January 01, 2018

In Brief

John R. Jacus

Clean Water Act, First Amendment

W. Watersheds Project v. Michael, 869 F.3d 1189 (10th Cir. 2017).
In a case challenging the constitutionality of two Wyoming statutes, the Tenth Circuit reversed the U.S. District Court for the District of Wyoming’s ruling that environmental nongovernmental organization trespassers who cross private lands to gather natural resources data may not invoke First Amendment free speech protections in challenging the statutes. The statutes in question impose criminal and civil liability on individuals who cross “private land to access adjacent or proximate land” to collect resources data. The court observed that “[a]lthough 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 [by trespassing].” The court specifically noted that the statutes bar the plaintiffs from engaging in protected speech that would otherwise be permissible on public property and that “the effect of the challenged provisions is to increase a pre-existing penalty for trespassing if an individual subsequently collects resource data from public land.” The court reversed and remanded the case to the federal district court with directions to identify the level of scrutiny to be applied in determining whether the statutes are constitutional.

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