Free speech is a cherished constitutional right although not at Berkeley, it seems. Our courts usually bend over backwards to protect it. Over the years, the term “speech” has been stretched to cover not just the spoken word and written word but actions as well. In discussing this issue we note that it is not very often that a First Amendment issue and environmental law collide. So for us, as we usually deal with a pile or contamination and ponder on how to get rid of it, this is novel and therefore we hope will indulge us.
The tableau upon which this writing unfolds is the great state of Wyoming. To appreciate the issues, I think that you should know some things about Wyoming. I suspect most of you may never have spent time in the state interacting with its citizens other than those who are ticket takers at some of the beautiful national parks in the state.
For those of you who have never been there, you are missing a very striking state, filled with beautiful resources and a “big sky”. Yes, it is true; there is a big sky there. You just have to see it to understand that it really is. I always thought that this expansive sky gives the population a feeling of space and freedom.
Adding to this feeling is that the state is the tenth largest by area, the least populous and the second least densely populated state in the country. You sometimes have to go miles to say “hi” to your neighbor.
Cheyenne is the capital and the most populous city, with its population estimated at 63,335 in 2015 or about 2/3 of the Rose Bowl. Almost half of the land in Wyoming is owned by the U.S. government, leading Wyoming to rank sixth by area and fifth by proportion of a state's land owned by the federal government. This has led, as you know, to some nasty confrontations.
While Wyoming’s agriculture [livestock (beef), hay, sugar beets, grain (wheat and barley) and wool] has waned in recent years, it has been replaced by a very robust natural resource economy (mostly coal, oil, natural gas and trona). Wyoming is a very large producer of coal with a known reserve of 68.7 billion tons. It also has an enormous reserve of coal bed methane which is a source of natural gas and also has a vast reserve of natural gas without counting the coal bed methane. Given this bounty of fossil fuel resources, it’s not surprising that there is a good level of environmental activity (not all good) and environmental resistance (also not all that good).
The state bird is the western meadowlark (Sturnella Neglecta); its state butterfly is Sheridan's Green Hairstreak Butterfly; its state coin is the Sacajawea Golden Dollar; its state dinosaur is Triceratops. Perhaps surprisingly to many may be that the state’s motto is Equal Rights and its nickname—The Equality State.
Wyoming has been a politically conservative state since the 1950s with the Republican Party candidate winning every presidential election except 1964. (Now hold on my liberal friends. This doesn’t mean these folks are mean, awful, or all cowboys riding the range with their six guns strapped on. They are staunchly independent and self-reliant which doesn’t make them bad, OK? In fact, these are characteristics I’ve tried to infuse into my daughter’s Los Angeles Westside upbringing.)
Why are we here
We are here to look at Western Watersheds Project etc. et al v. Peter K. Michael, 2017 WL 3908875 United States Court of Appeals, Tenth Circuit. In this case, the issue revolved around the State of Wyoming’s enactment of a pair of statutes imposing civil and criminal liability upon any person who “[c]rosses private land to access adjacent or proximate land where he collects resource data.” Wyo. Stat. §§ 6-3-414(c); 40-27-101(c). (“Wyo. Statutes”).
The Tenth Circuit concluded that that these statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property. Although trespassing does not enjoy First Amendment protection, the statutes at issue target the “creation” of speech by imposing heightened penalties on those who collect resource data.
Legislation such as the Wyo. Statutes are known generically as “Ag-gag” laws, which if you haven’t figured out is a shortened version of gagging agricultural environmentalists’ commentary on environmental issues and the use of photos and/or videos taken of an offending activity. The term is attributed to Mark Bittman (who at the time was a New York Times Opinion columnist and The Times magazine’s lead food columnist; his Minimalist column ran in the Dining section of The Times for more than 13 years).
There have been various reasons behind these laws, including a massive push by animal rights organizations against beef, and other animal-based industries, regarding various practices. They have uncovered some disturbing (to those of us who just go to the supermarket and buy a good steak) practices, but many are not at all—just grist for their plant-based beliefs. (They would love this. There was a Star Trek episode entitled "This Side of Paradise" broadcast on March 2, 1967, where the USS Enterprise visits a planet where the inhabitants are under the influence of strange plant life. The plants make the inhabitants peaceful and content with their present lifestyle with no wishes to change their somewhat basic, some would say hippy, lifestyle. The Enterprise crew gets infected by the plant spores and wants to leave the ship and transport down to the plant to join this peaceful brigade. Of course, Spock saves the day by sending a subsonic communication to all the crew, strangely still wearing their communicators, and snaps them out of it so the next episode can be aired.)
