What the “First Amendment” (Access) suit asks for

This case is now known as the Ninth Circuit Win. BLM is fighting that win and the suit moves forward.

This case is supported solely by Wild Horse Education.

Please note the dates on the filings. The entire Appeal, that won in the Ninth Circuit, was crafted (stands taller than my knees) and on file 5/26/2011 and can be read here: http://wildhorseeducation.files.wordpress.com/2011/05/whenewsletterv1.pdf

Read the Ninth Circuit Court decision here http://www.ca9.uscourts.gov/datastore/opinions/2012/02/14/11-16088.pdf

This case has been an ongoing issue. An original Complaint filed prior to the 2010 “Silver King” roundup, the suit on Access issues has made it’s way to the Ninth Circuit Court of Appeals. The Reporters Committee for Free Press and National Press Photographers Association have signed on through Amicus. 

After the NInth Circuit Court of Appeals “win” Gordon Cowan, our attorney, was aked to write his thoughts on the case by my Editor, Steven Long.

(He wrote the following piece. A similar piece was published on Horseback Magazine)

Letter from Mr. Cowan

Several interested folks asked that I comment on my feelings when having received the recent decision obtained in Leigh v. Salazar, 668 F.3d 1126 (9th Cir. 2012). My thoughts follow.

On Tuesday, February 14, I came into the office at 9:00 a.m. The Ninth Circuit’s opinion came through in email about an hour earlier. When recognizing the message, my first thought was that the appeal had been lost. Only five weeks had passed since I argued the case. It is, after all, much easier for the court to deny relief with an unpublished opinion than it is to grant requested relief with a published opinion. Reluctant to start the day with a disappointing message, the message remained unopened the better part of the day.

Sometime later, I sucked it up and opened the posting, waiting for the large boxing glove to come flying from the screen with a swift knockout punch. With eyes closed, I expected to be pummeled.

I was so prepared for a wailing or hazing the likes of, “Thank you Sir, may I have another,” that the opinion just didn’t make sense. I stopped reading, grabbed a cup of Joe and came back, refocused.

My next reading was a quick skim through. On the first paragraph of the second page, I stopped after the sentence, “We have jurisdiction . . . and we reverse.” That’s when it hit me that perhaps, this was a partial success. I went from there to the final page where I ran into Judge Wallace’s final paragraph which started, “I prefer to end the detours now.” My heart sank once again, until the third sentence which included the words, “I dissent.” “Ah, this is either a dissent or a partial concurrence.” From there I went to the front and began anew, a third time. Only then did I understand that the appeal effort caused concerns with the court.

I sat back and read it a fourth time. This is when I recognized the court’s effort. Judge Milan Smith, who authored the opinion, began with writings of the “Father of the Constitution,” James Madison. The court referenced the struggles of famous journalists such as Ida Tarbell (she took on Standard Oil single-handedly with her investigative reporting), Rachel Carson (her publication Silent Springcaused the nation to reconsider its pesticide safety policies and she is credited with inspiring the beginnings of the EPA), and Izzy Stone (a prolific publisher whose weekly investigative newsletter was ranked sixteenth by fellow journalists who assembled the “Top 100 Works of Journalism in the United States in the Twentieth Century”). Judge Smith then used quotes from some of the most important press freedom cases ever published. Judge Smith fashioned his own statements that would likely be recited by his fellow brethren in future decisions from the federal bench across the country. “The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press,” is but one of Judge Smiths several profound statements.

When finished and with a clear understanding of the implications of the court’s work, I felt numb and was wondering what kind of trouble I caused. The Ninth Circuit suffered recent, unfortunate attacks by some running for President. One candidate calls the court a “rogue circuit” while another says the court operates outside the Constitution.

Opinions such as the one Judges Smith, Wallace and Noonan issued in this case should quell any notion that the Ninth Circuit has but one mission, which is to protect our Country’s Constitution. The federal judiciary is the only branch of government whose members are not swayed by lobbyists, or “super pacs,” or by money, or by a desire to seek an elected position. This particular panel included three of the toughest, most conservative judges on the Circuit’s bench, all of whom were appointed by staunch Republican Presidents, George W. Bush, Ronald Reagan and Richard Nixon.

To finish the story, I could not get a hold of Ms. Leigh to tell her of the court’s ruling. She was at a BLM government roundup of wild horses and was staying several days in a remote region outside Tonopah, Nevada. Not until she left the roundup in frustration because the restrictions imposed on her kept her afar from roundup activity, did her phone connect with a signal which downloaded the message. She drove until she had clear service, then called.

