The Wyoming Legislature is considering a bill, Senate File 74 Crimes against critical infrastructure. It is justified as protecting national security by imposing steep fines and long jail terms against anyone who “impedes” or trespasses on infrastructure — pipelines, oil and gas facilities, trains, dams etc.
Everyone is in favor of protecting national security, so the important question is whether this bill will accomplish that worthy objective, or whether it is primarily designed to deter the legitimate exercise of constitutional rights. Unfortunately, SF-74 likely does nothing to make us safer. But it certainly threatens our rights of free speech and freedom of assembly, rights that all Americans should defend.
Keep in mind that we already have criminal and civil laws that prohibit and punish trespass, and laws that make it a crime, with severe penalties, to damage property. And because these laws have been in place for many years, and because people in Wyoming are overwhelmingly law-abiding citizens, there are very few instances, if any, of damage to critical infrastructure. The supporters of SF-74 can’t point to any events in Wyoming that would have been prevented or punished by this bill.
The supporters of the bill are afraid of what happened in North Dakota with the protests over the Dakota Access Pipeline. They seek to prohibit such activity in two ways (as amended in committee): make impeding critical infrastructure a felony punishable by imprisonment for up to 10 years with a fine of up to $100,000; and leveling a fine of up to $1 million against “[A]n organization that aids, abets, solicits, encourages, compensates, commands or procures a person to commit the crime of impeding critical infrastructure…” Impedes is defined in an adopted amendment as meaning “to block or prevent legal access to or operation of a critical infrastructure facility in a manner not authorized by law.”
If this bill simply enhanced the penalties for criminal trespass and damage it likely would not be all that objectionable. North Dakota adopted a much more restrained position increasing fines to $1,500, not $100,000. What we should strongly object to is the second part, and the vagueness of such words as “aids, abets, solicits, encourages…”
Look at a practical example. I have the privilege of teaching energy and natural resources law as an adjunct faculty member at the University of Wyoming. In 2016 several of my students expressed an interest to go to North Dakota to see firsthand the protests. I encouraged them to do it; that is what education is all about. If they “impede” am I guilty of “aids, abets, solicits, encourages?” Farfetched, maybe, but not very in our current climate of fear.
What about public protests such as the March on Washington, which blocks public streets and access to critical infrastructure? What about protests against industrial wind farms? What if 500 or 5,000 Wyoming citizens march against a for-profit prison built to incarcerate immigrants? “Prisons” could easily be added to the statute. If a newspaper supports the protests, or people send blankets or food does that invoke the draconian penalties?
Despite Sen. Christensen’s (R-Alta) vow that “there are no unintended consequences,” we can’t foresee all the mischief that this bill may create.
SF-74 reflects a troubling trend in this country: the view that if we just make the penalties harsh enough and we criminalize conduct by people we fear and don’t like, we can make ourselves safer. The Koch brothers and their legislative arm, the American Legislative Exchange Council, who drafted a model bill, want you to believe that. But even the ALEC bill does not have the “aids, abets, encourages” language. That safety is an illusion, and in a law-abiding state like Wyoming, all the bill will accomplish is to give politicians talking points, and to allow powerful interests to threaten anyone who may have legitimate grounds for public protest and who conducts such protests in perfectly legal ways.
Please call your Senator and Representative and ask them to oppose SF-74, or to at least limit it to a very narrow expansion of penalties for trespass and actual damage.
Larry Wolfe is an energy, natural resources and environmental lawyer in Cheyenne.