No Photos, Please

Jonathan Ratner has been tracking water quality on public lands in Wyoming for more than a decade. As Wyoming director of the green group Western Watersheds Project, or WWP, it’s his job. But dipping a sample bottle into a river may now be illegal—thanks to a pair of new laws Governor Matthew Mead signed in March.

It is now criminal in the state to collect data on “open lands”—all private, public, or federal lands outside of towns—if the gatherer plans to pass along the info to the government and does not have express authorization to do so. This means everything from photos of the Grand Tetons to E. coli samples from streams to air-quality measurements near drilling sites is a no-no. Opponents say the legislation is an egregious attack on freedom of speech and citizen science.

Ratner continues to test the water—just not in Wyoming, where his actions could cost him $5,000 in fines and up to a year in prison. “Jonathan now has had to drive to do work elsewhere, in Colorado and Utah,” says Travis Bruner, WWP’s executive director. “Our data collection has suffered as a result and so has public interest.”

Legislators created the laws in direct response to WWP’s work. The group uncovered water pollution and federal grazing violations that prompted regulators to add three streams to a list of water bodies violating state environmental-quality standards.

“If you listened to the legislative debates, it was clear: They expressly are trying to quash data collection,” says Michael Wall, staff attorney at NRDC (disclosure).

“It’s insidious. It’s aimed at using the authority of the state to prevent people from protecting themselves. And it’s unconstitutional—it’s pretty squarely prohibited by the First Amendment.”

The laws’ broad implications have prompted NRDC and other opponents, including conservationists, academics, members of the press, and animal-protection advocates, to file suit in federal court last month in an attempt to strike it down.

Green groups are concerned they won’t be able to gather data that could reveal environmental ills. NRDC, for instance, has had to postpone air-quality sampling near oil and gas operations in Wyoming while moving ahead with the work in neighboring Montana, says Wall. PETA, meanwhile, says it prevents the organization—and whistleblowers—from exposing animal-cruelty practices (Wyoming has 1.3 million head of cattle). “We believe broadly in consumers’ right to know how their food is produced,” says Cristina Stella, a staff attorney at the Center for Food Safety. The National Press Photographers Association said Wyoming has “unjustifiably put photojournalists at risk of civil suit and criminal prosecution” and that the laws are a “blatant violation of constitutionally protected freedoms of the press that are the hallmark of this nation.”

Mead signed the bill into law because he believes in private property rights—whether it's agricultural land or a city lot— and he believes this legislation strengthens those rights,” a spokesman for the governor’s office told Courthouse News.

The Wyoming federal court challenge follows on the heels of a federal judge’s ruling in August that Idaho's pro-agribusiness law, which barred the secret recording of livestock, is unconstitutional because it violated the First Amendment. It was the first ag-gag law to be declared unconstitutional. But there are still laws in Montana, Utah, North Dakota, Missouri, Kansas, Iowa, and North Carolina that make it illegal for activists to smuggle cameras into industrial animal operations.

Wyoming’s law, meanwhile, has a much broader scope and is aimed more squarely at public lands, says Stella of the Center for Food Safety, which was a plaintiff in the Idaho case as well.

Even if Wyoming’s laws are ruled unconstitutional, as opponents widely expect, the fight against legislation that tramples free speech and other fundamental constitutional rights—and put habitat, wildlife, and human health at risk—is far from over.

“States are clamoring to get these passed,” says Stella. “It feels like playing Whac-A-Mole—strike one down in one state and another pops up in another state.” So citizen scientists, get your mallets ready.