When reading to her Judge Smith’s words, a classic dichotomy became apparent. The Circuit Court suggests that she holds a fundamental right to see and report on the type government activity that at that precise moment, she was prevented by government restrictions from observing.

Did I choke with emotion when reading Judge Smith’s opinion to the client? Consider this: I was picturing Judges Smith, Noonan and Wallace who had asked tough questions in January. In my mind’s eye, I compared their faces with the likely dust caked Laura Leigh who listened while braving a wind chill that caused her tears to freeze before they hit the desert floor. She was nearly homeless, having spent most everything she had to be present at BLM roundups to observe and report the government’s process, so as to cause a change for the better in how the agency handled wild horses at roundups. The government in turn, incessantly shut her out of the process using questionable excuses which effectively kept her camera at bay and her voice silenced, even when she received the Ninth Circuit’s splendid message.

Picture also, that I was reliving the history of the case. Nearly two years passed since the court journey began. The very district court that required me to uphold and defend the Constitution, found no need to engage in a constitutional analysis of the offending conduct that would have been protective of the First Amendment and of the client. Instead, the standard greeting card was a decision which ended with the word, “Denied.” By the time we walked into the James R. Browning Federal Courthouse in San Francisco, I felt nearly brow beaten by incessant notions that this is not a good case, or that its timing was never perfect and not “justiciable,” or that the allegations are not supported by facts, or that the supporting facts that could prove the case, were not worthy of being included in the court’s evidence. I was also out maneuvered by the government who, upon seeing a case which for the first time challenged the BLM on a constitutional infringement, chose to halt their horse roundup before finishing the job, to cause the case to become “moot,” according to the district court. The BLM halted the roundup in contravention of the very federal statute that authorized their activity in the first instance.

Did I choke with emotion when reading the decision to the client? Yes. It wasn’t just once. I became emotional several times because the lump in my throat kept me from spitting the words out. The lump grew with the reality that at least one court saw the importance of First Amendment freedoms and stood up against what was simply, not right.

What is my interpretation of the court’s opinion? Three American heroes saw the plight of a hard-working photojournalist who is repeatedly shut out from reporting government activity that is newsworthy. These heroes, Judges Smith, Noonan and Wallace, fashioned an exemplary opinion in short order and provided a “smell test” that is protective of the public interest and of a free press. “When wrongdoing is underway, officials have great incentive to blindfold the watchful eye of the Fourth Estate,” said the three jurists.

How do I feel about having caused a precedential decision to be rendered? The process is an uphill battle that is neither glamorous nor fun. Taking a cause that trades paid professional time for a pay grade that might equal the “minimum wage,” tests one’s fortitude to survive in the moment. Finances and relationships become strained. Friendships are redefined among those who appreciate the importance of fighting for First Amendment rights versus those who think the agency’s methods must remain secretive and afar from cameras and journalists to avoid the public’s rebuke of their process.

Then, when the case gains the attention of a respected appellate court, the “limelighters” appear who denigrate the effort and convey privately to others that they could have caused a far better result than the one obtained. These are the same ones who revel in the shadow of their own self-proclaimed eloquence who think the courtroom has no room for imperfection. Some also believed the three judges assigned this case were “pro agency” and would cause a death knell to the effort. Such reproval of significant jurists (more than one of whom would have been a significant contributor to the Supreme Court if given the “nod”) were disappointing and only added to existing pressures. Meanwhile, these same “perfectionists” and “better than me nay-sayers” were conveniently not available at the going pay grade to help Ms. Leigh when imposed restrictions censored her ability to observe and report newsworthy matters that would have otherwise garnered passionate public concern.

How do I feel about it now? I am poorer materially. Conversely, I am richer in spirit. Words simply do not account for the personal gratification experienced when countless hours of effort and dedication cause a court to take notice and provide a person well deserving of help, a glimmer of hope.

This business is for those who have a heart, who put it all on the line to stand up for what’s right. Idealists or those requiring significant fees need not apply. By the way, fighting for a constitutional freedom is always a good choice.

Although these are my thoughts, the focus should really center on Ms. Leigh and on the Ninth Circuit. Ms. Leigh never gave up while Judges Smith, Noonan and Wallace, heroes all of them, understood the concern and crafted a brilliant “press access” decision. My involvement was merely the imperfect conduit through which Ms. Leigh and these three distinguished jurists were introduced. I take my hat off to these four outstanding individuals.

My best, Gordie Cowan

In the original Motion for Injunctive Relief the suit requests the following: (see original document pages below, begin reading at “conclusion”)

page 16 of Original Motion

page 17 Original Motion

page 18 original motion

page 19 original motion


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