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Western Watersheds Project v. Michael

United States District Court, District of Wyoming

October 29, 2018

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 as County Attorney of Lincoln County, Wyoming; CLAY KAINER, in his official capacity as County and Prosecuting Attorney of Sublette County, Wyoming, Defendants.


          Scott W. Skavdahl United Stales District Judge.

         This matter comes before the Court on Plaintiffs Motion for Summary Judgment (ECF No. 95) and State Defendants' Motion for Summary Judgment (ECF No. 98) joined by County Defendants Patrick Lebrun and Joshua Smith (ECF No. 105). The parties agree that this matter is appropriate for resolution by summary judgment with each contending they are entitled to judgment as a matter of law. The Court, having reviewed the wealth of motions, memoranda, responses, and other documentation in this case, listening to oral argument, and being otherwise fully advised, finds as follows:


         This case has a long history before this Court. The dispute centers on recently enacted Wyoming statutes which impose criminal and civil penalties for data collection on private land or when private land is crossed to reach public land without landowner permission. The Tenth Circuit has summarized many of the relevant facts,

In 2015, Wyoming enacted a pair of statutes that prohibited individuals from entering "open land for the purpose of collecting resource data" without permission from the owner. Wyo. Stat. §§ 6-3-414 (2015); 40-27-101 (2015). The statutes were largely identical, with one imposing criminal punishment, § 6-3-414(c) (2015), and the other imposing civil liability, § 40-27-101(c) (2015). "Resource data" was defined as "data relating to land or land use," including that related to "air, water, soil, conservation, habitat, vegetation or animal species." § 6-3-414(d)(iv) (2015). And the term "collect" was defined as requiring two elements: (1) taking a "sample of material" or a "photograph," or "otherwise preserving] information in any form" that is (2) "submitted or intended to be submitted to any agency of the state or federal government." § 6-3-414(d)(i) (2015). Information obtained in violation of these provisions could not be used in any proceeding other than an action under the statutes themselves. §§ 6-3-414(e) (2015); 40-27-101 (d) (2015). The statutes also required government agencies to expunge data collected in violation of their provisions and forbade the agencies from considering such data "in determining any agency action." §§ 6-3-414(f) (2015); 40-27-101(f) (2015).
The 2015 criminal statute imposed heightened penalties above and beyond Wyoming's general trespass provision. It provided a maximum term of imprisonment of one year and a $1, 000 fine for first time offenders. § 6-3414(c)(i) (2015). Repeat offenders faced a mandatory minimum ten days' imprisonment, a maximum of one year, and a $5, 000 fine. § 6-3-414(c)(ii) (2015). The 2015 civil statute imposed liability for proximate damages and "litigation costs," including attorneys' fees. § 40-27-101(c) (2015).
Plaintiffs, who arc advocacy organizations, filed suit to challenge the 2015 statutes. They argued that the statutes violated the Free Speech and Petition Clauses of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and were preempted by federal law. Defendants moved to dismiss. Granting the motion in part and denying it in part, the district court held that plaintiffs had stated plausible free speech, petition, and equal protection claims, but failed to state a preemption claim.
After the district court's decision, Wyoming amended the two statutes. Wyo. Stat. §§ 6-3-414 (2016); 40-27-101 (2016). The revised statutes continue to impose heightened criminal punishment, § 6-3-414, and civil liability, § 40-27-101. But the amendments eliminate reference to "open lands" and instead penalize any individual who without authorization: (1) enters private land "for the purpose of collecting resource data"; (2) enters private land and "collects resource data"; or (3) "crosses private land to access adjacent or proximate land where he collects resource data." §§ 6-3-414(a)-(c); 40-27-101 (a)-(c). Under the current version of the statutes, there is no requirement that resource data be submitted to, or intended to be submitted, to a government agency. Instead, the term "collect" now means: (1) "to take a sample of material" or "acquire, gather, photograph or otherwise preserve information in any form"; and (2) "recording ... a legal description or geographical coordinates of the location of the collection." §§ 6-3-414(e)(i);40-27-101(h)(i).
Plaintiffs amended their complaint to challenge the 2016 statutes, realleging free speech and equal protection claims. Defendants again moved to dismiss. This time, the district court granted the motion in full. It concluded that the revised version of the statutes did not implicate protected speech. Plaintiffs timely appealed.
On appeal, plaintiffs challenge only the district court's ruling regarding subsections (c) of the statutes under the Free Speech Clause of the First Amendment.

Western Watersheds Project v. Michael, 869 F.3d 1189, 1192-93 (10th Cir. 2017).

         Upon review, the Tenth Circuit reversed, concluding "that plaintiffs' collection of resource data constitutes the protected creation of speech." Id. at 1195-96. The Court also noted'' [f]he fact that one aspect of the challenged statutes concerns private property does not defeat the need for First Amendment scrutiny." Id. at 1195. The Tenth Circuit remanded the matter to this Court to determine the appropriate level of scrutiny and whether the statutes survive review. See Id. at 1197-98. The parties have since engaged in discovery and have now field cross-motions for summary judgment.


