W. Watersheds Project v. Michael

Decision Date07 September 2017
Docket NumberNo. 16-8083,16-8083
Citation869 F.3d 1189
Parties WESTERN WATERSHEDS PROJECT ; National Press Photographers Association ; Natural Resource Defense Council, Plaintiffs-Appellants, and People for the Ethical Treatment of Animals Inc; Center for Food Safety, Plaintiffs, 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 Center for Agriculture and Food Systems; First Amendment Legal Scholars, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

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, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand.


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 liability for proximate damages and "litigation costs," including attorneys' fees. § 40-27-101(c) (2015).

Plaintiffs, who are advocacy organizations, filed suit to challenge the 2015 statutes. They argued that the statutes violated the Free Speech and Petition Clauses of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and were preempted by federal law. Defendants moved to dismiss. Granting the motion in part and denying it in part, the district court held that plaintiffs had stated plausible free speech, petition, and equal protection claims, but failed to state a preemption claim.

After the district court's decision, Wyoming amended the two statutes. Wyo. Stat. §§ 6-3-414 (2016) ; 40-27-101 (2016).2 The revised statutes continue to impose heightened criminal punishment, § 6-3-414, and civil liability, § 40-27-101. But the amendments eliminate reference to "open lands" and instead penalize any individual who without authorization: (1) enters private land "for the purpose of collecting resource data"; (2) enters private land and "collects resource data"; or (3) "crosses private land to access adjacent or proximate land where he collects resource data." §§ 6-3-414(a) - (c) ; 40-27-101(a)-(c). Under the current version of the statutes, there is no requirement that resource data be submitted to, or intended to be submitted, to a government agency. Instead, the term "collect" now means: (1) "to take a sample of material" or "acquire, gather, photograph or otherwise preserve information in any form"; and (2) "recording ... a legal description or geographical coordinates of the location of the collection." §§ 6-3-414(e)(i) ; 40-27-101(h)(i).

Plaintiffs amended their complaint to challenge the 2016 statutes, re-alleging free speech and equal protection claims. Defendants again moved to dismiss. This time, the district court granted the motion in full. It concluded that the revised version of the statutes did not implicate protected speech. Plaintiffs timely appealed.3


We review de novo the district court's grant of a motion to dismiss under Fed. R. of Civ. P. 12(b)(6). Leverington v. City of Colo. Springs , 643 F.3d 719, 723 (10th Cir. 2011). In doing so, we "assume the truth of all well-pleaded facts in the complaint, and draw all reasonable inferences therefrom in the light most favorable to the plaintiffs." Id. (quotation omitted).

On appeal, plaintiffs challenge only the district court's ruling regarding subsections (c) of the statutes under the Free Speech Clause of the First Amendment. Those provisions state:

(c) A person [is guilty of trespassing/commits a civil trespass] to access adjacent or proximate land if he:
(i) Crosses private land to access adjacent or proximate land where he collects resource data; and
(ii) Does not have:
(A) An ownership interest in the real property or, statutory, contractual or other legal authorization to cross the private land; or
(B) Written or verbal permission of the owner, lessee or agent of the owner to cross the private land.

§§ 6-3-414(c) ; 40-27-101(c).


In granting defendants' motion to dismiss, the district court concluded that the statutes do not regulate protected First Amendment activity. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. , 473 U.S. 788, 797, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (if the regulated activity is not speech protected by the First Amendment, a court "need go no further"). It relied on Supreme Court precedent holding that individuals generally do not have a First Amendment right to engage in speech on the private property of others. See Hudgens v. NLRB , 424 U.S. 507, 520–21, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (holding picketers "did not have a First Amendment right to enter [a privately owned] shopping center for the purpose of advertising their strike"); Lloyd Corp., Ltd. v. Tanner , 407 U.S. 551, 568, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972) (noting the "Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech...

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