A pair of trespass laws enacted by Wyoming in 2015 prohibited people from entering “open land for the purpose of collecting resource data” without permission from the landowner. “Collecting” required two elements: (1) taking a “sample of material” or a “photograph,” or “otherwise preserv[ing] information in any form” that is (2) “submitted or intended to be submitted to any agency of the state or federal government.”
The following year, the state amended the laws to eliminate reference to “open lands” and penalize anyone who enters or crosses private land for the purpose of collecting resource data or who actually collects that data.
But the Western Watersheds Project, the National Press Photographers Association, the Natural Resource Defense Council and others sued the state, claiming it enacted the law to prevent environmentalists from discovering and reporting harmful landowner practices. The initial suit also argued the laws unconstitutionally prohibited collecting water samples on public land, taking handwritten notes about habitat conditions, making an audio recording of one’s observation of vegetation, and photographing animals.
U.S. District Judge Scott Skavdahl tossed the lawsuit in July 2016, but a unanimous 10th Circuit panel reversed and remanded in September 2017, finding the “collection of resource data constitutes the protected creation of speech.”
On remand, Skavdahl ruled Monday the laws are unconstitutional. He granted summary judgment in favor of the plaintiffs and barred Wyoming from enforcing the statutes in the future.
“The state tried to criminalize environmental advocacy,” said Michael Wall, litigation director of the Natural Resources Defense Council, in a statement. “That’s un-American. And as the federal court ruled, it’s unconstitutional.”
David Muraskin, Food Project attorney for Public Justice, expanded on that thought.
“What the decision does really well is make clear that the state can’t suppress speech without challenge,” he said in an interview. “It is the state’s burden to justify laws squelching speech, and it can’t rely on speculation. It needs concrete evidence if it’s going to try to limit speech.”
Or Skavdhal stated in his ruling, “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.”
The Wyoming Attorney General’s Office did not return a phone call seeking comment.