A legislative committee voted Monday to rescind an unconstitutional “data-trespass” law that Wyoming unsuccessfully tried to defend and, in the process, was ordered to pay $582,138 in opponents’ attorneys’ fees.
The Legislative Service Office will prepare a measure to repeal two unconstitutional portions of the controversial statute, the Joint Judiciary Committee unanimously agreed Monday. The Legislature could consider the issue when it meets early next year.
The Wyoming law, passed first in 2015, criminalized the collection of “resource data” — such as water-quality samples or photographs of range conditions — from public land if the person collecting the data trespassed on private land in the process. The criminal trespass statute has a companion civil measure.
“The First Amendment’s guarantee of free speech in this case leads the Court to find [data trespass laws] are facially unconstitutional,” U.S. District Judge Scott Skavdahl wrote in a 2018 order.
The 2015 criminal statute created “heightened penalties” — beyond those for mere trespass — of up to a year’s imprisonment and a $1,000 fine for persons convicted of a first offense, LSO attorney David Hopkinson wrote in a memo to the committee.
“The law was put forward pretty passionately regarding digital [data] trespass concern by many major landowners.”
Sen. Tara Nethercott
The Wyoming Liberty Group called for rescinding the entire criminal data-trespass statute, “to avoid confusing citizens about the law’s enforceability,” according to a memo from a Liberty Group representative, Steve Klein.
The illegal data-trespass measure has lingered on the books for four years for reasons Hopkinson told the panel he couldn’t explain. Sen. Tara Nethercott (R-Cheyenne) offered a theory.
“The law was put forward pretty passionately regarding digital [data] trespass concern[s] by many major landowners,” she said. “…[P]rimarily the plaintiffs were … many out-of-state interests. Pretty touchy subject there for a while.
“Obviously, the provisions still stand that have been determined to be unconstitutional,” she said. Court orders also introduced Wyoming to the premium rates of D.C.-Beltway attorneys.
“The federal court levied significant attorney fees against the state which the taxpayers had to pay to out-of-state lawyers,” Nethercott said.
Court challenge
Western Watersheds Project, a group that monitors public lands grazing, the Natural Resources Defense Council, which also monitors public lands and the National Press Photographers Association challenged the Wyoming criminal law in 2015 and were joined by animal welfare groups. Agriculture groups entered the action on the state’s side. The photographers’ association challenged the measure on First Amendment free-speech grounds.
(Disclosure — this reporter submitted an affidavit to the NPPA regarding the case.)
The law emerged at a time when Western Watersheds was collecting water samples across public grazing allotments to see whether state and federal regulators were meeting required environmental standards. Ranchers sued that organization in 2014, alleging that Jonathan Ratner, an employee, trespassed on private ranch land to reach the public allotments where he took samples. The plaintiffs said that Ratner and WWP’s actions posed an existential threat to their livelihoods, noting that WWP’s stated goals included “get all cows and sheep off public land ASAP” and “end public land grazing.”
Sen. Tara Nethercott (R-Cheyenne) on the Senate floor during the 2022 Legislative Session. (Mike Vanata/wyomingdigest.com)
The defendants and their supporters argued that the suit had no legal merit and was instead a thinly veiled “SLAPP” — a strategic lawsuit against public participation — brought to forestall future data collection through intimidation.
The judge ruled that the plaintiffs would not get punitive damages, effectively pulling the suit’s teeth. But Wyoming’s Department of Environmental Quality rejected data the environmental group wanted to submit.
The Legislature passed its first data trespass law the following year.
The $582,138 price tag for Wyoming’s defense of the data-trespass laws doesn’t include time and expenses on the part of state attorneys. The state paid the sum from its state self-insurance claims fund that totaled $47.4 million at the end of 2018, $42.3 million at the end of 2020.
Judiciary Committee member Rep. Dan Zwonitzer (R-Cheyenne) said he was one of the five legislators who in 2015 “said it was unconstitutional … said we can’t do this — and [no one] wanted to listen to us.
“[I] got my tail handed to me,” he told the committee.
Although the Wyoming Liberty Group wants the criminal statute completely repealed, committee members focused on criminal and civil subsections relating to public land.
Could the state repeal only the part of the criminal statute found to be unconstitutional, along with the companion subsection in the civil law, Rep. Karlee Provenza (D-Laramie) asked LSO attorney Hopkinson, in reference to the elements successfully challenged by Western Watersheds and others.
“If we just were to repeal those provisions, does that lead to an absurd result?” she asked. An absurdity in law refers to contradictory, nonsensical or illogical outcomes from a particular interpretation, or things that are “obviously and flatly against clear truth.”
Essentially, Provenza asked whether the federal court’s ruling also affected other parts of the data-trespass laws, effectively undermining them. “Are we not looking at it as broadly as perhaps we should?” she asked.
Hopkinson said he believes “the subsection that has been held unconstitutional … is severable from the rest of that statute.”
“I don’t see an issue with just repealing that particular [public-land] section.”
That would appear to leave in place an enhanced penalty for collecting environmental data on private land — a penalty above and beyond a mere trespass penalty — while using that data as a form of speech.
In his 2018 ruling, Skavdahl wrote that “[t]he government has no legitimate explanation for the specific targeting of data collectors over other types of individuals engaged in trespass.
“They have failed,” he wrote, quoting precedent, “to identify any reason why the curtailment of speech is ‘actually necessary to the solution’ of the identified problem.
“There is simply no plausible reason for the specific curtailment of speech in the statutes beyond a clear attempt to punish individuals for engaging in protected speech that at least some find unpleasant,” Skavdahl wrote.
That punishment included a mandatory 10-day sentence for a second offense and up to a $5,000 fine. The law called for expungement of any data so-collected in the possession of a government entity and mandated that it not be considered in any agency action.
The Legislative Service Office outlined the data-trespass statute and its troubled history in a memo to the committee as lawmakers assembled to address their No. 1 topic — trespassing — before next year’s legislative session.
Klein’s memo explained that “because the law targeted a protected speech and press activity — which includes researching, or collecting data as much as it includes writing or speaking about that data — the law went too far beyond protecting property interests and amounted to unconstitutional censorship.”
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