By Gordon Cowan, Attorney
Editor’s Note: On Valentine’s Day morning a Reno lawyer was stunned to receive an opinion from California’s Ninth Circuit Court of Appeals that he had prevailed in a case against the federal government. But it wasn’t just any lawyer, it wasn’t just any case, it wasn’t just any plaintiff. It was Laura Leigh, a modest, intelligent, and savvy journalist and photographer credentialed by Horseback Magazine who sued the mighty Bureau of Land Management because they were trampling her rights to report the news. The lawyer was a cowboy hat wearing legend in Nevada courtrooms, Gordon Cowan (assisted by Bruce Wagbman), and the case was Leigh vs. Salazar. The BLM has plenty to hide, and the agency has successfully hidden its misdeeds for decades. Thanks to the opinion rendered by three jurists in the Golden State, perhaps the bureau’s shameful practice of denying press access will now come to an end. Here’s Gordie’s story. – Steven Long, Editor, Horseback Magazine
RENO, (Horseback) – The Editor of Horseback Magazine asked me to write about my feelings when having received the opinion from the U.S. Court of Appeals for the Ninth Circuit in the Laura Leigh v. Ken Salazar case (Case 11-16088). I didn’t have time to write a short article, so I wrote a long one (a comment stolen from Mark Twain).
It is not my usual course to post comments. The closest I came was when writing the editorial, “The Silence of the Foals and Journalists” which Horseback Magazine graciously published September 2010 (http://horsebackmagazine.com/hb/archives/3052) when frustrated over hearing about good horses being injured and good journalists being denied access to report important government work.
This Tuesday morning I came into the office at 9:00 a.m. The Ninth Circuit’s opinion came through about an hour earlier. When signing onto the federal courts account, I saw the filing notice from the Ninth Circuit. My first thought was that I had lost. Only five weeks had passed since I argued the case. It is, after all, much quicker for the court to deny relief in this type matter than to grant the requested relief. As a result, I did not open the email notice right away, not feeling the need to become depressed at the beginning of the day.
Sometime later, I sucked it up and opened the posting, waiting for the large boxing glove to come flying from the screen with a swift knockout punch. With eyes closed, I expected to be pummeled.
I was so prepared for a wailing or hazing the likes of “thank you Sir, may I have another,” that the opinion just didn’t make sense, at first. I grabbed a cup of Joe and came back, refocused.
My first reading was a quick skim through. On the first paragraph of the second page, I stopped after the sentence, “We have jurisdiction . . . and we reverse.” That’s when it hit me that perhaps, this was a partial success. I went from there to the final page where I ran into Judge Wallace’s final paragraph which started, “I prefer to end the detours now.” My heart sank once again, until the third sentence which included the words, “I dissent.” “Ah, this is either a dissent or a partial concurrence.” From there I went to the front and began anew, a third time. Only then did I understand that the appeal effort caused concerns with the court.
I sat back and read it a fourth time. This is when I recognized the court’s effort. I picked up the statements of Judge Milan Smith who included in the court’s opinion, writings of the “Father of the Constitution,” James Madison. The court referenced the struggles of famous journalists such as Ida Tarbell (she took on Standard Oil single-handedly with her investigative reporting), Rachel Carson (her publication Silent Spring caused the nation to reconsider its pesticide safety policies and she is credited with inspiring the beginnings of the EPA), and Izzy Stone (a prolific publisher whose weekly investigative newsletter was ranked sixteenth by fellow journalists who assembled the “Top 100 Works of Journalism in the United States in the Twentieth Century”). Judge Smith then used quotes from some of the most important press freedom cases ever published. Judge Smith fashioned his own statements that would likely be recited by his fellow brethren in future decisions from the federal bench across the country. “The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press,” is but one of Judge Smith’s several profound statements.
When finished, and with a clear understanding of the implications of the court’s work, I felt numb and was wondering what kind of trouble I caused. The Ninth Circuit suffered recent, unfortunate attacks by some running for President. One candidate calls the court a “rogue circuit” while another says the court operates outside the Constitution (the latter comment by a guy who thinks the U.S. Marshall Service would follow his order to take “activist judges” into custody).
Opinions such as the one Judge Milan Smith issued in this case should quell any notion that the Ninth Circuit has but one mission, which is to protect our Country’s Constitution. The federal judiciary is the only branch of government whose members are not swayed by lobbyists, or “super pacs,” or by money. This particular panel of judges included three of the toughest, most conservative judges on the bench, all of whom were appointed by conservative Republican Presidents (G.W. Bush, Reagan and Nixon). (A close friend, who saw the decision, called and said he had traveled with one of the judges where they engaged in humanitarian efforts together in foreign countries).
To finish the story, I could not reach Laura Leigh to tell her of the court’s ruling. She was at a BLM government roundup of wild horses and was staying several days in a remote region outside Tonopah, Nevada. Not until she left the roundup in frustration because the restrictions imposed on her kept her afar from roundup activity, did her phone connect with a signal which downloaded my message. She drove until she had clear service, and then called.
When reading her Judge Smith’s words, it was the classic dichotomy: a court suggests that she holds a fundamental right to see and report on government activity while at that very moment, the government was restricting her access to view a wild horse roundup.
Yes, it is true that I choked with emotion at least twice, when reading Judge Smith’s opinion to the client. (Please don’t let my cowboy buddies know of this). When reading I was picturing Judges Smith, Noonan and Wallace who had asked tough questions of me last month when I stood before them. I was comparing in my mind’s eye, their faces with the likely dust caked Laura Leigh who listened to the message while braving a wind chill that lowered into the teens.
What is my interpretation of the court’s opinion? Three American heroes (again, Smith, Noonan and Wallace) saw the plight of a hard-working photojournalist who is repeatedly shut out from reporting government activity that is newsworthy. “When wrongdoing is underway, official have great incentive to blindfold the watchful eye of the Fourth Estate,” said the court. This is particularly so where the activity occurs in a remote, desolate, unpopulated region. The court fashioned an exemplary opinion in short order and provided guidelines that are protective of a free press. This decision was crafted to be cited and cited often.
I have received accolades from the horse advocate community. My hope is they recognize that I was but a mere messenger. Ms. Leigh is the one who didn’t give up. The court, particularly Judges Smith, Noonan and Wallace, are the heroes who accepted the message and crafted a path of correction, not just for Ms. Leigh, but for the press and journalists like her.
Moments like these make one proud to be a bar member of the Ninth Circuit. The next time a sound bite-toting candidate desires to bash this court over its good work, please refer them to me.