FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LAURA LEIGH,
Plaintiff-Appellant,

v. No. 11-16088

KEN SALAZAR, Secretary, U.S. D.C. No.
Department of the Interior; BOB ý 3:10-cv-00597-
ABBEY, Director, Bureau of Land LRH-VPC
Management; RONALD WENKER, OPINION Nevada State Director of Bureau
of Land Management,

Defendants-Appellees. þ
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
January 9, 2012—San Francisco, California
Filed February 14, 2012
Before: J. Clifford Wallace, John T. Noonan, Jr., and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by Judge Wallace
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COUNSEL

Gordon M. Cowan (argued), Reno, Nevada, and Bruce A.
Wagman, Schiff Hardin LLP, San Francisco, California, for
the plaintiff-appellant.

Nicholas A. DiMascio (argued), Ignacia S. Moreno, and
David S. Shilton, United States Department of Justice, Environment
and Natural Resources Division, Washington, D.C.,
for the defendants-appellees.
Lucy A. Dalglish, Gregg P. Leslie, Kristen Rasmussen, and
Derek D. Green, Arlington, Virginia, for Amicus Curiae The
Reporters Committee for Freedom of the Press, and Mickey
H. Osterreicher, East Amherst, New York, for amicus curiae
National Press Photographers Association.

OPINION
M. SMITH, Circuit Judge:

Plaintiff-Appellant Laura Leigh, a photojournalist, contends
that viewing restrictions at a Bureau of Land Management
(BLM) horse roundup violated her First Amendment
right to observe government activities. Leigh moved for a preliminary
injunction to require the BLM to provide her with
unrestricted access to horse roundups. The district court
denied Leigh’s motion, concluding that most of the relief
sought was moot because the roundup ended in October 2010.
Alternatively, the district court concluded that Leigh was
unlikely to succeed on the merits because the restrictions did
not violate the First Amendment.
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We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we
reverse. Because the preliminary injunction motion seeks
unrestricted access to future horse roundups, and not just the
one that took place in 2010, this case is not moot. As to the
merits of Leigh’s First Amendment claim, the district court
erred by failing to apply the well-established qualified right of
access balancing test set forth in Press-Enterprise Co. v.
Superior Court (“Press-Enterprise II”), 478 U.S. 1, 8-9
(1986). Courts have an unyielding duty to thoroughly analyze
whether the government has violated this fundamental constitutional
right, which “serves to ensure that the individual citizen
can effectively participate in and contribute to our
republican system of selfgovernment,” Globe Newspaper Co.
v. Superior Court, 457 U.S. 596, 604 (1982). Accordingly, we
remand this case for the district court to consider in the first
instance whether the public has a First Amendment right of
access to horse gathers, and, if so, whether the viewing
restrictions are narrowly tailored to serve the government’s
overriding interests.
FACTUAL AND PROCEDURAL BACKGROUND
The Wild Free-Roaming Horses and Burros Act, 16 U.S.C.
§§ 1331-1340, grants the BLM jurisdiction over all wild
horses on federal lands. If the BLM determines “that an overpopulation
exists on a given area of the public lands and that
action is necessary to remove excess animals, [the BLM must]
immediately remove excess animals from the range so as to
achieve appropriate management levels.” 16 U.S.C.
§ 1333(b)(2).
The BLM controls overpopulation by conducting horse
gathers, also known as roundups, in which it uses helicopters
to herd the horses toward a temporary gather corral. Once the
horses are secured in the corral, the weaker horses are separated
from the stronger ones. The horses are then moved by
pick-up or semi-trailer to a temporary holding corral, where
some are prepared to be shipped for adoption. The BLM
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allows the public to observe horse gathers, but it restricts the
viewing locations to protect the public from wild horses, helicopters,
and vehicles. The BLM conducted a horse gather
from September 25, 2010 through October 13, 2010 at the Silver
King Herd Management Area (Silver King) in Lincoln
County, Nevada, after determining that an overpopulation of
horses was depleting natural resources and posing a danger to
drivers on the nearby highway. Approximately 500 wild
horses were captured. The BLM allowed daily public viewing,
and also scheduled two public observation days, during
which it led groups of up to ten observers, and provided BLM
employees to answer questions about the gather.
Leigh, a photojournalist for Horseback Magazine, reports
about the BLM’s horse gathers, and asserts that there is “no
true oversight or accountability” over the gathers. Leigh participated
in the September 28, 2010 observation day at Silver
King, and she also observed the gather on non-observation
days. The BLM staff and law enforcement officers imposed
restrictions to “ensure that the public does not get in the way
of gather operations and follows necessary safety precautions.”
The restrictions included designated viewing areas and
requirements that observers sit down or remain quiet during
parts of the gather.
On September 22, 2010, Leigh filed a complaint in which
she alleged that the BLM’s restrictions violated her First
Amendment rights. Leigh also filed motions for a temporary
restraining order and a preliminary injunction. On September
27, 2010, the district court denied the motion for a temporary
restraining order. Leigh then filed the present amended
motion for a temporary restraining order and amended motion
for a preliminary injunction, in which she asks the court to
require the BLM to provide her with unrestricted access to the
roundup of “all horses captured from Silver King.” She also
seeks various forms of affirmative relief, which could be summarized
broadly as: (1) requiring the BLM to create a system
to track the horses’ locations after capture; (2) requiring the
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BLM to provide the public with access to such information
without having to file a Freedom of Information Act (FOIA)
request; and (3) requiring the BLM to allow the public to
view the horses at holding facilities and after the gather.
On November 16, 2010, after the Silver King gather was
complete, the district court held an evidentiary hearing on the
preliminary injunction motion. Leigh testified that she was
escorted by the BLM’s staff during the first day of the gather,
and that the BLM’s staff, including armed guards, brusquely
instructed the observation group where to stand. She observed
the horses being moved into a netting area, but hills
obstructed her view of the horses being captured in the metal
panels. She also claims that she could not view the contractors
sorting the horses into various pens, nor was she able to view
whether the horses were injured. Leigh alleges that the BLM’s
contractors prohibited her from accessing certain areas even
though other members of the public were permitted in those
areas. Two other witnesses, Elizabeth Slagsvol and Debbie
Coffey, also testified that the BLM made it difficult to
observe the gather.
Chris Hanefeld, the BLM public affairs specialist who
oversaw public observation of the 2010 horse gather at Silver
King, testified that Leigh was not denied access that others
received. Hanefeld testified that the restrictions were intended
to avoid spooking the horses as they entered the trap. He
acknowledged that the BLM instructed observers to remain
seated and not to move, even when they were far away from
the horses.
On April 13, 2011, the district court denied the motions for
a temporary restraining order and a preliminary injunction.
The district court concluded that the bulk of Leigh’s requests
for injunctive relief are moot: “because the gather has been
completed, there is no conduct to enjoin.” Even if Leigh’s
request was not moot, the district court ruled, she has failed
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to demonstrate likelihood of success on the merits as to her
request to be allowed unrestricted access to the gather:
Leigh has made no showing that she was denied
access to the Silver King Gather, or that other members
of the media were treated more favorably. Leigh
has not proven that she was denied access to gather
activities or that other members of the media
received special treatment. Rather, the evidence
before the court established that Leigh was provided
comparable access to, and observation of, the Silver
King Gather as other members of the public and
media.
The district court also denied Leigh’s other requests for affirmative
injunctive relief regarding other horse gathers and
information about wild horses, summarily concluding that
“Leigh has made no showing that she is likely to succeed on
the merits of her First Amendment claim as it relates to access
to facilities, agency information, or the creation of a tracking
system.” Leigh timely appealed the denial of the preliminary
injunction.
STANDARD OF REVIEW
We review the district court’s legal conclusions de novo,
and its application of the preliminary injunction factors for
abuse of discretion. Stormans, Inc. v. Selecky, 586 F.3d 1109,
1119 (9th Cir. 2009). We review the district court’s factual
determinations for clear error. Klein v. City of San Clemente,
584 F.3d 1196, 1200 (9th Cir. 2009).
DISCUSSION
A court may grant a preliminary injunction only if the
plaintiff establishes four elements: (1) likelihood of success
on the merits; (2) likelihood of suffering irreparable harm
absent a preliminary injunction; (3) the balance of equities
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tips in the plaintiff ’s favor; and (4) injunctive relief is in the
public interest. Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).
The district court based its holding on the first element, concluding
that Leigh was unlikely to succeed on the merits
because most of her claim was moot and she did not state a
valid First Amendment claim.

