BLM/Others Could Face Substantial Liability Over Cibola-Trigo Security Excesses

Horseback Magazine

June 13, 2012

By Steven Long, Editor, Horseback Magazine
Kathleen Hayden Photo Special to Horseback Online by Deborah Hurley
HOUSTON, (Horseback) – The Reno lawyer who successful blew the doors wide open for media access to Bureau of Land Management “gathers” and stampedes has been closely watching an Arizona case in which an older woman, Kathleen Hayden, and journalist, Carl Mrozek, were manhandled resulting in one needing hospital attention.
The incident happened at the roundup of harmless wild burros.
“To arrest a senior citizen who was not disruptive of operations or causing a “true” safety concern, is a pretty tough call,” said Gordon Cowan. “To lock arrestees in vehicles in the heat of the Arizona desert, causing them to pass out and need medical attention is abusive and actionable.”
The incident occurred at the BLM Cibola-Trigo Herd Management Area bordering the Colorado River.
The arrests came close on the heels of an enormous First Amendment free speech and public access victory in California’s Ninth Circuit Court of Appeals. In Leigh vs. Salazar, the court found the press and public could not be prevented from observing BLM wild horse round-ups. Cowan represented plaintiff Laura Leigh, a photojournalist credentialed to Horseback Magazine.
Despite the ruling by the powerful appellate court, the BLM has conducted business as usual in its effort to rid the American West of the North American Mustang breed, say horse advocates from coast to coast. The actions have left what herds that remain in the wild genetically bankrupt, according to scientists. The BLM has leased thousands of acres on federally protected herd management areas now cleared of horses and burros in areas Congress set aside for the Mustangs. The land has then been leased for cattle grazing at the rock bottom rate of $1.35 per cow and calf per month. Gobbling up the leases at the fire sale price have been ranchers with vast holdings in states where BLM has jurisdiction.
The agency’s actions have prompted rallies from Washington to San Francisco as well as worldwide media attention.
It has also led some in Congress to consider removing wild horse management from the jurisdiction of the agency. Despite this, the BLM has exhibited a tin ear to protests about the continued stampedes which many consider shamefully brutal. Hundreds of horses have lost their lives, and even foals have been chased by roaring helicopters until they shed their hooves dying an incredibly painful death.
The BLM has consistently made press coverage of its roundups difficult, however, never before has the agency crossed the line resorting to seizure of TV equipment and video tape.
“To confiscate and obliterate or delete video images from credentialed press that caught the arrest on tape, is not only “spoliation of evidence” and a violation of fundamental rights, it represents a step backwards in time, against constitutional freedoms, by nearly 300 years,” Cowan said. “What part of the Constitution and the First Amendment did the BLM wish to discard when they engaged in this outrageous act?”
The two arrested were manhandled with handcuffs placed painfully on their wrists.
Cowan told Horseback Magazine he would love to become involved in litigation over the incident in the wake of Leigh vs. Salazar because the Ninth Circuit has jurisdiction over Arizona as well.
“The free press is the guardian of the public interest and the independent judiciary is the guardian of the free press, said three of the most conservative judges on the Ninth Circuit in Leigh v. Salazar, 677 F.3d 892 (9th Cir. 2012),” Cowan continued.  “Carl (Mrozek) was there as a news gatherer. News gathering is an activity protected by the First Amendment.
“When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the first estate.” (See, Leigh v Salazar), Cowan said quoting the justices.
“When the government announces it is excluding the press for reasons such as administrative convenience, preservation of evidence, or protection of reporters’ safety, its real motive may be to prevent the gathering of information about government abuses or incompetence.” Cowan said citing the prestigeous Stanford Law Review in it’s article,  Dyk, Newsgathering, Press Access and the First Amendment.
Cowan implied the courts would now view BLM’s actions as outrageous.
“This agency never conducted an analysis on the right of the public to view wild horse roundups, before they restricted the public’s access,” Cowan said. “This is dead wrong and should be the subject of immediate action.”
BLM Chief Washington Spokesman Tom Gorey said Tuesday that charges are pending against the two but could not confirm whether they would be charged with state or federal crimes. A day later he refused to comment.
“This investigation is ongoing and charges are pending, and until finalized, we are not providing additional information.  Court documents are typically a matter of public record and should be available when charges are finalized through the courts.  When the venue is confirmed, the BLM will be able to respond to requests for this information,” he told Horseback.