Trespass bill brings questions for manyWritten by Saige Albert
Cheyenne – During the March 26 meeting of the Natural Resources Conservation Service (NRCS) State Technical Team Committee, NRCS employees and other team members heard a number of updates, including information about a bill that passed out of the 2015 General Session of the Wyoming Legislature.
“Senate File 12 means an awful lot to everyone who collects data,” said Wyoming Association of Conservation Districts Executive Director Bobbie Frank. “There was a coalition who worked hard on this particular bill, including Wyoming Farm Bureau, Wyoming Ag Business Association, Rocky Mountain Farmer’s Union, Wyoming Wool Growers Association, Wyoming Stock Growers Association and the Wyoming Sheriff’s and Chief of Police Association.”
A bill to address trespassing to collect data started during the 2014 Budget Session of the Wyoming Legislature with a bill brought by Senator Larry Hicks of Baggs.
“The 2014 bill was withdrawn at Senator Hicks’ request,” Frank explained. “It was fairly extreme in terms of the penalty provisions, and it created a lot of concern. The Joint Judiciary Committee took the topic as an interim study topic.”
After meeting in May, July and September, the committee took testimony and developed a bill that was introduced during the 2015 General Session of the Wyoming Legislature as Senate File 12, Trespass to collect data.
“There were some amendments throughout the session,” Frank noted.
She continued, “The other issue that drove the bill is that there have been an increasing number of instances where individuals and entities have trespassed across and on private property to collect data.”
Frank also emphasized that Wyoming’s criminal trespass bill was not adequate for landowners to get recourse in situations where individuals are trespassing on their land to collect resource data.
“Wyoming’s current criminal trespass statute requires posting, notice and catching someone on more than one occasion to get any relief from the trespassing,” she said. “That also drove the bill.”
However, Frank also emphasized that the bill that passed through the Wyoming Legislature is very specific to collection of natural resource data.
In looking at the bill, Frank noted, “A person is guilty of trespassing to unlawfully collect data if he enters onto open land for the purpose of collecting resource data and does not have an ownership interest in the property – and this is important – if they do not have statutory, contractual or other legal authorization to enter the land.”
She further noted that those people who do not have the authorities listed in the statute and are on or crossing private land for the purpose of collecting resource data are subject to the provisions of the statute.
Additionally, written or verbal permission from the landowner to collect specific resource data is required.
Authority to cross or enter private land can be granted through writing or verbal agreement, Frank said, mentioning that the provision was subject to much discussion.
“It was changed in the session from only written permission to written or verbal permission during the session,” she explained. “We will be doing outreach with landowners and encouraging them to get written permission.”
Frank noted that written permission provides more protection for landowners and helps to avoid a he-said-she-said situation if any case ends up in the courtroom.
“It is in the best interests of a state or local government to have written permission before collecting resource data,” she continued. “That written permission can be as simple as an email.”
Frank also mentioned that the bill’s provision also only includes language that permission and authorization is based on “specified” resource data.
“If I go out and told someone I was going to collect water quality data, but I decided to also collect sage grouse lek data or prairie dog acreage infestation that I did not get authorization to collect, then that situation is also subject to these provisions,” Frank explained, noting that in providing permission, landowners should spell out what data can be collected.
For violations of the statute, Frank said that a first-time offender can receive not more than one year in jail, a $1,000 fine or both.
“Subsequent offenses would receive not less than 10 days but not more than one year in jail, a monetary fine of $5,000 or both,” she said.
The definitions in the statute are also very important – including the definition looking at the meaning of “collect.”
“We needed to define more clearly what collect meant,” Frank noted.
The statute defines collect as “to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form from open land which is submitted or intended to be submitted to any agency of the state or federal government.”
Open land is also defined based on existing statutory defination, as is resource data. The data that is collected is very specific for data related to agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species.
The bill also defined a handful of exemptions for peace officers and others.
“There are exemptions for certain activities and entities,” Frank said. “This bill does not include surveying for the purpose of determining boundaries of the location of survey monuments, state or local governments for the purpose of assessing property values, or for a peace officer engaging in the lawful performance of his duties.”
Additionally, there are provisions within the bill that provide for data collected illegally to be expunged from the record.
Though many agree the bill is positive for agriculture and other landowners to protect themselves, there are some concerns.
The question as to whether written or verbal permission is preferable was posed.
“Written or verbal permission is up to the landowner and the person collecting data,” Frank said. “We are going to recommend that landowners request something in writing.”
Additionally, the question of taking photos from public land to private lands, without crossing or entering the private land, would be subject to prosecution under the statute.
“If we go back to the definitions and the language of the bill, we are unlawfully collecting resource data if we enter onto or access the land to collect data,” Frank said.
She encouraged attendees, who predominately represented state and federal agencies, to consult their legal counsel.
Ultimately, Frank encouraged landowners and organizations to contact their legal council to ensure they are adequately addressing the terms in the statute to make sure they are protected, especially if they are collecting resource data.
“I would encourage any entity to take this statute and work with legal council to make sure we are complying with this statue when collecting resource data,” Frank added.
At the same time as Senate File 12 went through the legislature, a companion bill related to civil trespass mirrored the bill but also provides for the recovery of legal fees and damages for trespass.
“There is a current civil trespass suit filed by 16 landowners against individuals and entities who had no permission to collect data on or across private land, yet data was collected extensively and repeatedly,” Wyoming Association of Conservation Districts Executive Director Bobbie Frank said. “The only recourse they had was under the current civil trespass statute, which puts all the financial angst and burden on the landowners.”