Trespass laws overturned by Denver court
Denver, Colo. – On Sept. 7, the 10th Circuit Court, in a 3-0 decision, reversed a Wyoming District Court decision regarding Western Watersheds Project’s challenge to Wyoming’s law regarding trespass to collect data.
“This decision was a disappointment,” said Wyoming Stock Growers Association (WSGA) Executive Vice President Jim Magagna, “but it’s not necessarily a setback.”
The case was remanded to Judge Scott Skavdahl in Casper for further action.
“We are very disappointed and surprised by the ruling,” stated Brett Moline, Wyoming Farm Bureau Federation (WyFB) Director of Public and Government Affairs. “WyFB supported the law change in hopes to strengthen private property rights in Wyoming.”
“While we won’t know yet what the ramifications are until the District Court reviews the case again, it is a big disappointment the Circuit Court elevated free speech so much higher than property rights,” Moline continued.
Background
When Wyoming’s law related to trespass for the purpose of collecting data were passed by the Wyoming Legislature in 2015, it had three parts, the first two of which applied solely to private land.
The third section, sub-section C, was the only piece that was appealed. The sub-section references trespass across private lands to get to public lands.
When the law was contested by Western Watersheds Project, the National Press Photographers Association and Natural Resource Defense Council, they initially lost on all counts in District Court in Wyoming. When the groups appealed the decision, they only appealed on the sub-section C argument.
Reasons for ruling
As a result, the 10th Circuit Court’s decision only applies to sub-section C of the trespass law.
A widely-misunderstood aspect of the case is that the trespass to collect data law was not called unconstitutional by the 10th Circuit.
Dan Frank, attorney at Frank Law, LLC, explained that the decision comes down to one simple fact – sub-section C of that statute was not properly scrutinized for its impact on First Amendment rights, and Judge Skavdahl must perform the analysis.
“Basically, the 10th Circuit told Judge Skavdahl had to go back and re-analyze this law. He needs to go through the First Amendment scrutiny process. They did not declare the sub-section of our trespass to collect data law unconstitutional,” Frank explained. “Judge Skavdahl may find the law constitutional or he may not, but the 10th Circuit decision said that the analysis must be done.”
Looking back, Frank also explained that Judge Skavdahl initially said there were no First Amendment rights invoked because, first and foremost, people do not have the right to trespass.
“He didn’t run any analysis on the impact to First Amendment rights,” he said. “The 10th Circuit said that free speech is being impacted, so the analysis must be conducted.”
Magagna emphasized that the court did not condone trespass.
“The court indicated that, because the law singles out trespass to get to public land to collect data and proposes a harsher penalty than for other trespass, that it is a free speech violation,” Magagna explained.
Further, the court called collection of resource data “protected speech.”
Frank commented, “I think that everybody is overreacting – on both sides – about how bad or good this ruling is.”
Next steps
At this point, Judge Skavdahl will review the case and make a final determination.
“As the case has been remanded to the District Court, we will have to wait and see the outcome. Our hope is that private property rights will continue to be protected in Wyoming and that people cannot use free speech as a means to commit a crime of trespass,” Moline concluded.
Over the coming months, Judge Skavdahl can make one of several decisions. He may decide that he has adequate information to conduct the analysis. However, he could decide he needs supplemental briefing to conduct the analysis. Finally, the decision could go into a full-fledged evidentiary trial with witness testimony.
Ultimately, Judge Skavdahl will decide, or he may ask for input from the parties on their preferred alternatives. Many expect that he will make his decision in a relatively short-term period.
Frank also noted the original case was a facial challenge of the law – meaning there are no instances of arrests, fines or action as a result of violation of the law.
“A facial challenge just means that the opponents of this law think it’s unconstitutional,” he continued. “Facial challenges are more difficult because they have to prove there is some instance where it is unconstitutional.”
Further, Frank noted that because Judge Skavdahl did not issue an injunction on the law and the 10th Circuit didn’t enjoin the law, it is still a valid law that can be enforced.
“If someone trespasses to collect data, there is still prosecutorial discretion as to if they will be charged under this law,” Frank said.
All in all, while waiting for the outcome of the case, Magagna commented that the ruling provides some opportunity for review of all criminal trespass laws in Wyoming statute.
Magagna added, “This gives us an opportunity to amend our general trespass law. We may have the chance to incorporate this into general trespass, so we aren’t singling out an activity that was deemed to violate the First Amendment.”
Saige Albert is managing editor of the Wyoming Livestock Roundup. Send comments on this article to saige@wylr.net.
