Access Limits at Horse Roundups Debated in 9th

     (CN) - A reporter urged the 9th Circuit to revive her claims that her First Amendment rights were trampled during a 2010 federal roundup of wild horses on public land.
     It was the second time Laura Leigh, a photojournalist and wild horse advocate, appeared before the federal appeals court in support of her suit concerning the Bureau of Land Management's September 2010 roundup of some 500 wild horses at the Silver King Herd Management Area in Lincoln County, Nev.
     The bureau organizes the roundups to meet the requirements of the Wild and Free-Roaming Horses and Burros Act of 1971, a law that puts the federal government in charge of the herds of wild animals. If the BLM determines there is an overpopulation, it must "immediately remove excess animals from the range so as to achieve appropriate management levels."
     Roundups involve having helicopters and wranglers herd the horses into a temporary corral, or trap, from which they are sorted for adoption or transported to a long-term holding facility.
     Leigh wanted to get close enough to the 2010 horse gather to take pictures of the animals at the moment of capture, but the bureau had just adopted new restrictions to keep the public farther from the action than in previous roundups. Officials said safety demanded tighter control over reporters and the public, and U.S. District Judge Larry Hicks refused to issue a temporary restraining order.
     Once the roundup had concluded, Hicks deemed a separately filed motion for injunctive relief moot. He also found that Leigh was unlikely to succeed on her First Amendment claims because she had been afforded access comparable to that which other members of the public and the press received.
     In its first ruling on the case, early last year, the 9th Circuit directed the trial court to explore Leigh's press freedom assertions more deeply.
     "A court cannot rubber-stamp an access restriction simply because the government says it is necessary," Judge Milan Smith wrote for the court at the time. "By reporting about the government, the media are 'surrogates for the public.'"
     It is not at issue whether the BLM prohibited Leigh from observing the horse gather altogether, but rather "whether the viewing restrictions were unconstitutional," he added. "On that question, the district court failed to conduct the proper First Amendment analysis."
     Hicks in turn held an evidentiary hearing this year and issued a new ruling that said the public has a right of access, but that the new restrictions were narrowly tailored enough that Leigh's rights had not been violated. The bureau's rules allowed for the effective and efficient capture of the horses, while protecting those watching, he ruled.
     Since the Bureau of Land Management's current authorization to trap wild horses in the Silver King Herd Management Area expires on Dec. 31, the hearing Tuesday looked at whether the appellate panel could force a federal judge to issue a temporary restraining order, as the chance of a new roundup before the end of the year is very low.
     "Here we are about three or four weeks before the end of this period, and I just don't know the likelihood of any roundup occurring between now and the end of the year," Judge Mary Murguia said. "I'm just trying to figure out why isn't this moot?"
     Leigh's attorney, Gordon Cowan, admitted that mootness was a "tough issue," but that Leigh proceeded because the BLM had made noises that it would have to conduct another roundup, either under this authorization or a new one in 2014.
     Judge Stephen Trott said it seemed that the BLM admits Leigh has a constitutional "right of some kind of access to this information."
     "She does, but they preclude her," Cowan replied. "The long and short of it is this: you get rid of the camera and you don't have a story."
     Trott noted that the combination of low-flying helicopters, rough terrain and a herd of wild horses make roundups dangerous places. He said maybe there isn't a place to set a trap that also has a safe viewing area.
     Emphasizing that Leigh has more experience at horse roundups than any BLM personnel, Cowan insisted that an activity on public land that involves a public resource must be open to public viewing.
     "So, you're saying they have to have the trap where it can be viewed by people like your client," Trott said.
     "Why not?" Cowan asked.
     With 80 percent of Nevada is federal land, there must be viable locations that meet all requirements, but the BLM chooses trap sites where the agency can shield its activities and treatment of the horses from public view, the lawyer added.
     "I mean, that's what's really going on here," he said.
     Leigh wants to be close enough to see the horses and assess their condition, including their respiration rate and whether they are sweating. Cowan said this can be done from about 30 feet distance if the BLM does not place snow fencing in the way.
     During the Silver King roundup the trap was 400 feet from the observation area and a hill blocked the view of horses entering the trap, Cowan told the court.
     Trott and Murguia tried to make Justice Department attorney John Arbab, who was there to represent the BLM, acknowledge that Leigh had a right to some form of press access.
     Murguia: "What is your argument, because it seems a little willy-nilly, it doesn't seem firm. I want to be clear about what your position is, I think we all do."
     Arbab did not directly answer whether the press should have access, instead responding that Hicks was right that Leigh had not succeeded in showing that she had a likelihood of succeeding at trial.
     Judge Sydney Thomas said that, regardless of how the present case ended up, there would be future horse gathers and that "this problem needs to be solved."
     "Basically, what you're trying to do is come up with a negotiated press access restrictions that take into consideration safety and press access, right," he asked.
     Arbab noted, however, that 10 months of settlement negotiations were fruitless and that the restrictions at Silver King had not prevented Leigh from taking photos. "They just weren't as unobstructed as she wanted," Arbab said.
     Trott, who earlier in the hearing said the "restrictions seem to some kind of attempt simply to silence this press photographer," responded: "Yeah, they were photographs that didn't permit her to capture what she wanted to capture in order to alert the world to what was happening."
     Leigh had three places from which she could view the gather, Arbab said, and the District Court was correctly determined that all were close enough to provide a clear view.