(Wyoming’s historic Crookston Ranch — photo courtesy the Bureau of Land Management)
The U.S. Supreme Court routinely characterizes the right to exclude as “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Many law students first consider the meaning of the right to exclude in Jacque v. Steenberg Homes. The question in that case was whether punitive damages would be allowed in a trespass case where there were no actual damages. The Wisconsin Supreme Court determined that a “a right is hollow if the legal system provides insufficient means to protect it,” and allowed for punitive damages.
This same question arose recently in Wyoming, in the civil trespass action Frank Ranches v. Jonathan Ratner. Mr. Ratner works for the Western Watersheds Project as the Director for Wyoming, Utah, and Colorado. One of WWP’s broader goals is to eliminate ranching on public lands. They pursue that goal, in part, by documenting water quality violations for use in enforcement actions. Mr. Ratner was taking water samples when he allegedly trespassed on various ranch properties. It was this case that led, in part at least, to Wyoming’s infamous “data trespass” law, passed in early 2015. That law, currently being challenged by the Western Watersheds Project, criminalizes data collection on “open lands” without express permission. The law does not define “open lands,” raising fears that it would be used against data collectors on public lands as well as private.
In the civil action against Mr. Ratner, the ranchers did not claim any damages–Mr. Ratner was using existing roads on the ranches to access streams. They did claim punitive damages. But earlier this month, Judge Norman Young of Wyoming’s 9th Judicial District determined that punitive damages would not be available to the ranchers. The trespass action itself would continue to trial however.
In some ways, the Wyoming case mirrors Jacque v. Steenberg homes. In neither case did the plaintiffs claim more than nominal damages. And in both cases, the district courts determined that settled law prohibited punitive damages where only nominal damages existed. But the obvious similarities end there. In Jacque v. Steenberg homes, the trespasser had been told specifically and publicly not to cross the Jacque’s land; another option was somewhat readily available. In the Frank Ranches case, Mr. Ratner argues that he used open, “public” roads that happened to cross private lands, and that he was never specifically informed not to use them. In fact, one of Mr. Ratner’s defenses appears to be based on a “permissive use” concept, i.e., that there was implied permission to use the private lands as he did.
The most interesting part of this conflict is not the punitive damages question, but rather the broader questions of when, where, and how citizen scientists and activists can record or document violations of environmental or other laws. But we’ll have to wait a bit longer to watch that issue work itself out.
In the Frank Ranches case, Mr. Ratner and WWP are represented by Associate Professor Justin Pidot of the University of Denver Sturm College of Law. The Wyoming Ranchers are represented by Karen Budd-Falen, who should be familiar to anyone interested in public lands law and management.