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Project v. Michael

United States Court of Appeals, Tenth Circuit

September 7, 2017

WESTERN WATERSHEDS PROJECT; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; NATURAL RESOURCE DEFENSE COUNCIL, Plaintiffs-Appellants,
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 JON LEBRUN, Esq., 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-Appellees, and PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS INC; CENTER FOR FOOD SAFETY, Plaintiffs, and CENTER FOR AGRICULTURE AND FOOD SYSTEMS; FIRST AMENDMENT LEGAL SCHOLARS, Amici Curiae.

         Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:15-CV-00169-SWS)

          David S. Muraskin, Public Justice, P.C., Washington, D.C. (Leslie A. Brueckner, Public Justice, P.C., Oakland, California, Justin Marceau, University of Denver Sturm College of Law, Denver, Colorado, Deepak Gupta, Gupta Wessler, PLLC, Washington, D.C., Michael E. Wall, San Francisco, California, Margaret Hsieh, Natural Resources Defense Council, New York, New York, and Reed Zars, Laramie, Wyoming, with him on the briefs), for Plaintiffs-Appellants.

          Erik E. Petersen (James Kaste, with him on the brief), Office of the Attorney General for the State of Wyoming, Cheyenne, Wyoming, for Peter K. Michael and Todd Parfitt, Defendants-Appellees.

          Matt Gaffney, Chief Deputy Sublette County and Prosecuting Attorney, Pinedale, Wyoming, filed a brief for Clay Kainer, Defendant-Appellee.

          Richard Rideout, Law Office of Richard Rideout, PC, Cheyenne, Wyoming, filed a brief for Joshua Smith and Patrick Jon LeBrun, Defendants-Appellees.

          Carrie Ann Scrufari, Center for Agriculture and Food Systems, Vermont Law School, South Royalton, Vermont, filed an Amicus Curiae brief for Center for Agriculture and Food Systems.

          Alan K. Chen, University of Denver Sturm College of Law, Denver, Colorado, and Edward T. Ramey, Tierney Lawrence, LLC, Denver, Colorado, filed an Amicus Curiae brief for First Amendment Legal Scholars.

          Before LUCERO, McKAY, and HARTZ, Circuit Judges.

          LUCERO, CIRCUIT JUDGE.

         In addition to its generally applicable law of trespass, the State of Wyoming has enacted a pair of statutes imposing civil and criminal liability upon any person who "[c]rosses private land to access adjacent or proximate land where he collects resource data." Wyo. Stat. §§ 6-3-414(c); 40-27-101(c). In light of the broad definitions provided in the statutes, the phrase "collects resource data" includes numerous activities on public lands, such as writing notes on habitat conditions, photographing wildlife, or taking water samples, so long as an individual also records the location from which the data was collected. See §§ 6-3-414(e)(i), (iv); 40-27-101(h)(i), (iii).

         We conclude that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property. Although trespassing does not enjoy First Amendment protection, the statutes at issue target the "creation" of speech by imposing heightened penalties on those who collect resource data. See Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011). Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand.

         I

         Wyoming has long prohibited trespass as a matter of both criminal and civil law. See Wyo. Stat. § 6-3-303 (criminal trespass); Edgcomb v. Lower Valley Power & Light, Inc., 922 P.2d 850, 859 (Wyo. 1996) (civil trespass). Criminal trespass occurs when an individual enters or remains on the property of another with knowledge or subsequent notification that he is not authorized to do so. § 6-3-303(a). One convicted of criminal trespass is subject to not more than six months' imprisonment and a $750 fine. § 6-3-303(b). For civil trespass, Wyoming generally follows the Restatement (Second) of Torts. See, e.g., Goforth v. Fifield, 352 P.3d 242, 249 (Wyo. 2015); Edgcomb, 922 P.2d at 859; Thunder Hawk ex rel. Jensen v. Union Pac. R. Co., 844 P.2d 1045, 1049 (Wyo. 1992).

         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 preserv[ing] 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).[1] 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. § 6-3-414(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 ...


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