A court loss over controversial trespassing statutes passed by the Wyoming Legislature will cost the state around $600,000 in fees and expenses to be paid to the plaintiffs’ attorneys, according to a July 16 ruling.
In October 2018, Federal Judge Scott Skavdahl of the District Court of Wyoming ruled so-called “data trespass” laws passed by the state Legislature violated the First Amendment of the U.S. Constitution. Skavdahl blocked the state from enforcing a section of the statutes.
Because it lost the lawsuit, Wyoming now has to reimburse the public-interest attorneys who brought it, Skavdahl ruled last week. The state will pay $582,000 and change in hourly fees to lawyers from the advocacy law firm Public Justice, the National Resource Defense Council, the National Press Photographers Association, the University of Denver and local counsel used in the case. The state owes another $21,000 in expenses, Skavdahl ruled.
David Muraskin of Public Justice, a principal attorney in the case, said the costs to Wyoming should be of interest to the state’s citizens and the officials they elect.
“The purpose of awarding fees is both to compensate attorneys and to make the government recognize that it needs to be wary of passing unconstitutional laws,” Muraskin said. “What we hope is that the Wyoming Legislature and Wyoming’s citizens see this decision and recognize that they cannot trample on the rights of activists, reporters and citizens who just wish to communicate information about public lands.”
The money will come from the State Self Insurance Program, Wyoming Attorney General Bridget Hill wrote in an email to WyoFile. The insurance program was created in 1997, according to statute, and exists to cover legal claims brought against the state. Though county attorneys in Fremont, Lincoln and Sublette counties joined the state in its defense, it appears they will not have to pay up in its defeat. “In this instance, the entire amount will come from SSIP,” Hill wrote.
The account held nearly $47.5 million as of December 2018, according to a Legislative Service Office publication that describes the state’s many bank and investment accounts.
Skavdahl’s ruling leaves the state a chance to appeal the fees. Hill did not respond to a question about whether the state intends to do so by press time. The fees aren’t the state’s only costs incurred by the lawsuit, which the attorney general’s office has been litigating since 2015.
If the state does not appeal the fees, it will end a long saga in and out of court following lawmakers’ attempts to create enhanced penalties for people who trespass, inadvertently or not, on their way to collect data from public lands.
The statutes, passed by the Legislature in 2015 and amended in 2016, made illegal the collection of research data, photographs and other information from private lands and from public lands if private lands had been crossed to reach data-gathering sites.
The data trespassing laws imposed additional criminal and civil penalties, on top of previously existing trespassing laws, for anyone who collected research data or took photographs or other forms of “preserv[ing] information in any form.” It also required government agencies to erase data that was collected in violation of the laws.
Opponents of the measures argued they were drafted to deter science or other data collection that might cast ranching practices in a negative light.
The measures became law amid a high-profile lawsuit brought by agriculturalists against Jonathan Ratner, an employee of the environmental group Western Watersheds. In that case, Fremont and Lincoln county ranchers sued Ratner for trespassing on private property while collecting environmental data.
Environmental, animal rights and food safety groups joined with the National Press Photographers Association to take Wyoming to court over the data trespass laws in 2015, claiming a section of them violated constitutional rights of free speech and equal protection under the law.
In September 2017, the Tenth Circuit Court in Denver concluded that data collection is protected speech under the First Amendment. The court sent the case to the District Court of Wyoming to reach a final determination on the statutes.
WyoFile reporter and photographer Angus M. Thuermer Jr., a member of the NPPA, became a witness in the lawsuit in early 2018. As a member of the NPPA and a Wyoming photojournalist, Thuermer said his ability to visually report stories on Wyoming public land was impeded by the law’s broad language, according to legal documents.
Both sides sought a summary judgement in the case — a ruling from a judge on the strength of the statutes. Skavdahl concluded in his October 2018 decision that the statutes had been written to curtail a certain type of free speech: “the collection of resource data relating to land or land use.
“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.
The judge ruled the statute had a chilling effect for those engaged in gathering information on public lands.
The court found “plausibl[e]” the advocacy groups’ arguments that the inaccuracies of maps and GPS and the “intertwined nature of public and private lands in Wyoming” have led to some parties refraining from practicing their First Amendment rights out of a fear of the law.
Thuermer’s affidavit that fear of the law had led him to curtail his work as a photojournalist covering public land and environmental issues was among those cited by the court. The state challenged Thuermer’s affidavit but the court upheld it, according to the ruling.
The state did not appeal Skavdahl’s ruling. At the time, Mary Kay Hill, the chief of staff for then-Gov. Matt Mead, said the executive branch would leave it to the Legislature to make changes if they so desired. Lawmakers have not further tinkered with the trespassing statutes.
The Legislature has, however, since considered and twice rejected an attempt at changing trespass statutes to make a person guilty of criminal trespassing even if they find themself on private land by mistake. The state’s farm and ranching interests advocated for the measure. It passed an initial Joint Judiciary Committee vote for consideration in 2019, but the committee ultimately rejected it. The Senate side of that committee then rejected a repeat attempt during the 2020 legislative session.
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