Western Watersheds Project et al v. Attorney General et al

Filing 64

ORDER GRANTING MOTION TO DISMISS by the Honorable Scott W Skavdahl as to 58 Motion to Dismiss. (Court Staff, stbd)

II ' *" * ninTpjCT \/ ri St i ^
COURT
f^ r** •*J

INTHE UNITED STATES DISTRICT COURT OlSTKiC i ui v, . . ^
2015 JUL-6 PH 1-39
FOR THE DISTRICT OF WYOMING

sTrp-i-vv i;«^RiS. CLERK
' ' CASPER

WESTERN WATERSHEDS PROJECT;
NATIONAL PRESS PHOTOGRAPHERS

ASSOCIATION; NATURAL
RESOURCES DEFENSE COUNCIL,
INC., PEOPLE FOR THE ETHICAL
TREATMENT OF ANIMALS, INC.; and
CENTER FOR FOOD SAFETY,
Plaintiffs,
Case No. 15-CV-00169-SWS

vs.

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 J.
LEBRUN, 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.

ORDER GRANTING MOTION TO DISMISS

The above-captioned matter comes before the Court on Defendants' Motion to

Dismiss Plaintiffs' Amended Complaint for failure to state a claim upon which relief may
be granted. (ECF No. 58). For those reasons set forth below the Court finds Defendants'

Motion should be granted.

L

Background

Plaintiffs Western Watersheds Project (Western Watersheds), National Press

Photographers Association (NPPA), National Resource Defense Council (NRDC), People
for the Ethical Treatment of Animals (PETA), and, Center for Food Safety (CPS), are
interest groups aimed at protecting and advocating for animals, wildlife, and the
environment. Plaintiffs initiated this action last fall, challenging the constitutionality of a

pair of trespass statutes passed by the Wyoming legislature prohibiting the collection of
"resource data" on "open lands" without express permission or authorization. Defendants

Michael, Parfitt, and Governor Matt Mead moved to dismiss Plaintiffs' complaint,
arguing, inter alia, it failed to state any plausible claims. After briefing and oral
arguments, this Court granted in part and denied in part the motion to dismiss, noting its
concern as to the validity of at least certain portions of the statutes. (Ord. on MTD, ECF
No. 40). Subsequently, the Wyoming legislature amended the statutes. Plaintiffs then
amended their complaint, which Defendants Michael and Parfitt now move to dismiss.
A. 2015 Statutes

In 2015, the Wyoming legislature enacted a pair of statutes, Wyo. Stat. §§ 6-3-

414; 40-27-10' (2015), addressing "Trespass to Collect Resource Data." The statutes
prohibited unauthorized entrants on "open land" fi*om collecting or recording

information relating to land and land use^ and then submitting that information to a

' Thecivil statute was originally codified at §40-26-101. It was recodified at § 40-27-101.
^"Open land" was defined as land outside the exterior boundaries ofa city, town, orstate-approved subdivision.
WYO. Stat. § 6-3-414(d)(ii) (2015).

^"Resource data" was defined as"data relating toland orland use, including but not limited todata regarding
agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat,
2

governmental agency. One statute imposed criminal penalties including fines and

possible jail time, Wyo. Stat. § 6-3-414 (2015), while the other imposed civil liability
for consequential and economic damages caused by the trespass, WYO. STAT. §40-27-101
(2015). One subsection of the statutes appeared to relate to public lands, WYO. STAT. §§

6-3-414(a); 40-27-101 (a)"^, while another subsection related toprivate lands, WYO. STAT.
§§ 6-3-414(b); 40-27-101 (b).^ "Collect" was defined as "to take a sample of material,
acquire, gather, photograph or otherwise preserve information in any form from open
land which is submitted or intended to be submitted to any agency of the state or federal
government." WYO. STAT. § 6-3-414(d)(i) (2015).

Thus, to violate the 2015 statutes, an individual would have had to: (1) enter "open

land" (private or public) to collect resource data without an ownership interest,
authorization, or permission to enter or to collect such data; (2) somehow record or

vegetation or animal species," excepting from the definition various information collected by governments or law
enforcement. WYO. STAT. § 6-3-414(d)(iv) (2015).

^Aperson would besubjected tocriminal and/or civil liability under this subsection "ifhe:
(i) Enter[ed] onto open land for the purpose of collecting resource data; and
(ii) D[id] not have:
(A) An ownership interest in the real property or statutory, contractual or other
legal authorization to enter or access the land to collect resource data; or
(B) Written or verbal permission of the owner, lessee or agent of the owner to
enter or access the land to collect the specified resource data."
Wyo. Stat. §§ 6-3-414(a); 40-27-101(a) (2015).

^Aperson would becriminally and/or civilly liable under this section "if heenter[ed] onto private open land and
collects resource data without:

(i) An ownership interest in the real property or, statutory, contractual or other legal authorization
to enter the private land to collect the specified resource data; or
(ii) Written or verbal permission of the owner, lessee or agent of the owner to enter the land to
collect the specified resource data."
WYO. STAT. §§ 6-3-414(b); 40-27-101(b) (2015).

preserve data about the land or land use, and; (3) intend to submit, or actually submit,
such data to a governmental agency. Any information obtained in violation of the statutes

could not be used in any civil, criminal, or administrative proceedings (unless it was a
civil action or criminal prosecution under the statutes), and such information which had

been submitted to a governmental entity had to be expunged. Wyo. Stat. §§ 6-3-414(e),
(f);40-27-101(d), (e), (f) (2015).

