WyoFile reporter and photographer Angus M. Thuermer Jr. has become a witness in a lawsuit brought against Wyoming’s data trespass laws by the National Press Photographers Association.
The NPPA is a plaintiff in a lawsuit against the state, seeking to overturn laws enacted in 2015 and amended in 2016 that make it illegal to collect data on public land if private land was crossed to access it. As a member of the NPPA and a press photographer in Wyoming, Thuermer said his ability to visually report stories on Wyoming public land has been chilled by the law’s broad language, according to legal documents.
Thuermer will no longer cover the lawsuit for WyoFile to avoid any perception of a conflict of interest in his reporting, WyoFile’s chief executive and editor Matthew Copeland said Tuesday.
“At WyoFile we believe that transparency is essential in the institutions of a healthy democracy, including the institutions of the Fourth Estate,” Copeland said. “As such we feel it’s important to report Angus Thuermer’s participation in a story that he once covered as a passive observer; and to be clear that, as a participant, he will no longer cover the lawsuit.”
The NPPA is joined in the lawsuit by the National Resource Defense Council and the Western Watersheds Project.
A January legal filing by the plaintiffs in the U.S. District Court for the state of Wyoming referenced Thuermer’s work on three different news articles. In reporting the articles for WyoFile, the document said, Thuermer curtailed his photography of environmental conditions on the ground due to his uncertainty that doing so might violate state data trespass laws.
Thuermer did not have time while reporting developing news stories on public lands to ascertain whether the use of access roads through private land was permissible or if the roads may have been labeled in error, the complaint said. As such, he restricted his photography when producing stories on a plan to drain a lake in Sublette County, and on imperiled sage grouse habitat.
“Access to public land on the Bridger-Teton National Forest at New Fork Lake crosses several miles of private property with access roads,” the complaint read. “It has been impractical, when responding to developing news events with regard to this project, to drive to the county seat to check easement records for the access road to determine whether the roads were properly placed and could be used by journalists covering a story.”
In choosing to join the lawsuit as a witness, Thuermer cited his ethical obligations as a journalist to pursue government transparency and open public records. Thuermer has worked for WyoFile since 2014 and frequently reports on environmental issues for the publication.
Thuermer cited a passage from the code of ethics of the Society of Professional Journalists, of which he is a member. A reporter should “seek to ensure that the public’s business is conducted in the open, and that public records are open to all,” the passage reads.
The NPPA has its own code of ethics, which Thuermer also cited. That code includes the following passage in its preamble: “Visual journalists operate as trustees of the public. Our primary role is to report visually on the significant events and varied viewpoints in our common world.”
His fulfillment of that role is jeopardized by Wyoming’s data trespass laws, Thuermer said, which prevented him from reporting visually on Wyoming’s public lands in the incidences cited by the legal complaint. The NPPA also calls upon its members to “defend the rights of access for all journalists.”
Thuermer became an active participant in the case when he responded to an email circulated by the NPPA to its members in Wyoming, asking if the law had affected their work, he said.
“As the filing says, I’m worried when reporting stories [on public lands] that I would break the law,” Thuermer said. “A criminal charge would have deleterious professional and personal consequences, and at the same time it’s my duty as a member of the Society of Professional Journalists and the NPPA to fight for public access and free speech. So when the NPPA asked photographers in Wyoming how they had been affected I responded.”
Once Thuermer learned his response was being incorporated into the lawsuit, he alerted WyoFile staff and WyoFile’s board of directors and suggested he should not continue to cover the topic. Both staff and board members agreed.
Long legal journey
The Wyoming Legislature enacted the data trespass laws in 2015, following a lawsuit brought by agriculturalists against Jonathan Ratner, an employee of the environmental group Western Watersheds. In that case, Fremont and Lincoln county ranchers sued Ratner for trespassing on private property while collecting environmental data.
Thuermer covered that case for WyoFile at times, including its conclusion in October 2016.
While the Ratner case continued, the Wyoming Legislature passed the 2015 law to create a new crime — data trespassing — and to make that crime a civil violation. The new laws made it a crime to collect data on private property and also on “open land” outside municipalities, including public land, without permission. Data that was found to have been collected illegally under the new law could be expunged from scientific databases.
Environmental, animal rights and food safety groups joined with the National Press Photographers Association to take Wyoming to court over the data trespass laws in 2015, claiming it violated constitutional rights of free speech and equal protection under the law. A U.S. District Court of Wyoming initially accepted that lawsuit. Judge Scott Skavdahl said plaintiffs had the legal standing to sue and overruled a motion from the state of Wyoming to have the suit dismissed, according to a WyoFile report.
Thuermer was not involved in the lawsuit at that point.
During the 2016 Legislative session, lawmakers revised the statutes under legal challenge, including removing “open lands” from the areas where data collection is criminalized. Following those revisions, Judge Skavdahl accepted the state’s motion to dismiss the lawsuit.
But in September 2017, the plaintiffs won an appeal before a federal court in Denver, according to a report in the Casper Star-Tribune. The case was then remanded back to Wyoming district court, where it continues.