MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER
Plaintiff LAURA LEIGH submits the following Memorandum of Points &
Authorities in support of her Motion for issuance of an Emergency Temporary
Jackson Mountain Roundup Helicopter Roundup
During Foaling Season
Plaintiff seeks to halt wild horse roundup activities ongoing currently within the
BLM’s Jackson Mountain Herd Management Area (“Jackson HMA”) located and
managed by the BLM’s Black Rock Field Office in Humboldt County, Nevada, north of
Winnemucca, Nevada (“Jackson Roundup”).
The Jackson Roundup, commencing June 8, 2012, is being conducted in
contravention to the defendants’ own governing rules in effect for wild horse roundups.
Specifically, the defendants are using a helicopter (the contractor Sun-J and
same pilot as Sun-J used at Triple B) to round up wild horses from the Jackson HMA
during “foaling season.” This activity is strictly “prohibited” by the defendants’ own
policies and procedures which govern all roundups and which are defined in the
defendants’ own “Wild Horse and Burro Management Handbook” (“BLM Handbook”)
which provides, in relevant part, as follows:
The capture of wild horses by using a helicopter to herd the
animals is prohibited during the foaling season, which is
defined as six weeks on either side of the peak foaling to
assure that young foals are mature enough to be able to
remain with their band during gather activities. This period is
generally March 1 through June 30 for most wild horse
See Exhibit 1, “Wild Horse and Burro Management
Handbook, §4.4.4, p.20, attached. Emphasis added.
Plaintiff, who has been present several days at the Jackson Roundup, is
informed and believes the use of the helicopter as the employed tool to roundup horses
at the Jackson HMA resulted in multiple instance of inhumane treatment, to which
Plaintiff is prepared to testify, if necessary.
The same BLM Handbook allows for bait and water trapping of horses during the
foaling season. Plaintiff has no objection to such methods.
Plaintiff is informed and believes the BLM plans to continue the Jackson
Roundup through the use of helicopters through the remainder of June, all in
contravention of the defendants’ own policies and procedures; and Plaintiff plans to
continue to be present throughout most of this roundup in an attempt at observing the
defendants’ conduct of such affairs.
That the Defendants’ refusal to halt the roundup at Jackson HMA is agency
action defined at 5 U.S.C. § 551(13) (a failure to act), that is arbitrary, capricious, and
an abuse of discretion, or otherwise not in accordance with law, and/or is agency action
implemented without observance of procedure required by law, as is contemplated in
the Administrative Procedures Act, 5 U.S.C. §§ 706(2)(A) and/or (D). And such failure
to act causes Plaintiff’s harm as averred herein.
Plaintiff is informed and believes she maintains standing under 5 U.S.C. § 702 of
the Administrative Procedures Act to seek judicial review of the Defendants’ action (or
failure to act) where she has suffered and would continue to suffer actual injury or injury
in fact that is within the zone of interests protected by the relevant laws and regulatory
provisions and policies as indicated in the Plaintiffs’ Second Amended Complaint, and
which the defendants fail and refuse to observe and follow. This court has already
established that plaintiff maintains standing to bring this case.
Plaintiff outlines her observations, at least to the extent she is allowed to observe
the defendants’ activities at Jackson Mountain, in her Declaration which is at Exhibit 2
attached, which demonstrates the violations of the defendants’ own policies and
procedures when rounding up horses during their own defined “foaling season.”
First Amendment Constitutional Violation
Plaintiff has been present in attempts at observing the Jackson Roundup.
Plaintiff’s access to observe and report what occurs is repetitively, unreasonably and
unconstitutionally restricted in contravention of First Amendment constitutional
principles, which effectively prevents her from adequately photographing the
defendants’ activities at the roundup, the transportation of and holding of wild horses
the defendants remove from public lands; that this in turn, disrupts plaintiffs’ ability to
report to this very court and to the public, the conduct of the defendants when engaged
in such activities, and the resulting inhumane consequences of such activities.
Plaintiff is informed and believes she is entitled, as credentialed press and also
as a member of the public, to observe and report the government’s activities as it
relates to the Jackson Roundup; that such activity is newsworthy; that Plaintiff
maintains a constitutional right to gather such news; that the rounding up of wild horses
from public lands by the defendants garners passionate public interest. That
consequently, she is precluded from obtaining the very proof that may be necessary via
photographs and video, to report such inhumane conduct and consequences of the
defendants’ activities. And that her preclusion thereof, in effect censors her as a
member of the press to gather news and to report government activity that is
newsworthy, all in contravention of First Amendment Constitutional principles. See,
e.g., Leigh v. Salazar, 677 F.3d. 892 (9th Cir. 2012).