We disagree with both conclusions.
I. Mootness
[1] The mootness doctrine “requires that an actual, ongoing
controversy exist at all stages of federal court proceedings.”
Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th
Cir. 2011). “[I]f events subsequent to the filing of the case
resolve the parties’ dispute, we must dismiss the case as
moot[.]” Id.
The district court held that because the gather that took
place in Silver King in 2010 is complete, Leigh’s requests for
unrestricted access are moot.
[2] If Leigh’s preliminary injunction motion were limited
to the 2010 gather in Silver King, we might agree with the
district court. However, Leigh’s preliminary injunction
motion concerns “all horses captured from Silver King,” and
is in no way limited to the 2010 gather. Therefore, the motion
applies to all future horse gathers at Silver King. Although the
government asserts that there are no current plans for future
roundups at Silver King, it cannot rule out the possibility
because the Wild Free-Roaming Horses and Burros Act
requires the BLM to “immediately remove” excess horses
from overpopulated federal lands. 16 U.S.C. § 1333(b)(2).
Indeed, there is an estimated horse population annual growth
rate of 20 to 25 percent in the Silver King Herd Management
Area. Furthermore, the BLM only gathered 504 wild horses
during the 2010 roundup, even though it had determined that
there were 546 excess wild horses that should be removed.

Thus, there is a real possibility of another horse gather in Sil-
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ver King. Although the preliminary injunction does not apply
to horse gathers conducted in other locations, it is not moot
as applied to future gathers in Silver King.
The government contends that In Defense of Animals v.
United States Department of Interior, 648 F.3d 1012 (9th Cir.
2011), supports the district court’s mootness decision. In that
case, an animal rights group filed a motion for a preliminary
injunction and temporary restraining order on August 5, 2010
to stop the initial phase of a roundup of horses scheduled to
begin on August 9, 2010 and to last 45 to 60 days. Id. at 1013.
The district court denied the motion, and the roundup
occurred. Id. On appeal, we found that the “interlocutory
appeal from the denial of a preliminary injunction is moot
because the roundup sought to be enjoined has taken place.”
Id. at 1013. In Defense of Animals is inapposite because the
preliminary injunction motion in that case sought only to
enjoin the initial stages of a single roundup that had already
been completed. In contrast, Leigh’s preliminary injunction
motion is not limited to one roundup.
Moreover, the district court’s mootness ruling applied only
to Leigh’s request for unrestricted access to horse gathers at
Silver King. The district court did not find that Leigh’s
requests for three general forms of affirmative relief were
moot. Leigh has waived requests for two forms of relief —
requiring the BLM to create a horse tracking system, and
requiring BLM to provide the public with access to information
about horses without filing a FOIA request — because
she failed to raise them in her opening brief. See Brownfield
v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir. 2010)
(“We review only issues which are argued specifically and
distinctly in a party’s opening brief.”) (quoting Greenwood v.
Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)).
However, Leigh’s opening appellate brief reiterates her
request for the third form of relief: access to horses after they
are gathered. The government contends that this request also
is moot. In her opening brief, Leigh identifies only one hold-
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ing facility to which she was denied access: the Indian Lakes
Short-Term Holding Facility in Fallon, Nevada. Leigh participated
in a public tour of this facility on June 3, 2011, and the
BLM plans to offer periodic tours of the facility in the future.
However, this limited access does not render Leigh’s entire
request moot because it does not provide her with the unrestricted
access to the holding facility that she seeks in her preliminary
injunction motion.
[3] In sum, the completion of the 2010 gather does not render
the preliminary injunction moot because it still could
apply to future horse gathers at Silver King, and to Leigh’s
request for unrestricted access to horses in holding facilities
after they are gathered.
II. First Amendment
The gravamen of Leigh’s complaint is that the BLM’s
viewing restrictions violated her First Amendment right to
observe governmental activities.1
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.” 9 WRITINGS OF JAMES MADISON
103 (G. Hunt ed. 1910). Indeed, this transparency has made
possible the vital work of Ida Tarbell, Rachel Carson, I.F.
Stone, and the countless other investigative journalists who
have strengthened our government by exposing its flaws.
1In her opening brief, Leigh also argues that the BLM’s viewing restrictions
violated the First Amendment because they were a prior restraint,
which “exists when the enjoyment of protected expression is contingent
upon the approval of government officials.” Dream Palace v. Cnty. of
Maricopa, 384 F.3d 990, 1001 (9th Cir. 2004). At oral argument, Leigh’s
counsel conceded that the BLM’s restrictions are not a prior restraint, and
therefore we need not address that argument.
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[4] The First Amendment prohibits any law “abridging the
freedom of speech, or of the press [.]” U.S. Const. amend. I.
Although the First Amendment does not enumerate special
rights for observing government activities, “[t]he Supreme
Court has recognized that newsgathering is an activity protected
by the First Amendment.” United States v. Sherman,
581 F.2d 1358, 1361 (9th Cir. 1978); see Branzburg v. Hayes,
408 U.S. 665, 681 (1972) (“[W]ithout some protection for
seeking out the news, freedom of the press could be eviscerated.”).
[5] To provide this First Amendment protection, the
Supreme Court has long recognized a qualified right of access
for the press and public to observe government activities. The
right originated in a series of cases in which the media sought
to observe criminal judicial proceedings. In Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555 (1980), newspaper
reporters challenged an order that excluded the public from a
murder trial. Id. at 560. The Supreme Court reversed the closure
order, and held that the First Amendment provides the
public with a right to attend the trial. In the opinion announcing
the judgment, Chief Justice Burger wrote that “[f]ree
speech carries with it some freedom to listen,” and that “the
First Amendment guarantees of speech and press, standing
alone, prohibit government from summarily closing courtroom
doors which had long been open to the public at the
time that Amendment was adopted.” Id. at 576. Two years
later, in Globe Newspaper Co., the Supreme Court struck
down a state law that excluded the public from the trial testimony
of children who were victims of sex crimes. The Court
recognized “the common understanding that a major purpose
of [the First] Amendment was to protect the free discussion
of governmental affairs.” 457 U.S. at 604 (internal citation
and quotation marks omitted).2
2See also Press-Enter. II, 478 U.S. at 8-14 (recognizing right of public
access to preliminary hearings); Press-Enter. Co. v. Superior Court
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[6] In Press-Enterprise II, the Supreme Court articulated a
two-part test for right of access claims. First, the court must
determine whether a right of access attaches to the government
proceeding or activity by considering 1) “whether the
place and process have historically been open to the press and
general public” and 2) “whether public access plays a significant
positive role in the functioning of the particular process
in question.” 478 U.S. at 8-9. Second, if the court determines
that a qualified right applies, the government may overcome
that right only by demonstrating “an overriding interest based
