Appeals court rules woman wrongly kept from roundup

RENO -- A photographer and wild horse protection advocate who contends her First Amendment rights were violated when she was denied access to roundups in Nevada has scored a victory in the 9th Circuit U.S. Court of Appeals.

A three-judge panel in San Francisco overturned a lower court ruling Tuesday and sent the case back to a federal judge in Reno to determine whether the U.S. Bureau of Land Management's restrictions on media access to roundups are constitutional.

Appellate Judge Milan Smith Jr.'s opinion said the court must balance the "vital public interest in preserving the media's ability to monitor government activities against the government's need to impose restrictions if necessary for safety or other legitimate reasons."

"When the government announces it is excluding the press for reasons such as administrative convenience, preservation of evidence, or protection of reporters' safety, its real motive may be to prevent the gathering of information about government abuses or incompetence," the judge wrote.

Laura Leigh, a photojournalist and writer for Horseback Magazine from Minden, learned about the ruling Tuesday afternoon while trying to observe another roundup in central Nevada.

"It's wonderful. It's so exciting," she said from Tonopah.

"You can really hear the spirit of the Constitution in the ruling. They really understood the magnitude of what is occurring out here," Leigh said.

Gordon Cowan, her Reno lawyer, said the appellate judges demonstrated "true heroism in standing guard for the First Amendment freedoms."

"They give press members like Ms. Laura Leigh hope that someone is looking out for them," he said.

Leigh filed a lawsuit against the BLM in the summer of 2010 seeking to halt the roundup of about 500 wild horses in Lincoln County near the Utah line.

She said the BLM's closure of 27,000 acres of public lands where the Silver King roundup was taking place amounted to censorship in violation of the First Amendment and prevented her from observing the gather in a watchdog role.

BLM officials did not respond to requests for comment on Tuesday.

Their lawyers argued that Leigh had been granted no less access than any other member of the public and that the restrictions were necessary for the safety of the horses and the observers.

U.S. District Judge Larry Hicks denied her request for a temporary restraining order in September 2010 and then reaffirmed his ruling in April.

The 9th Circuit panel said Hicks dismissed her concerns too quickly. It also said he was wrong to conclude the question was moot because the roundup was over by the time he issued a final ruling.

"A court cannot rubber-stamp an access restriction simply because the government says it is necessary," Smith wrote. "When wrongdoing is under way, officials have great incentive to blindfold the watchful eyes of the Fourth Estate. ...

"The relevant question is not whether the BLM prohibited Leigh from observing the horse gather altogether," he said. "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 9th Circuit ruled the District Court failed to consider 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."