A Horseback Exclusive: Recollections on Beating the BLM

By Gordon Cowan, Attorney

Editor’s Note: On Valentine’s Day morning a Reno lawyer was stunned to receive an opinion from California’s Ninth Circuit Court of Appeals announcing he had prevailed in a case against the federal government. But it wasn’t just any lawyer, it wasn’t just any case, it wasn’t just any plaintiff. It was Laura Leigh, a modest, intelligent, and savvy journalist and photographer credentialed by Horseback Magazine who sued the mighty Bureau of Land Management because they were trampling her rights to report the news. The lawyer, a cowboy hat wearing legend in Nevada courtrooms, Gordon Cowan (assisted by Bruce Wagbman), and the case was Leigh vs. Salazar. The BLM has plenty to hide, and the agency has successfully hidden its misdeeds for decades. Thanks to the opinion rendered by three jurists in the Golden State, perhaps the bureau’s shameful practice of denying press access will now come to an end. Here’s Gordie’s story. – Steven Long, Editor, Horseback Magazine

RENO, (Horseback) – The Editor of Horseback Magazine asked me to write about my feelings when having received the opinion from the U.S. Court of Appeals for the Ninth Circuit in the Laura Leigh v. Ken Salazar case (Case 11-16088). I didn’t have time

to write a short article, so I wrote a long one (a comment stolen from Mark Twain).

It is not my usual course to post comments. The closest I came was when writing the editorial, “The Silence of the Foals and Journalists” which Horseback Magazine graciously published September 2010 (http://horsebackmagazine.com/hb/archives/3052) when frustrated over hearing about good horses being injured and good journalists being denied access to report important government work.

This Tuesday morning I came into the office at 9:00 a.m. The Ninth Circuit’s opinion came through about an hour earlier.

When signing onto the federal courts account, I saw the filing notice from the Ninth Circuit. My first thought was that I had lost. Only five weeks had passed since I argued the case. It is, after all, much quicker for the court to deny relief in this type matter than to grant the requested relief. As a result, I did not open the email notice right away, not feeling the need to become depressed at the beginning 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, at first. I grabbed a cup of Joe and came back, refocused.

My first 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. I picked up the statements of Judge Milan Smith who included in the court’s opinion, 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 Spring caused 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 Smith’s 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 (the latter comment by a guy who thinks the U.S. Marshall Service would follow his order to take “activist judges” into custody).

Opinions such as the one Judge Milan Smith 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. This particular panel of judges included three of the toughest, most conservative judges on the bench, all of whom were appointed by conservative Republican Presidents (G.W. Bush, Reagan and Nixon). (A close friend, who saw the decision, called and said he had traveled with one of the judges where they engaged in humanitarian efforts together in foreign countries).

To finish the story, I could not reach Laura 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 my message. She drove until she had clear service, and then called.

When reading her Judge Smith’s words, it was the classic dichotomy: a court suggests that she holds a fundamental right to see and report on government activity while at that very moment, the government was restricting her access to view a wild horse roundup.

Yes, it is true that I choked with emotion at least twice, when reading Judge Smith’s opinion to the client. (Please don’t let my cowboy buddies know of this). When reading I was picturing Judges Smith, Noonan and Wallace who had asked tough questions of me last month when I stood before them. I was comparing in my mind’s eye, their faces with the likely dust caked Laura Leigh who listened to the message while braving a wind chill that lowered into the teens.

What is my interpretation of the court’s opinion? Three American heroes (again, Smith, Noonan and Wallace) saw the plight of a hard-working photojournalist who is repeatedly shut out from reporting government activity that is newsworthy. “When wrongdoing is underway, official have great incentive to blindfold the watchful eye of the Fourth Estate,” said the court. This is particularly so where the activity occurs in a remote, desolate, unpopulated region. The court fashioned an exemplary opinion in short order and provided guidelines that are protective of a free press. This decision was crafted to be cited and cited often.

I have received accolades from the horse advocate community. My hope is they recognize that I was but a mere messenger. Ms. Leigh is the one who didn’t give up. The court, particularly Judges Smith, Noonan and Wallace, are the heroes who accepted the message and crafted a path of correction, not just for Ms. Leigh, but for the press and journalists like her.

Moments like these make one proud to be a bar member of the Ninth Circuit. The next time a sound bite-toting candidate desires to bash this court over its good work, please refer them to me.

23 comments for “A Horseback Exclusive: Recollections on Beating the BLM

  1. Susie
    February 16, 2012 at 11:55 pm

    Excellent, excellent article summarizing the decision. Such a historical, stellar ruling for the wild horses and the 1st amendment and freedom of the press. I still don’t understand, however, if it was remanded to the lower court to rule again? Is it over with this ruling? Please say yes.