“[t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury” for purposes of the issuance of a
preliminary injunction.” Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d
Injunctive relief is warranted when a moving party can demonstrate that (1) they
are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the
absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) an
injunction is in the public interest.1
This Court follows this traditional inquiry and also uses its “serious questions”
test when applied to Winter’s four part criteria.2
Irreparable Harm Plaintiff suffers irreparable harm when continuing to view the
government violate its own policies and procedures and laws of the United States.
Likelihood of Success on the Merits Ms. Leigh’s strongest argument is that the
government defendants cannot deny that their conduct in rounding up horses which
includes numerous newly born foals and pregnant mares, during the defendants’ own
defined “foaling season” contravenes their own policies and procedures which were
implemented for “humane” reasons.
Balance of Hardships There is no hardship to the defendants here to stop
the roundup where the roundup ongoing is not to reduce the herd to appropriate
management levels (“AML”). They can still bait and water trap which is in accordance
with their own procedures. There is no harm to the defendants in halting the helicopter
roundup when the activity was not authorized in the first instance.
Public Interest No critical public interest is injured by the granting of temporary
injunctive relief. To the contrary the public benefits when the government defendants
are required to comply with their own policies and procedures when rounding up wild
Constitutional Violation - First Amendment Violation
Irreparable Harm Irreparable harm to Ms. Leigh is clearly outlined herein. “[t]he
loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury . . . .” Elrod, supra.
Irreparable harm also occurs when Ms. Leigh continues to see, and could
reasonably expect to see continued unlawful conduct when the defendants choose to
gather horses with a helicopter during foaling season, which in turn, causes the
inhumane treatment of wild horses.
Likelihood of Success Ms. Leigh’s strongest argument is that she is
repeatedly stripped of her constitutional freedoms by being kept away. Her preclusion
not only affects Ms. Leigh adversely, but also the public loses where she is denied the
opportunity to observe and report. This is the constitutional violation.
So long as the district court follows prevailing authority and allows the evidence,
Ms. Leigh’s likelihood of success remains probable. The authorities against this type
censorship of the press and public are overwhelming. At the very least, “serious
questions” going to the merits are raised.
Balance of Hardships The hardship to the Appellees is they must accommodate
journalists and the press, allowing them to observe, unfettered, those critical moments
when the Appellees interact with the wild horses. The Appellees previously
accommodated Ms. Leigh. They restrict her access now because her photos are
embarrassing to the defendants because the photos merely show the truth of how the
defendants handle America’s wild horses when capturing them, when transporting
them, and when warehousing them.
The hardship to Ms. Leigh is clear and overwhelming. Once removed she’s
foreclosed from reporting the very activity she came to observe. She’s stripped of her
constitutional freedoms in each instance where she and her camera are removed.
Ms. Leigh can never recoup those moments when she was denied freedoms
which the drafters of the First Amendment promised her.
Public Interest This analysis requires consideration of whether there exists
some critical public interest that would be injured by the grant of preliminary relief.” Cal.
3 Smoller and Nimmer on Freedom of Speech, Vol II, § 15.10 (2010). See also,
Levine v. U.S. Dist. Court for Cent. Dist. of California, 764 F. 2d 590, 595 (9th Cir. 1985).
Cowan Law Office
P.O. Box 17952
Reno, NV 89511
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Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d 1098, 1114-15 (9th Cir.2010) (internal
The benefits of allowing public and press observation of how government
functions is significant. The strongest benefit to allowing such access is to foster
the public’s protection against the government’s censorship of information.
[a]t its core, the prior restraint doctrine is linked to the core
aversion to censorship that the First Amendment embodies.
Prior restraints are simply repugnant to the basic values of
an open society.3
In this specific instance, the handling of America’s wild horses that are
supposedly “protected” by an act of Congress, has significant newsworthy interest.
One need only look through the internet to see its popularity, even in foreign countries
where others are enamored with America’s settling of the West. The subject matter is
newsworthy and timely.
Relief is sought under applicable provisions of the Administrative Procedures
Act, 5 U.S.C. §§ 701 et seq. Plaintiff contends the Defendants’ conduct is arbitrary,
capricious, it amounts to an abuse of discretion, it is otherwise not in accordance with
law, or it is implemented without observance of procedure required by law. And,
emergency equitable relief is warranted.