In their original complaint. Plaintiffs argued the 2015 statutes: (1) violated the

Petition Clause of the First Amendment; (2) violated the Free Speech Clause of the First
Amendment; (3) were preempted by federal laws; and (4) violated the Equal Protection
Clause of the Fourteenth Amendment. Defendants Peter K. Michael, Todd Parfitt, and

Matthew Mead moved to dismiss Plaintiffs' claims, arguing Plaintiffs lacked standing to
challenge the civil statute and failed to state a claim as to all causes of action.

Additionally, the State Defendants argued Governor Matthew Mead was an improper
party.

After hearing oral arguments, the Court issued a written order, wherein it held

Plaintiffs: (1) had standing to challenge the civil statute; (2) stated a plausible First
Amendment Free Speech and Petition claim; (3) stated a plausible Equal Protection

claim; (4) failed to state a Supremacy Clause or preemption claim, and; (5) failed to state

a claim against Defendant Governor Matthew Mead. The Court was primarily concerned
about the statutes' application to activities on public lands, as restricting the public's
activities on such lands was unrelated to deterring trespassing. Also concerning was the

fact that the 2015 statutes targeted the submission, or intended submission, of data to
governmental agencies.
B. 2016 Statutes

In 2016, the Wyoming legislature amended the two previously challenged statutes.

As with the 2015 versions, the revised statutes are nearly identical, with one still
imposing criminal punishment, Wyo. Stat. § 6-3-414 (2016), and the other, civil
liability, WYO. STAT. § 40-27-101 (2016). The revised statutes still define "resource

data" as "data relating to land or land use, including but not limited to data regarding
agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil,
conservation, habitat, vegetation or animal species," with certain exceptions for certain
governmental and law enforcement matters. WYO. Stat. §§ 6-3-414 (e)(iv); 40-27-

101(h)(iii) (2016).^ The new statutes clarify they apply only to entry onto private lands
(eliminating any reference to "open lands"), and no longer require data be submitted or
intended to be submitted to a governmental agency. The definition of "collect" has been

modified to mean "to take a sample of material, acquire, gather, photograph or otherwise
preserve information in any form and the recording of a legal description or geographical
coordinates of the location of the collection," WYO. STAT. §§ 6-3-414(e)(i); 40-27101(h)(i)(2016).

The revised statutes contain three proscriptive subsections:

® revised civil statute added a definition subsection, WYO. STAT. § 40-27-101(h) (2016). The 2015 version did
The
not contain a definition subsection. This amendment is not consequential, however, as the Court held in its previous
order that the definitions from the criminal statute, WYO. STAT. § 6-3-414(d) (2015), applied equally to the civil
statute. (Ord. on Mot. to Dis., ECF No. 40, at p. 3, n. 2).

(a) A person [is guilty of trespassing/commits a civil trespass] to unlawfully
collect resource data from private land if he:

(i) Enters onto private land for the purpose of collecting
resource data; and

(ii) Does not have:
(A) An ownership interest in the real property
or statutory, contractual or other legal
authorization to enter the private land to collect
the specified resource data; or

(B) Written or verbal permission of the owner,
lessee or agent of the owner to enter the private
land to collect the specified resource data.
(b) A person [is guilty/commits a civil trespass] of unlawfully collecting
resource data if he enters onto private land and collects resource data from
private land without:
(i) An ownership interest in the real property or, statutory,
contractual or other legal authorization to enter the private
land to collect the specified resource data; or

(ii) Written or verbal permission of the owner, lessee or agent
of the owner to enter the private land to collect the specified
resource data.

(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.

WYO. STAT. §§ 6-3-414(a)-(c); 40-27-10l(a)-(c) (2016).
Thus, a person can violate the revised statutes in one of three ways: (1) if he enters

private land with the purpose of collecting resource data and without authorization or

permission to enter the land or specific permission to collect resource data; (2) if he
enters private land and actually collects resource data without authorization or permission

to enter the land or specific permission to collect resource data, or; (3) if he crosses

private land without authorization orpermission to do so and collects resource data.^
As with the 2015 versions of the statutes, an individual must have permission not
only to enter private lands, but enter them for the purpose of collecting specific resource
data. A first-time offender under the revised criminal statute faces imprisonment for not

more than one (1) year, a fine of not more than $1,000, or both. Wyo. Stat. § 6-3414(d)(i) (2016). A repeat offender of subsections (a) or (b) of the criminal statute faces

imprisonment for not less than ten (10) days, but not more than one (1) year, a fine of not
more than $5,000, or both. Under the civil statute, one who violates the statute is liable

in a civil action by the owner or lessee of the land for all consequential and economic
damages proximately caused by the trespass. WYO. Stat. § 40-27-101(d) (2016). The
violator will also be liable for litigation costs, reasonable attorney fees and costs. Id.
The revised statutes prohibit the use of resource data collected in violation of the

' TheCourt refers to "authorization or permission," noting, however, therelevant statutory provisions read:
"An ownership interest in the real property or statutory, contractual or other legal authorization to enter the
private land to collect the specified resource data; or
Written or verbal permission of the owner, lessee or agent of the owner to enter the private land to collect
the specified resource data."
WYO. STAT. §§ 6-3-414{a)(ii)(A)-(B), (b)(i)-(ii), (c)(ii)(A)-(B); 40-27-101((a)(ii)(A)-(B), (b)(i)-(ii), (c)(ii)(A)-(B).