    And I love this line:The federal judiciary is the only branch of government whose members are not swayed by lobbyists, or “super pacs,” or by money.

    Congratulations and thank you. And thank you Laura Leigh.

  2. February 17, 2012 at 8:37 am

    Thank you once again for an excellent article to explain this huge victory! Laura Leigh has sacrificed any semblance of a normal life to expose the cruelties and laws broken by the good old boy mentality of the BLM. A fraction of our government that we pay to abuse the system and line the pockets of those employed by us and the cattle industry who have no regard for our wild horses and burros. May God always walk beside her in this journey to stop this madness!

  3. Holly
    February 17, 2012 at 8:44 am

    Thank you to those in the trenches who are working so hard to fight for the mustangs! Thank you! Holly

  4. Ellen
    February 17, 2012 at 9:07 am

    Thank you so much! this has been a hard road with lots of bumps along the way! typical Nevada backroads…..thank you for staying the course!

  5. Denise
    February 17, 2012 at 11:12 am

    Congress has been trying since the ’80s to bust the Ninth Circuit………..Hmmmm, I wonder why?…..NOT!

    I wish the attorney would have commented on the judge that said Ms Leigh hasn’t shown “whatever the legal” it was. It made me ill.

    Also…three judges hearing for the Ninth is interesting (yes, I know it is proceedurally standard) because of protocol, importance and the situation with our Federal judicial system.

    Also love how the horse haters and killers NEVER or rarely post on these kinds of threads. Thank you.

  6. February 17, 2012 at 12:34 pm

    i don’t have the education and the big fancy words, but i can say Wonderful, Amazing, AT LAST!!!!!!!!!

  7. Louie Cocroft
    February 17, 2012 at 1:00 pm

    How do we say THANK YOU enough, Gordon? We know that you have put many hours of your own time into this lawsuit without being given much in the way of monetary compensation…probably a few dollars here and there, when people can afford to give. ANY accolades that you receive are well deserved.

  8. Louie Cocroft
    February 17, 2012 at 1:16 pm

    What part of NO does BLM not understand?

    George Knapp is a 14-time Emmy Award-winning journalist. His other awards include the Associated Press’s Mark Twain Award for news writing and the Edward R. Murrow Award for Investigative Reporting. George is an anchor and reporter for the CBS affiliate KLAS-TV in Las Vegas and he also writes a weekly column for a Las Vegas newspaper.
    http://www.8newsnow.com/story/12842393/i-team-more-horses-die-in-gather-public-not-allowed-to-observe
    CHIEF INVESTIGATIVE REPORTER GEORGE KNAPP AND CHIEF PHOTOJOURNALIST MATT ADAMS
    I-Team: More Horses Die in Gather, Public Not Allowed to Observe
    ELKO COUNTY, Nev. — A deadly government roundup of Nevada’s wild horses during the hottest month of the year has led to new accusations in federal court.
    Wild horse advocates have accused the Bureau of Land Management of contempt, because the agency went to extraordinary lengths to keep the public from being able to observe a horse roundup over the past few days in which 21 mustangs died.
    We would like to report that members of the press and public were able to get in and see the roundup, but that did not happen because of gamesmanship and subterfuge on the part of the BLM. The agency clearly does not want outside eyes to watch what it is doing.

  9. Lana Verplank
    February 17, 2012 at 10:07 pm

    To all the Heroes involved in this ground breaking case, a giant “Thank YOU”! Laura Leigh you are the heart and soul of every wild horse and burro striving to live free and of those who have had it torn away from them. Without you, Laura, America’s wild horses and burros don’t stand a chance! Without you, Mr. Cowan, Laura’s voice would not be heard! Thanks to you Mr. Cowan for getting her that microphone needed to make her powerful and mighty voice be heard!

  10. February 18, 2012 at 12:20 pm

    Thank you so much, Gordon. You along with your team have given hope to the advocates whose hero is Laura Leigh. I don’t know if you have had access to this blog site in the past to see all of the accolades that have been heaped at your feet, just for the great efforts even when we didn’t win. The smallest glimmer of hope has been greeted with shouts of hallelujah. Now I, along with many others, congratulate you on a win that not only brings us huge advantage in our quest for truthful reporting, but gives every citizen the hope of sunshine on dark holes of corrupt practices in all areas of government. Gordon, you are a brilliant advocate for the TRUTH.