Kansas was the first state to enact an ag-gag law, in 1990. Montana and North Dakota followed in 1991. However, the tide turned as environmental and other groups assailed their state legislators. In 2011, bills to prohibit undercover videos of farms were introduced in several state legislatures including Florida, Iowa, Minnesota and New York all prohibited the making of undercover videos, photographs and sound recordings, on the properties of others, although they differed in terms of penalties and which other activities were also prohibited. None of the bills passed in 2011, but Iowa's ag-gag bill passed in 2012 and other ag-gag bills have been introduced in other states. As of July of 2017, seven states have such rules, and a large number have been defeated in the state’s legislature or ruled out of existence by the Courts.
The Wyo. Statutes
Okay, so now to those pesky Wyo. Statutes. They were passed and signed by the Governor in 2015 in reaction to a lower court’s ruling against members of the Western Watersheds Project who allegedly trespassed to collect water quality data. Under the Wyo. Statutes, “resource data” was defined as “data relating to land or land use,” including that related to “air, water, soil, conservation, habitat, vegetation or animal species.” It seems that it covers all fronts.
The laws were immediately criticized as prohibiting whistleblowers or citizen scientists that may cross private land to collect data on public lands and submit it to state and federal authorities. Lawmakers that supported the laws have said the laws were not intended to block lawful data collection, but to protect private property and that it would shift the burden of proof to alleged trespassers and make the crime easier to prosecute. Under the bill, state agencies would not be allowed to consider data acquired by trespassing, Rep. Albert Sommers said. “You’ve already trespassed regardless of whether the collection happened on public land or private land.”
The two statutes were largely identical, with one imposing criminal punishment, and the other imposing civil liability. “Resource data” was defined as “data relating to land or land use,” including that related to “air, water, soil, conservation, habitat, vegetation or animal species.” And the term “collect” was defined as requiring 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.” Information obtained in violation of these provisions could not be used in any proceeding other than an action under the statutes themselves.
The statutes also required government agencies to expunge data collected in violation of their provisions and forbade the agencies from considering such data “in determining any agency action.”
To heighten the stakes, the 2015 criminal statute imposed heightened penalties above and beyond Wyoming's general trespass provision. It provided a maximum term of imprisonment of one year and a $1,000 fine for first-time offenders. Repeat offenders faced a mandatory minimum ten days' imprisonment, a maximum of one year, and a $5,000 fine. The 2015 civil statute imposed liability for proximate damages and “litigation costs,” including attorneys' fees.
The statutes were in part instigated by a conflict between an environmental group and landowners in Fremont, Sublette and Uinta counties. Fifteen Wyoming ranchers sued the Western Watersheds Project (WWP) in 2014 for trespassing on their property to reach streams on public land “intentionally and without landowner permission trespassing and entering private property.” WWP claimed its sampling found that the streams were polluted with E. coli due to cattle ranching, and that trespassing to collect the data had been unintentional; i.e., they didn’t know that they were trespassing. Ranchers felt the groups were specifically targeting the agriculture industry with intent to put them out of business and that the demarcation of private property was clearly marked. Western Watersheds had been before the Bureau of Land Management multiple times about the issue of polluted streams.
Litigation Round 1
The People for the Ethical Treatment of Animals, Center for Food Safety, National Press Photographers Association, Natural Resources Defense Council and Western Watersheds Project brought suit to nullify the statutes. They argued that the statutes violated the Free Speech and Petition Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, and they were preempted by federal law. Defendants moved to dismiss. Granting the motion in part and denying it in part, the district court held that plaintiffs had stated plausible free speech, petition, and equal protection claims, but they failed to state a preemption claim.
After the district court's decision, Wyoming amended the two statutes. The revised statutes continue to impose heightened criminal punishment and civil liability. But the amendments eliminated reference to “open lands” and instead penalize any individual who without authorization: (1) enters private land “for the purpose of collecting resource data”; (2) enters private land and “collects resource data”; or (3) “crosses private land to access adjacent or proximate land where he collects resource data.” Under the version of the statutes at issue, there is no requirement that resource data be submitted to, or intended to be submitted, to a government agency. Instead, the term “collect” was changed to mean: (1) “to take a sample of material” or “acquire, gather, photograph or otherwise preserve information in any form”; and (2) “recording … a legal description or geographical coordinates of the location of the collection.”
