Conservationists Argue at 10th Circuit for Right to Cross Private Lands in Wyoming

DENVER (CN) – A coalition of environmentalist groups took to the 10th Circuit on Monday to argue that it was their First Amendment right to collect water samples from public lands for ecological research.

Western Watersheds Project, Natural Resources Defense Council, and PETA are only a few of the conservation groups that sued Wyoming in September 2015 over two of the state’s new trespass statutes. The coalition claimed the new data trespass laws actively suppressed environmentalists from discovering harmful landowner practices. Western Watersheds, which takes water samples from ranch-adjacent rivers to test for E. coli contamination from livestock, claimed their efforts had been thwarted because they could be penalized for inadvertently crossing over private lands while taking samples.

Although Wyoming passed the laws in 2015, the state amended them in 2016 to clarify that they only applied to private lands, and that the data no longer had to be taken for the purposes of submitting ecological findings to the government to be prohibited.

U.S. District Court Judge Scott W. Skavdahl dismissed the coalition’s complaint in July 2016, determining the coalition did not have a First Amendment right to enter private property to take samples.

“Plaintiffs’ claims are erroneously premised upon their perceived First Amendment right to trespass upon private property to collect resource data,” Skavdahl’s 26-page order from the District of Wyoming says. “No such constitutional right exists. To the contrary, the United States Supreme Court ‘has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned.’”

On Monday, the coalition argued before U.S. Circuit Judges Carlos Lucero, Monroe McKay and Harris Hartz to appeal the decision.

“Wyoming is a jungle of public and private land,” David Muraskin, an attorney for Western Watersheds, said. He added that it was “nearly impossible,” to navigate public lands within private lands while doing the coalition’s kind of work.

“This is a First Amendment claim?” Judge Hartz pressed.

“This claim is for the right to collect data,” Muraskin answered. “Data itself has been found to be protected by the First Amendment.”

Muraskin is with Public Justice out of Washington, D.C.

Supervising Attorney General Erik Petersen of the Wyoming Water and Natural Resources Division of the Wyoming Attorney General’s Office spoke for the state.

Hartz asked Petersen if he understood the coalition’s claim that Wyoming’s property rights were “a mess of who owns what.”

“That is correct,” Petersen said. “They want the right to, as the district court said, wander blissfully ignorant of property rights.”

Petersen said that beyond the statutes at issue, Wyoming already had a pre-existing trespass statute that was a purposefully defensive measure.

“The legislation found that there were groups who were so motivated to do whatever they wanted to do – in one case, shoot an elk,” Petersen said. “The current trespass statute says that if you cross private property to hurt an elk, you’re guilty of a crime.”

Judge Lucero returned to the coalition’s concern that Wyoming – which is made up of 44 percent private land and 55 percent public land – did not always make it clear where the borders between the two lie.

“You’d have to have a general prohibition of entry,” Judge Lucero said. “There are public roads that cut across private land … so [for] a car speeding along at 60 miles an hour, that doesn’t make sense to me.”

While Petersen agreed this was impractical, he said that the state had a particular problem with the coalition “purposefully violating the law.” He added that coalition members could access abundant resources to clarify the boundaries.

“We put that liability on hunters, too,” Petersen said. “They have GPS things, you can get an app on your phone.”

When asked if hikers posed a similar problem, Petersen said, “The law has not found that hikers consistently trespass.”

When Muraskin began his rebuttal, Judge Hartz interrupted: “Do you have a First Amendment right to this sort of testing?”

Muraskin said that the coalition took issue with Wyoming’s overarching statutes, not individual rancher’s preferences.

“If the landowners had a restriction from taking water, we’re not challenging that,” Muraskin said.

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