         Summary judgment is appropriate where a movant shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) (emphasis added). "A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim." Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (internal quotations and citations omitted). "The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law."Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). The burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. Id.

         "The mere filing of cross motions for summary judgment does not establish that there is no issue of material fact or obligate the trial court to render summary judgment; the trial court must independently determine whether there is a genuine issue of material fact, perusing the record through the standard summary judgment prism, and applying the standard of review to each motion separately." 73 Am. Jur. 2d Summary Judgment § 45. "The denial of one does not require the grant of the other" and "in considering cross motions, the court should draw all inferences against each movant in turn." See Id. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which arc designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).


         The parties raise numerous issues in their cross-motions that the Court reduces to the following major topics: standing, the validity of a facial challenge, content-neutrality and forum analysis, and the appropriate level of scrutiny. The Court will take each topic in turn and apply the standard of review as outlined above.[1]

         I. Standing

         Plaintiffs assert the Court should find they do have standing in their motion for summary judgment. Conversely, Defendants argue Plaintiffs lack standing. Prior to addressing the substantive law, the Court believes the issue of standing has already been resolved by the mandate rule and the law of the case. The mandate rule "is a discretion-guiding rule that generally requires trial court conformity with the articulated appellate remand." United States v. Hicks, 146 F.3d 1198, 1200 (10th Cir. 1998). "A lower court is 'bound to carry the mandate of the upper court into execution and [cannot] consider the questions which the mandate laid at rest.''' Estate of Cummings by and through Montoya v. Community Health Systems, Inc., 881 F.3d 793, 801 (10th Cir. 2018). Similarly, "[a]fter an appeal, the decision of the appellate court establishes the law of the case and ordinarily will be followed on remand, with the principle applicable to all issues previously decided, either explicitly or by necessary implication." N. Nat. Gas Co. v. Approximately 9117.53 Acres in Pratt, Kingman, No. 10-1232-JTM, 2018 WL 1138284, at *3 (D. Kan. Mar. 2, 2018) (citing Vehicle Market Research, Inc. v. Mitchell Int, l, Inc., 839 F.3d 1251, 1256 (10th Cir. 2016)). The parties conceded at oral argument that standing was a jurisdictional issue that the Tenth Circuit necessarily passed on in this case. See generally Western Watershed, 869 F.3d at 1189; see also Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548 (2016), as revised (May 24, 2016) (finding to establish federal jurisdiction a plaintiff must show the elements of Article III standing are satisfied). Further, the Tenth Circuit specifically instructed this Court on remand to determine the appropriate "level of scrutiny to be applied and whether the statutes survive the appropriate review."[2] Western Watershed, 869 F.3d at 1197. This Court's analysis is limited by these instructions. Even if standing is not resolved by these doctrines, Plaintiffs still prevail on the merits of the standing analysis.

         "At the summary judgment stage, a plaintiffs standing must be supported by specific evidentiary facts and not by mere allegations." Phelps v. Hamilton, 122F.3d 1309, 1326 (10th Cir. 1997). To establish standing, a plaintiff must demonstrate an injury that is "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.'" Clapper v. Amnesty Intern. USA, 568 U.S. 398, 409 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)). There are grave concerns over the suppression of protected speech even when addressing the matter of standing. "Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged." Sec'y of State of Md v. Joseph H. Mimson Co., 467 U.S. 947, 956 (1984).

         Given these concerns, "plaintiffs in a suit for prospective relief based on a 'chilling effect1 on speech can satisfy the requirement that their claim of injury be 'concrete and particularized' by (1) evidence that in the past they have engaged in the type of speech affected by the challenged government action; (2) affidavits or testimony stating a present desire, though no specific plans, to engage in such speech; and (3) a plausible claim that they presently have no intention to do so because of a credible threat that the statute will be enforced." Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006). "[C]oncerns over the chilling effects on speech are significantly more acute when a criminal sanction is involved rather than a civil cause of action." Animal Legal Defense Fund v. Reynolds, 297 F.Supp.3d 901, 916 (S.D. Iowa 2018).

         Assessing whether there is a credible threat of enforcement is often a difficult matter. See Initiative & Reform Inst, 450 F.3d at 1090. "The chilling effect, to amount to an injury, must arise from an objectively justified fear of real consequences, which can be satisfied by showing a credible threat of prosecution or other consequences following from the statute's enforcement." D.L.S. v. Utah,374 F.3d 971, 975 (10th Cir. 2004). Still, First Amendment doctrine allows for reliance on general fears of enforcement or prosecution when protected speech claims are involved. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 302 (1979) (holding that fear of prosecution was not imaginary or speculative, even though the challenged criminal penalty provision had never been applied to plaintiffs' proposed conduct, where statute on its face proscribed the proposed conduct and where "the State has not disavowed any intention of invoking the criminal penalty provision"); Initiative & Referendum Inst., 450 F.3dat 1090 (finding credible threat where no reason to doubt law would be enforced); Threats Of Enforcement, 13B Fed. Prac. & Proc. Juris. ยง 3532.5 (3d ...

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