Tenth Circuit Overturns “Ag-Gag” Lawsuit Dismissal

The U.S. Court of Appeals for the Tenth Circuit has overturned a lower court’s dismissal of a coalition of advocacy groups’ lawsuit challenging the constitutionality of Wyoming’s statute supplementing criminal and civil trespass laws with additional penalties when the perpetrators “collect resource data.” W. Watersheds Project v. Michael, No. 16-8083 (10th Cir., entered September 7, 2017). The statutes at issue barred individuals from trespassing on “open land for the purpose of collecting resource data,” which is data related to “air, water, soil, conservation, habitat, vegetation or animal species.” After the groups filed their challenge, Wyoming amended the statutes to remove “open lands” and redefine “collect,” and the district court dismissed the lawsuit on the grounds that the amended statutes did not implicate protected speech.

The appeals court disagreed, finding that a subsection of the statute that barred collecting data on land “adjacent or proximate to private property” could affect protected speech on public property. The court then turned to “whether the act of collecting resource data on public land qualifies as protected speech.” The “expansive definitions of ‘resource data’ and ‘collect'” could include a number of protected activities, the court found, including “collecting water samples, taking handwritten notes about habitat conditions, making an audio recording of one’s observation of vegetation, or photographing animals.” Finding that the statute regulates protected speech, the court reversed the lower court’s ruling and remanded for further proceedings.