(Reno, NV) On July 19th, at almost the exact same moment as the Bureau of Land Management (BLM) announced its summer “gather” schedule, Judge Hicks finally issued his ruling on a First Amendment case involving wild horses. Judge Hicks denied Plaintiff’ Laura Leigh of Wild Horse Education’s motion, saying the BLM had proven an over-riding, narrowly tailored, restriction of the First Amendment.
In spite of the evidence presented to the court that historically roundups of wild horses and burros have permitted unobstructed observation of activities, the Court issued its ruling against the Plaintiff. In the 40 years of the wild horse and burro program not one incident could be cited where safety of horses or human beings was in jeopardy due to human observers present. Only since 2009, and the intense scrutiny BLM has faced for inhumane treatment of wild horses and burros at roundups and in holding facilities, have the present restrictions to observer access been implemented. In several demonstrated cases, Plaintiff was able to show that other members of the public were given greater access than she was allowed even though they held the same press credentials.
This case began in 2010 with the filing of a motion at the start of the Silver King roundup. At that time, the Court ruled against Plaintiff and the case was taken up on Appeal with the Ninth Circuit Court. As in previous hearings the Court did not allow Plaintiff to complete the record restricting testimony and evidence. The Ninth Circuit ruled in Plaintiff’s favor and remanded the case back to the lower court to complete the record as the Ninth Circuit did not have enough information to rule on the issue. However the Ninth Circuit published an opinion and stated that, “The free press is the guardian of the public and the judicial system is the guardian of the free press.”
In regard to the latest ruling by the federal court, Ms. Leigh stated, “This is the ruling I expected. During the hearing I got the distinct impression that the magnitude of public interest, the fact of historic access, and the unreasonable nature of claims made by BLM to exclude the public was not understood. We are not just a handful of people who care about horses, this is a public land management issue, and the restrictions imposed are not justified by arbitrary ‘what ifs’ put forth by a government agency. That is a dangerous precedent and we won’t let it stand.”
From the Ninth Circuit Opinion remanding this case back to the lower court: Open government has been a hallmark of our democracy since our nation’s founding. 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.”
Judge Larry Hicks based his ruling on two premises he defined as “over-riding interest:” 1) the effective and efficient gather of the horses; and 2) the safety of all individuals including those involved in gather activities, members of the viewing public, and the horses themselves. In the ruling the Court cites a bomb placed in 1990 at a BLM office and another incident of purported fence cutting at Palomino Valley as justification for the closure of facilities. However , both the BLM facility office and Palomino Valley remain open to the public. The ruling also cites costs BLM associates with opening holding facilities. No comment was made to the ability to track wild horses from range through holding without a FOIA. The Order also states that the Court cannot rule on an arbitrary roundup of horses in the future at Silver King, even though Defendant admitted the area would need at least an assessment in 2014.
BLM just released the removal schedule for summer, just as Plaintiff predicted, Silver King is on the schedule.
Since 2009 the ability to view wild horses and burros during capture and in facilities has diminished as public scrutiny of the program has risen. In the last two years Leigh and Wild Horse Education have won Temporary Restraining Orders and a Preliminary Injunction to inhumane handling in federal court. As those cases move forward, BLM has entirely stripped public access from two wild horse areas now involved in the court cases. In response, one of those cases, Triple B (now called Three HMA), has now been amended to include a First Amendment challenge. The other case is the Owyhee wild horse Complex awaiting hearing on inappropriate determination of excess animals and inhumane treatment of horses by BLM. At a roundup in Owyhee in 2010 Leigh and her companions were stopped at a roadblock by armed men who inhibited Leigh and her colleagues from traveling on a public road on the pretext that a wild horse holding area might have been visible from the road.
The obvious question in this case is, ‘BLM, if you are doing things correctly, what are you trying so hard to hide?’
UPDATE: The Ninth Circuit Ordered Mediation that went for months. The case was settled with an objective of viewing every horse clearly on the date of capture and the reopening of the BLM facility in Fallon NV.
WildHorseEducation.org is a Nevada non-profit carrying three active federal cases against the BLM.
Links of interest:
Wild Horse Education Website: http://wildhorseeducation.org
Read the Ninth Circuit Opinion: http://cdn.ca9.uscourts.gov/datastore/opinions/2012/02/14/11-16088.pdf