Wednesday, February 15, 2012
Ninth Circuit Says Public May Seek Access to Horse Roundups
By a MetNews Staff Writer
The public may have a First Amendment right to access to a Bureau of Land Management roundup of wild horses, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel ordered U.S. District Judge Larry R. Hicks of Nevada to reconsider his denial of an injunction sought by Laura Leigh, a photojournalist working for Horseback Magazine, in which she claimed that restrictions imposed by the BLM at a 2010 roundup at the Silver King Herd Management Area in Lincoln County, Nev. prevented her from reporting on what she said was a lack of “true oversight or accountability” about the events.
The Reporters Committee for Freedom of the Press and National Press Photographers Association filed amicus briefs supporting Leigh.
The BLM claims that the restrictions, which limit the locations from which journalists and other observers may watch the roundups, are necessary to protect public safety.
Hicks denied a preliminary injunction, finding that because the roundup had already taken place, Leigh’s claims were largely moot. He further found that to the extent the claims were not moot, they were still likely to fail because Leigh failed to demonstrate that the restrictions were unlawful.
But Judge Milan D. Smith Jr., writing for the Ninth Circuit, said activities of federal agencies are subject to the same access requirements as courtrooms. In Leigh’s case, he said, the judge erred in failing to follow the balancing test required by Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).
“Open government has been a hallmark of our democracy since our nation’s founding,” the judge wrote. “As James Madison wrote in 1822, ‘a popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.’”...Indeed, this transparency has made possible the vital work of Ida Tarbell, Rachel Carson, I.F. Stone, and the countless other investigative journalists who have strengthened our government by exposing its flaws.”
Rejecting the government’s contention that Press-Enterprise applies only to courtrooms, the judge noted that many courts have applied a balancing test to issues of public access to governmental activities of a civil and administrative nature, and said the district judge should have done so in this case.
“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,” the judge said.
Smith also rejected the district judge’s conclusion regarding mootness. Since Leigh is seeking relief with respect to all horse gathers at the Silver King site, her claim is not moot, the appellate jurist explained.
Senior Judge John T. Noonan Jr. concurred.
Senior Judge J. Clifford Wallace dissented in part. While he agreed that the claim was not moot and that Press-Enterprise applies, he argued that the denial of relief should be affirmed on the ground that the plaintiff failed to demonstrate that horse gathers are historically open to the public.
The case is Leigh v. Salazar, 11-16088.
Copyright 2012, Metropolitan News Company