Buried in the mire of legalese, the 10th Circuit Court of Appeals made a decision that could affect ranchers who depend on public lands for years to come.
On Thursday, Sept. 7, the appeals court directed the lower District Court of Wyoming to reconsider its ruling related to trespass laws. Though this seems painfully procedural, it has very real-world potential.
Simply put, the court ruled that the collection of “resource data”—the sort often used by non-profit environmental groups to petition the government—is the creation of speech. As such, it could be a protected First Amendment activity.
History
This current decision is one in a long list of convoluted history that started over three years ago. In June 2014, a group of 15 Wyoming ranchers filed suit in their state’s district court. They alleged that Jonathan Ratner—Western Watersheds Project’s (WWP) director for Wyoming, Utah, and Colorado—and 10 unnamed associates engaged in at least 25 instances of willful trespass between 2005-2012.
Ratner and his associates claimed to be collecting water samples from waterways on public lands. The ranchers claimed that to get to those public lands, they had to trespass through clearly marked private property. The defendants—Ratner and WWP by extension—pointedly denied these accusations. The defendants moved to dismiss the case in May 2015 and the case was eventually dropped in 2016.
While this was going on, Wyoming passed a pair of laws related precisely to the details of the case in March 2015. Both laws (Wyoming Statute 6-3-414(c) and 40-27-101(c)) additionally criminalized trespass for the purposes of collecting “resource data.” These laws spawned a separate lawsuit later in 2015, also in District Court of Wyoming. WWP and several other anti-grazing groups were the plaintiffs against the defendant state of Wyoming.
The plaintiffs alleged the two laws—derisively called “ag gag laws”—violated the First Amendment’s protection of freedom of speech. They claimed the laws were redundant to Wyoming’s existing trespass laws and more harshly penalized the collection of data from public lands. This latter action they asserted is necessary to their ability to petition the government, a form of protected speech.
After a round of dismissal requests, the amending of the two laws, and a reassertion of the case,
Wyoming moved to dismiss the case for a second time in 2016. The district court granted the motion in full, concluding that the laws as amended did not regulate “protected First Amendment activity.”
Plaintiffs appealed this decision to the 10th Circuit Court of Appeals, bringing us to the current case. The appeals court decision reversed the Wyoming District Court’s ruling that the two Wyoming trespass laws do not regulate protected speech. It additionally remanded the issue back to the lower court, meaning the lower court must review the case again. Despite the claims of WWP, this is different from the court finding the laws unconstitutional.
Current decision
In the appeals case, Wyoming asserted that the two laws—often referred to as “statues at issue” or “the challenged provisions” in the court document—do not regulate speech. Rather, it argued, the laws regulate conduct on public land only after trespass onto private land has occurred. It additionally asserted that the plaintiffs were effectively arguing for a right to trespass.
“That framing misstates the issue,” countered the appeals court ruling.
“Wyoming already prohibits trespass in general, albeit with lesser penalties than provided for in the statues at issue. Thus, the effect of the challenged provisions is to increase a pre-existing penalty for trespassing if an individual subsequently collects resource data from public land. Plaintiffs challenge this deferential treatment.”
The appeals court ruling went on later to say:
“We conclude that plaintiffs’ collection of resource data constitutes the protected creation of speech. The Supreme Court has explained that ‘the creation and dissemination of information are speech within the meaning of the First Amendment,’” it added, citing several such cases.
“Many of the activities covered by the challenged statues fit comfortably in the speech-creation category recognized in these cases.”
The appeals court ruling acknowledged that the collection of resource data such as water samples “runs somewhat further afield of pure speech.” Nonetheless, it held that the “speech-creation element” involved constitutes protected First Amendment activities.
The case over the two Wyoming laws will return to the District Court of Wyoming to be reconsidered in light of the appeals court decision. — Kerry Halladay, WLJ editor
