Laura Leigh and attorney Gordon Cowan entering Federal courthouse in Reno on February 20th to rebut BLM testimony (Elyse Gardner)
On February 19th and 20th in the Federal District courtroom of Judge Larry Hicks, attorney Gordon Cowan presented a case of the right of the public to have independent information on the care and handling of wild horses and burros during Bureau of Land Management (BLM) roundups and holding facilities.
Mr. Cowan brought several witnesses to the stand (there were a few witnesses that failed to show because of varying reasons that involved a fear of retribution for their testimony). Those that came to the court created a compelling argument.
This case had been referred back to the lower court to hear testimony based on the following strict parameters:
“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.” Leigh v. Salazar No. 11-16088,D.C. No. 3:10-cv-00597- LRH-VPC, OPINION, Ninth Circuit Court of Appeals
A compelling case was created by Plaintiff that demonstrated that horse “gathers” were traditionally (historically) open to the public and that public participation plays a positive role. A compelling argument was made that BLM’s restrictions are arbitrary and based on non-specific (no basis in historical fact) criteria of safety concerns and financial inconvenience.
The government argued that: (at Silver King only) Leigh was treated like anyone else, that safety concerns create the protocol (without clearly defining protocol nor citing any specific instance but one, that generated concern) and that there was significant expense associated with opening facilities that are currently closed.
Transcripts of the hearing are being ordered so that the information contained in testimony can be shared with the public, to educate the people on the process of the creation of the record of this case.
Below are two “notes” to the public. The first is from Laura Leigh, Plaintiff in the case and founder and President of Wild Horse Education. The other contains excerpts from a letter written by attorney Gordon Cowan regarding this landmark freedom of the press case.
Note from Laura Leigh:
Running this marathon between range, roundup, meetings and courts often leaves very little time to absorb the human cost of the literal saga of trying to tell the story of the wild horse and burro. Often the daily reality is a lonely one. The travel, the time on the range gathering information, and the time spent editing and compiling is often done remotely. Thus requiring much of my contact with others to be via email or telephone.
Wild horses offloading into the “closed to the public” facility Broken Arrow after capture from the range out of public sight
At one point during our rebuttal of BLM testimony attorney Gordon Cowan asked me to rebut a statement made by Alan Shepard, BLM NV WH&B lead, that somehow the situation at the Pryor Mountains roundups is different and unique compared to any and all other wild horse and burro roundup locations and conditions. In particular he stated that the Pryor Mountain horses are tamer than any other wild horse herds. He claimed that only the Pryors reuse trap sites and the nature of the interest and horses makes it possible for the increased access only Pryor Mountain. I corrected his statements and pointed out that there is reuse of traps at most locations. I spoke of my experiences on the range with wild horses in Nevada and on ranges throughout the West. Wild horses are peaceful family-loving beings who accept you if you approach them in peace. As I finished my testimony on this issue, I looked into the gallery and witnessed something that I will remember for the rest of my life.
The people in the gallery were sitting side-by-side, wiping tears from their eyes, many holding hands. I know many of these people don’t always see eye to eye about many issues…. but the love for the wild horses and burros unites us in a way that in the moment wipes away any differences we may have. We were there to speak out as one voice. We were there to stand up for our rights to know, see, understand and create our own opinions about how our wild horses and burros are treated by our government. We were there to set the record straight, and we did it together.
The team of witnesses that came together represented varying interests and created a court record that demonstrates those voices in the process of documenting, and participating, in the journey of the wild horse and burro in an articulate, intelligent and sincere manner. I was so proud of us.
It was a high point in this crazy, mixed up, convoluted epic tale. I will never forget it.
Excerpts of Letter from Attorney Gordon Cowan:
Justice Louis Brandeis (a wonderful member of the U.S. Supreme Court, no longer with us) once wrote, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Buckley v. Valeo, 424 U.S. 1, 67 (1976) (quoting Louis D. Brandeis, Other People’s Money 92 (1914)).
“The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” From The Federalist, No.51. The press corps, journalists, make up these “auxiliary precautions.”
I think it was Ronald Reagan who said the nine scariest words he ever heard, were these: “I’m from the government and I’m here to help.” Reagan, I think, meant this: He was not chiding government. Instead, he recognized that, “man” is fallible. If man runs government, then the government is likewise fallable. And, when government has a watchful eye over its shoulder, then perhaps government makes fewer mistakes than it would otherwise, without the watchful eye.