on findings that closure is essential to preserve higher values
and is narrowly tailored to serve that interest.” Id. at 9 (internal
citation omitted).3
[7] The government argues that the Press-Enterprise II
framework is limited to attempts to access criminal trials. We
disagree. Although Press-Enterprise II and the other early
(“Press-Enter. I”), 464 U.S. 501, 510-11 (1984) (holding that media have
a right of access to voir dire); In re Copley Press Inc., 518 F.3d 1022,
1027 (9th Cir. 2008) (“the public has a qualified First Amendment right
to access [defendant’s] plea colloquy transcript”); Phoenix Newspapers v.
United States Dist. Court, 156 F.3d 940, 946-51 (9th Cir. 1998) (holding
that district court erred by denying public access to transcripts of hearings
that took place during jury deliberations in criminal trial); Oregonian
Publ’g Co. v. United States Dist. Court, 920 F.2d 1462, 1468 (9th Cir.
1990) (granting newspaper company’s petition for writ of mandamus to
require district court to unseal plea agreement).
3Amici Curiae The Reporters Committee for Freedom of the Press and
National Press Photographers Association argue that we should analyze
the restrictions as a violation of the First Amendment right to expression
in a public forum. Amici rely on Daily Herald Co. v. Munro, 838 F.2d 380
(9th Cir. 1988), in which we held unconstitutional a state statute that
restricted media organizations’ exit polling. Id. at 386. Although we concluded
that the right of access might apply to those restrictions, we instead
applied public forum analysis because the exit polling statute restricted the
“discussion between pollster and voter.” Id. at 384. Of course, such a dialogue
is not present here because no one can have a conversation with a
horse. See JAY LIVINGSTON AND RAY EVANS, MISTER ED THEME SONG. Thus,
the right of access analysis is the more appropriate standard for this case.
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right of access cases involved criminal judicial proceedings,
we have applied this analytical framework in other settings.
In Cal-Almond, Inc. v. United States Department of Agriculture,
960 F.2d 105 (9th Cir. 1992), we applied the Press-
Enterprise II analysis to the plaintiff ’s attempt to force the
U.S. Department of Agriculture to provide it with a list of
California almond growers eligible to vote in an agricultural
marketing order referendum. Id. at 109. We concluded that
“there is a substantial question whether the interests asserted
by the government would override the right of access asserted”
by the plaintiff, but we ultimately chose to avoid ruling
on the constitutional question because the statute that governs
agricultural marketing orders could instead be interpreted as
requiring public access. Id. at 109-10. Similarly, in California
First Amendment Coalition v. Woodford, 299 F.3d 868 (9th
Cir. 2002), we reviewed a district court’s ruling that prohibited
a state prison “from preventing uninterrupted viewing of
executions from the moment the condemned enters the execution
chamber through, to and including, the time the condemned
is declared dead.” Id. at 886. Applying a modified
Press-Enterprise II test, we affirmed the district court’s conclusion.
Id. at 873-86.4
[8] Many other courts have applied the Press-Enterprise II
framework to evaluate attempts to access a wide range of civil
and administrative government activities.5 These cases reflect
4We applied the first prong of Press-Enterprise II to determine whether
a right of access attached to executions. However, because courts are more
deferential to prison regulations, we required the government to show that
the restrictions were “reasonably related to legitimate penological objectives,
or whether it represents an exaggerated response to those concerns.”
299 F.3d at 878 (quoting Turner v. Safley, 482 U.S. 78, 87 (1987)).
Because this case does not involve prison regulations, it is unnecessary to
modify the Press-Enterprise II analysis here.
5See, e.g., United States v. Miami Univ., 294 F.3d 797, 821 (6th Cir.
2002) (applying Press-Enterprise II analysis to attempts to access university’s
student disciplinary records); Whiteland Woods, L.P. v. Township of
W. Whiteland, 193 F.3d 177, 181 (3d Cir. 1999) (planning commission
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the common understanding that the Press-Enterprise II right
of access test is not limited to criminal judicial proceedings.
Accordingly, we hold that the Press-Enterprise II test applies
to Leigh’s claim that the BLM’s viewing restrictions violate
her First Amendment rights. Press-Enterprise II balances 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.
Under this framework, a court cannot rubber-stamp an
access restriction simply because the government says it is
necessary. By reporting about the government, the media are
“surrogates for the public.” Richmond Newspapers, 448 U.S.
at 573 (Burger, C.J., announcing judgment); see also Cox
Broad. Corp. v. Cohn, 420 U.S. 469, 490-91 (1975) (“[I]n a
society in which each individual has but limited time and
resources with which to observe at first hand the operations
meetings); Capital Cities Media, Inc. v. Chester, 797 F.2d 1164, 1174 (3d
Cir. 1986) (state environmental agency records); Alexandria Real Estate
Equities, Inc. v. Fair, No. 11 Civ. 3694 (LTS), 2011 U.S. Dist. LEXIS
138455, at *4-6 (S.D.N.Y. Nov. 30, 2011) (arbitration award records);
Ginsberg v. DeHart, 1:10-cv-00452-JAW, 2011 U.S. Dist. LEXIS 31124,
at *37-38 (D.N.H. Mar. 22, 2011) (attorney disciplinary proceeding
records); In re September 11 Litig., 723 F. Supp. 2d 526, 530-31
(S.D.N.Y. 2010) (settlement records in property damage litigation); In re
Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1, 10 (D.D.C. 2009)
(habeas corpus proceedings); ACLU v. Holder, 652 F. Supp. 2d 654, 662
(E.D. Va. 2009) (sealed qui tam complaints); Chase v. Pub. Util. Comm’n,
Civil Action No. 1:05-CV-2375; 2008 U.S. Dist. LEXIS 25702, at *21
(M.D. Pa. Mar. 31, 2008) (transcripts of state utility commission meetings);
Cincinnati Enquirer v. Cincinnati Bd. of Educ., 249 F. Supp. 2d
911, 915 (S.D. Ohio 2003) (resumes of candidates for school superintendent);
Uniontown Newspapers, Inc. v. Roberts, 839 A.2d 185, 191 (Pa.
2003) (legislator’s telephone records); Mayhew v. Wilder, 46 S.W.3d 760,
776-77 (Tenn. Ct. App. 2001) (meetings of state legislature); Boston Herald,
Inc. v. Sharpe, 737 N.E.2d 859, 869 (Mass. 2000) (divorce records);
Johnson Newspaper Corp. v. Melino, 564 N.E.2d 1046, 1048 (N.Y. 1990)
(dentist’s professional disciplinary hearing).
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of his government, he relies necessarily upon the press to
bring to him in convenient form the facts of those operations.”).
When wrongdoing is underway, officials have great
incentive to blindfold the watchful eyes of the Fourth Estate.
See Timothy B. Dyk, Newsgathering, Press Access, and the
First Amendment, 44 STAN. L. REV. 927, 949 (1992) (“[W]hen
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.”). If a government agency restricts
public access, the media’s only recourse is the court system.
The free press is the guardian of the public interest, and the
independent judiciary is the guardian of the free press. Thus,
courts have a duty to conduct a thorough and searching
review of any attempt to restrict public access.
[9] The district court’s order denying Leigh’s motion for a
preliminary injunction fell short of the rigorous scrutiny that
Press-Enterprise II requires. The district court focused mostly
on its conclusion that Leigh was not treated differently than
other members of the public, a consideration that is not part
of the Press-Enterprise II balancing test. The district court
also implied that Leigh’s First Amendment claim was
unlikely to succeed because she did not show that she was
denied access. The relevant question is not whether the BLM
prohibited Leigh from observing the horse gather altogether;
as in California First Amendment Coalition, 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 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. See