® provision excludes a heightened punishment forrepeat offenders under subsection (c) of the statute, wherein a
This
person is guilty of crossing private property without authorization to collect resource data on adjacent lands.

statutes in any civil, criminal, or administrative proceeding, other than to prosecute a
person under either statute. Wyo. Stat. §§ 6-3-414(f); 40-27-101(f) (2016). Also, any
data in possession of any Wyoming governmental entity which was collected in violation
of the statutes must be expunged by the entity. Wyo. Stat. §§ 6-3-414(g); 40-27-101 (g)
(2016).
C. Amended Complaint
On April 11,2016, Plaintiffs amended their complaint, arguing even as revised,

the statutes are unconstitutional as applied to them, as well as on their face. (Amend.
Compl. ECF No. 54). Plaintiffs' amended complaint presents two constitutional causes of
action: Free Speech and Equal Protection.
/.

Free Speech

Plaintiffs assert the revised statutes infringe upon their First Amendment rights
and are "unconstitutional on their face and as applied to Plaintiffs' collection of resource

data" as well "as applied to a host of other activities." {Id. at ^ 90).
Plaintiffs provide numerous examples of desired data-collection activities that
they, their members, and other "whistleblowers" and "citizen scientists," have refrained

from engaging in out of fear of criminal prosecution or civil liability under the revised
statutes. Plaintiffs assert "it is difficult to determine whether a road that appears open to

the public, and which the pubic routinely makes use of, crosses private land, and if it does
so, whether a public right of way exists over that road." {Id. at ^ 81). Plaintiffs and their
members argue they are chilled from engaging in their data collection activities, even on
public lands, out of fear of unintentionally stepping onto private lands, or using a road
8

which "unbeknownst to Plaintiffs or their staff, crosses private land across which there
exists no public right of way." {Id. at H82). Western Watersheds asserts "the fact that the
boundary between public and private lands is often entirely unmarked in Wyoming has
compelled [it] to suspend such activities." {Id. at f 82(b)). Plaintiffs also assert they are

chilled because it is uncertain who must grant them permission when land has multiple
owners with different ownership interests. {Id. at ^ 82(d)).
Plaintiffs argue the statutes are content and viewpoint based and discriminate
against speech (or the creation of speech) which is critical of land use with no legitimate
state interest or justification for doing so. They assert the laws are content-based because

they only seek to punish the collection of certain types of information, i.e., resource data.
Plaintiffs also argue the statutes are viewpoint-based, as they "effectively grant the
landowner, lessee, or landowner's agent the power to authorize or prohibit who can
gather information about land and land use for conmiunication to the public or

government." {Id. at ^ 88).
Plaintiffs also argue the statutes are unconstitutionally overbroad, lacking "any

plainly legitimate sweep." {Id. at ^ 90 (quoting United States v. Stevens, 559 U.S. 460,
472 (2010))). Plaintiffs provide three examples to support their overbreadth argument: a
child taking a picture with her cellphone on her neighbor's property, which she has
permission to be upon; a traveler, who enters private land in response to a cry for help,

discovers a fire, and records the location using GPS on her phone, and; the hiker who
records and reports illegal activities occurring on private property. {Id. at 191). They

claim any person who takes a picture with his cell phone after entering or crossing private
9

land, knowingly or inadvertently, without express permission to do so, would be liable
and subject to criminal charges.

Finally, Plaintiffs assert the statute prohibit governmental agencies from using and
considering truthful information. {Id. at

95-96). They claim because the statutes still

contain an expungement provision, even if a person is willing to risk criminal prosecution
or civil liability and violate the statutes in order to provide data to governmental agencies,
the agency is still precluded from considering it.
a.

Equal Protection

Plaintiffs assert the revised statutes violate their Equal Protection rights by
distinguishing between the purposes and intent of entrants on private property, punishing
only those seeking to collect resource data. {Id. at f 114). They also argue the statutes
violate their Equal protection rights by burdening the fundamental right of freedom of
speech without serving any legitimate government interest. {Id. at

115-16). Finally,

Plaintiffs maintain the statutes violate their Equal Protection rights because they were
promulgated out of animus. They argue the statutes are aimed at chilling the efforts of

those persons who disapprove of various land-uses and gather and communicate
information to governmental agencies to further the implementation of environmental
laws. {Id. atH 118).
D. Motion to Dismiss

Defendants Peter Michael and Todd Parfitt (State Defendants) now move to
dismiss the Amended Complaint, asserting Plaintiffs fail to state either a First

Amendment Free Speech or Fourteenth Amendment Equal Protection claim. (Mot. to.
10

Dismiss, ECF No. 58). State Defendants assert the revised statutes do not regulate

protected expressive activity and therefore do not trigger the First Amendment.
Alternatively, State Defendants argue even if the Court were to find the statutes regulated
protected activity, the statutes only implicate private lands, upon which Plaintiffs have no
right to exercise expressive activities. State Defendants assert to the extent the Court

finds the statutes do implicate lands other than private lands, an evaluation of the
constitutionality of the statutes as applied to such lands is impossible to consider in the
abstract.

