By Bonner Cohen, Ph.D. ~
Two recently adopted Wyoming statutes, designed to protect farmers and ranchers from “environmental monitoring” of their property by green activists, are now being challenged in court by the very group whose actions on private land inspired passage of the laws.
In 2014, over a dozen ranchers sued the Western Watershed Project (WWP), saying the Idaho-based group had repeatedly trespassed on their property despite direct instructions and plainly written signage to stay off private land. According to the lawsuit, WWP’s trespasses began in 2005 and were undertaken under the pretext of gathering water-quality samples to check for pollution.
“Landowners are not comfortable having an extreme biased organization that has not demonstrated the professional qualifications to collect credible data trespassing their lands.” Cheyenne-based attorney Karen Budd-Falen said at the time the suit was filed. The case is still in litigation.
WWP has denied the allegations, claiming that it found elevated levels of E. coli in water samples it tested and submitted to state environmental officials. As a result of WWP’s submissions, three streams near where the samples were taken were listed as “impaired.” However, confirming the assessment of Budd-Falen, state officials later withdrew the designations, saying the data collected by WWP were not credible.
Switching the Burden of Proof from the Landowner to the Accused Trespasser
Outrage over widespread reports of trespassing on rural property, together with the dismissal of WWP’s water-quality data by Wyoming officials, prompted legislators last year to pass two new trespassing bills, both of which were signed into law by Republican Gov. Matt mead. “Under the previous trespass laws, the burden was on the landowner to show that people were trespassing and some of our courts were not prosecuting,” Brett Moline, director of public and governmental affairs for the Wyoming Farm Bureau, which supports the new laws, told the Wall Street Journal (Feb.19). Moline says the new laws put the burden on the person collecting data to know when he or she is on private land.
Led by WWP and the Natural Resources Defense Council (NRDC), environmental groups are seeking to overturn the statutes in federal court, saying the laws keep people from exposing pollution. And they just might have an ally in U.S. District Judge Scott Skavdahl, who was appointed to the bench by President Obama. Skavdahl rejected Wyoming’s effort to dismiss the lawsuit in December, citing concern that the statutes may interfere with free speech. Noting that Wyoming already has trespassing laws, he questioned why the news laws were necessary. “When a court purports to protect an interest already protected by existing law, courts have reason to be suspicious of the legislature’s actual intent,” he wrote in his ruling, according to the WSJ.
Judge Skavdahl’s remarks strongly suggest that he will rule to overturn the new statutes. If so, the decision will open the door for self-appointed environmental snoops to look for “pollution” anywhere they can find it on private land. Even if their data are later found to be bogus, as was the case in Wyoming, the aggravation and legal expenses to landowners can be considerable. The stakes are high.