Press-Enter. I, 464 U.S. at 510 (“The interest is to be articulated
along with findings specific enough that a reviewing
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court can determine whether the closure order was properly
entered.”). Because these questions are fact-intensive and
likely require further evidentiary development, it would be
inappropriate for us to rule on them based on the district court
order and record. See Bank of N.Y. v. Fremont Gen. Corp.,
523 F.3d 902, 910 (9th Cir. 2008) (“If issues of fact exist, we
must remand to the district court to conduct, as necessary, further
evidentiary proceedings to resolve those issues.”).
[10] Accordingly, we reverse the denial of the preliminary
injunction. We remand this case for the district court to conduct
the analysis that Press-Enterprise II requires. First, the
district court must determine whether the public has a right of
access to horse gathers by considering whether horse gathers
have historically been open to the general public and whether
public access plays a positive role in the functioning of gathers.
Second, if the district court determines that a right of
access exists in this case, it must determine whether the BLM
has overcome that right by demonstrating an overriding interest
that the viewing restrictions are essential to preserve
higher values and are narrowly tailored to serve those interests.
CONCLUSION
For the foregoing reasons, we reverse and remand to the
district court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
WALLACE, Senior Circuit Judge, concurring in part and dissenting
in part.
Judge Smith has crafted an excellent opinion and I agree
with nearly all of it. I agree that Leigh’s request for preliminary
injunctive relief is not moot. I also agree that Press-
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Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-
Enterprise II), provides the proper test for Leigh’s claims that
she was denied access to horse gathers and horse holding
facilities in violation of her First Amendment rights. I disagree,
however, that the district court’s error in failing to
apply Press-Enterprise II requires us to reverse and remand.
As Judge Smith correctly points out in his opinion, Leigh
has not identified any evidence in the record to establish an
historical tradition of public access to horse gathers or holding
facilities. Because the district court applied the wrong legal
standard, remanding to allow Leigh to attempt to present evidence
that would establish those facts is one way to proceed.
Judge Smith has selected that option. But when we review a
denial of a preliminary injunction, “we may affirm the decision
of the district court if the result is correct, even if the district
court relied on a wrong ground or gave a wrong reason.”
Martin v. Int’l Olympic Comm., 740 F.2d 670, 676 (9th Cir.
1984); see also Schenck v. Pro-Choice Network, 519 U.S.
357, 384 n.12 (1997) (rejecting the argument that failure to
endorse district court’s reasoning requires reversal); Official
Airline Guides, Inc. v. Goss, 856 F.2d 85, 87 (9th Cir. 1988)
(affirming the denial of a preliminary injunction on different
grounds than relied on by the district court and remanding to
determine whether the plaintiff is entitled a permanent injunction).
In presenting evidence to the district court to support her
motion for preliminary injunction, Leigh did not even attempt
to establish the existence of an historical tradition of public
access to horse gathers or holding facilities. Therefore, even
if the district court had applied the correct legal rule that
Judge Smith’s opinion adopts, it would have been obliged to
deny the motion for failure to prove a likelihood of success
on the merits. Winter v. Natural Res. Def. Council, 555 U.S.
7, 20 (2008). The necessary facts were not presented. Even
though it relied on a wrong ground, the district court reached
the correct result. Therefore, we ought to affirm the denial of
1784 LEIGH v. SALAZAR
Case: 11-16088 02/14/2012 ID: 8067432 DktEntry: 49-1 Page: 16 of 18
the preliminary injunction, and remand for the determination
whether, applying the correct legal standard, Leigh is entitled
to permanent injunctive relief. See Official Airline Guides,
Inc., 856 F.2d at 87.
Furthermore, the majority’s course of action conflicts with
the purpose of preliminary injunctions. Preliminary injunctions
normally serve to prevent irreparable harm by preserving
the status quo pending a trial or other determination of the
action on the merits. Chalk v. U.S. District Court, 840 F.2d
701, 704 (9th Cir. 1988). Here, Leigh’s request for preliminary
injunctive relief “goes well beyond simply maintaining
the status quo.” Stanley v. Univ. of S. Cal., 13 F.3d 1313,
1320 (9th Cir. 1994). She asks the court to order the BLM to
provide Leigh with all the access she demands immediately.
Mandatory preliminary injunctions, such as Leigh seeks, are
particularly disfavored and should be denied “unless the facts
and law clearly favor the moving party.” Id. (internal quotations
omitted). Here, there were no necessary facts.
Reversing and remanding for further factual development
for the preliminary injunction is also unwise because it will
only cause more delay. We have cautioned parties against
appealing decisions on preliminary injunctions “in order to
ascertain the views of the appellate court on the merits of the
litigation.” Sports Form, Inc. v. United Press Int’l. Inc., 686
F.2d 750, 753 (9th Cir. 1982). The limited scope of our
review and the limited factual records that accompany appeals
from preliminary injunctions (usually consisting of affidavits)
often prevent us from providing appropriate guidance on the
merits. Id. at 753. Often, the testimony of witnesses at trial is
different from the affidavits (often authored by lawyers) presented
at a preliminary injunction hearing. The applicable law
may change based on the full record of live testimony. Thus,
appeals from preliminary hearings may waste time and judicial
resources. Id. In other words, preliminary injunction
motions are not the “main show.”
LEIGH v. SALAZAR 1785
Case: 11-16088 02/14/2012 ID: 8067432 DktEntry: 49-1 Page: 17 of 18
Because the district judge granted the joint motion by the
parties to stay the proceedings in the district court pending
this appeal, this case has already delayed the final resolution
by approximately nine months with no progress toward trial.
By the time the district court lifts the stay, the delay may be
much longer, as the district court must take more preliminary
evidence, make preliminary factual findings, and undertake
the difficult task of gauging Leigh’s likelihood of success, the
threat of irreparable harm, the balance of the equities, and the
public interest. After this difficult process, one or both of the
parties might again appeal the district court’s interlocutory
decision. As we stated in Sports Form, “it is likely that this
case . . . could have proceeded to a disposition on the merits
in far less time than it took to process this appeal.” 686 F.2d
at 753. Similarly, it is likely that, on remand, the most efficient
course would be to proceed to a disposition on the merits.
I prefer to end the detours now. Sending this case back
without directing more preliminary injunction activity would
encourage the district court and the parties to get on with the
trial. It is within our power to do so. While I enthusiastically
join Judge Smith’s analysis and holdings on the law, I dissent
from the judgment to reverse and remand for further proceedings
on the preliminary injunction motion. I would affirm and
remand for a determination whether Leigh is entitled to permanent
injunctive relief: get to trial as soon as possible.
1786 LEIGH v. SALAZAR
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HOUSTON, (Horseback) – Respected naturalist Craig Downer issued a year end challenge to the federal Bureau of Land Management to curtail plans to further deplete the storied herd of Pryor Mountain Mustangs in Montana. The herd is known worldwide through three PBS “Nature” documentaries by filmmaker Ginger Kathrens.