State Defendants assert Plaintiffs fail to state an Equal Protections claim, as the
revised statutes do not target a suspect class or burden a fundamental right, and can
survive rational basis scrutiny. Additionally, they argue the statutes were not promulgated
out of animus, or alternatively, that any animus related to the 2015 statutes has been
cured.
I.

Standard of Review

Faced with a motion to dismiss a claim under F.R.C.P. 12(b)(6), the Court accepts
as true all well-pleaded facts in the complaint, and draws all reasonable inferences

therefrom in the light most favorable to the plaintiffs. Leverington v. City ofColorado
Springs, 643 F.3d 719, 723 (10th Cir. 2011) (citation omitted). The Court disregards any
conclusory statements or conclusions of law. Kansas Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011). The "complaint must contain sufficient factual matter,

accepted as true, 'to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting BellAtl Corp. v. Twombly, 550 U.S. 544, 570
11

(2007)). "The nature and specificity of the allegations required to state a plausible claim
will vary based on context." Kansas Penn, 656 F.3d at 1215.
IL

Discussion
A. First Amendment

The threshold question in a First Amendment Free Speech analysis is to ask

whether the challenged governmental action regulates protected activity: if not, the Court
"need go no further." Cornelius v, NAACPLegal Defense and Educational Fund, Inc.,
473 U.S. 788, 797 (1985). Here, Plaintiffs assert that because the revised statutes restrict

their ability to "create" speech, i.e., gather data, the statutes regulate protected activity
and are subject to at least some level of scrutiny. The Supreme Court has recognized
"creation and dissemination of speech" may be "speech" within the meaning of the First
Amendment. Sorrell v. IMS Health Inc., 131 S.Ct. 2653,2667 (2011). Even so, it has

refused recognize all "creation" of speech as protected expressive activity for purposes of
the First Amendment. See, Houchins v. KQED, Inc., 438 U.S. 1,11 (1978) (holding
plaintiffs did not have First Amendment right to unrestricted access to prisoners, noting
the right to gather news does not compel private persons or governments to supply such
information); Zemel v. Rusk, 381 U.S. 1, 16-17 (1965) (holding a First Amendment right
was not involved based upon a travel ban which restricted the plaintiffs ability to visit

Cuba and collect information, noting "[t]here are few restrictions on action which could
not be clothed by ingenious argument in the garb of decreased data flow."). The court
does not view "creation" of speech in a vacuum; the right to "create" speech via access to

12

information is protected activity only if conducted "by means within the law." Branzburg

V. Hayes, 408 U.S. 665, 681-82 (1972).'
In this case, Plaintiffs challenge the statutes based upon their restriction of creation
of speech by illegal means. Plaintiffs' First Amendment right to create speech does not
carry with it an exemption from other principles of law, or the legal rights of others.

Plaintiffs' desire to access certain information, no matter how important or sacrosanct
they believe the information to be, does not compel a private landowner to yield his
property rights and right to privacy.
Plaintiffs' asserted inability to determine their location and land ownership during

data collection creates somewhat of a conundrum. The Amended Complaint presents an
exhaustive list of data collection activities they have engaged in in the past, and have

recently refrained from engaging in. (Amend. Compl. ECF No. 54, at KH 19-53,79-83).
These activities involve collecting water samples, recording locations of purported
environmental or permitting violations, photographing and recording the location of

wildlife, monitoring air-quality near oil and gas developments and recording locations of
violations, etc. Each of these activities involves Plaintiffs and their members determining
and recording the locations (by GPS or other means) of purported environmental
violations or data findings. The ability to pinpoint and record the location of alleged

environmental violations is essential to Plaintiffs' mission and goals. Coincidentally, the

^Plaintiffs gain nosupport from Sorrell, as that case didnot involve obtaining theinformation through illegal
means. 131 S.Ct. 2653. The provider of information was aware, and willing. In this case, private landowners may
grant permission, but until such permission or authorization is obtained, they are not a willing provider of the
information Plaintiffs' seek.

13

same information would be essential to a successful prosecution or civil action brought
under these statutes.

