The Push for “Legal” Trespass

In Common Voices, Information Sources by commonnw

There was a significant push during the latest Critical Areas Ordinance (CAO) review process to make Whatcom County Farm Plan information part of the public record. In the council review workshop on July 11, 2017, former councilman Carl Weimer proposed the following amendment regarding farm plan disclosure

ITEM 13 (Originally Issue 146) (Weimer) 16.16.870 Limited Public Disclosure

Amend subsection (B) to read:

  1. Provided, that the County will collect summary information related to the address and parcel numbers general location of a farming enterprise covered by the farm plan, the nature of the farming activity, and the specific best management practices to be implemented during the conservation farm plan review process, the number of acres included, and the date of the last compliance review. This information, along with a map that shows parcels covered by approved farm plans, will be made easily and publicly available on the county’s website. The summary information shall be provided by the farm operator or his/her designee and shall be used to document the basis for the County’s approval of the plan. Plans shall also be subject to disclosure if required by a court of competent jurisdiction. Upon request, the County may provide a sample conservation farm plan, exclusive of site- or property-specific information, to give general guidance on the development of a conservation farm plan.

 Staff Response: Staff strongly recommends against this. If we require this, it would probably end peoples’ participation in CPAL (Conservation Program on Agriculture Lands). We can do a summary of CFPs (Conservation Farm Plans) by watershed in the Whatcom Conservation District. ****** (Taken from County Website meeting minutes July 11th, 2017)

Reading through some of the social media outlets, for those who don’t appreciate agriculture and the rural lifestyle, it’s easy to see a negative sentiment towards those who make a living in agriculture. In a February 2nd post on Whatcom Hawk Facebook page, local environmental activist Wendy Harris writes.

Nothing scares the farm community more than being exposed. We need to double down on our efforts, even with the bullying that comes along with it (assuming-ly referring to the article exposing RE Sources greenmail campaign and subsequent response from Whatcom Family Farmers referenced in her post). More kayak trips, more road surveillance, more photographs are necessary to overcome all the secrecy that surrounds this dangerous industry.

It should be noted that Harris has posted many comments about and pictures of private property and has even revealed the location and owners names of the property in the Whatcom Hawk Facebook page.

Best Management Practices are used as a substitution for Best Available Science (allowed for natural resource land), but without the mandatory measuring, monitoring and timeline protocols we were never told about. Then there is the secrecy built into farm plans. People are unnecessarily prevented from reviewing how and where and when BMP’s are intended to protect critical areas to prevent disclosure of “proprietary business operations”… for BMPs listed by number from a book? And staff failed to advise the public or the PC that the law explicitly allows for farm plan secrecy to be waived. There is no other public health and safety regulation kept secret from the public. None. Then there are the administrative procedures that the staff failed to disclose, although they greatly restrict the county’s rights above and beyond what is reflected in the updated CAO. For example, no review of a farm is allowed for the first year, and thereafter farmers can do their own inspection by sending in certified forms. By following BMPs, farmers are held harmless in the event of ecosystem degradation. In other words, the public gets to pay. This is your ultimate “get out of jail free” card.

So why should our local small family farms be concerned about making their Farm Plan part of the public record? Because, as responsible farm owners and stewards of their land they should have nothing to hide. Right? Consider the following cases from both Oregon and Wyoming.

Activists appeal for right to trespass / Traci Eatherton / May 18, 2017

OREGON: Earlier this month, Oregon’s court of appeals issued its long-awaited decision in the case, Kramer v. City of Lake Oswego—a case in which two public access activists claimed that the “public trust doctrine” should be extended to create easements across dry, upland property so that the public can gain access “to . . . navigable waters throughout the State or Oregon . . . regardless of ownership.”

The activists asked the court to force owners of a private, man-made lakes to open up their waters to the public. They argued that the right to recreate in certain waters also gave the public the right to cross over, aka “trespass,” on someone else’s land to get there.

Oregon courts agreed. It’s trespassing, and the public trust doctrine, which recognizes that certain waters must remain open to the public, still did not make it legal.

WYOMING: “Plaintiffs’ claims are erroneously premised upon their perceived First Amendment right to trespass upon private property to collect resource data,” Skavdahl’s 26-page order from the District of Wyoming says. “No such constitutional right exists. To the contrary, the United States Supreme Court ‘has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned.'”

