Nevada Judge Finds BLM Media Ban Unconstitutional but Lifts Death Stampede Injunction
By Laura Allen, Animal Law Coalition, Photo of Plaintiff Laura Leigh by Terry Fitch - Judge Larry Hicks has lifted the injunction prohibiting BLM from proceeding with the Tuscarora roundup. The judge has also denied plaintiff Laura Leigh’s motion to delay the roundup until August, after the foaling season, particularly as to the Owyhee Herd though she can seek “further relief” as to the planned round ups in the Rock Creek and Little Humboldt herd management areas.
But the judge also ruled, “As to Leigh’s First Amendment challenge to the closure of public lands during the gather, the court shall grant Leigh’s temporary restraining order. Leigh argues that a blanket closure of 27,000 acres of public land on which the Tuscarora Gather is going to take place is a prior restraint on her First Amendment rights because she will be unable to observe and report on the health of the horses and the BLM’s management of the gather. The court agrees [and]… finds that the blanket closure … is unconstitutional“. The BLM can, however, draft a “more reasonable closure“.
“The court’s order in no way [a]ffects the BLM’s closure of the airspace above the 27,000 acres of public land. The court finds the closure of airspace to be constitutional and necessary”. (A copy of the Order is attached below for downloading.)
In deciding to allow the roundup to proceed now instead of later, Judge Hicks was persuaded by BLM’s last minute “review“ filed yesterday by a BLM team that claims the horses dying or suffering from dehydration or water intoxication were in that condition prior to the roundup. The “review” states that a BLM contractor found Tuscarora wild horses without water and said “the next 24-78 hours is critical”. BLM recommended rounding up as many horses as possible and warned of a “potentially high mortality” rate. Horses showing signs of dehydration on the range would be left to die.
Leigh pointed out, however, that there was no mention by BLM of a drought or dehydrated horses in the Tuscarora HMAs until after her lawsuit was filed. She disputed the “hastily assembled” “review” by BLM:
At least Leigh and other members of the media and public will be allowed to monitor BLM’s roundup.
But the judge also ruled, “As to Leigh’s First Amendment challenge to the closure of public lands during the gather, the court shall grant Leigh’s temporary restraining order. Leigh argues that a blanket closure of 27,000 acres of public land on which the Tuscarora Gather is going to take place is a prior restraint on her First Amendment rights because she will be unable to observe and report on the health of the horses and the BLM’s management of the gather. The court agrees [and]… finds that the blanket closure … is unconstitutional“. The BLM can, however, draft a “more reasonable closure“.
“The court’s order in no way [a]ffects the BLM’s closure of the airspace above the 27,000 acres of public land. The court finds the closure of airspace to be constitutional and necessary”. (A copy of the Order is attached below for downloading.)
In deciding to allow the roundup to proceed now instead of later, Judge Hicks was persuaded by BLM’s last minute “review“ filed yesterday by a BLM team that claims the horses dying or suffering from dehydration or water intoxication were in that condition prior to the roundup. The “review” states that a BLM contractor found Tuscarora wild horses without water and said “the next 24-78 hours is critical”. BLM recommended rounding up as many horses as possible and warned of a “potentially high mortality” rate. Horses showing signs of dehydration on the range would be left to die.
Leigh pointed out, however, that there was no mention by BLM of a drought or dehydrated horses in the Tuscarora HMAs until after her lawsuit was filed. She disputed the “hastily assembled” “review” by BLM:
The Defendants’ admit they do not grasp the issue causing the high mortality rate of the horses they run into catch pens. We discover they had not calculated a drought by mid-July or that horses would run out of available water by mid-July although they had studied the probable effects of their intended Gather the several months preceding the Gather, beginning in January 2010. No other BLM document discusses or addresses “drought” for range management in the year 2010 in the Owynee, Rock Creek or Little Humboldt areas. It was in fact, only after suit was filed did these emergency conditions become newly revealed.Leigh offered to visit the herds and attempt to verify BLM’s claim a roundup must proceed immediately because of drought.
At least Leigh and other members of the media and public will be allowed to monitor BLM’s roundup.
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