During the last “gather” of the horses In the Priors the Mustangs were stampeded down the mountain by a roaring helicopter. Among them was the band stallion “Cloud” who was featured in all three of Kathrens films. The older stallion Conquistador, also prominent in the PBS specials, was captured and not returned to the herd in an act described by wild horse advocates as “unspeakable cruelty” to an aging horse

Since that time, the National Forest Service, which manages part of the mountain, has put up a fence which denies the horses their ancestral territory and breeding grounds.

Geneticists have stated the likelihood that the herd, categorized as a breed unto itself in breed books, is already genetically depleted to the level of possible extinction. Downer cites the dwindling numbers as an unhealthy action against the herd’s future viability in a New Years Eve letter to Jim Sparks, field manager in the Billing’s Montana field office of the BLM.

The horses are scheduled to a further “gather” this year. Downer wrote:

December 31, 2011

Mr.

Jim Sparks, Field Manager

BLM Billings Field Office, 5001 Southgate Drive

Billings, MT 59101

Re: “Pryor EA Comments” re: proposed roundup of Pryor Mtn.

wild horses in 2012

Dear Mr. Sparks:

Greetings for 2012!  Hopefully this will be a year to reinstate true fairness for the wild horses of the Pryor Mountain and elsewhere.  I have just reviewed your Environmental Assessment and am very much opposed to your proposed plan to remove thirty mustangs from one to three years of age. There is absolutely no necessity for doing this, and this removal jeopardizes the long-term survival and adaptation of this very small herd in future times.

The Pryor herd is presently stable at ca. 150 horses, and these horses are well on their way to filling their niche and self-stabilizing according to the natural world’s criteria that confer long-term survival value, rather than the artificial selection by man.  There were eighteen births balanced by

eighteen deaths in this herd in 2011, indicating utterly no need for gathering these returned North American native species. The 92-117 Appropriate Management Level is a non-viable one, even according to the substandard standard BLM generally puts forth, i.e. 150 total population for an effective breeding population (Ne) of 50.  And as a wildlife ecologist well informed on this subject, I consider this level of 150 to be way low in itself, as far as long-term viability. I further consider the taking of this age group as an unwholesome undermining of the herd’s natural vitality, social well-functioning, and resilience in face of both short- and long-term survival challenges (e.g. approaching winter). I wonder just exactly what your motivations are in treating this unique and universally appreciated herd so niggardly!

The Pryor Mountain herd is a world attraction.  It should not be cut to the quick, most of all for the individual horses’ sake. This would accord with the true intent of the Wild Free-Roaming Horses and Burros Act of 1971—an act we should now be celebrating, though actions such as you propose are only causing fair-minded and sensitive people to lament what has happened to this program for national heritage species in the wild.

