2019 Act 33: Wider criminal liability for trespassing on or damaging utility property

WJI is taking a look at justice-related bills adopted during the 2019-20 session. 

2019 Act 33 – Expands the activities for which a person can be prosecuted on felony charges related to trespassing or damaging utility property.

Prior to adoption of this law, damaging another's property without consent of the owner was generally a misdemeanor punishable by 9 months in jail, a fine of up to $10,000, or both.  The same actions became a felony punishable by up to six years in prison and a $10,000 fine if the property was owned by an energy provider and the person caused or intended to cause significant disruption to operations. The law said energy provider property had to be part of an electric generation, distribution, or transmission system or part of a natural gas distribution system. 

The new law expands the penalty to cover damage to property owned, leased, or operated by water utilities; water production cooperatives, and companies that run gas, oil, petroleum, refined petroleum product, renewable fuel, water, or chemical generation, storage transportation, or delivery system.

Trespassing offenses were treated similarly. In most instances, before Act 33, trespassing was civil violation punishable by a fine of up to $1,000. Trespassing on energy provider property, however, carried the safe felony sanctions as damaging a provider's property.

This section of the bill also expanded the types of properties where trespassing is a felony to include those also included in the damage-to-property provisions.

Exemptions to the penalties were included for monitoring compliance statutory requirements, taking part in otherwise legal picketing or protests that arise out of labor disputes, taking part in legal union organizing activities, and exercising legal free speech and or assembly. 

The law was introduced as AB ​426; its companion Senate bill was SB 386.

​It was signed by Gov. Tony Evers on Nov. 20, 2019.

Fiscal Estimates

​No fiscal estimates were filed.

Excerpts

Testimony for: 

Rep. David Steffen (R - Green Bay) – Critical infrastructure is a term used by the government to describe assets that are essential for the functioning of a society and economy. 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, critical infrastructure sites throughout the Midwest have been the
recipients of worker harassment and millions of dollars of vandalism and damage. Acts such as
these do not only negatively affect the property being damaged but is also putting nearby
communities and environment as risk.

Sen. Van H. Wanggaard (R-Racine) – As you know, our power grid and related infrastructure is a target that can be damaged and/or sabotaged. A single person could create a problem that could disrupt energy services for hundreds of thousands of people. This is danger to our economy and our safety.

​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 ifthat fire was intentional. The damage could have been far greater and widespread. 

American Chemistry Council, American Petroleum Institute, Construction Business Group, International Union of Operating Engineers Local 139, Mechanical Contractors Association of Wisconsin, Metropolitan Milwaukee Association of Commerce, Midwest Food Products Association, Plumbing and Mechanical Contractors Association of Milwaukee and Southeastern Wisconsin, Sheet Metal and Air Conditioning Contractors' Association of Milwaukee, U.S. Venture, Wisconsin Building Trades Council, Wisconsin Farm Bureau Federation, Wisconsin Grocers Association, Wisconsin Independent Businesses, Wisconsin Independent Businesses Agri-Business Coalition, Wisconsin Industrial Energy Group, Wisconsin Laborers District Council, Wisconsin Manufacturers & Commerce, Wisconsin Paper Council, Wisconsin Pipe Trades, Wisconsin Propane Gas Association, Wisconsin Restaurant Association, Wisconsin Rural Water Association, Wisconsin Transportation Builders Association, Wisconsin Underground Contractors Association, Wisconsin Utilities Association – In recent years, critical infrastructure worksites in the Midwest have seen millions of dollars of construction equipment set on fire, hydraulic fluid leaked onto the ground due to vandalism, intimidation of labor on worksites, and individuals using force to break into facilities and unsafely turn off this critical infrastructure. Unfortunately, those causing this damage and disruption often either do not fully understand the harm they cause or simply don't care. Workers - usually skilled, union tradesmen and tradeswomen - are increasingly feeling unsafe and are seeing their equipment and even their own personal property being damaged. Attempts to improperly turn off or sabotage critical infrastructure is also putting our communities and environment at risk, and, in some cases, putting the lives of those doing the vandalism in jeopardy.

To address these serious and growing concerns, the Worker Safety and Energy Security Act adds petroleum, renewable fuel, chemical and water infrastructure to the existing criminal statute protecting our critical infrastructure from trespassing and damage, giving these types of critical infrastructure the same protections as electric and natural gas infrastructure. Nothing in this legislation impacts first amendment rights to organize, protest or picket, and to make that clear language has been included to ensure this legislation does not violate those rights.

Testimony against:

ACLU of Wisconsin – We understand that there is a difference between exercising one’s First Amendment right to assemble and breaking the law. Legislators must recognize, however, that the Constitution firmly protects protests even when – and especially when – they stir anger, question preconceptions, challenge government policy, and induce dissatisfaction with the status quo.