Not to let bygones-be-bygones, Plaintiffs amended their complaint to challenge the 2016 statutes, re-alleging free speech and equal protection claims. Defendants again moved to dismiss. This time, the district court granted the motion in full. It concluded that the revised version of the statutes did not implicate protected speech.
The 10th Circuit
The Court of Appeals discussed several issues regarding the constitutionality of the Wyo. Statutes. The defendants took the position that the Wyo. Statutes regulate conduct on public land only if an individual first trespasses on private land, thus characterizing plaintiffs' argument as asserting a right to trespass. That seems logical, but the Court thought otherwise and stated that such a framing of the issues “misstates the issue” and that in “considering a statute, we must view it in context and in light of related statutes.” Since Wyoming already prohibits trespass in general, the effect of the Wyo. Statues only increase a pre-existing penalty for trespassing if an individual subsequently collects resource data from public land. The Court reasoned that to determine if such provisions are subject to scrutiny under the First Amendment, the question is not whether trespassing is protected conduct, but whether the act of collecting resource data on public lands qualifies as protected speech. In other words, the determination is whether or not the end result of the illegal action is protected. On its face, it doesn’t seem like that is good public policy, but if the Constitution trumps good public policy then de facto it is not good public policy.
The backbone of the Court’s ruling is based on a case that sets forth a rather dramatic departure from the First Amendment’s wording, meaning and penumbra. The Court cites to Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S. Ct. 2080, 153 L.Ed.2d 205 (2002), wherein the Supreme Court applied the First Amendment to a law regulating both access to private property and speech. The ordinance at issue there “prohibit[ed] canvassers from going on private property for the purpose of explaining or promoting any cause, unless they receive[d] a permit and the residents visited [had] not opted for a no solicitation sign.” Id. at 165, 122 S.Ct. 2080 (quotations omitted). Invalidating the ordinance, the Court explained that although the village identified several important interests at stake, the notion that “a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so” was “a dramatic departure from our national heritage and constitutional tradition.” Id. at 166, 122 S.Ct. 2080. (Emphasis added). Sorry Court, but comparing that to the Wyo. Statues is a bit of a very large stretch.
The plaintiffs’ tactic was simple. They asserted that such activities are indispensable to their participation in the formation of public policy. The Court of Appeals backed them up by noting state agencies must “actively solicit…field data” from the public that can be used to evaluate pollutants in waterways. And while logic (who cares about that) would dictate that at least there would be a showing required that there is no other way to obtain this information other than trespassing, this does not seem to be relevant to the Court’s horizon.
However, the Court’s finds support to override the issue of trespass based on multiple Supreme Court rulings that state in summary:
“[T]he creation and dissemination of information are speech within the meaning of the First Amendment.”
“Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs”
“If the creation of speech did not warrant protection under the First Amendment, the government could bypass the Constitution by “simply proceed[ing] upstream and dam[ming] the source” of speech.”
Seeking support from other Circuits, the 10th Circuit cites to several cases that conclude there is a right to photograph, video and tape public officials. Making this fit the facts of the case at bar they assert that:
“Many of the activities covered by the challenged statutes fit comfortably in the speech-creation category recognized in these cases. An individual who photographs animals or takes notes about habitat conditions is creating speech in the same manner as an individual who records a police encounter. (Citation omitted). “[B]anning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes.”
At the end, they remand to the District Court because plaintiffs ask for a declaration about the level of scrutiny to be applied and whether the statutes survive the appropriate review. As the District Court did not conduct these analyses because it held that the statutes did not govern protected speech, it is ordered to do so.
It is easy to agree with the Court’s protection of free speech, but they do not reconcile the issue of trespass with the reality of the situation. Someone comes on your property in the name of the environment, grabs something from your property and then turns you in for an environmental violation. Alternatively someone comes on to your property to access federal land to obtain some environmental information from the federal land about your property and you are left to guess if the trespasser didn’t have another way of reaching his/her destination. Was there another motive covered by this claim? You are left to wonder with apparently no recourse. This may be “the right thing to do” but it just really doesn’t seem right.
I am not saying that the ranching, farming, mineral industries don’t violate the law, maybe they do and maybe they don’t. Maybe I believe in property rights to strongly. Call me a Neanderthal…I have thick skin. But it seems to me that the 10th Circuit has just tossed the common law trespass law out the window and has given environmental crusaders (not environmentalists because that assumes the industry folks do not follow the environmental laws across the board) a free pass. You don’t go to jail, but you can collect your two hundred dollars.
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