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December 5, 2019

10/31/2019 7:28:00 AM
(Some) Left and Right unite for felony trespass bill
Opponents say the bill is meant to suppress legitimate protest

Richard Moore
Investigative Reporter


You don't see it often, but here it is, the Wisconsin Manufacturers & Commerce (WMC) and the state AFL-CIO supporting the same legislation, and they are being joined by colleagues from both sides of the aisle.

What they are supporting is a bill that would make it a felony to trespass on property owned by companies that operate, among other things, a gas, oil, petroleum, or refined petroleum product or delivery system for those products, such as a pipeline. The bill has passed the Assembly and is awaiting a vote in the Senate.

Supporters argue that the legislation is necessary to curb vandalism which can disrupt the delivery of energy resources and to protect worker and public safety. Opponents say it's just an outright effort to suppress legitimate protest.

Joining the AFL-CIO and WMC in support of the legislation are such groups as Wisconsin Laborers District Council, Wisconsin Farm Bureau Federation, and the American Petroleum Institute, as well Democratic lawmakers such as Janet Bewley (D-Mason).

Opponents of the legislation are largely environmental groups and their allies.

Specifically, according to the state Legislative Council, under current law, whoever intentionally causes damage to any physical property of another without the person's consent is guilty of a misdemeanor. That is elevated to a felony if the damaged property is owned, leased, or operated by an energy provider, as defined by statute, and the trespasser intended to or did cause substantial interruption or impairment of any good or service provided by the company.

The bill expands the scope of the increased penalty to also include property owned, leased, or operated by public water utilities; cooperative associations producing or furnishing water; and companies that operate a gas, oil, petroleum, refined petroleum product, renewable fuel, water, or chemical generation, storage transportation, or delivery system, the legislative council states.

In addition, current law provides that whoever enters any land of another without the person's consent is generally subject to a forfeiture, which becomes a felony when a person intentionally enters the property of an energy provider without lawful authority and without the consent of the energy provider that owns, leases, or operates the property.

The bill would expand the definition of energy provider to include public water utilities, cooperative associations producing or furnishing water, and companies that operate a gas, oil, petroleum, refined petroleum product, renewable fuel, water, or chemical generation, storage transportation, or delivery system.

An amendment to the bill which passed provides that a company may not be considered an energy provider solely on the basis that it operates a service station, garage, or other place where gasoline or diesel fuel is sold at retail, the legislative council states.



Supporters

At an Assembly hearing on the bill, one of the authors of the bill, Rep. David Steffen (R-Green Bay), said the legislation was a matter of security.

"Critical infrastructure is a term used by the government to describe assets that are essential for the functioning of a society and economy," Steffen testified at the hearing. "Most commonly associated with the term are facilities for shelter, agriculture, water supply, public health, transportation, security services, electricity generation, transmission and distribution (ie. natural gas, fuel oil, coal, nuclear power) and telecommunication."

In recent years, Steffen said, critical infrastructure sites throughout the Midwest have been the recipients of worker harassment and millions of dollars of vandalism and damage - acts he said not only negatively affect the property being damaged but puts nearby communities and the environment as risk.

In 2015, Steffen continued, legislation that provides criminal penalties for individuals who intentionally damage or unlawfully enter property of an energy provider was passed and signed into law. However, inadvertently, that law did not include language covering the energy infrastructure provided by the water utilities, oil, petroleum, and renewable fuel industries, leaving a significant portion of the energy industry unprotected under the new law, Steffan said.

The new felony trespass bill corrects the omission, he said.

Another author of the bill, state Sen. Van Wanggaard said a single person could create a problem that could disrupt energy services for hundreds of thousands of people.

"This is a danger to our economy and our safety," Wanggaard said. "We saw this happen earlier this year in Madison with the MG&E fire. I know the MG&E fire was an accident, but you can see the impact the accident caused. Now imagine the impact if that fire was intentional. The damage could have been far greater and widespread."



Opponents

With the bill heading to the Senate, a coalition of almost 30 groups has sent a letter to the state Senate asking them to oppose the bill. The groups include Midwest Environmental Advocates, the Sierra Club Wisconsin Chapter, Honor the Earth, Wisconsin Natural Resources Council, and others.

The opponents say lawmakers backing the bill have failed to consider its broader implications, which they say aids energy companies by effectively stifling valid opposition through threats of felony convictions.

"The law is currently designed to protect utilities that provide important services to homes and businesses such as heat, power, and light," ​Rob Lee, staff attorney with Midwest Environmental Advocates, said. "That makes sense because the disruption of those services can put lives at risk during extreme hot and cold weather. This bill, however, expands the law to cover infrastructure like oil pipelines that operate in entirely different contexts and creates a felony where one previously didn't exist. Without express permission from an oil company to be on a pipeline easement, you could be prosecuted for being on your own land, or even public lands."

Philomena Kebec, a Bad River tribal member and an attorney who represents Native Americans of limited means in tribal and county courts, said she was concerned about the disparate effect that the felony trespass law may have on Native Americans and other racial minorities.

"The trespass law requires no showing of intent to harm property or people for a felony conviction; instead, it operates to transform a simple trespass into a felony offense at the behest of a private company," Kebec said. "These types of 'status' offenses, like drug crimes that only require law enforcement to show that a person was in possession of a controlled substance, have had devastating impacts on Native American, black and brown communities. With these kinds of laws on the books, the implicit bias of law enforcement agencies, and now corporations, are unleashed to target Native Americans and others, for severe and life-changing legal consequences."

Elizabeth Ward, conservation programs coordinator for the Sierra Club Wisconsin, said the bill attempts to create solutions for problems that do not exist but instead creates new problems.

"The bill opens up scenarios where peaceful protesters, landowners or tribal members could be arrested for trespassing and charged with a felony," Ward said. "Though those charges may be overturned, people could spend a lot of time, money, and energy fighting those unfair charges. Why pass a bill that opens up this possibility when it solves no other problem?"

Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.





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