  11. Anne-Marie
    February 18, 2012 at 4:49 pm

    OK, I am NOT into “hero worshipping”, so skipp that part and please someone explain, how this “historic judgement” affects the Wild Horses”?? How is their suffering, accidental death will be prevented by “photo journalists” being there and observe from “front row” seats?! Because so far nothing has changed for the wild ones….from their point of view, that is. Cloud Foundation and WWS’s lawsuit, at least managed to cancel a roundup, so I call that a SUCCESS!

    • admin
      February 18, 2012 at 11:54 pm

      It’s called sunshine Ann-Marie. The press shines light on government when it is trying to hide something – in this case the wretched abuse of America’s wild horses by giving the land designated by Congress as theirs to ranchers who pay rock bottom prices for it. It is a national outrage, and now, as a result of the ruling in the Ninth Circuit, the sun at least has a chance to shine rather than be blocked by armed security guards keeping the press from observing the stampedes.

      The Editor

    • February 20, 2012 at 6:44 pm

      I am pasting part of my response above, because you obviously didn’t read anyone else’s response to the story.
      “Now I, along with many others, congratulate you on a win that not only brings us huge advantage in our quest for truthful reporting, but gives every citizen the hope of sunshine on dark holes of corrupt practices in all areas of government. Gordon, you are a brilliant advocate for the TRUTH.”
      I know of no other more promising route to saving the Wild Horses and Burros than by exposing the unholy relationship between the BLM and the cattle ranchers and adding the pressure on the horses by the desire to tap every energy source. Your comments were aimed at efforts of Laura and her attorneys to protect the horses as being useless, but you did not suggest a better approach. Waiting for all of the things that you are doing to change the situation, and how we can also support and help you.

  12. Anne-Marie
    February 20, 2012 at 9:53 am

    Thank you for the posting of my comment and the explanation…..I love sunshine! I love the Wild Horses & Burros even more. I am also for ACTION, before it’s too late. I sadly maintain my opinion, this is “Victory” for people for the “Journalist” who makes a living by reporting on political corruption and the suffering and misery of our beloved Wild ones. However unless we manage to STOP this Government sponsored “MASSACRE” ….the journalist will be out of a job, or has to change topic, because there will be no more Wild Horses left to “observe, document or take pictures of” Thanks again for your answer.

    • admin
      February 20, 2012 at 9:56 am

      Sorry, but the wild horses will be lost if nobody knows of their plight. That is the job of a journalist, and thanks to this ruling, that job has been made a realistic possibility. Only the press and children can apply the kind of pressure to move mountains.

      The Editor

  13. Anne-Marie
    February 20, 2012 at 12:27 pm

    You are right and the CHILDREN already done their part…..remains to be seen about the Journalists. For nearly 3 yrs. now the word has been out on the plight of the Wild Horses, ACTION is needed, and URGENTLY! Supporting Wild Horse Preserves, and organizations actively promoting the Mustangs, what ultimately will save them for future generations to come.

    • February 21, 2012 at 6:32 pm

      Yes, Anne-Marie, there needs to be other actions in order to save the wild horses. FYI, Laura does not get paid to do what she is doing. She does not have some newspaper, tv station or Times Warner behind her paying her a paycheck and covering her expenses. She does not work for NatGeo, or any other such corporate organization. BUT, in order to take the BLM and the Dept of Interior to court in order to change what is happening to the wild equids, there must be documentation from a independent source. You can’t go before a judge with just your emotions. Laura provides the documentation to take to the courts. And the ruling for the Ninth court goes far beyond wild horses. It totally has to do with the First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” This affects many parts of your life, including the freedom for Callie Hendrickson to say what she thinks (no matter how much we disagree with her).

      • admin
        February 21, 2012 at 6:39 pm

        Horseback Magazine has fully credentialed Laura Leigh with the BLM as on assignment by us to cover the Wild Horses of America, no matter where they are.

        Steven Long, Editor
        Horseback Magazine and Horseback Online

  14. deborah
    February 20, 2012 at 7:02 pm

    it is a victory and a win because the courts are finally acknowledging the problem where it starts…most of the facts from every round up are posted by the BLM for the BLM’s desired perspective.(which is always how great a job they have done, and the only answer). when the public, or a journalist wants to be there on public lands to monitor the publics wildlife they are denied access, kept at very far distances ect. so to change anything is impossible because the question of when where or how is always skewed and can be shot down in a court of law. it is the beginning not only for the fight for wild horses and burros, but of honoring the public’s rights. also the beginnings for an honest look at exactly what is really happening to our horses and burros out on OUR public lands, and accountability goes along long way! great job!!

  15. Lisa L.
    February 20, 2012 at 8:04 pm

    Ya know – this fight would be just a whole BUNCHES easier if we had, say, an unlimited budget; a paid lobbyist; the Associated Press on speed dial; vast land holdings; vast water resources; vast legal resources and high-ranking BLM officials who took our phone calls personally.

