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Monday, August 11, 2014

Differing views on trespassing laws

by Kerry Halladay, Associate Editor

— Attorneys discuss WWP trespass suit

Last week, WLJ covered the response of Western Watersheds Project (WWP) to a trespass case brought against it by a collection of Wyoming ranchers. Unfortunately, this coverage did not have the benefit of commentary by either side due to time restraints. Since then, however, attorneys from both sides of this developing case were able to respond at length to questions.

As a brief background, several Wyoming ranchers filed a trespass suit against WWP’s Wyoming Director Jonathan Ratner and 10 unnamed WWP interns/employees back in mid-June. The ranchers are the plaintiffs in the case, being represented in part by Karen Budd-Falen, Public Lands Attorney with Budd-Falen Law Offices based in Cheyenne, WY.

At the end of July, WWP answered the lawsuit with its response. It overwhelmingly denied the allegations of trespass having occurred and cited various elements of property and public use law in their defense. WWP via Jonathan Ratner is the defendant in the case, represented in part by Justin Pidot, Assistant Professor of Law at the University of Denver and a pro hac vice attorney* in for the case under Wyoming Attorney Mary Ann Budenske.

The case is in the very early stages, but it warrants attention, given the topics at issue. Of course, the sides differed greatly on their very perception of the nature of the case and that set the tone for much of WLJ’s conversations with each side.

“What they’re doing is they’re taking very generic property law by either the courts or by statute and extending them to places they were never ever intended to extend,” characterized Budd-Falen, speaking mostly of the defendants’ later responses and defenses. “They’re taking this to incredible extents.”

Pidot’s characterization was very different. He frequently explained the defendants’ use of a certain legal tradition as being very commonplace. He additionally opposed the idea that the matter of trespass was obvious.

“Whether or not you think Western Watersheds Project is doing good work—and I understand that there’s a wide variety of ideological views on that—much of this dispute involves highly spec ulative, conjectural claims.”

The pair had very different focuses in talking about the case as well. While Budd-Falen looks at it as a pressing matter of property rights, Pidot said the case is more wrapped up in the “easy” matters of fact related to the trespass claims. With regard to the property rights perspective, paragraph 138 of the defendants’ answer was the attention grabber.

“Defendants deny… the [Plaintiff’s] 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 to due process,” read the paragraph.

“They are asking truly for a disregard of private property rights in what they term to be public interest,” commented Budd-Falen, referring additionally to a later portion of the answer wherein the defendants claimed to act under the Public Necessity doctrine.

“I think they are trying to use the whole thing to argue the principle that, ‘because we are acting in the public interest, your property rights need to take a backseat.’ And I think they truly believe that,” she said.

Pidot disagreed, saying it was a mischaracterization to think there are only constitutional rights of concern in play on one side.

“I don’t read it that way,” he said when asked about the interpretation of paragraph 138. “I think the complaint says property rights are the only important thing that could possibly be an issue. … The answer suggests that there are other constitutionally protected interests that are also implicated.

But I don’t think our position is that property rights are always subordinate to the petitions clause.”

The petitions clause is the last element of the First Amendment of the Constitution. Traditionally speaking, the Fifth and to a lesser extent the Fourth Amendment are looked at as protecting property rights of individuals from the government. This latter detail was a point Pidot stressed.

“The Bill of Rights speaks towards the protection of property, vis--vis the government. The Fifth Amendment says the government can’t take your property without compensation or due process. The Fourth Amendment says government can’t enter your property without a warrant and can’t do it under unreasonable search and seizure,” he explained. “But the Constitution doesn’t speak to private parties and other private parties and their interactions.”

Budd-Falen cited other history on the matter, however.

“When they talk about life, liberty and the pursuit of happiness, the ownership of private property was part of that. If you read the Federalist Papers, in truth the Founding Fathers set forth the other amendments to guarantee the protection of private property use.”

On the matter of how collecting water samples fell into these potential constitutional arguments, Pidot explained the defendants’ position that the collection of the water samples were a necessary part of petitioning the government, as well as falling under the Public Necessity doctrine. The answer claimed that past samples have revealed E. coli concentrations in the waters in some places 200 times the legal limit; a health hazard.

“These are waters crossing BLM public lands where people swim, fish, and the like and E. coli can cause a public health problem. So the argument is discovering this information, getting this information publicized to protect people’s public health, is similar to the traditional public necessity and therefore should be privileged.”

Pidot also contended that some of the more “arcane” elements addressed in the answer may well never see court.

“I’m not sure that this case has to get into a lot of the more academically interesting issues,” he said. “The case may well just turn on the fact that there’s no evidence of the trespass. None.”

But Budd-Falen voiced extreme concern over the precedent that might be set, which she called “frightening.”

“They have now significantly raised the stakes on this litigation,” she said, referring to the involvement of constitutional elements in the defendants’ answer, which she characterized as a “full frontal attack on private property rights.”

“This is something all private property owners in Wyoming and anywhere else should be very concerned about.”

[*Editor’s note: Attorneys are cleared to work in certain states. However, under pro hac vice—Latin for “for this turn”—out-of-state lawyers can be admitted to practice in a local jurisdiction for a particular case only. Pidot explained that he had filed the paperwork for such admittance too late to be listed on the official answer.] — Kerry Halladay, WLJ Editor

 
 


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