Posted on July 14, 2016 by Seth Jaffe
In a fascinating case, Judge Scott Skavdahl (who recently struck down BLM’s fracking regulations) last week dismissed challenges from NRDC and PETA, among others, to a Wyoming law that prohibits trespassing on private land for the purpose of “collecting resource data”.
In addition to subjecting violators to civil and criminal enforcement, the law also prohibits use of any data collected as a result of the trespass for any purpose other than enforcement of the statute.
The plaintiffs alleged that the statutes violated the free speech of “whistleblowers” and “citizen scientists”. Judge Skavdahl wasn’t having any of it.
"Plaintiffs’ First Amendment right to create speech does not carry with it an exemption from other principles of law, or the legal rights of others. Plaintiffs’ desire to access certain information, no matter how important or sacrosanct they believe the information to be, does not compel a private landowner to yield his property rights and right to privacy."
Plaintiffs argued that, in Wyoming, it is often difficult to determine where public lands end and private lands begin. The Judge was not sympathetic here, either.
"The ability to pinpoint and record the location of alleged environmental violations is essential to Plaintiffs’ mission and goals. Coincidentally, the same information would be essential to a successful prosecution or civil action brought under these statutes."
The Court also rejected the equal protection claim. Since Judge Skavdahl had concluded that there was no First Amendment violation, the equal protection claim was not subject to strict scrutiny. The Court found a rational basis in discouraging trespassing.
Finally, the Judge addressed the issue most significant from my point of view: May information gathered as a result of a trespass be used in enforcement proceedings? The statute requires “expungement” of such data. The Court held that the Supreme Court has largely rejected facial challenges to such provisions. Since there was no as-applied challenge here, the Court declined to consider the expungement provisions.
Why does this matter? Because, even in the liberal Commonwealth of Massachusetts, property owners have been concerned that “citizen scientists” may trespass in order to gather endangered species data from private property. Indeed, there have been occasions where such citizen scientists have found endangered species on private property where the species had not previously been mapped. Cynical observers have often wondered whether the citizen scientists might have had something to do with the presence of the endangered species on the property!
I don’t really expect Massachusetts to follow Wyoming’s lead – but this is an issue that is much broader than some wild-eyed property rights activists in Wyoming.