In the vast expanse of the West, public roads often cross private lands with little or no indication. Navigating this checkerboard landscape can be tricky for most anyone short of a professional surveyor. In Wyoming, trespass laws passed in 2015 (and amended in 2016) made that task not just challenging but also risky—in particular, for the environmental groups, like NRDC, that need to traverse the land in order to test the state’s water and air quality for agricultural pollutants and industrial toxins.
Earlier in 2015, NRDC had been preparing to launch a project to measure air pollution near the state’s oil and gas operations. Fossil fuels are big business in Wyoming, which is one of the top producers of natural gas in the country. It follows that the state produces a lot of methane, a greenhouse gas 25 times more potent than carbon dioxide, as well as other cancer-causing air toxics, such as benzene.
But then the Wyoming legislature passed a pair of laws making it illegal to gather data on “open land” (essentially, all private or public land outside of towns) about the health of Wyoming’s wildlife, streams, and other natural resources, for the sake of informing the government. So NRDC scientists put the brakes on their study; continuing could have resulted in criminal charges and jail time. The laws were so broad, says Michael Wall, codirector of NRDC’s Litigation program, that they could even criminalize taking photographs in Yellowstone.
Although the Wyoming legislature narrowed its laws in 2016 after being sued by NRDC and its partners, the amended statutes have continued to deter citizen science and silence those who might otherwise question the enforcement of environmental laws. “The statutes have precisely the chilling impact they were intended to have,” says Wall. They effectively bar private citizens from conducting on-the-ground investigations of potential breaches of environmental laws—whether that’s polluting waterways or illegally chopping down trees—and providing data that could help hold violators accountable.
But the laws’ days may be numbered. In September, the 10th Circuit Court of Appeals sided with NRDC and a coalition of environmental groups that challenged the legality of the statutes and ruled that they implicate free-speech protections. The three-judge panel sent the case back to a lower court to decide if the laws do indeed run afoul of freedom of speech protection under the First Amendment.
Cracking Down on Science
The statutes were crafted in direct response to the actions of the nonprofit Western Watersheds Project (WWP). The group’s water sampling revealed that the state’s livestock operations (which encompass more than 1.3 million head of cattle) had driven up E. coli concentrations in three streams to levels that violated the Clean Water Act. “We are a data-driven organization,” says Jonathan Ratner, head of WWP for Wyoming, Utah, and Colorado. “Nearly all our work starts with collecting on-the-ground data to both inform our participation in agency decision-making as well as hold the agencies accountable when they fail to do their jobs.”
The two original laws (one imposed criminal penalties and the other civil penalties) said that people were guilty of trespassing if they entered open land for the purpose of collecting resource data without specific written or verbal permission, if they intended to submit those data to the government. The suit filed by NRDC, WWP, the National Press Photographers Association, People for the Ethical Treatment of Animals, and the Center for Food Safety spurred the state to alter the wording of the laws last year, after a judge noted “serious concerns” that they might violate the First Amendment.
The legislature replaced its sweeping statutes with a more specific ban on data collection on public land by persons who have touched private land en route to collecting data. So if, on your way to conduct research on public land, you were to brush your hand against a tree on private property, or trip and fall onto it, you could risk a civil suit and criminal prosecution. Although narrower on paper, the amended laws still have a broad chilling effect in practice, particularly given the state’s quirky pattern of land ownership.
“Wyoming added in that provision, ‘touch private land,’ and argued that the laws were trespass statutes and did not raise any First Amendment issues,” says David Muraskin, an attorney with the nonprofit Public Justice and lead counsel for the plaintiffs. The court didn’t agree. “It said data collection is an issue of free speech,” explains Muraskin, “so the laws do implicate the First Amendment.”
Muraskin points out that several states have passed so-called “ag-gag” laws that make it a punishable offense to collect data on private property without the owner’s permission; in most cases, they’re designed to discourage concerned citizens from documenting animal cruelty on industrial farms. “The Wyoming law is part of a national movement by corporate interests—and particularly agricultural corporate interests—to try to suppress transparency about industry and keep consumers in the dark about how food is produced,” he says. That movement has only intensified since President Trump took office, with his administration’s extensive efforts to sideline science, often at the expense of public health.
Wyoming’s Choice Ahead
In Wyoming, the case is now back in a lower court with U.S. District Judge Scott Skavdahl. Last year he ruled against the coalition, saying that the amended statutes are only about trespass and not speech, and that there's no constitutional right to trespass on private land. Now the state will have to decide whether to prioritize the safety of its air and water quality—or protect Big Oil and Big Ag. “It’s hard to see how the statute survives First Amendment scrutiny,” Muraskin says. “Our hope is that the state will agree that statute isn’t enforceable. If not, we will litigate.”
In the meantime, WWP has begun collecting water samples again. NRDC hasn’t yet started its air-quality project; the group will wait, says Wall, until it’s clear that the statutes no longer pose a threat.
“It’s a funny world when governments acting on behalf of private interests try to prevent people from just gathering information and publicly reporting it,” Wall says. “It’s as if they’re scared of something. Being scared of the truth is not an American value.”