The First Amendment safeguards protesters’ rights to awaken passions, to make the public aware of their positions and opinions. America’s robust tradition of free speech allows us all to effect change by making our voices heard. This is crucial to ensuring that the government remains responsive to the will of the people; it is what sets our country apart and is the reason it must be carefully and consistently protected....

This expanded definition sends a message to protesters, who are often members of Native tribes and the organizations that support them, that the government is watching them and wants them to stop vigorously protesting the impending damage to their lands, homes, and livelihoods. The bill also will create additional uncertainty regarding which “energy providers” are covered by the prohibition. The existing law has significant problems that would be greatly exacerbated by expanding the entities covered. What does it mean to intend to substantially interrupt or impair any service? If a person is part of a human chain blocking the access road for a delivery truck as an act of civil disobedience, could they become a felon?

National Lawyers' Guild-Madison Chapter​ - The justification for this legislation, “worker safety” is a smokescreen for companies like Enbridge and Husky Oil, which have already polluted Wisconsin lands and waters and brought death and injury to workers and residents near their facilities across the U.S. Enbridge is responsible for at least two fatalities from exploding gas pipelines in the U.S. and Husky Oil’s refinery explosion in Superior in April 2016 injured workers and caused a mass evacuation in the city. Wisconsin legislators have stripped workers of collective bargaining rights, unemployment compensation and other protections over the last eight years, so expressions of concern for their wellbeing ring a bit hollow.....

Leased property, which is included in the bill, usually refers to privately owned property that the pipeline company arranged to lease voluntarily or obtained through eminent domain, which was historically only used by public agencies. Leased property is often not marked consistently and oil and gas pipelines are buried underground, so a person might not know where it is. Lessees may not have the legal authority to prohibit others from entering property that is not exclusively used by them, in fact the expired easement Enbridge had in the national forest expressly allowed people to travel through the easement for hunting, gathering and recreation. The “critical infrastructure” bills that have proliferated in states since 2016 threaten civil liberties and public oversight of pipeline operations, which frequently violate the law and employ militarized police to intimidate activists. 

Glory Adams: This is a bill that was written by ALEC and forwarded by corporate entities (eg. Enbridge). It is designed to give energy corporations (including pipelines) extraordinary protections at the expense of citizens. It allows an energy company to call law enforcement and demand arrests and charges against a citizen. There have been almost no incidents of vandalism perpetuated by protestors in the state of Wisconsin. However, Enbridge has operated without permits which did result in two protestors being charged. No employees were injured by protestors. Enbridge is currently being sued by the Bad River Reservation for operating illegally on the reservation since 2013. It is clearly not citizens that need extraordinary charges brought against them, but the corporation committing illegal acts.

The real problem between protestors and energy servers is the lack of empowerment given to citizens. There is virtually nothing a citizen can do to stop the use of eminent domain, destruction of the environment, and loss of property values. Trying to do so means hiring high priced lawyers for multiple court appearances and endless paperwork.

Corporations like Enbridge are quick to say they provide energy for Wisconsin. They do not. Their pipelines simply run through the state. This bill is over-kill. There is no justifiable reason to have it in the state of Wisconsin. There are already laws regarding trespassing and vandalism. This bill also has taxpayers paying for the protection of an energy server. That is a misuse of taxpayer money.

Justin Novotney: We will never forgive you.

Registering for the bill: The American Chemistry Council, American Petroleum Institute, BNSF Railway, Construction Business Group, Cooperative Network, EDP Renewables, International Union of Operating Engineers Local #139, Mechanical Contractors Association of Wisconsin, Metropolitan Milwaukee Association of Commerce, North Central States Regional Council of Carpenters, Plumbing and Mechanical Contractors Association of Milwaukee and Southeastern Wisconsin, Sheet Metal and Air Conditioning Contractors' Association of Milwaukee, Waukesha County Business Alliance, Wisconsin Central Ltd.,  Wisconsin Farm Bureau Federation, Wisconsin Independent Businesses, Wisconsin Industrial Energy Group, Wisconsin Laborers District Council, Wisconsin Manufacturers & Commerce, Wisconsin Paper Council, Wisconsin Pipe Trades Association, Wisconsin Railroad Association, Wisconsin State AFL-CIO, Wisconsin Transportation Builders Association, Wisconsin Utilities Association.

Registering against the bill: ACLU of Wisconsin, Ho-Chunk Nation, League of Women Voters of Wisconsin Inc., Midwest Environmental Advocates, Sierra Club – John Muir Chapter, Wisconsin Democracy Campaign.

The main authors of the bill were Steffen and State Rep. Jason Fields (D-Milwaukee).

The lead cosponsors were Wanggaard and Sen. Janet Bewley (D-Mason).

Vote: Reps. Jonathan Brostroff (D-Milwaukee), Nick Milroy (D-South Range), Tod Ohnstad (D-Kenosha), and Chris Taylor (D-Madison) voted against the bill, as did Senators Dave Hansen (D-Green Bay) Chris Larson (D-Milwaukee),  Mark Miller (D-Monona_ and Fred Risser (D-Madison).