To say Plaintiffs are incapable of utilizing the same GPS tools, methods, and
research to determine their own location during, and en route to, such data collection

activities is borderline disingenuous. Plaintiffs acknowledge they have had to conduct

surveys in the past to determine boundaries or rights-of-way. (Amend. Compl. ECF No.
54, at ^ 13). To the extent the government does not have, or is uncertain of, public right-

of-ways on particular routes orroads, it has the ability to clarify and obtain such rights.^®
In any event, any perceived burden or hardship associated with determining property
rights does not translate into a First Amendment right to go upon lands, blissfully
ignorant of their ownership.
The lack of public First Amendment rights upon private property is not new or
novel. The Supreme Court has repeatedly cognized the absence of a First Amendment

right to engage in speech on the private property of another. See e.g., Lloyd Corp., LTD.
V. Tanner, 407 U.S. 551, 567-68 (holding First Amendment did not require a private

corporation to allow handbill distribution on its private property); Hudgens v. NLRB, 424
U.S. 507, 509 (1976) (holding employer was not required to permit workers to picket on
company property); Cornelius, 473 U.S. at 801 ("[A] speaker must seek access to public
property or to private property dedicated to public use to evoke First Amendment

This logic applies equally to Plaintiffs' argument that they are uncertain whose authorization or permission they
are required to obtain to collect resource data on private lands. It is not uncommon for multiple individuals to have
property interests in a parcel of land. A real property interest holder cannot convey a greater interest than he owns.
To the extent Plaintiffs or others seek to engage in an activity upon a parcel of land, they must determine who holds
what rights in order to have adequate authorization.
14

concerns

"). Contrary to Plaintiffs' assertion, the fact the state promulgated the

restriction in this instance, as opposed to the private landowners in Lloyd or Hudgens, is
of no consequence. The source of the restriction does not change the fact a person has no
First Amendment right to engage in speech on the private property of another. The
statutes leave it to the private landowner whether to grant permission to others to collect

resource data upon his land.^^ To the extent such permission orauthorization is granted,
the state imposes no restriction.

In short, there is no First Amendment right to trespass upon private property for
the purpose of collecting resource data. This does not end the Court's analysis, however.
As noted above, the revised statutes contain three proscriptive subsections, two of which
apply strictly to collection of resource data on private lands. See Wyo. Stat. §§6-3414(a), (b); 40-27-101 (a), (b). These subsections, therefore, do not warrant any further
First Amendment analysis. The third subsection, however, arguably involves collection

of resource data from public lands, or lands upon which an individual may rightfully
engage in resource data collection. Wyo. Stat. §§ 6-3-414(c); 40-27-101(c). Even so, to

subject this subsection of the statutes to First Amendment scrutiny is premature.
To say a regulation restricts activity presupposes that one has the right to engage
in such activity in a particular manner. Certainly Plaintiffs and other members of the

" Plaintiffs cite WatchtowerBible & Tract Soc'yofN.Y., Inc. v. Village ofStratton, 536 U.S. 150, 160 (2002) to
support their position that the Supreme Court has applied First Amendment analysis to regulations of the public's
right to engage in speech on private property. That case is distinguishable, however, as it dealt with door-to-door
canvassing and pamphletting of religious materials. The Supreme Court has found hand distribution of religious
literature to occupy "the same high estate under the First Amendment as [ ] worship in the churches and preaching
from the pulpits." Murdoch v. Pennsylvania, 319 U.S. 105,108-09 (1943). No such elevated protection has been
afforded collection of "resource data."

15

public are entitled to be upon public lands for various purposes, some arguably including

"collecting resource data." However, the public does not have the right to cross private
lands (trespass) to engage in such activities. The Supreme Court "has never held that a
trespasser or uninvited guest may exercise general rights of free speech on property
privately owned and used nondiscriminatorily for private purposes only." Lloyd, 407 U.S.

at 568. Likewise, it has never held a trespasser has the right to cross private property to
engage in such activities. The revised statutes do nothing to the legal rights of members

of the public; they only emphasize and increase punishment for the unlawful entry of
private lands en route to engage in protected activity. This "restriction" is already in place

by virtue of principles of real property ownership and existing concepts of trespass. The
statutes are not "time, place, or manner" restrictions as that term is contemplated by First
Amendment precedent. Therefore, the Court need not engage in further scrutiny of
subsection (c), as it does not "restrict" or "regulate" a protected First Amendment activity
as contemplated by the line of Free Speech precedent addressing "time, place, and
manner" restrictions.

Plaintiffs' Amended Complaint also asserts a facial overbreadth First Amendment

challenge. To assert a facial overbreadth claim, a plaintiff must demonstrate that the
challenged law (1) "could never be applied in a valid manner," or (2) that even though it
may be validly applied to some, "it nevertheless is so broad that it may inhibit the

constitutionally protected speech of third parties." N.Y. State Club Ass n, Inc. v. City of
New York, 487 U.S. 1,11 (1988) (citations omitted). Plaintiffs' overbreadth challenge
appears to fall under the latter category, providing the three above-mentioned examples
16

of third parties who would be liable under the statutes, notwithstanding the apparent
innocence or justification of their activities.
"The 'mere fact that one can conceive of some impermissible applications of a
statute is not sufficient to render it susceptible to an overbreadth challenge.'" United
States V. Williams, 553 U.S. 285, 301 (2008) (quoting Members ofCity Council ofLos
Angeles v. Taxpayersfor Vincent, 466 U.S. 789, 800 (1984)). The court must find "a
realistic danger that the statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court." N. Y. State Club Ass 'n, Inc., 487
U.S. at 11 (citation omitted). The claimant bears the burden of demonstrating the law's

application to protected speech is substantially overbroad, not only in an absolute sense,

but also relative to the scope of the law's plainly legitimate applications. Virginia v.
Hicks, 539 U.S. 113,119-120 (2003) (citations omitted). The overbreadth doctrine is

"strong medicine," used "sparingly" and applied only as "a last resort." Broadrick v.
Oklahoma, 413 U.S. 601, 613 (1973). Such medicine is not warranted in this case.

