The Western Watersheds Project, an Idaho-based environmental group, would really like cows to stop pooping so much in streams.
Grazing cattle can trample riverbanks and leave mudslides of fecal bacteria in the nation’s waterways. High levels of manure pathogens, like E. coli and salmonella, choke fish and taint downstream drinking water and crops.
In order to protect public waters, the nonprofit’s volunteers routinely check rivers for contamination. They report their measurements to government agencies, which have the power to restrict where cows can roam on public lands.
Ranchers resent this, and they have taken creative measures to stop people from measuring the amount of manure bacteria their cows are depositing in rivers. In Wyoming, their efforts culminated in a controversial — and confusingly written — new law making it a crime to collect environmental data on behalf of the government.
In Slate last week, environmental lawyer Justin Pidot argued that the law was so sloppily drafted that even taking a photo at Yellowstone could now be cause for arrest. There’s some truth to that, and some exaggeration.
But the whole story actually gets much weirder.
Why Wyoming doesn’t like data collection
Wyoming’s new law makes it a crime to “preserve information in any form” about rural land if you plan to share that data with the federal government. That’s everything from photographs, to plant samples, to scientific measurements, to notes.
The law’s proponents see it as an act of righteous obstructionism. Federal regulations are choking local industries, says state senator Larry Hicks (R-Baggs), who drafted the original bill.
“They’re collecting reams of biological data, water quality data, looking for sensitive amphibians, endangered species, cultural resources — then using that information to basically preclude economic activity on those lands,” he said.
Hicks considers this a privacy violation, likening it to the NSA’s collection of private phone records. Maybe there are Native American relics on your property; maybe there are endangered species. But nobody needs to know, certainly not the government or its helpers.
Environmental regulations like the Clean Water Act rely, in part, on private citizens to find and point out violations where they can. This mostly takes place on public land. Walking onto private property without permission is already illegal — it’s called trespassing.
But it’s possible for citizen scientists to inadvertently set foot on private property while, say, traveling to a stream monitoring site on public land. To discourage data collection, Hicks sought harsher penalties for those who trespassed, even those who did it accidentally.
Here it helps to understand the geography of a rural state like Wyoming, where the boundaries between public and private land often aren’t fenced or marked.
Hunters and hikers know how difficult it can be to detect when they have passed onto private property. A public road or trail might cross a section of private property without warning. Most of the time, property owners allow people to pass through without complaint. But technically, it is still illegal trespassing.
Further complicating matters: Some public land in Wyoming is completely unreachable except by traveling through private property.
Nearly half of Wyoming is owned by the federal government, but about four percent, or some 700,000 acres of that land is, well, privately land-locked, according to estimates from the Center for Western Priorities, a conservation group. The land is public, but there is no way to get there.
Last year, ranchers in Wyoming sued Western Watersheds for several counts of trespassing. In a few cases, the group seem to have taken water measurements on private property. But in most of the alleged counts of trespassing, the activists had collected data on public land, only these were locations that are hard to get to without passing through private property.
Since people do not teleport, the ranchers say this is evidence that the activists must have trespassed at some point.
(The lawsuit is ongoing. Pidot, an assistant professor of law at the University of Denver, is one of the lawyers representing Western Watersheds.)
Is this a trespassing law or an evidence-muzzling law?
Accidental trespassing is generally not a crime, though property owners can sue in civil court to recoup damages, as the ranchers have done. If you accidentally trampled someone’s prize petunias thinking they were wildflowers on public property, a court could force you to pay restitution.
For people who accidentally trespassed to take photos or water samples, there’s not exactly a lot of restitution to be paid because there wasn’t exactly a lot of harm done. And the only way to put people in jail is to prove that they trespassed intentionally.
One of the goals of Wyoming’s new trespassing law was to make it easier to prosecute people who trespass. To that end, a key part says that people in the process of collecting data can now be jailed for trespassing even if they didn’t know they were trespassing.
Senate Minority Leader Chris Rothfuss (D) opposes the law for this provision. Rothfuss, who teaches at the University of Wyoming, is concerned that students doing science projects could now become accidental criminals if they wandered onto private property.
The law also suppresses any data collected while trespassing. It doesn’t matter if the data itself was collected on private property or on public property. If at some point you crossed private property without permission, any data you collected can’t be used in court to nail polluters, and can’t be used by public agencies.
For instance, perhaps you discover toxic amounts of fecal bacteria while accidentally walking through a private backyard on your way to a public water monitoring site. In that case, you wouldn’t be able to submit your water measurements to regulators. In addition, you could face to six months in jail and a $5,000 fine.
Also, the law may have unintended consequences
This is how the new data trespassing law is supposed to operate. But in the course of being debated, the law was further expanded.
Earlier drafts punished people who trespassed onto “private open land” to collect data. But the version that was signed by the governor — the version that’s on the books — punishes anyone who trespasses onto any open land, private or otherwise.
Hicks, the law’s original author, said the intent of this tweak was to ban data collection on land owned by the state of Wyoming and not just on privately-owned land. It wasn’t supposed to apply to land owned by the federal government, he said, though the language doesn’t reflect that distinction.
“It’s a little bit more confusing now,” Hicks admits. “But I was out-argued by many legal minds.”
Pidot, the environmental lawyer, takes the more ominous reading of the law. Here’s his hypothetical: Yellowstone is a national park. Taking photographs is a form of data collection. If you tried to share your vacation photo from Yellowstone with any government agency, you would be running afoul of the Wyoming data trespassing law because you never got permission from the feds to collect that data.
The governor’s office says Pidot is being willfully misleading. “To suggest that photographs cannot be taken in Yellowstone because of this law is wrong and is, in fact, inflammatory rhetoric,” Mead spokesperson Seth Waggener said in a statement.
Hicks said Pidot was taking parts of the law out of context. “He’s got a dog in this fight and he’s trying to sway public opinion in his favor,” he said, referring to Pidot’s involvement in the Western Watersheds trespassing lawsuit. (The group opposes ranching on public lands in general, not just because it can pollute streams.)
“Let’s take this to the logical conclusion,” Hicks continued. “The number two industry in the state is tourism. Why would we want to criminalize something we spend millions of dollars promoting?”
Pidot says he realizes that it might sound like a stretch to suggest that anyone would actually be arrested for taking vacation photos in Wyoming. But he wanted to point out how broadly and, in his opinion, poorly written the law is. This creates a dangerous situation, he says.
“As we know, when you have laws that are broad in scope and ambiguous in application, law enforcement can use that law almost as a pretext to go after someone they want to go after,” he said.
Overlooking its questionable craftsmanship, Wyoming’s data-trespassing law sends a clear message about where this deep-red state stands on the conflict between property rights and the government’s authority to regulate for the greater good.
Proponents of the law say that property owners need protection from trespassing snoops hunting for information — about pollution, perhaps — that could be used to harass them and harm their businesses. And, in a broader sense, people need all the relief they can get from burdensome government rules in the first place.
Pidot agrees that property owners deserve a measure of privacy. But why does that mean people should go to jail for peacefully measuring fecal bacteria in a stream? Why should information about environmental problems — problems that affect us all — be suppressed?
“Government shouldn’t be in the business of concealing wrongdoing,” he said. “When you have a state government creating a law criminalizing people revealing truthful information about illegal conduct, then something’s gone horribly astray in our democracy.”