Wyoming Ban on Gathering “Resource Data” Subject to the First Amendment

Wyoming makes it a crime to cross private land (trespass) and “collect resource data” on adjacent public land–a crime that carries a more severe punishment than ordinary trespassing. The law broadly defines both “collect” and “resource data.” The former applies whenever people “take a sample of material” or “acquire, gather, photograph or otherwise preserve information in any form” if those people also record the “legal description or geographical coordinates of the location of the collection.” And “resource data” covers any “data relating to land or land use,” including about “air, water, soil, conservation, habitat, vegetation or animal species.”

Land near Cody, Wyoming. (Big Idea Advertising)

A federal district court found that the Wyoming law was not subject to the First Amendment because people ordinarily do not have a right to engage in speech on the private property of others. But the court of appeals reversed. The Tenth Circuit found that collecting resource data on public lands is protected First Amendment activity, similar to the right to film police officers in public. This case shows that speech and the creation of speech receive similar constitutional protection.

The Tenth Circuit did not decide, however, whether the Wyoming law is unconstitutional. Since the district court did not decide that question, the court of appeals remanded the case to the district court. We’ll see if this case comes back to the Tenth Circuit. We’d expect it to in the not-too-distant future.

Case: Western Watersheds Project v. Michael, No. 16-8083 (10th Cir. Sept. 7, 2017) (opinion here)

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