Court smacks down Wyoming efforts to suppress science

In a huge victory for environmental groups, the 10^th Circuit Court of Appeals this week ruled that data collection on public lands is protected free speech, and a Wyoming state law that created stiff civil and criminal penalties for “data trespass,” gathering data (or even taking photographs) on public land after crossing private property violates those rights.

The state effort to suppress science and free speech specifically targeted Western Watersheds Project’s documentation of chronic fecal coliform contamination of public waterways by public land ranchers. It was a bald effort to shield the livestock industry from its violations of the Clean Water Act and other environmental laws on public lands.

{mosads}It all started with a lawsuit organized by right-wing activist attorney Karen Budd-Falen, who wanted to find a way to penalize Western Watersheds Project’s Jonathan Ratner for gathering water quality data on public lands and reporting violations to the Wyoming Department of Environmental Quality. Budd-Falen was confident she could pin civil trespassing charges on WWP, and she represented a group of ranchers who claimed that Ratner must have trespassed on private land to get to the sites he sampled.

“If successful,” Jen Pelz, director of WildEarth Guardians’ Wild Rivers Program remarked at the time, “this suit could lead to citizen watchdog groups all over the country fighting frivolous litigation instead of channeling their resources toward protecting and restoring clean and healthy waterways throughout the West.” It was clear from the outset that this was the intention, and WWP fought hard against the unproven allegations.

It became obvious that there was no evidence of trespassing or actual harm to the private property and that the judge was not going to impose punitive damages. Budd-Falen then settled to dismiss her lawsuit in exchange for maps showing which access routes in the sampling area could be used by the public, and a requirement that WWP conform to state trespass laws — a requirement we always have worked to follow nationwide. 

While the trespassing lawsuit ended in failure and legal bills, the livestock industry simultaneously lobbied the rancher-dominated Wyoming legislature to create laws that would punish citizen watchdogs. In response, the legislature enacted a pair of new laws imposing civil and criminal penalties for resource data gathering and even photography on “open lands,” if private lands had been crossed without sufficient permissions.

It is important to note that even as the livestock industry has withered away to an economic pipsqueak in Wyoming, it seemingly retains political dominance over the legislature. Wyoming has a citizens’ legislature paid only per-diem expenses, that meets one to two months during the winter. Most working people cannot afford to take a month or two off without pay to serve in the legislature, but conveniently midwinter is an idle time for ranching operations, and so it is that ranchers are heavily over-represented among the ranks of state legislators.

Even after the new law was amended to remove the words “open lands,” Western Watersheds Project and our allies immediately challenged the new state statutes (dubbed “Jonathan’s law” after its intention to ensnare a single Wyoming resident), because they not only criminalized the gathering of scientific data documenting environmental violations, but were so broad as to even allow recreationists taking pictures on public lands to be targeted for criminal prosecution if they had crossed private lands to get there. 

It’s important to understand the context in which this “trespassing” could take place. Wyoming has some of what I consider the most draconian public access laws in the nation. Almost half of the lands in Wyoming are federal public lands open to the public, but under state law the public doesn’t have the same rights of access to its lands as do private landowners.

Instead of being required to provide reasonable public access to publicly owned parcels, private landowners can (and often do) block access routes to public lands that cross their property, and in some cases even charge hunters and anglers extravagant “trespass fees” to access large blocks of public lands that lie behind their gates.

Complicating matters, Wyoming is a patchwork of federal, private and state ownership. Under state law, travelers are obligated to know the land ownership everywhere they go. Land often changes hands, so maps showing ownership can be out-of-date. Roads and jeep trails typically cross a mix of land ownerships, and even roads marked as open to public travel may not have negotiated public easements. The only way to know for sure which lands are private and whether roads have public easements is to do a title search at the county assessor’s office,

Additionally, local governments in Wyoming have been all-too-willing to meddle with public easements in an effort to entrap travelers. In 2013, Lincoln County in western Wyoming sold parts of a public access easement on the county road to the Raymond Mountain Wilderness Study Area, so that travelers who used the county road could be prosecuted for trespassing the private land sections. Even after the scheme was publicly exposed by journalists at WyoFile, the county commissioners refused to restore the public easement on this county road.

A federal law establishing the public’s right of access to all public lands nationwide would settle the issue once and for all, in Wyoming and every other state where private interests hold exclusive privileges to parts of our public lands.

In the meantime, Western Watersheds Project continues to fight in court for the public’s right to use and enjoy public lands, and to collect data on public lands and waters. When state and local governments work to suppress science and shield polluting industries from accountability, we will work to expose these efforts. And we’ll keep on documenting violations of federal environmental standards until the offending industries clean up their acts.

Erik Molvar is a wildlife biologist and executive director with Western Watersheds Project, a nonprofit environmental conservation group working to protect and restore western watersheds and wildlife throughout the West.

The views expressed by contributors are their own and are not the views of The Hill.