Feds Wrongly Limited Access to Probe Materials

(CN) - The federal government improperly limited public access to documents related to two investigations of the owner of Montana's Custer Battlefield Museum for allegedly trading in dubious historical artifacts and possessing eagle feathers, the 9th Circuit ruled Friday.

Christopher Kortlander had requested a copy of search-warrant applications and affidavits from undercover investigations conducted by the Bureau of Land Management (BLM) in 2005 and 2008. The agency suspected Kortlander of selling ammunition casings, bullets, buttons and other small items on ebay that he claimed falsely, according to BLM agents had been found at the Little Big Horn battlefield.

Kortlander operates the museum and a for-profit artifact business in Garryowen, Mon., near the battlefield where George Armstrong Custer suffered his famous defeat in 1876. Investigators also suspected Kortlander of owning American Indian artifacts that included illegal eagle feathers.

Kortlander was never arrested or charged, and the investigation ended in 2009, according to court records. He later sued the government and several agents for violating his civil rights, but a District Court in Billings rejected the case on Sept. 12, saying that each of his claims "must be dismissed because it is barred by the statute of limitations or is implausible."

Kortlander's Freedom of Information Act claims against the BLM and the Department of Interior fared a bit better. U.S. District Judge Richard Cebull, the same Billings judge that dismissed the constitutional claims, granted Kortlander's request to see the warrant materials, but he also agreed with the government's limitations based on amorphous concerns about materials being post on the Internet.

In a unanimous reversal, a three-judge panel of 9th Circuit judges ruled that the government's unspecified concerns were not enough to limit access to the documents. The Portland, Ore.-based appeals panel sent the case back to Billings with directions for the court to "reconsider the application of the common law right of access in this case."

"[W]e do not find a compelling reason or a factual basis for the restrictions," wrote Judge Raymond Fisher for the panel. "The government's District Court brief said only that 'concerns have been raised that information collected by Kortlander may be posted on web sites, and cited the general principle that individuals identified in warrants have privacy interests that may justify denying access. The government's brief did not explain what concerns had been raised, whether they were concrete rather than conjectural or how they constituted a compelling reason for restricting Kortlander's access to the warrant materials."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit