Story by DAVE TARTRE of the Courthouse News Service
BLM Argues for Covert Wild Horse OperationsSAN FRANCISCO (CN) – A photographer appeared before the 9th Circuit on Monday to defend press freedoms against the federal agency that barred her from attending a roundup of wild horses in Nevada.
Laura Leigh sued in September 2010 for a temporary restraining order that would stop the Bureau of Land Management from conducting a wild horse roundup in the Silver King Herd Management Area, which is about 150 miles north of Las Vegas in Lincoln County.
Leigh wanted to get close enough to take pictures of what is also called a horse gather, which the bureau organized under the Wild and Free-Roaming Horses and Burros Act of 1971, which put the federal government in charge of the herds of wild horses that have roamed the west since they were brought centuries ago by Spanish conquistadors.
As the bureau refused to let Leigh access the roundup, citing public safety concerns, she claimed that the bar would prevent her from closely monitoring the bureau’s methods. She also sought to prevent the use of helicopters to chase down stray horses.
After the roundup occurred, U.S. District Judge Larry Hicks ruled that Leigh failed to show that she had been treated worse than other members of the media or “that the BLM has placed any specific barriers to her access to or observation of these specific gather activities.”
A three-judge panel of the 9th Circuit seemed reluctant Monday to consider Leigh’s First Amendment arguments.
“Why is this case not moot in light of the fact that the Silver King horse gathering is already complete?” Judge Milan Smith Jr. asked Leigh’s attorney, Gordon Cowan of Reno, Nev.
Cowan replied that restrictions on access to government activities, such as the roundup on public land, are capable of repetition.
“This same conduct, denying the press or public access, happened before Silver King, during Silver King, and it happened after Silver King,” Cowan said.
Leigh’s appellate brief states that the bureau had prevented Leigh from observing public resources in a public place in retaliation for stories and pictures Leigh had published on the Internet that showed the agency in a bad light.
“Because the published material is controversial and portrays the government in an unfavorable light, the government’s effective preclusion amounts to content-based censorship,” Cowan wrote.
Justice Department attorney Nicholas DiMascio defended the trial court’s finding, emphasizing that Leigh had the same access to the roundup as any member of the public. Such access was justly restricted because horses that are unaccustomed to people pose a significant dangers to onlookers, he added.
His brief also states that it might have hampered the government’s goals to grant press access to the temporary corrals, since they might spook the horses and make them bolt before the roundup.
The Wild and Free-Roaming Horses and Burros Act protects wild horses on public land, but the horses reproduce at a rate that outpaces the land’s ability to support them. Each year, the bureau uses cowboys, helicopters and portable corrals to capture some of the estimated 30,000 or more feral horses believed to range in Nevada and other western states. Then they are placed on trucks headed to ranches in Oklahoma and other points east where they are warehoused for life.
In a separate lawsuit Leigh filed in 2009, she noted that she has spent “countless time” researching the wild horses for a children’s book.