Please give me a cause for celebration on the 40^th anniversary of the act by adopting the NO ACTION alternative and exerting your authority to convince Custer National Forest officials to tear down that abominable fence that illegally keeps the Pryor Mountain mustangs from realizing their traditional, seasonal migrations that are guaranteed by the act, for long-realized by the wild horses both during 1971 and for many generations prior.

As one who has directly observed the Pryor Mountain mustangs and intends to continue doing so as well as to fend for their higher, fairer population numbers and resource provision, I wish you a happy and progressive New Year.

Sincerely,

Craig C. Downer, AB, MS, PHD cand.

P.O. Box 456, Minden, NV 89423-0456. Email: ccdowner@yahoo.com

WildHorseEducation@gmail.com

Editor’s Note: At least 160 horses died last year when the federal Bureau of Land Management launched it’s “gather” at the Calico comples where wild horses once had undisturbed sanctuary. Bands of horses were broken up never to see each other again.Humanitarian, journalist, and photographer Laura Leigh was in the field, as she seemingly always is. She was there when a foal had its hooves run off in a relentless helicopter chase. The incident recieved worldwide press attention. Now the BLM is at it again at Calico, and Laura is in the field.

Laura has made it her mission to record the inhumane treatment of wild horse by the federal government. She needs your financial help to continue in the field. Horseback urges all lovers of wild horses to, well, to send money to her.

RENO, (Horseback/Wild Horse Education) – Operations in this The Calico Complex began in the Granite range. Granite shares a border with the now “complete” (release to low AML in that area still to occur, update soon).

This trap site is but a few miles from the last trap used at High Rock.

Present at the “public briefing” were Gene Seidlitz (district manager for Winnemuca), Lisa Ross (public relations Winnemucca), Leslie Coakley (public relations, Elko district), the Wild Horse and burro specialist, several BLM rangers, five members of the public and one from the media.

Four loads were brought in on the first day of operation. The public briefing began late and did not allow observation of the first load of six. Three more loads were brought in that were observed.

Temperatures of observation began at 23 degrees. Light snow was present in the area but the day was relatively clear and cold with little wind.

Observation report is limited to the very last part of the drive with trap mouth hidden from view behind “gravel” mound. Observation of horses in the trap pen limited to the very first portion of the trap pens as view was obstructed by saddle horses tied to the pens and tarps draped over the loading area. Handling during loading could not be observed, although the vantage would have allowed some observation were tarps not present.

note on tarps: tarps are a new addition to the traps used by Sun J. The appearance of tarps came after the filing of legal action at Triple B. The documentation released to the public and filed in the Courts included the use of hotshots during loading as well as other disturbing images of handling during loading. Since the documents were filed no loading practices have been documented.

The “excuse” given for the tarp is that it helps animals “settle.”

This statement is disputed through observation as animals are most often given no time to settle and are loaded within minutes of capture. Most “settle time,” if any, is in the larger pens at the other end of the trap. Observation of movement of staff indicates the same practices and issues are occurring, but blocked from view.

Requests to place a camera at the alley end to capture the handling have been refused.

Each group brought into the trap (observed) took considerable time to reach vicinity of the trap.

First group observed entered the trap without incident that can be reported from the limited vantage. This group was immediately added to the first six and loaded for transport to temporary holding.

note: District manager Gene Seidlitz was quick to say “isn’t it better” to me in reference to the pilot conduct. This comment was made in reference to the current litigation efforts that have final reply due Monday. Allegations in that case include inappropriate conduct by the pilot. Among the most egregious actions documented was contact between the helicopter skid and an exhausted animal: http://www.youtube.com/watch?v=ObXB0Wq3nRE

Current reply documents filed with the Court from the BLM do not address the conduct or any steps taken to address conduct. The attorneys for the BLM continue to ignore that issue in favor of bringing other arguments before the Court.

Yet repetitive statements that are made to “assure” that conduct is being addressed are constantly made by personnel on the ground. Yet those statements only address those actions taken that are witnessed with no written assurance that policy or protocol affords animals any differing treatment when public is not present.

The second group observed, third group of the day, to arrive at the trap was “hot” enough to exhibit sweat and steam in the cold. This group reached the trap at aprox.

1 pm and was the “warmest” portion of the day. The steam was not as heavy as that demonstrated during operations at the Eagle Complex (January 2011) in Eastern Nevada. (Operations noted to begin at days of sub-zero temperatures. Video report view here: http://www.youtube.com/watch?v=Vw8iX7LO8g0 ) Temperatures and weather conditions do not have operational parameters within the context of wild horse roundups.

Note that this agency has been documented flying in temperatures below zero and winds in excess of 30 mph. Again please note that no humane handling protocol, including temperature guidelines, has been offered in spite of public comment, petition and litigation.

Communications between the observation area and the trap were kept at minimum and radio communications were not heard. However after the above mentioned run it was documented that Gene Seidlitz did have communication with an unknown entity where he said “everything is going just fine except that group was sweaty.”

The third group (observed) arrived two and one half hours after pilot had departed the operation area. Seidlitz was not present for the final group as he had left the observation area.

This group arrived at the trap location fatigued. Several horses were documented stumbling, one horse twice.

Once in the trap these animals were prepped for loading. An older palomino mare was so exhausted that she was knocked into the panels as staff flagged animals into the loading alleys. The older mare had difficulty pushing back against the other horses and demonstrated her fatigue clearly, even with limited observation.

Decreasing sunlight halted operations for the day.

Of extreme concern is the COR decision to keep trap location in this area for at least another day, if not more. The time differential and condition of animals arriving at the trap indicate that animals are moving considerable distance. This location is also very near the border of the operations that concluded just days ago in adjoining Complex. Animals being taken may have recently expended resource fleeing previous operation area.

Direction the horses came from indicate that they may be coming from the adjoining Complex area. As BLM refuses to install GPS tracking or cameras into operation helicopters only speculation of distance and terrain can occur.

However this location has proven to be convenient to contractor equipment and vehicle traffic. It is of extreme concern that apparently this location does not serve the horses supposedly being “protected” by the agency tasked with humane care by Congress for forty years.

At the temporary holding location we were informed that transport to short-term would not occur until Monday. COR was advised by Palomino Valley Center (PVC) in Sparks that the facility needed to be “cleaned.” Observations of PVC in the last week showed that facility to have a minimal population left of horses from the Triple B roundup and a few Wyoming youngsters on the current internet adoption. Also note PVC is not normally staffed for anything resembling “clean up” on Sunday.

