Climate

In Wyoming, Taking A Photo Of A Polluted Stream Could Land You In Jail

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If this guy is collecting data in Wyoming and wants to share it with the government, hopefully he obtained all kinds of permission first.

To some, Wyoming’s Senate Bill 12 — otherwise known as the Data Trespass Bill — is merely a deepening of preexisting trespass laws — a way for private landowners to seek recourse from individuals trespassing on their property to collect data.

To others, the law is nothing short of an unconstitutional ban on citizen science throughout the state.

Passed by the Wyoming state government and signed into law by Gov. Matt Mead (R) in March, the law makes it illegal to “collect resource data” from any land outside of city boundaries, whether that land be private, public, or federal. Under to the law, “collect” means 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.”

Imagine, for a second, a hiker who is taking a walk through a national forest in Wyoming. During that hike, she notices a visibly polluted stream within the area. The next day, she returns with a camera to take a picture of the stream, with the intention of showing those photographs to the local authorities as proof of pollution. Under the Data Trespass Bill, unless the hiker obtained specific permission from the land’s owner or manager — in this case, the Forest Service — to collect that data, she would be subject to prosecution that could result in up to $5,000 in fines and a year in prison. And while the law probably won’t be used to slap fines on every Yellowstone tourist with a camera, it does have broad-reaching implications for environmental data collection in the state, according to Justin Pidot, an assistant professor at the University of Denver Sturm College of Law, who wrote a piece on the law for Slate.

“People on the ground, who have been engaged in this kind of data collection in the past, now have to face the worry about being potentially prosecuted,” Pidot told ThinkProgress. “The chilling effect on citizen participation is huge.”

Environmental groups, like the Wyoming chapter of the Sierra Club, agree that the bill’s broad language will impede citizen science throughout the state.

“We are deeply concerned that this poorly written and overly vague bill will prevent concerned citizens and students from undertaking valuable research projects on public lands, out of fear of accidentally running afoul of the new law (the scope of which no one clearly understands) and being criminally and civilly prosecuted,” Connie Wilbert, organizing representative for the Sierra Club’s Wyoming chapter, told ThinkProgress. “There is no need for this new bill, and we can only conclude that it is an attempt by private landowners to scare people away from valid research efforts on public land.”

One of the most troubling components of the law, according to Pidot, is that it specifically targets data collected to be shared with the government, a focus he calls “anomalous, bizarre, and radical.” Under the statute, a citizen who uncovers an environmental disaster or public health threat — unless they’ve obtained specific permission from the landowner before collecting that data — would themselves be breaking the law by reporting it to the authorities.

The law, Pidot says, is less about trespassing and more about protecting powerful interests, like Wyoming ranchers who broadly supported the bill. For years, ranchers have been locked in a battle with a small group of citizen scientists, working for the Western Watersheds Project, over data they’ve collected — and how they’ve collected it.

Through a robust water sampling effort, the Western Watersheds Project has found high levels of E. coli bacteria in streams on land owned by the Bureau of Land Management — something the group says proves that ranchers are allowing their cattle to graze too close to streams. Those waterways, the Western Watershed Project argues, should be added to a list of impaired waters under the Clean Water Act — a move that could force tighter regulations on where ranchers allow their cattle to graze. In June of 2014, 14 ranchers filed a lawsuit against Jonathan Ratner, Western Watershed Project’s project director for Wyoming, alleging that the data collected by Ratner was obtained by crossing private property to reach the public lands — something that, under the new law, would be illegal without permission from the ranchers that own the land.

“There’s a real parallel between what this statute is doing and this effort on the part of the state and the ranchers to exclude this data that the Western Watersheds Project is collecting from inclusion on the impaired water list,” Pidot, who represents the Western Watersheds Project in a case not related to the statute, said. “The theory for most of the ranchers is, ‘You were near my land once, so you must have trespassed.'”

In some instances — where written permission is already required to access land — getting extra permission for collecting data might not be an insurmountable burden. But as Southern Fried Science’s Amy Freitag points out, there are some cases where trespassing might be the best way to obtain information about environmental problems. Cattle ranchers aren’t likely, she says, to allow someone onto their property to collect data they know might be used to restrict their grazing rights. If a scientist discovers illegal activity while trespassing, that means of discovery shouldn’t negate the fact that something illegal is going on.

“The offenses of the trespassing should certainly not negate the evidence of another crime,” Freitag writes. “Two wrongs don’t make a right.”

Wyoming’s bill, in Pidot’s mind, is another example of western states using legislation to conceal information about the environment and agriculture. He cites two different recently passed laws in Idaho and Utah that criminalize undercover investigations or whistle blowing in the agricultural industry.

“This is sort of a new tactic we’re seeing, where state governments are trying to build legal rules that prevent people from uncovering information about favored industrial groups,” Pidot said. “I think it’s very concerning as a phenomenon.”

Pidot believes the bill violates the Constitution in a number of ways, from infringing on First Amendment rights of free speech without special burden to undermining the ability to petition the government. It also interferes with the supremacy clause, Pidot says, because it uses state law to frustrate the purpose of federal law — in this case, enforcing the federal Clean Water Act by preventing citizen data from being considered by the government.

In the long run, Pidot hopes, part or all of the Data Trespass Bill will be found unconstitutional. Until then, he worries that other states will follow in Wyoming’s footsteps and enact similar legislation.

“What do we, as a society, believe is the role of citizens in ensuring that truthful information about wrongful conduct is made available, to both the public and the government?” Pidot asks. “In the absence of that information, the government has the luxury of pretending there aren’t any problems.”