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Saturday, December 9, 2023
Courthouse News Service
Saturday, December 9, 2023 | Back issues
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Photographer May Win|Horse-Roundup Access

(CN) - The 9th Circuit on Tuesday revived a Nevada photojournalist's fight for unrestricted access to a federal agency's roundups of wild horses.

"A court cannot rubber-stamp an access restriction simply because the government says it is necessary," Judge Milan Smith wrote for a three-judge panel. "By reporting about the government, the media are 'surrogates for the public.'"

As a photojournalist for Horseback Magazine and a wild horse advocate, Laura Leigh sought unfettered access to roundups that the Bureau of Land Management conducted at the Silver King Herd Management Area in Lincoln County. But the agency kept Leigh away from the action during a 2010 roundup of some 500 wild horses. The BLM argued that safety necessitated the restrictions, which allowed her to view the roundup only at certain times, in small groups accompanied by armed BLM agents, and from viewpoints that made close oversight impossible.

Leigh sued the agency in Nevada, alleging that the restrictions violated her First Amendment rights. But U.S. District Judge Larry Hicks said Leigh's request for a preliminary injunction was moot because the roundup was over. He also found that Leigh was unlikely to succeed because she had been afforded access comparable to that given to other members of the public and the press.

The San Francisco-based federal appeals court said this decision was in error since Leigh sought more than unrestricted access to the 2010 roundup.

Hicks did not properly consider the case, according to the panel, which heard oral arguments last month.

"If a government agency restricts public access, the media's only recourse is the court system," Smith wrote. "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."

The District Court failed in that duty, according to the panel.

"The District Court ... implied that Leigh's First Amendment claim was unlikely to succeed because she did not show that she was denied access," Smith wrote. "The relevant question is not whether the BLM prohibited Leigh from observing the horse gather altogether. ... The issue here is whether the viewing restrictions were unconstitutional. On that question, the district court failed to conduct the proper First Amendment analysis. The district court did not consider whether horse gathers have traditionally been open to the public, whether public access plays a positive role in the functioning of horse gathers, whether the BLM has demonstrated an overriding interest in the viewing restrictions, or whether the restrictions are narrowly tailored to serve that interest."

On remand, Hicks "must determine whether the public has a right of access to horse gathers by considering whether horse gathers have historically been open to the general public and whether public access plays a positive role in the functioning of gathers."

Only then can the court determine ""whether the BLM has overcome that right by demonstrating an overriding interest that the viewing restrictions are essential to preserve higher values and are narrowly tailored to serve those interests," according to the panel.

In a partial dissent, U.S. District Judge J. Clifford Wallace said Leigh had still failed to meet the standard for a preliminary injunction.

"In presenting evidence to the District Court to support her motion for preliminary injunction, Leigh did not even attempt to establish the existence of an historical tradition of public access to horse gathers or holding facilities," Wallace wrote. "Therefore, even if the District Court had applied the correct legal rule that Judge Smith's opinion adopts, it would have been obliged to deny the motion for failure to prove a likelihood of success on the merits. The necessary facts were not presented. Even though it relied on a wrong ground, the district court reached the correct result. Therefore, we ought to affirm the denial of the preliminary injunction, and remand for the determination whether, applying the correct legal standard, Leigh is entitled to permanent injunctive relief."

Leigh's attorney, Gordon Cowan of Reno, did not immediately respond to a request for comment.

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