Activists appeal for right to trespass

Traci Eatherton
for Tri-State Livestock News

Wyoming is not the only state fighting a trespass battle.

Earlier this month, Oregon’s court of appeals issued its long-awaited decision in the case, Kramer v. City of Lake Oswego—a case in which two public access activists claimed that the “public trust doctrine” should be extended to create easements across dry, upland property so that the public can gain access “to . . . navigable waters throughout the State or Oregon . . . regardless of ownership.”

The activists asked the court to force owners of a private, man-made lakes to open up their waters to the public. They argued that the right to recreate in certain waters also gave the public the right to cross over, aka “trespass,” on someone else’s land to get there.

Oregon courts agreed. It’s trespassing, and the public trust doctrine, which recognizes that certain waters must remain open to the public, still did not make it legal.

Last year’s stalemate between environmentalist groups and 15 Wyoming ranchers, that was supposed to end a two-year legal battle over a trespassing issue, has reared its ugly head thanks to the environmentalist group’s court request for a revisit.

The settlement last August was supposed to be the end of the drama, but the activists are digging up dirt again, hoping to gain water access, via private property. The settlement defined some boundaries, including giving ranchers the ability to seek a court fine of $2,500 for a first trespass and $5,000 for subsequent trespasses. It also determined specific roads with easements, which allowed the activists to travel.

Both sides declared victory following the idea that, for the most part, they would agree to disagree on the trespass lawsuit.

“Trespassing to stop under settlement,” the Wyoming Stock Growers Association wrote in a press release supporting the rancher plaintiffs.

“Frivolous Wyoming trespass lawsuit finally dropped,” the defendant, Western Watersheds Project,wrote.

In September 2015, WWP, Natural Resources Defense Council and PETA, among others, in a separate case, sued the state of Wyoming over two new trespass statutes. The groups said the laws suppressed environmentalists from discovering harmful landowner practices, and kept supporters from taking water samples from waters near ranches.

The case, according to Jim Magagna, Executive Vice President with WSGA, was completely separate, and the trespass statutes were not written because of the trespass lawsuit. However, in 2016, because of the trespass suit, they were rewritten for clarity.

U.S. District Court Judge Scott W. Skavdahl dismissed the complaint in July 2016, determining the coalition did not have a First Amendment right to enter private property to take samples.

“Plaintiffs’ claims are erroneously premised upon their perceived First Amendment right to trespass upon private property to collect resource data,” Skavdahl’s 26-page order from the District of Wyoming says. “No such constitutional right exists. To the contrary, the United States Supreme Court ‘has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned.’”

But earlier this month, the same environmentalist groups, including WWP, took their argument to the 10th Circuit Court, appealing the decision, claiming that it is their First Amendment right to collect water samples from public lands for ecological research.

The coalition argued before U.S. Circuit Judges Carlos Lucero, Monroe McKay and Harris Hartz to appeal the decision, according to Courthouse News Service.

“Wyoming is a jungle of public and private land,” said David Muraskin, an attorney for WWP, as reported by CNS. He added that it was “nearly impossible,” to navigate public lands within private lands while doing the coalition’s kind of work.

While the law once required people to post no trespass signs, todays GPS availability has changed that. The burden of knowing where private property is, is now on the individual, not the property owner, according to Magagna.

“We are not disputing their right to collect data. The dispute is, do they have a right to trespass,” he added. “If the court were to rule against us, it still wouldn’t make trespass legal. It would just make prosecution more difficult.”

But Muraskin, the lawyer for the group, claims “data” is protected by the First Amendment right, and that includes data samples.

“This case is a federal constitutional challenge to two newly enacted Wyoming statutes (the “Data Laws”) that are designed to prevent the public from gathering “resource data” on public or private “open land” in the State of Wyoming,” according to a post on Public Justice. “These laws are a close cousin to the so-called ‘ag-gag’ laws that have been proposed or enacted in a dozen states in recent years. Public Justice is currently challenging Idaho’s and North Carolina’s ag-gag law on constitutional grounds and serves as amicus in a challenge to Utah’s Ag-Gag law.”

Muraskin claims the trespass laws were enacted specifically to prevent WWP from collecting the samples.

“In Wyoming’s case, the data laws were enacted for the explicit purpose of preventing an Idaho nonprofit and one of our clients, the Western Watersheds Project (WWP), from collecting water samples designed to prove that overgrazing of the land by the cattle industry is polluting the water supply. Public Justice is also representing the National Press Photographers Association as the Wyoming’s law would also prevent journalists from accessing and recording information on public and private lands,” the group wrote.

WWP indicates it believes the legal battle was the cause for the second trespassing lawsuit against one of their “data collectors.”

“It isn’t every nonprofit conservation organization that so riles the establishment that a state legislature passes laws against it. Western Watersheds Project would be proud of that distinction except for the consequences of the new Wyoming law that criminalizes data collection on “open land.” It’s a frightening step towards penalizing whistleblowers rather than prosecuting polluters, and though we’re sure it was designed primarily to stop Wyoming Director Jonathan Ratner, the vaguely worded law could affect any citizen scientist on any unincorporated lands or subdivisions in Wyoming,” the group wrote after last year’s battle.

“And while we’re sure that the Wyoming ranchers and the attorneys who represent them are hoping this lawsuit simply shuts WWP down, Jonathan and WWP continue to work to expose the illegal activities and gross violations of federal law that occur on public lands livestock allotments,” WWP continued, referring to the trespassing lawsuit.

Karen Budd-Falen, senior partner at Budd-Falen Law Offices LLC, represented the 15 ranchers in the case.

“WWP trespassed across private land to collect water quality data to prove there was excess E. coli in the streams,” Budd-Falen said at the Johnson County CattleWomen’s annual Agricultural Summit, prior to the final outcome.

While environmentalist groups are a big concern, Magagna pointed out that other trespassers also were discussed, including government officials. The group trespassed, and in the settlement, admitted such.

“I’m thoroughly comfortable that the 10th Circuit Court will uphold the decision,” Magagna said, sharing that WSGA is following the case closely. “Their arguments really don’t make a lot of sense. What they have done, and what they still want to do would still be a trespass.” F