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Monday, August 4, 2014

When is trespassing not trespassing?

by Kerry Halladay, Associate Editor

— Western Watersheds Project answers ranchers’ lawsuit, claims authority

The famous list of unalienable rights of “Life, Liberty and the Pursuit of Happiness” almost read “Life, Liberty and Property” based on the philosophical roots of the country. But that political and legal heritage is being drawn into question as the Western Watersheds Project has upped the ante in an ongoing trespass lawsuit.

In mid-June, a collection of Wyoming ranchers filed suit against self-proclaimed anti-grazing group Western Watersheds Project (WWP), alleging willful trespass on private property despite ample warnings and prohibition notices. The ranchers claiming trespass are the plaintiffs in the case and WWP’s Wyoming Director Jonathan Ratner and 10 unnamed WWP employees/interns are the defendants.

Last week, WWP submitted their answer to the suit and their response had a number of eyebrow-raising details. Among the most interesting—and potentially precedence-setting should the judge eventually rule in their favor—were claims about the necessity of their actions for the greater good, as well as disputing the constitutional “primacy” of private property over the right of citizens to petition the government.

This land is whose land?

The basics of the mid- June trespass suit are that several Wyoming ranchers claim that WWP members, including Ratner, trespassed across their private property while collecting water samples theoretically from sites on public land. The plaintiffs are seeking damages and an injunction against WWP, which they believe will continue trespassing without said injunction.

As with any suit, there are some “he said/she said” elements in the complaint-andanswer dance. For example, the plaintiffs claim the defendants trespassed despite the presence of “No Trespassing” signs. The defendants counter, claiming no such signs existed at the times of the alleged trespass.

For the most part, WWP denies the allegations of trespass. This denial comes in an assortment of forms, however. In places the defendants claim they lack knowledge of private land claims, while in others they claim they actually had permission to cross the private land, and at still other places they claim the roads across the private lands in question were actually public by way of a BLM easement. Most interestingly, one of the defendant’s responses to the trespass allegations reads as a “for the greater good” argument, which excuses any possible illegal trespass.

A section called “Privilege” was listed as the “Ninth Defense” in the defendants’ answer to the lawsuit that outlines this greater-good type argument. It reads as follows (with references removed for reading clarity):

“Trespass law does not bar entry onto land necessary to further an important federal or state policy designed to protect human health and welfare and the environment. The Federal Clean Water Act relies on citizens to enforce its provisions. The State of Wyoming has an obligation to monitor water quality throughout the state and relies on data provided by citizens to make that task more cost-effective and manageable. Citizens or organizations collecting water quality samples in furtherance of the purposes of federal and state law do not trespass when they enter private land entry onto which is practicably necessary to access and obtain samples of the waters of Wyoming.”

Following this claim, the defendants make the argument that actions “necessary to avert an imminent public disaster” are not considered trespass. It is implied that the WWP’s efforts to collect water samples falls under this privilege of “Public Necessity.”

“Western Watersheds Project’s water sampling program has detected extreme violations of Wyoming’s Water Quality Standards for E. Coli, and exposure to E. Coli poses a serious threat to the public health, particularly for those enjoying recreational opportunities on public lands near water quality monitoring sites. The doctrine of Public Necessity, therefore, privileges any crossing of private land engaged in by the Defendants.”

Later in the response, the defendants claim the E. Coli contamination found in the water samples taken under disputed land access was the result of cattle grazing on the plaintiffs’ federal grazing allotments. No evidence or reasoning for this claim is offered.

According to Cornell University’s Legal Information Institute, Public Necessity is an element of tort law, which waives a defendant’s potential liability if the defendant trespassed “in an emergency situation to protect the community or society as a whole” where greater harm would have occurred without the trespass.

It is unclear from the defendants’ response if or how citizen monitoring of potential water quality issues represents an action taken during an emergency situation.

Additionally, the defendants claimed that, by virtue of having used the roads crossing the private lands in question for at least 10 years, they had “acquired a prescriptive easement.” A prescriptive easement is effectively an easement against private land by virtue of repeated use without the owner’s permission over a specific amount of time. Each state defines the time period necessary to establish a prescriptive easement.

In essence, trespass committed continuously over time results in a prescriptive easement after a stateallotted amount of time if not prevented. The defendants asserted in several places in the answer that the plaintiffs had either not prevented them from using the roads crossing private lands or had “led Defendants to believe that permission exists for the public to use roads across the Plaintiffs’ property.” These claims were made in spite of numerous other points in the response where the defendants admitted to verbal or written communications with the plaintiffs wherein the ranchers had told WWP they did not have permission to cross their private land.

In addition to these claims made regarding what is or is not trespass, the defendants drew into question the constitutional importance of private property.

“Defendants deny … the [Plaintiffs’] conclusory assertion that constitutional protections afforded to property ownership enjoy primacy over other constitutional and legal protections and rights, including but not limited to Defendants’ right to petition the government and due process.”

This response was to item 138 from the ranchers’ mid- June complaint, which asserted the U.S. and Wyoming constitutions “hold the ownership and protection of private property—including the right to exclude third parties—in the highest regard.”

It is again left unclear in the defendants’ response to the trespass complaint if or how the collection of water samples by citizens falls under the First Amendment’s assurances of citizens to petition the government which it references. It is certain— and even described in the defendants’ response itself—that information gained through analysis of WWP’s water samples has impacted government behavior, however.

“As a result of Western Watersheds Project’s efforts to monitor the environmental conditions of public lands in Wyoming, take water samples from those public lands and provide samples to the Wyoming Department of Environmental Quality (WDEQ), WDEQ has already listed three water bodies as impaired pursuant to the Clean Water Act.”

Though not stated directly in the response, WWP’s history of litigation suggests the group had a hand in the WDEQ’s decision which could be described as petitioning. Whether collecting the samples necessary to get information, which might later be used to petition the government, is covered under First Amendment is something the court must decide.

[Editor’s note: Due to publishing time restraints, comments were unavailable from some important parties while other important parties would not have had equitable time to respond to questions from WLJ.

A follow-up piece on this ongoing matter will run next week.]— Kerry Halladay, WLJ Editor

 
 


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