When a statute is aimed at regulating conduct—as opposed to "pure speech"—^the

court's overbreadth inquiry must account for the state's legitimate interest in enforcing its
"otherwise valid criminal law." /(c/. at 615. A statute regulating conduct, "if too broadly
worded, may deter protected speech to some unknown extent." Id. Even so, "there comes

a point where that effect—^at best a prediction—cannot, with confidence, justify
invalidating a statute on its face and so prohibiting a State from enforcing the statute
against conduct that is admittedly within its power to proscribe." Id. "Rarely, if ever, will
an overbreadth challenge succeed against a law or regulation that is not specifically
17

addressed to speech or to conduct necessarily associated with speech (such as picketing
or demonstrating)." Virginia v. Hicks, 539 U.S. 113, 124 (2003).

Here, the revised statutes are aimed at regulating the conduct of trespass by

imposing the burden upon an entrant to know the ownership interests of the land he
enters or crosses. Plaintiffs' three examples are predictions at best, which do not justify
invalidating the statutes on their face. As to Plaintiffs' first example, logically a neighbor
who permits a child to enter his property would also permit the child to take a picture. To
the extent the neighbor does not wish to grant the child permission to take pictures, that is
his prerogative. A basic concept of property law taught to first year law students is that
property rights are like a bundle of sticks and can be divided in terms of dimension,

duration, and scope. If a landowner wishes to grant access or use of his property for a
limited purpose, he has every right to do so. As noted by the Supreme Court in
PruneYard Shopping Center v. Robins, one of the essential sticks in the bundle of
property rights is the right to exclude others. 447 U.S. 74, 82 (1980) (citing Kaiser Aetna
V. United States,

164, 179-80(1979)).

As to Plaintiffs' second and third examples, nothing indicates a reasonable person
would refrain firom reporting an emergency or illegal activity by virtue of the new
statutes. In fact, as noted by State Defendants in their Reply Brief (ECF No. 63, at n. 4),
either of the individuals in Plaintiffs' second and third examples could report their
findings without violating the revised statutes. The defmition of "collect" is "to take a
sample of material, acquire, gather, photograph or otherwise preserve information in any

form and the recording of a legal description or geographical coordinates of the location
18

of the collection." WYO. Stat. §§ 6-3-414(e)(i); 40-27-101(h)(i) (2016). Simply calling
emergency personnel, or verbally reporting findings to law enforcement, even providing
geographical coordinates, would not violate the revised statutes.

When interpreting statutory language, the court relies upon the principle of
noscitur a sociis—a word is known by the company it keeps—^to avoid ascribing to one

word a meaning so broad that it is inconsistent with its accompanying words. Yates v.
United States, 135 S.Ct. 1074, 1085 (2015). Under the canon ejusdem generis, "[w]here
general words follow specific words in a statutory enumeration, the general words are

[usually] construed to embrace only objects similar in nature to those objects enumerated

by the preceding specific words." Washington State Dept. ofSocial and Health Servs. v.
Guardianship Estate ofKeffeler, 537 U.S. 371,384 (2003) (citations omitted).
In this instance, the general phrase "otherwise preserve information" must be read
in connection with the specific preceding words. The specific verbs used in the definition

of "collect" require some form of physical or tangible recording. Making a mental note is
not similar enough to be encompassed by "otherwise preserve." Therefore, merely
reporting what one witnessed is not prohibited by the revised statutes. This interpretation
of the statutes likewise weakens any argument that the statutes completely preclude
whistleblowers from reporting what they witness or find based upon memory.

10

Plaintiffs assert the creation of an audiovisual recording is protected speech, citing Animal Legal Defense Fund v.
Otter, 118 F. Supp. 3d 1195,1205 (D. Idaho 2015) (ALDFIT) (finding the restriction of audiovisual recording in
agricultural facilities to be an impermissible restriction on speech of whistleblowers). The Court respectfully
disagrees. There is no precedent to support the premise that whistleblowers somehow have an elevated First
Amendment right to make audiovisual recordings on private property without permission. No matter how virtuous
or important one may view a whistleblower's motives or actions, the ends do not justify the means of trespass.
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In sum, Plaintiffs fall far short of demonstrating a realistic danger of a substantial
suppression of speech. Even more importantly, the fact the statutes are aimed at conduct,

ratherthan speechitself, the Courtcannot, with confidence, justify invalidating the
statute on their face, prohibiting the State of Wyoming from enforcingthe statute against
conduct (i.e., trespassing) which it is entitled to proscribe. Broadrick, 413 U.S. at 615.
Plaintiffs' assert the revised statutes expungement provisions (Wyo. Stat. §§ 6-3414(g); 40-27-101(g)), violate the First Amendment because they prevent agencies from
considering truthftil and accurate information. The Supreme Court has repeatedly refused
to define what protections should be afforded the publication of truthful information.

