Is Wyoming Ban on Reporting Environmental Harm Unconstitutional?

May 20, 2015

A newly enacted Wyoming law seems to be aimed at criminalizing the collection and reporting of stream pollution or other environmental harm. It creates a unique new category of crime called "data trespass."

Just what the law, signed in March by Gov. Matt Mead (R), means or does is being debated hotly — which suggests it may be vaguely written. Proponents say it is meant to protect property rights and prevent trespass. Opponents say it is meant to suppress factual evidence of pollution violations and prohibit the Constitutional right to free speech.

The uproar started with publication May 11, 2015, in Slate of an article by Justin Pidot, titled "Forbidden Data: Wyoming Just Criminalized Citizen Science." Pidot is a law professor at the University of Denver who represents the environmental activist group Western Watersheds Project pro bono — a fact acknowledged in his article.

Pidot drew an extreme hypothetical — a tourist taking a photo of clouds over Yellowstone and submitting the photo to a National Weather Service photo contest — and facing a year in jail for the crime.

But it is far from clear that the law does that. The law says a person is guilty of data trespass if he/she "Enters onto or crosses private open land for the purpose of collecting resource data." The definitions of open land and private land have been criticized as expansive and murky — but state law can rarely govern actions on federal lands. The problem may be compounded by grazing permits on federal lands, which in some quarters of the West are construed as ownership. The bill language offers little help on what is private and what public.

Environmental groups are concerned about E. coli bacteria in streams — typically caused by cattle pooping in or near them. Many of the polluted streams are on federal land; the Wyoming law makes it a crime to cross private land to get to them.

That the law is trying to prohibit data — and not just trespass, which is already illegal — seems apparent from the fact that it decrees that data gathered via "trespass" can not be used in government proceedings and must be expunged. But state laws can not normally decree what the federal government can do about using data or most other things. Still, the U.S. Environmental Protection Agency delegates enforcement under the Clean Water Act to states.

Activists are concerned Wyoming has invented another form of "ag-gag" law — which aims to prevent undercover citizen reporting of animal abuse. Wyoming lawmakers deny it.