But earlier this month, the same environmentalist groups, including Western Watershed Project (WWP), took their argument to the 10th Circuit Court, appealing the decision, claiming that it is their First Amendment right to collect water samples from public lands for ecological research.

The coalition argued before U.S. Circuit Judges Carlos Lucero, Monroe McKay and Harris Hartz to appeal the decision, according to Courthouse News Service.

“Wyoming is a jungle of public and private land,” said David Muraskin, an attorney for WWP, as reported by CNS. He added that it was “nearly impossible,” to navigate public lands within private lands while doing the coalition’s kind of work.

While the law once required people to post no trespass signs, todays GPS availability has changed that. The burden of knowing where private property is, is now on the individual, not the property owner, according to Magagna.

“We are not disputing their right to collect data. The dispute is, do they have a right to trespass,” he added. “If the court were to rule against us, it still wouldn’t make trespass legal. It would just make prosecution more difficult.”

But Muraskin, the lawyer for the group, claims “data” is protected by the First Amendment right, and that includes data samples.

“This case is a federal constitutional challenge to two newly enacted Wyoming statutes (the “Data Laws”) that are designed to prevent the public from gathering “resource data” on public or private “open land” in the State of Wyoming,” according to a post on Public Justice. “These laws are a close cousin to the so-called ‘Ag-gag’ laws that have been proposed or enacted in a dozen states in recent years. Public Justice is currently challenging Idaho’s and North Carolina’s ag-gag law on constitutional grounds and serves as amicus in a challenge to Utah’s Ag-Gag law.”

Muraskin claims the trespass laws were enacted specifically to prevent WWP from collecting the samples.

“In Wyoming’s case, the data laws were enacted for the explicit purpose of preventing an Idaho nonprofit and one of our clients, the Western Watersheds Project (WWP), from collecting water samples designed to prove that overgrazing of the land by the cattle industry is polluting the water supply. Public Justice is also representing the National Press Photographers Association as the Wyoming’s law would also prevent journalists from accessing and recording information on public and private lands,” the group wrote.

This article does not advocate for irresponsible property owners not to face consequences. It argues for why good stewards of their property should object to forced public access to their property. To understand this we look at who, or which organizations, push for these changes? What are their rights to level a claim to public access on private property? Where do the rights of property owners begin and end? Privacy is a precious commodity that is in short supply as environmental groups move to strip away our ability to retain privacy through data collected from citizen-scientists who too often fail to respect privacy laws. 

In Whatcom County, RE Sources (for Sustainable Communities) and North Sound Bay Keepers offer citizen-scientist programs and sustainability schools, to encourage the use of private citizens to gather “research data,” as outlined by the groups offering the programs.

Volunteer groups led by marine scientists observe sea stars, forage fish, inter-tidal species, and more to gather data that helps protect species’ habitats and longevity. Information collected in citizen science efforts provides a baseline of data that informs policy, restoration efforts, cleanups, and other important projects. Citizen scientists are integral to support important work that underfunded agencies cannot do themselves.

These volunteers are given a set of parameters to gather data on, and encouraged to report any “evidence” of potential violations. While citizen-scientist’s can play an important role in supplementing public/private partnerships, the authority granted and direction given is not closely monitored.

If you still think this idea is far-fetched, consider a 2016 flyer promoting a citizen-scientist seminar for the Natural history Museum of Los Angeles County

“I will be talking about urban wildlife research projects that I have been involved in along the urban edge and core of the Los Angeles area. I will discuss how technology and citizen-science has provided new opportunities to conduct research on elusive species in understudied ecosystems at new scales. Citizen-science has also provided scientists and non-scientists with unprecedented access to extremely urban ecosystems made up of primarily private property.” (emphasis added).

(The excerpt was provided in the flyer by the seminar host, Miguel Ordenana.)

While the owners of private property hold an obligation to be good stewards of the lands they own, there is a looming threat that others would like to take that control and make those decisions for you. There is a growing sentiment among a segment of the county population that would like to challenge the idea of private land ownership, and it will be these small incremental steps that could make that a sad, but very real possibility.