Bartnicki v. Vopper, 532 U.S. 514, 529 (2001). The Supreme Court's practice has been to

only analyze restrictions of the publication of truthful information on a case-by-case "asapplied" basis. See, e.g., id.'. Landmark Comm., Inc. v. Virginia, 435 U.S. 829, 838
(1978); Florida Star v. B.J.F., 491 U.S. 524, 532-33 (1989). Because this Court is not
faced with an "as-applied" challenge to the expungement provisions of the revised
statutes, it will follow the Supreme Court's lead and declines to engage in further First
Amendment analysis.

In conclusion, the revised statutes do not regulate protected First Amendment
activity and therefore are not subject to further scrutiny. There is no constitutionally

protected First Amendment right to enter upon the private lands of another for the
purposes of collecting data. Plaintiffs fail to demonstrate the statutes are facially

overbroad. The Court, following Supreme Court precedent, declines to conduct a facial
analysis of the statutes' expungement provisions. Therefore, Plaintiffs cannot maintain a
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Free Speech First Amendment challenge and State Defendants' motion to dismiss must
be granted.
B. Equal Protection

Plaintiffs assert the revised statutes violate the Equal Protection Clause by: (1)
targeting persons entering open land seeking to collect resource data rather than entering
land for other purposes; (2) burdening a fundamental right without serving a legitimate
government interest, and; (3) also because they were promulgated out of animus.
The Equal Protection Clause of the Fourteenth Amendment states "No State shall.
.. deny any person within its jurisdiction the equal protection of the laws." U.S. CONST.,
amend. 14, sec. 1. "The Fourteenth Amendment's promise that no person shall be denied
the equal protection of the laws must coexist with the practical necessity that most
legislation classifies for one purpose or another, with resulting disadvantage to various
groups or persons." Romer v. Evans, 517 U.S. 620, 631 (1996) (citations omitted). Unless
a classification burdens a fundamental right or "proceed[s] along suspect lines," it is

presumptively valid, subject only to rational basis scrutiny. Heller v. Doe by Doe, 509
U.S. 312, 319 (1993). A classification is not impermissible simply because it "is not
made with mathematical nicety or because in practice it results in some inequality."
Romer, 517 U.S. at 631 (citations omitted). Under the rational basis test, a legislative

classification will be upheld if it "advance[s] a legitimate government interest, even if the

law seems unwise or works to the disadvantage of a particular group, or if the rationale
for it seems tenuous." Id. at 632. The law must be "narrow enough in scope and grounded

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in a sufficient factual context" for the court "to ascertain some relation between the

classification and the purpose served." Id. at 632-33.

If the law burdens a fundamental right or targets a suspect class, however, it is
subject to strict scrutiny. Massachusetts Bd. ofRetirement v. Murgia, 427 U.S. 307, 313
n. 3 (1976). Strict scrutiny requires laws to be suitably tailored to serve a compelling state
interest. Reno v. Flores, 507 U.S. 292, 302 (1993). Free speech is a recognized

fundamental right, which, in part. Plaintiffs base their Equal Protection challenge upon.
Mclntyre v. Ohio Elections Comm 'n, 514 U.S. 334,336, n. 1 (1995).

The revised statutes "classify" entrants of private property based upon the actual
or intended conduct the entrant engages in. As noted above, subsections (a) and (b) of the
statutes clearly do not involve a First Amendment right, and therefore do not burden
Plaintiffs' fundamental right of Free Speech. Similarly, subsection (c) (relating to
crossing of private land to collect resource data on adjacent lands) does not "burden"
Plaintiffs' First Amendment rights as that word is intended by the Supreme Court.

Therefore, the revised statutes are not subject to strict scrutiny by virtue of the rights
burdened.

The Court does not find the statutes were promulgated out of animus toward
Plaintiffs' groups or members. First, although some comments during the legislative
session for the 2015 versions of Wyo. Stat. §§ 6-3-414 and 40-27-101 expressed

firistrations or outright dislike for environmental groups, or other particular interest

groups or viewpoints, such comments cannot be said to taint the motivations of all
legislators. "What motivates one legislator to make a speech about a statute is not
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necessarily what motivates scores of others to enact it, and the stakes are sufficient high
for [the court] to eschew guesswork." United States v. O'Brien, 391 U.S. 367, 383-84

(1968). Additionally, these comments were made during the promulgation of the 2015
versions of the statutes. In any event, legislatures may "cure" a law originally enacted
with unconstitutional animus. See e.g., Hayden v. Paterson, 594 F.3d 150, 162-69 (2d

Cir. 2010); Johnson v. Governor ofFla., 405 F.3d 1214,1223 (11th Cir. 2005) (en banc),
cert, denied, 546 U.S. 1015 (2005) ("Florida's felon disenfranchisement provision is
constitutional because it was substantively altered and reenacted in 1968 in the absence
of any evidence of racial bias.").