For reasons discussed Plaintiff respectfully requests an immediate, emergency
Temporary Restraining Order issue precluding the BLM further roundup activities at the
Jackson Mountain Herd Management Area as is requested in the Plaintiff’s prayer for
relief, contained in her Complaint; that the same be issued on the preliminary finding
that the roundup is arbitrary, capricious, it amounts to an abuse of discretion, it is
otherwise not in accordance with law, or it is implemented without observance of
procedure required by law. And, emergency equitable relief is warranted.
Respectfully submitted this 15th day of June 2012.
LAW OFFICE OF GORDON M. COWAN
Gordon M. Cowan Esq. (SBN 1781)
Attorney for Plaintiff LAURA LEIGH
LIST OF EXHIBITS
Exhibit 1 Relevant portion of Wild Horses and Burros Management Handbook
Exhibit 2 Laura Leigh Declaration
COUNSEL CERTIFICATION ON NOTICE
TO DEFENDANTS OF EMERGENCY MOTION
Gordon Cowan declares under penalty of perjury, the following:
1. In accordance with Fed.R.Civ.P. 65, and LR-7-5, I certify the following:
a. I left voice mail message, at 4:56 p.m. PDT, June 15, 2012, on Mr.
Erik Petersen’s personal cell that this emergency TRO was being
filed today. (Mr. Petersen is lead counsel for the government
defendants in this case);
b. I emailed Mr. Erik Petersen this day, that this emergency TRO is
being filed today;
c. When this motion is filed, I am informed and believe Mr. Erik
Petersen will automatically receive a copy of the same through the
court’s CM/ECM filing system.
2. I am informed and believe that good cause exists for the immediate filing
of this emergency motion where the government defendants are operating
in contravention of their own established policies and procedures, and
which, I am informed and believe, is causing the inhumane treatment of
wild horses that are the subject of the roundup occurring at Jackson
Mountain HMA; and that further good cause is established in the Plaintiffs’
Declaration at Exhibit 2 attached.
THIS DECLARATION is made this 15th day of June 2012 in Reno, Nevada
Declarant, G.M. Cowan
DECLARATION RE NATURE OF EMERGENCY MOTION
I, Laura Leigh, Declare under penalty of perjury, the following:
1. I am Plaintiff in the above-captioned matter. I am personally familiar with
the facts set forth herein except for those facts stated on information and
belief, and as to those facts, I believe them to be true;
2. I am informed and believe the nature of the emergency motion is this:
Wild horses in Jackson Mountain HMA are being subjected to stampede
by helicopter during “foaling season.” I am informed and believe the
government defendants are prohibited, by their own policies and
procedures, from rounding up horses via helicopter during foaling season;
that the government defendants define “foaling season” as occurring
currently through the end of June;
3. I am informed and believe there is a resultant high likelihood of death and
injuries to the wild horses that are subject to stampede by helicopter
during foaling season.
4. Before pursuing this motion and prior to this roundup, I have attempted to
negotiate a resolution of various issues pertaining to this roundup that
would have avoided this motion. The person with whom I had these
conversations is Mr. Gene Seidlitz, the district manager of the
Winnemucca District, where this roundup occurs;
5. I was at this roundup on a daily basis and in contestation to attempt to
address these issues as they arise. I am given words and promises that
were never employed and I continue to witness the same inhumane and
careless actions by the defendants on a daily basis. I am constantly told
that our conversation has to develop in “baby steps”; but as babies
(horses)_are dying, this suggested approach is not acceptable.
6. I am prepared to tell the court all of my efforts in an attempt at avoiding
this motion, prior to filing the same.
THIS DECLARATION is made this 15 day of th June 2012 in Washoe County,
Declarant, Laura Leigh
CERTIFICATE OF SERVICE
[Pursuant to Fed. R. Civ. P. 5(b); LR 5-1; Section IV of District of
I certify that on the date indicated below, I filed the foregoing document(s) with
the Clerk of the Court using the CM/ECF system, which would provide notification and a
copy of same to counsel of record, including the following counsel:
Erik Petersen, Esq. firstname.lastname@example.org
Ayako Sato email@example.com
Dated this 15th day of June 2012
Case 3:11-cv-00608-HDM -WGC Document 43 Filed 06/15/12 Page 10 of 10