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Western Watersheds Project v. Michael

United States District Court, D. Wyoming

July 6, 2016

WESTERN WATERSHEDS PROJECT; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; NATURAL RESOURCES DEFENSE COUNCIL, INC., PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC.; and CENTER FOR FOOD SAFETY, Plaintiffs,
v.
PETER K. MICHAEL, in his official capacity as Attorney General of Wyoming; TODD PARFITT, in his official capacity as Director of the Wyoming Department of Environmental Quality; PATRICK J. LEBRUN, in his official capacity as County Attorney of Fremont County, Wyoming; JOSHUA SMITH, in his official capacity as County Attorney of Lincoln County, Wyoming; CLAY KAINER, in his official capacity as County and Prosecuting Attorney of Sublette County, Wyoming, Defendants.

          ORDER GRANTING MOTION TO DISMISS

          Scott W. Skavdahl United States District Judge

         The above-captioned matter comes before the Court on Defendants' Motion to Dismiss Plaintiffs' Amended Complaint for failure to state a claim upon which relief may be granted. (ECF No. 58). For those reasons set forth below the Court finds Defendants' Motion should be granted.

         I. Background

         Plaintiffs Western Watersheds Project (Western Watersheds), National Press Photographers Association (NPPA), National Resource Defense Council (NRDC), People for the Ethical Treatment of Animals (PETA), and, Center for Food Safety (CFS), are interest groups aimed at protecting and advocating for animals, wildlife, and the environment. Plaintiffs initiated this action last fall, challenging the constitutionality of a pair of trespass statutes passed by the Wyoming legislature prohibiting the collection of "resource data" on "open lands" without express permission or authorization. Defendants Michael, Parfitt, and Governor Matt Mead moved to dismiss Plaintiffs' complaint, arguing, inter alia, it failed to state any plausible claims. After briefing and oral arguments, this Court granted in part and denied in part the motion to dismiss, noting its concern as to the validity of at least certain portions of the statutes. (Ord. on MTD, ECF No. 40). Subsequently, the Wyoming legislature amended the statutes. Plaintiffs then amended their complaint, which Defendants Michael and Parfitt now move to dismiss.

         A. 2015 Statutes

         In 2015, the Wyoming legislature enacted a pair of statutes, WYO. Stat. §§ 6-3-414; 40-27-10[1] (2015), addressing "Trespass to Collect Resource Data." The statutes prohibited unauthorized entrants on "open land"[2] from collecting or recording information relating to land and land use[3] and then submitting that information to a governmental agency. One statute imposed criminal penalties including fines and possible jail time, WYO. Stat. § 6-3-414 (2015), while the other imposed civil liability for consequential and economic damages caused by the trespass, WYO. STAT. §40-27-101 (2015). One subsection of the statutes appeared to relate to public lands, WYO. STAT. §§ 6-3-414(a); 40-27-101 (a)[4], while another subsection related to private lands, WYO. STAT. §§ 6-3-414(b); 40-27-101 (b).[5] "Collect" was defined as "to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form from open land which is submitted or intended to be submitted to any agency of the state or federal government." WYO. STAT. § 6-3-414(d)(i) (2015).

         Thus, to violate the 2015 statutes, an individual would have had to: (1) enter "open land" (private or public) to collect resource data without an ownership interest, authorization, or permission to enter or to collect such data; (2) somehow record or preserve data about the land or land use, and; (3) intend to submit, or actually submit, such data to a governmental agency. Any information obtained in violation of the statutes could not be used in any civil, criminal, or administrative proceedings (unless it was a civil action or criminal prosecution under the statutes), and such information which had been submitted to a governmental entity had to be expunged. Wyo. Stat. §§ 6-3-414(e), (f);40-27-101(d), (e), (f)(2015).

         In their original complaint, Plaintiffs argued the 2015 statutes: (1) violated the Petition Clause of the First Amendment; (2) violated the Free Speech Clause of the First Amendment; (3) were preempted by federal laws; and (4) violated the Equal Protection Clause of the Fourteenth Amendment. Defendants Peter K. Michael, Todd Parfitt, and Matthew Mead moved to dismiss Plaintiffs' claims, arguing Plaintiffs lacked standing to challenge the civil statute and failed to state a claim as to all causes of action. Additionally, the State Defendants argued Governor Matthew Mead was an improper party.

