WESTERN WATERSHEDS PROJECT; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; NATURAL RESOURCE DEFENSE COUNCIL, Plaintiffs-Appellants,
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.
from the United States District Court for the District of
Wyoming (D.C. No. 2:15-CV-00169-SWS)
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.
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,
Gaffney, Chief Deputy Sublette County and Prosecuting
Attorney, Pinedale, Wyoming, filed a brief for Clay Kainer,
Richard Rideout, Law Office of Richard Rideout, PC, Cheyenne,
Wyoming, filed a brief for Joshua Smith and Patrick Jon
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.
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
LUCERO, McKAY, and HARTZ, Circuit Judges.
LUCERO, CIRCUIT JUDGE.
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).
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
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).
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). 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).
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