TRUCKEE, Calif. — The Wild Free-Roaming Horses and Burros Act grants the Bureau of Land Management jurisdiction over wild horses on federal lands. If BLM determines that an over-population exists on any given area, the agency must immediately remove excess animals so as to achieve “appropriate management levels.”
Silver King Roundup
BLM determined there were too many horses for the range in the Silver King Herd Management Area in Lincoln County, Nevada, plus horses were posing a danger to drivers on the nearby highway. BLM conducted a horse gather, which we all call a roundup, in which helicopters herded horses toward a temporary gather corral where the weaker horses were separated out. The horses were then moved to a temporary holding corral where some were prepared for adoption. The case did not say what happens to the weaker horses, but it might have something to do with glue. I hope I am wrong on that.
BLM allows the public to observe part of the horse gathers, but it restricts the viewing locations “to protect the public” from the horses, helicopters and vehicles. Observers are required to sit down or remain quiet to not spook the horses from the corral-trap.
Between September 25th and October 13th, 2010, approximately 500 wild horses were gathered at Silver King. Laura Leigh, a photo-journalist for Horseback Magazine wanted unrestricted access to the roundups so she hired a stable of lawyers who sued alleging her First Amendment rights of Freedom of Speech and Freedom of the Press were violated. She was seeking a preliminary injunction to have unrestricted access to the roundups. Several press organizations rode to her rescue with “friend of the court” briefs.
The federal district court dismissed Leigh’s request for an injunction, writing that the gathering had been completed, so the issue was moot, further Leigh failed to demonstrate a likelihood of success in her quest for unrestricted access to the gather.
I love that term “gather.” I am sure the horses prefer to be gathered too, much better than being rounded up or corralled. “Hey guys, let’s gather over there by that alfalfa in the round.”
As it turns out, the trial court got it wrong on both counts. The U.S. Court of Appeals, 9th Circuit (the one frequently overruled by the U.S. Supreme Court), had no trouble knocking out BLM’s mootness claim, because Leigh was not only asking to view past gatherings, she wanted unrestricted viewing access to future gatherings too.
The Court of Appeals ultimately overturned the trial judge and sent the matter back for reconsideration because the trial court had used the wrong legal analysis when ruling for BLM. The trial court did not consider whether the horse roundups had traditionally been open to the public, whether public access played a positive role in the functioning of wild horse roundups, whether BLM had demonstrated an overriding interest in the viewing restrictions, or whether the viewing restrictions were narrowly taylored to serve that interest.
Free Press Quotes
My favorite part of this case is the free press quotes the Court pulled out: “A court cannot rubber-stamp an access restriction simply because the government says it is necessary. By reporting about the government, the media are “surrogates for the public ... I n a society in which each individual has but limited time and resources with which to observe at first hand operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations ... When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate ... 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 ... The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press. Thus, courts have a duty to conduct a thorough and searching review of any attempt to restrict public access.”
I could not agree more (even though I doubt Laura Leigh will ultimately be granted unrestricted access to all parts of the wild horse roundup, rather, gather).
Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firm’s web site www.portersimon.com.