One mare (injury to knee) was noted with information supplied that she will receive banamine and antibiotic prior to transport to PVC on Monday.

Of note at holding were the same verbal reassurances that horses were receiving food and water (in Court complaint) as no written assurance of policy has been afforded to the public.

Processing of horses was complete prior to arrival of public and no notes can be made of handling at this time.

This report is supplied by Wild Horse Education: http://wildhorseeducation.org

a registered Nevada non-profit supported solely by the public devoted to documentation toward honest dialogue

Donations are appreciated to keep our observer Laura Leigh in the field.

PLEASE read: http://artandhorseslauraleigh.wordpress.com/2011/11/14/calico-then-and-now/ for background information on what is happening in the area.

Contact: Laura Leigh, founder and president

WildHorseEducation@gmail.com

AWHPC Statement on the White House’

s “Canned” Response to Our Wild Horse Petition

Photo by Laura Leigh

If you signed the Wild Horse and Burro petition on the White House’s “We the People” website, you have received the same canned response that we received from the Bureau of Land Management (BLM) director, Bob Abbey.

We are as frustrated and disappointed as you are with this insulting and dismissive response to the sincere concern of thousands of American citizens who seek reform of the costly and cruel federal Wild Horse and Burro Program.

We wanted to share our letter to President Obama’s chief of staff, William Daley, highlighting the inadequacy of the response and the White House’s utter failure to consider this issue, a s promi

sed in the “We the People” initiative.

To the thousands of you who took the time to sign the petition – WE THANK YOU and promise to continue to fight for our wild horses and burros. We hope that you will continue to join us.

18 November 2011

William Daley, Chief of Staff

The White House

1600 Pennsylvania Avenue

Washington, DC 20500

Dear Mr. Daley:

I am writing on behalf of the American Wild Horse Preservation Campaign and the thousands of Americans who signed the “We the People” petition titled “Protect Wild Horses and Burros; Reform Inhumane Interior Department Management Program That Wastes Tax Dollars” to register our grave disappointment with the November 17, 2011 response from the White House. The petition calls on the Obama Administration to stop the Interior Department’s Bureau of Land Management (BLM) from wasting millions of tax dollars to roundup and remove wild horses by the tens of thousands from public lands in the West, and to instead implement a cost-effective policy to manage these national icons on the range using proven and humane cost-effective methods.

The White House’s canned response to this petition, signed by thousands of American citizens, was authored, not by a White House policy official, but rather by BLM Director Bob Abbey - the very individual responsible for the mismanagement of the federal Wild Horse and Burro Program, which is the subject of the petition.

In unveiling the “We the People” initiative, the White House promised “a new way to petition the Obama Administration” and that “White House staff will review” the issue. However, there was nothing new in the response. The White House merely delivered the old familiar BLM rhetoric that has been used for the past several years to rationalize the agency’s mismanagement and waste of tax dollars.

Included is the touting of a “new strategy” that is being implemented despite the receipt of tens of thousands of public comments opposing the majority of the strategy’s components.

Had we, the people who signed the petition, wanted a response from the BLM, we would have written to the BLM. Or better yet, since the response is just a cut-and-paste of BLM propaganda, we could have read it on the agency’s website and saved ourselves the considerable time and effort it took to log into the White House’s website and sign the petition!

President Obama has the full authority to reform the federal wild horse and burro program and could do so with one telephone call to his Secretary of the Interior. The fact that the White House didn’t even take the time to review this petition is a slap in the face to the American citizens who believed in the President’s promise that their concerns would be seriously considered. As a result, we are left to conclude that the entire “We the People” website is little more than a re-election campaign gimmick.

We conclude this letter with a final plea for President Obama’s attention to this issue and a request for a meeting with White House staff to discuss badly needed reform.  To such a meeting we would bring wild horse and range experts to discuss the humane, cost-effective solutions, which have already been proposed but continue to be ignored by the BLM and Mr.

Abbey.

It’s time that President Obama intervened in this issue to fulfill his promise for hope and change for the future.

We await your prompt response.

Sincerely,

Suzanne Roy

Campaign Director

American Wild Horse Preservation Campaign

Photo by Terry Fitch>

WASHINGTON, (BLM) – The Bureau of Land Management today announced its tentative fall-winter schedule for gathering wild horses and burros from overpopulated herds on Western public rangelands. The gathers are needed to bring herd sizes into balance with other rangeland resources and uses, as required by Federal law and approved land-use plans. Along with removals, the fall-winter gathers will be used to apply a fertility- control vaccine during the ideal time (from November through February) for maximum efficacy.

In the new fiscal year (2012), which began October 1, the BLM plans to apply several population growth-suppression techniques to approximately 2,000 wild horses. Methods to be analyzed in gather-related environmental assessments will include applying the fertility-control vaccine porcine zona pellucida (PZP); adjusting sex ratios in some herds to favor males; and incorporating geldings as components of breeding herds.

All of these measures are aimed at reducing the number of on-the-range pregnancies.

The public and media are invited to observe the gathers. Observation points will be determined by the BLM in a manner that recognizes the need for good viewing sites, along with the need to ensure viewer and animal safety.

All helicopter-driven wild horse gathers will be completed by Feb. 28. The tentative dates of the fall-winter gathers can be accessed at http://on.doi.gov/qrJHBU

The BLM estimates that approximately 38,500 wild horses and burros (about 33,000 horses and 5,500 burros) are roaming on BLM-managed rangelands in 10 Western states based on the latest data available, compiled as of February 28, 2011.

Wild horses and burros have virtually no natural predators

and their herd sizes can double about every four years. As a result, the agency must remove thousands of animals from the range each year to protect rangeland resources, such as wildlife habitat, from the impacts of overpopulation. The 1971 Wild Free-Roaming Horses and Burros Act mandates that once the Interior Secretary “determines…that an overpopulation exists on a given area of the public lands…he shall immediately remove excess animals from the range so as to achieve appropriate management levels.”

The BLM manages more land – over 245 million acres – than any other Federal agency. This land, known as the National System of Public Lands, is primarily located in 12 Western states, including Alaska.

The Bureau, with a budget of about $1 billion, also administers 700 million acres of sub-surface mineral estate throughout the nation. The BLM’s multiple-use mission is to sustain the health and productivity of the public lands for the use and enjoyment of present and future generations. The Bureau accomplishes this by managing such activities as outdoor recreation, livestock grazing, mineral development, and energy production, and by conserving natural, historical, cultural, and other resources on public lands.

