstream and downstream of the cattle and the waterway. I do take Ratner at his word when he says he had open access to the points where he gathered his water samples. The allegedly afflicted cattlemen do not own any water and do not possess any water….that water is in fact a public resource and can be expected to remain such because it is ephemeral.

      The Public has its own right to know if cattle operations are in fact degrading surface water , whether by infusing it with bacteria or polluting it with agri-chemicals or other toxic substances. It seems obvious to me that the Judge was on the right track when he said existing trespass laws are sufficient to cover the actuality of physical trespass onto private land and deal with transgression for what it is: trespass.

      But to conflate that to say that samples or data collected cannot be given over to regulatory agencies for examination and determination of degradation is altogether a separate issue from trespassing. The Wyoming Data Trespass law appears to throw out the baby with the bathwater to use a tried old cliché.

      The issues of trespassing and data collection / dissemination should not be conjoined so that what happens to one infringes the other. I think that is the salient point.

      This is Ag Gag at its worst. Again —Nobody owns water, no matter how it is being used at the time.

      I agree with everything else you say , in the proper context that the rancher’s responsibility to preserve and steward leased ground is proportional , but cannot be exclusionary as though it were private property. Too many leaseholders I’ve known treat their state land leases like defacto private property and do everything they can to keep the public away for superficial reasons not entirely legit. Folks on both sides of the fenceline need to know where they stand.

      Cody, Wyoming

  3. Leslie Bailey January 26, 2016 at 12:54 pm #

    It will be very problematic if the court finds that accessing a public road is “trespass”…

    Corpus Christi, Texas

  4. Mike Krampner January 26, 2016 at 12:15 pm #

    The Judge is a smart and capable guy who will do his job well.

    The real issue, of course, is that these ranchers want to free from any public scrutiny about land use, and also, want to be able to use leased state and federal lands as if those were private lands. Some ranchers still think that they have absolute control over the land, water and air on their places, and that neither environmentalists nor the government should have a say in how the land, water and air is used, even if it affects others.
    The disproportionate influence ranchers have in the legislature causes some strange laws, but here the ranchers seem to be proceeding on simple trespass theory which does not bode well for them: they can only recover an amount equal to the amount their land has been damaged or a nominal amount, not enough money to make the case worthwhile. It is very much a case of the ranchers trying to show that they are in control.
    They may not be as in control as they think.

    Silver Spring, Maryland

  5. kurt eisenach January 26, 2016 at 10:08 am #

    Where is the concern for the land and water we always here about the landowners being so concerned about. If there is no violation of the state statutes on water quality what is the problem with monitoring the water that leaves their land. Water here is so precious we need to take care of that resource and not ruin it for the next user downstream. We are all downstream from someone!

    sheridan, Wyoming

  6. Dan Neal January 26, 2016 at 9:20 am #

    Seems to me I ought to be able to drive on a mapped, public road without fear of being accused of trespass.

    Dan Neal

    Casper, Wyoming

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