As noted in this Court's prior order, the Supreme Court has held when a law
purports to protect an interest already protected by existing law, courts have reason to be
suspicious of the legislature's actual intent. U.S. Dept. ofAgriculture v. Moreno, 413 U.S.
528, 536-37 (1973). Upon further review of Wyoming's trespass laws, as well as taking
into consideration the amendments to the statutes (removing its application to public

lands), the Court no longer has "considerable doubt" as to the purposes of the revised

statutes. As clarified by State Defendants in the latest Motion to Dismiss, the revised
statutes are distinguishable from Wyoming's preexisting criminal trespass statute and
common law trespass. Although the statutes may aim to prevent trespassing, they operate
in a different manner than existing law, and seek to provide a more effective deterrent to

protect private property rights. To violate Wyoming's existing criminal trespass statute,
Wyo. Stat. §6-3-303, an entrant must enter or remain on the land of another, with
knowledge that he has no right to do so, or after being notified to leave or not trespass.
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Notice can be given through personal communication or postage of signs. Constituents
raised the issue to legislators that individuals seeking to collect resource data were
trespassing upon their private lands, but could not be charged under the existing criminal
statutes. In other words, the existing criminal trespass statutes were not adequate
deterrents for these trespassers. "If the sanctions that presently attach to a violation [of a
law] do not provide sufficient deterrence, perhaps those sanctions should be made more
severe." Bartnicki v. Vopper, 532 US. 514, 529 (2001). That is what the Wyoming
Legislature has done in this case.

This is not the first time Wyoming has enacted a statute to prevent a particular
problematic sort of trespass. Wyoming's anti-trespass hunting statute provides, "[n]o
person shall enter upon the private property of any person to hunt, fish, or trap without

permission of the owner or person in charge of the property." Wyo. Stat. § 23-3-305(b).
Similar to Plaintiffs and their members,

Hunters may unintentionally stray off public lands onto private lands.
Anglers, due to a lack of skill in reading maps or GPS units, may think they
are on public land but soon find they are not when a rancher confronts them
in a field. Regardless of intent, there are only two elements that must be
shown in a violation of this statute—^that the hunter, angler or trapper was
on the private land in question without permission and that he was hunting,
fishing or trapping.
Bruce Scigliano, Trespass to Hunt, Fish or Trap: An Example ofa Strict Liability Law,
Wyo. Lawyer, June 2016. While Plaintiffs may disagree that their trespassing is

problematic, that is a policy choice the Wyoming Legislature has made.
Although the Court expressed concerns with the 2015 versions of the statutes,
those concerns have been resolved by the recent amendments. First, the revised statutes
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eliminateany reference to "open lands," which the Court found imposed liabilityfor
conduct engaged in while completely on public lands. Secondly, the revised statutes
eliminate any requirement that the data be submitted or intended to be submitted to a

governmental agency. As revised, the statutes are aimed completely at deterring
trespassing. The instant case is distinguishable from Moreno, as the targeted individuals
by the amendment to the statute in that case would not be further deterred. 413 U.S. at

536-37. In that case, there was no evidence the existing provisions in the statute,
purportedly aimed at preventing the same abuses, were inadequate. Here, there is strong
evidence, based upon Plaintiffs' own admissions, that existing trespass laws do not deter
them from entering private lands to collect data or to access other lands to collect data.

Therefore, the Court finds the "doubt" which plagued the amendment in

does not

plague the revised statutes in this case. Finally, unlike in Animal Defense Fund v. Otter,
118 F. Supp. 3d 1195 (D. Idaho, Aug. 3,2015), Wyoming's revised statutes preclude

trespassing to collect any resource data, regardless of whether that data is favorable or
unfavorable to the owner.

The revised statutes were not promulgated out of animus toward a particular
group, and do not burden a fimdamental right. Therefore, the statutes must rationally
further some legitimate governmental interest. Romer, 517 U.S. at 632. As previously

noted, protecting private property rights is a legitimate government interest. Current
trespass statutes were not adequately deterring those, such as Plaintiffs, seeking to collect
resource data, from entering or crossing (trespassing upon) private property. Under the

revised statutes, those wishing to collect resource data are charged with knowing where
25

they are while engaging in data collection. Thus, the statutes rationally relate to the
interest of protecting private property rights. The statutes pass the rational basis test and
therefore do not violate the Equal Protections Clause of the Fourteenth Amendment.
Accordingly, Plaintiffs' second cause of action must also be dismissed,
in.

Conclusion

Plaintiffs' claims are erroneously premised upon their perceived First Amendment
right to trespass upon private property to collect resource data. No such constitutional

right exists. To the contrary, the United States Supreme Court "has never held that a
trespasser or an uninvited guest may exercise general rights of free speech on property
privately owned." Lloyd Corp., Limited, supra at 568. The ends, no matter how critical or

important to a public concern, do not justify the means, violating private property rights.
Accordingly, Plaintiffs' Amended Complaint fails to state a claim upon which relief can
be granted. Therefore, Defendants' Motion to Dismiss is hereby GRANTED.

Dated this ^

day of July, 2016.

Scott W. Skavdahl

United States District Judge

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