Echoing all of these sentiments with beginning quotes from James Madison, Judge Milan Smith, who wrote the Ninth Circuit decision that brought the case back to Judge Hicks, said this: “The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.” Leigh v. Salazar, 377 F.3d 892 (9th Cir. 2012).
When the Ninth Circuit sent me this decision, I called Laura. At that very moment, Laura was freezing her “petuties” off at a BLM roundup where she was being held back about a mile from the BLM’s roundup activities such that she could see nothing. What a dichotomy in that moment where, on the very day the Ninth Circuit stated that Ms. Leigh and others like her have a protected constitutional right of access to observe government in action, that Ms. Leigh was being precluded from viewing government in action on the very issue she brought before the court. And, the government still doesn’t “get it,” in my assessment.
Attorney Cowan meeting his witnesses the day before court. Terri Farley to the left.
Regarding our efforts to help our wild horses:
Thank you for paying tribute to those who truly contributed to putting forth a good case.
Terri Farley was a stellar witness I intentionally used as the first on “the stand” to set the tone for how the government must defend its disappointing efforts to block the public and press from observing its official activities. (When I can afford to order the first day’s transcript I will make sure you have a copy). Terri, of course, sold millions of books in a series that tracks a stallion. Her works are based on her range work several years past, at Calico near Soldier Meadows. She even dedicated her first book to BLM employees who were most helpful on the early roundups. Her books are distributed in Washoe County schools and also world-wide in multiple languages.
Sally Summers, second witness, talked of the importance of seeing wild horses on the range and how those horses are managed by BLM. She escorts a lot of folks out on the range where they anticipate seeing how the wild horses are rounded up. Those observers, in turn, buy the Nevada Wild Horse license plate. Funds from those license plate purchases go toward funding worthy causes in Nevada. But, because of the ever-tightening BLM restrictions Sally faces when attempting access to view horses and roundups, it is becoming increasingly difficult for her to justify spending the money to travel to roundups if ultimately, there is nothing there to see on her arrival, because of the BLM’s arbitrary, officious restrictions.
Rober Bauer came to the courthouse all the way from Indiana, to testify. No one has a greater passion for wild horses than does Robert. His first experience with wild horses came from viewing wild horses in the Pryor Mountains. When he saw how the horses were handled at BLM roundups, he dedicated a portion of his life’s existence to helping them the extent to which he could lawfully, as a public citizen. Bob’s passion for wild horses was felt in the courtroom.
Elyse Gardner making hike to observation location Calico 2012 (Leigh)
Elyse Gardner testified to her experience of ever-tightening limitations on her access to roundups and to holding facilities. Elyse was a shining star when describing how horses could no longer be tracked because the BLM shut down “short-term holding facilities” (i.e., temporary wild horse warehousing locations, one in particular known as “Broken Arrow”) to the public. Elyse is responsible for facilitating a number of adoptions to those who love these horses. She could hardly accomplish this task when prevented from following or tracking horses where they disappear off the range into BLM trailers and then into facilities closed to the public. Those horses are not tracked. Some are never seen again.
Our final witness of “day one” was my client, Laura Leigh. Words do not account for the pride I have of her and how she bravely told her story. It is Laura Leigh who gets the dirty work done in terms of getting out to ranges, taking photos, freezing her butt off, enduring car breakdowns, horizontal blizzards, and then encountering BLM restrictions. Leigh has been to more BLM roundups than has any federal government employee or any other member of the public (although she acknowledges that roundup contractors probably have her “beat” in roundup attendance). She methodically identified every restriction, how it changed, how each restriction was arbitrary, and how some restrictions were put in place just for her (discriminatorily). Leigh also rebutted every account the government contended was necessary for keeping the public afar.
This team of five witnesses set forth an important issue before the court. I believe the record in place is ripe to make a difference for two American iconic symbols: wild horses; and hard-working journalists who merely seek to look over the shoulder of the government and report to the interested public on what transpires.
The vastness of Nevada’s Great Basin may be the only spot in America where government can hide evidence of its fallability while it destroys an iconic symbol of our spirit which defends transparent government and freedom. That, of course, is America’s wild horse.
The wind blew and the snow fence rose to reveal for a few moments horses at temporary after capture. If the wind had not blown the condition of the wild horses would not have been documented that day.