    But we don’t. We’re squeaking out each and every step forward like it’s the last bit of toothpaste in the tube. We submit diligently researched comments in answer to Environmental Assessments, replete with science and data. We file grievances with the courts on the merits and legtimacy of those grievances, and with the Interior Board of Land Appeals where applicable. When that fails, we prostrate ourselves before the reigning BLM office in the hopes that there may be a human being we can find equal footing with who will work with us. Many of the men and women who do the trench work do so in relative obscurity and do so without complaint or rancor. And their names may never see the light of day. In the fight for equity for Wild Horses and Burros, there are perhaps half a dozen names recognized outside of our little ‘circle’; hell, we can’t interest most news agencies in the truth and actuality of the issues unless we’re married to a billionaire. Ask anyone without an interest in Wild Equines to name a ‘name’, and they’ll stutter out the first famous one that comes to mind – because quite frankly, there aren’t that many.

    I’m a full grown, adult woman completely in command of my own self worth; I need no heroes to function. There is nothing wrong with healthy admiration, particularly when it’s hard fought for and won. The issues for Wild Equines have festered for 40 years. Every step forward is progress; instead of this particular case being summarily dismissed, as so many are, it was forced to undergo several levels of the judicial process which called into question whether the BLM was excercising interpretation of the Constititution or overstepping it’s principals.

    The First Amendment isn’t only about Freedom of the Press; it also prohibits interference with the right to peaceably assemble (in defense of a common interest) and the right to petition for governmental redress of grievances – both of which are also addressed to some extent in this matter. Without this attention, the Bureau might continue to prohibit Wild Equine Supporters from observations of roundups – that ensure at least a modicum of restraint is excercised in how these animals are treated.

    We don’t have ‘ideal’ yet. But this case should be considered a part of a strong foundation that requires patience and dedication, not immediate gratification. In the interim, we save the ones we can, witness for the ones we can’t and follow those sent off into obscurity to the best of our abilities.

    Every step forward is a blessing.

  16. Michelle Freshteh Brown
    February 20, 2012 at 8:19 pm

    I don’t know why you are finding it all so hard to understand Anne-Marie ! You talked about children, I will explain to you in child terms.

    1) It’s a great win for Laura Leigh because now she can get closer to see and look at the mustangs.
    2) The reason she needs to be closer is to watch and write down what’s happening, and photo and video it too.
    3) There is a reason to photo and write down what’s happening.
    4) The reason is so she can show the photos and film to the judge at the court so he can see what’s happening.
    5) We want him to see what’s happening so he can tell the BLM off, and stop them bullying the horses.
    6) Because the judge is like a head teacher, he as told all the other teachers that they must let Laura Leigh and any other journalist be able to go and watch the nasty men ( BLM ) always, and the nasty men can not hide bullying the horses anymore.
    7) Because there are bullies that call themselves the government, they hide secrets, and that’s bad to do, so the judge wants us to always tell him the truth about nasty people, so he can stop them.
    8) When the bad bullies, can’t come out and play anymore, they won’t be able to nasty to the horses .
    9) Also when they are let out to play again, they will know the teachers are always watching them, so they must be good.

    I hope you understand the court case now, if you still don’t, please ask and I will try and break it down more for you.

  17. elizabeth lynely
    February 20, 2012 at 8:34 pm

    Finally! some good news for the wild horses! Thank you Mr. Cowan & Ms. Leigh! you have been pursuing this case for years! you have been shut down, denied and denied again! thank you for staying the course and demanding to be heard! I pray the District Court will now do something intelligent with this decision.

    thank you again!

  18. Leslie Peeples
    February 21, 2012 at 12:26 am

    This is not only about access to roundups, it is about access to our wild horses and burros, from the range all the way until their final destination. They are OUR HORSES and it is OUR PUBLIC LAND. We pay for the wild horse and burro program and we have the right to know what happens to them.
    This is so much bigger than just the horses and burros as this case will be cited whenever issues of 1st amendment rights on public lands are an issue in the court room.
    It was a win 2 years ago by Laura and Gordon Cowan, on 1st amendment rights regarding the Tuscarora roundup that opened the doors for advocates to attend any day of a roundup and stopped BLM from illegal land closures. BLM and their roundup contractors have found creative ways to limit what we see and get on film. That is part of what is now being addressed in this case.
    If Laura was not able to document, most of us would not know this travesty was occurring, much of what is occurring we still don’t know. It is the public heat and the heat by the wonderful attorney Gordon Cowan and his plaintiff Laura Leigh that is forcing change and I am forever grateful to both of them, thanks!!

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