By Erik Molvar
Credit: Photo by Steve Stevens courtesy Flickr Creative Commons
A federal court has ruled that a Wyoming statutes designed to suppress the collection of “resource data” by nonprofit environmental groups and other members of the public violates constitutional free speech rights, and consequently the court struck down the two state laws. sources data was defined in the laws as information relating to land use and conservation. One law had criminalized data collection on public land if private property had been crossed, even if property boundaries are unmarked, and the other had discriminated against data collectors by adding steep civil fines as special penalties for people caught collecting data.
It all started in 2014, when ag industry attorney Karen Budd-Falen convinced a group of ranchers to sue Western Watersheds Project (WWP) in state court for alleged trespass in the course of gathering water quality data in the Upper Green River Valley. WWP (the nonprofit environmental group for which I work) had been measuring contamination levels of fecal bacteria related to concentrated livestock on public lands that routinely exceeded Clean Water Act standards for direct contact, meaning that members of the public playing in the water could be at risk for potentially fatal E. coli poisoning. When that lawsuit failed to produce any results, the Wyoming legislature took it upon itself to write a special trespass law to target environmentalists and other watchdogs who collect scientific data and photographs on public lands in order to suppress the gathering of evidence of violations of federal environmental standards.
The National Press Photographers Association joined the lawsuit because even the act of taking a photograph is defined by the law as “resource data” – information related to land uses such as agriculture, minerals, history, air, water, soil, or conservation – and if unmarked private land were crossed, or a public road across unmarked private lands without a public easement were used to access the site, imprisonment for up to one year. Natural Resources Defense Council also joined, citing an investigation of air quality along the Beartooth Front (east of Yellowstone National Park) that was abandoned due to the threat of civil and criminal prosecution in the event of inadvertent crossing of private land boundaries in the ever-complex land ownership mix of north-central Wyoming.
At first, the Wyoming District Court ruled that the collection of data and the taking of photographs did not constitute free speech and were not protected by the Constitution. But the environmental and media groups challenged this ruling before the 10th Circuit Court of Appeals, and the appeals court ruled that data collection was indeed a form of free speech, particularly inasmuch as the data was often submitted to federal agencies to advocate for responsible land use practices. This ruling sent the legality of the state “data trespass” statutes back down to the Wyoming District Court, which promptly declared them unconstitutional.
In the meantime, opponents of environmental protection engaged in some pretty nefarious and underhanded tactics to try and ensnare environmental watchdogs with the new state law. The Lincoln County Commission deeded three acres on a county road that accesses a major chunk of BLM public lands, the Raymond Mountain Wilderness Study Area, to block access by environmental groups to grazing allotments on federal lands. With the public easement nullified on a short stretch of the county road, anyone using it to access these public lands would suddenly be trespassing.
This example of county governments acting to restrict public access to federal public lands comes at a time of unprecedented power grabs by state and county officials who seek to control the management of federal public lands for the exclusive (and often commercial) interests of locals, on lands that by right belong equally to all Americans. This agenda dovetails with the armed uprisings spearheaded by Cliven Bundy and his band of armed insurgents, who were embroiled in armed standoffs with law enforcement at Malheur National Wildlife Refuge and Bunkerville, Nevada. Key figures in this “Sagebrush Rebellion” are ranchers like the Bundys and Wayne Hage who illegally trespassed their livestock on closed federal grazing leases, without so much as paying their grazing fees.
Not coincidentally, the same Karen Budd-Falen who brought the original trespass suit that got this whole “data trespass” ball rolling is herself one of the leading proponents of the local control of federal public lands. In addition to suing WWP to prevent data collection, she represented the Bundy family in their failed fight against eviction from federal grazing leases in Nevada, and advised counties on how to use county plans to control the management of federal lands. Budd-Falen even represented Frank Robbins, who like Cliven Bundy was trespassing his livestock on closed BLM lands in Wyoming’s Bighorn Basin, to attack BLM officials personally under the federal Racketeer Influenced and Corrupt Organizations (RICO) statute, enacted to prosecute the Mafia. Budd-Falen lost this case on a unanimous Supreme Court ruling. Despite her track record, Budd-Falen was recently appointed to a position in the Department of the Interior overseeing federal fish and wildlife actions. It’s a bad sign for where this country is currently headed.
However, the successful overturn of the Wyoming “data trespass” statutes is a victory for transparency and accountability amid a spate of legislative efforts by the agriculture industry to shield itself from public scrutiny. From concentrated animal feeding operations (CAFOs) to livestock grazing on the open range, the industry seeks to hamstring efforts by activists, conservation professionals, and even its own workers to document legal violations and ethical problems that the industry sees as a political liability.
Back in Wyoming, with “data trespass” laws” off the books, environmental watchdogs can resume collecting the data that help keep our federal land-use agencies honest without fear of imprisonment or special fines. The biggest values of having vast tracts of federal lands across the American West are they provide access and recreation for all Americans, irreplaceable habitat for priceless native wildlife, and are run by federal agencies responsive (to at least a limited degree) to the public interest. With this ruling, corporate control over western public lands takes a hit, and industries that pollute and degrade public lands are once again on notice that their misdeeds are subject to public scrutiny.
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Erik Molvar is the Executive Director of Western Watersheds Project, a nonprofit environmental conservation group that works to protect and restore watersheds and wildlife across the West.