         After hearing oral arguments, the Court issued a written order, wherein it held Plaintiffs: (1) had standing to challenge the civil statute; (2) stated a plausible First Amendment Free Speech and Petition claim; (3) stated a plausible Equal Protection claim; (4) failed to state a Supremacy Clause or preemption claim, and; (5) failed to state a claim against Defendant Governor Matthew Mead. The Court was primarily concerned about the statutes' application to activities on public lands, as restricting the public's activities on such lands was unrelated to deterring trespassing. Also concerning was the fact that the 2015 statutes targeted the submission, or intended submission, of data to governmental agencies.

         B. 2016 Statutes

         In 2016, the Wyoming legislature amended the two previously challenged statutes. As with the 2015 versions, the revised statutes are nearly identical, with one still imposing criminal punishment, Wyo. Stat. § 6-3-414 (2016), and the other, civil liability, WYO. STAT. § 40-27-101 (2016). The revised statutes still define "resource data" as "data relating to land or land use, including but not limited to data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species, " with certain exceptions for certain governmental and law enforcement matters. WYO. Stat. §§ 6-3-414 (e)(iv); 40-27-101(h)(iii) (2016).[6] The new statutes clarify they apply only to entry onto private lands (eliminating any reference to "open lands"), and no longer require data be submitted or intended to be submitted to a governmental agency. The definition of "collect" has been modified to mean "to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form and the recording of a legal description or geographical coordinates of the location of the collection." WYO. STAT. §§ 6-3-414(e)(i); 40-27-101(h)(i)(2016).

         The revised statutes contain three proscriptive subsections:

(a) A person [is guilty of trespassing/commits a civil trespass] to unlawfully collect resource data from private land if he:
(i) Enters onto private land for the purpose of collecting resource data; and
(ii) Does not have:
(A) An ownership interest in the real property or statutory, contractual or other legal authorization to enter the private land to collect the specified resource data; or
(B) Written or verbal permission of the owner, lessee or agent of the owner to enter the private land to collect the specified resource data.
(b) A person [is guilty/commits a civil trespass] of unlawfully collecting resource data if he enters onto private land and collects resource data from private land without:
(i) An ownership interest in the real property or, statutory, contractual or other legal authorization to enter the private land to collect the specified resource data; or
(ii) Written or verbal permission of the owner, lessee or agent of the owner to enter the private land to collect the specified resource data.
(c) A person [is guilty of trespassing/commits a civil trespass] to access adjacent or proximate land if he:
(i) Crosses private land to access adjacent or proximate land where he collects resource data; and
(ii) Does not have:
(A) An ownership interest in the real property or, statutory, contractual or other legal authorization to cross the private land; or
(B) Written or verbal permission of the owner, lessee or agent of the owner to cross the private land.

WYO. Stat. §§ 6-3-414(a)-(c); 40-27-101(a)-(c) (2016).

         Thus, a person can violate the revised statutes in one of three ways: (1) if he enters private land with the purpose of collecting resource data and without authorization or permission to enter the land or specific permission to collect resource data; (2) if he enters private land and actually collects resource data without authorization or permission to enter the land or specific permission to collect resource data, or; (3) if he crosses private land without authorization or permission to do so and collects resource data.[7]

         As with the 2015 versions of the statutes, an individual must have permission not only to enter private lands, but enter them for the purpose of collecting specific resource data. A first-time offender under the revised criminal statute faces imprisonment for not more than one (1) year, a fine of not more than $1, 000, or both. WYO. Stat. § 6-3-414(d)(i) (2016). A repeat offender of subsections (a) or (b) of the criminal statute faces imprisonment for not less than ten (10) days, but not more than one (1) year, a fine of not more than $5, 000, or both.[8] Under the civil statute, one who violates the statute is liable in a civil action by the owner or lessee of the land for all consequential and economic damages proximately caused by the trespass. WYO. STAT. § 40-27-101(d) (2016). The violator will also be liable for litigation costs, reasonable attorney fees and costs. Id.

         The revised statutes prohibit the use of resource data collected in violation of the statutes in any civil, criminal, or administrative proceeding, other than to prosecute a person under either statute. Wyo. Stat. §§ 6-3-414(f); 40-27-101(f) (2016). Also, any data in possession of any Wyoming governmental entity which was collected in violation ...


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