Federal Judge “Deeply Concerned” Over BLM Defense

HOUSTON, (WHFF) – Reno Nevada

Federal Judge Howard McKibben  has granted a temporary restraining order against the continuation of documented helicopter pilot conduct at the Bureau of Land Management’s Triple B wild horse roundup in Eastern Nevada.

Citing his authority to enjoin an agency’s conduct where their actions have been demonstrated to be “in violation of an Act.”
“I am deeply concerned,” Judge Mckibben stated to Eric Petersen, the BLM legal counsel, “that declarations presented to the Court by the agency do not address the issue, but simply deny wrong doing.”

Asked for comment, BLM’s chief Washington spokesman, Tom Gorey, told Horseback Online,  ”The judge’s ruling is being reviewed by our Solicitors and we have no further comment at this time.”

Judge Mckibben went on to recite the only declaration of the four presented to the Court, that addressed an instance where video taken by Plaintiff Laura Leigh of Wild Horse Education (WHE) and the Wild Horse Freedom Federation (WHFF) shows a BLM contract pilot coming dangerously close to an exhausted horse apparently making contact with the animal was in direct contrast to what was recorded.

He stated that the declaration by “defendant was not what he observed in the video as he could see an exhausted animal and the pilot apparently making contact. He said he did not appreciate the ‘blame the horse’ direction of the defendant’s statements.

Although McKibben did not rule in plaintiff’s favor on other  alleged violations, he did verbally address the defendants.

For example in the insufficient water assertion McKIbben said that if the horses drain the water they should simply be given more.

“I was honored to have the opportunity to bring these issues into the Courtroom,” stated Leigh’s attorney Gordon Cowan of Reno. “This is a beginning to addressing this most basic premise of an Act of Congress that still has significant public interest.”

Mckibben also noted that if the BLM brings a helicopter contractor back to Triple B, as stated in Alan Shepherd’s (BLM) declaration, “this Court will be watching

HOUSTON, (Horseback) – The American Association of Equine Practitioners has issued a long awaited report  that is critical of the federal Bureau of Land Management’s use of helicopters to stampede wild horses. In fact, in their recommendations, they told the agency to back off.

“While the task force thought the use of helicopters as observed during the gathers of horses from the range was humane, all contract helicopter pilots should adopt conservative flying patterns that allow a safe buffer distance between the helicopter and the horses, and between the helicopter and the ground.

“

The report was also critical of BLM’s callous veterinary procedures and treatment of the horses, including the lack of anesthesia. 

“A uniform surgical anesthesia protocol should be in place and reviewed with all contract

veterinarians concerning surgical procedures performed at all BLM horse management sites.”

Critics have been highly critical of BLM vets.

At least one veterinarian hired by the government was not licensed to practice in the state where he was working.

At least one recommendation reflected on the BLM’s notoriously inconsistent record keeping on the numbers of wild horses.

“The task force encourages current efforts by the BLM to produce a centralized database to track the history of all horses in the BLM program.

The records should include positive or negative trends in adoption programs and outcomes of socially productive programs like those in place at certain prisons.” 

It also noted the need for improvement in biosecurity after outbreaks last year of strangles and pigeon fever. 

“Biosecurity standards and protocols should be adopted at short?term holding facilities in order to reduce the spread of the bacteria Streptococcus equi subspecies equi, commonly known as strangles, and minimize outbreaks of this and other infectious diseases.”

Photo by Laura Leigh 
 
 
WASHINGTON, (BLM) – The Bureau of Land Management  is requesting public nominations to fill three national Wild Horse and Burro Advisory Board positions, which are set to expire on Jan.

8, 2012. Nominations are for a three-year term and are needed to represent the following categories of interest: wild horse and burro advocacy, veterinary medicine (equine science), and general public interest (with special knowledge of wild horses and burros, wildlife, animal husbandry, or natural resource management).

The Board advises the BLM, an agency of the Interior Department, and the Forest Service, an agency of the USDA, on the management and protection of wild free-roaming horses and burros on public lands administered by those agencies. The BLM announced its request for nominations in Monday’s (Aug. Federal Register.The nine members on the Advisory Board represent a balance of interests. Each member has knowledge or special expertise that qualifies him or her to provide advice in one of the following categories: wild horse and burro advocacy, wild horse and burro research, veterinary medicine, natural resources management, humane advocacy, wildlife management, livestock management, general public interest, and public interest (with special knowledge of wild horses and burros). Members must also have a demonstrated ability to analyze information, evaluate programs, identify problems, work collaboratively, and develop corrective actions.

Get the latest information and resources on common behavior problems and approaches to behavior modification in the breakthrough work Understanding Horse Behavior.
Any individual or organization can nominate one or more persons to serve on the Advisory Board; individuals can also nominate themselves.

In accordance with Section 7 of the Wild Free-Roaming Horses and Burros Act, Federal and state government employees are not eligible to serve on the Board, whose members serve three-year terms, on a staggered-term basis, with one-third of the Board subject to appointment each year.

The Board meets at least two times a year, and the BLM Director might call additional meetings when necessary. Members serve without salary, but are reimbursed for travel and per diem expenses according to government travel regulations.
The BLM is accepting nomination letters plus resumes that include the nominee’s name, address, profession, relevant biographical information, references, endorsements, and specific category of interest.

Nominations should be sent by Sept. 22, 2011, to the National Wild Horse and Burro Program, Department of the Interior, Bureau of Land Management, 20 M Street, S.E., Room 2134LM, Attn: Sharon Kipping, Washington, D.C. 20003. Information can be faxed to Kipping at 202/912-7182 or e-mailed to skipping@blm.gov. If you have questions, please call Kipping at 202/912-7263.

Groups call for moratorium on wild horse roundups;
seek immediate suspension of summer helicopter stampedes to prevent tiny foals from being chased and separated from mothers

ELY, Nevada (ASPCA) – The American Society for the Prevention of Cruelty to Animals, the nation’s oldest animal welfare organization, and the American Wild Horse Preservation Campaign , a national coalition, today released a video documenting the inhumane treatment of young mustang foals during the Bureau of Land Management’s (BLM) Triple B roundup currently underway in northeastern Nevada.

“Tiny foals are being chased by helicopters for miles in the extreme desert heat,” said Matt Bershadker, senior vice president of ASPCA Anti-Cruelty. “Once captured, these young, unweaned babies are separated from their mothers and forced to stand in the hot sun for up to seven hours without access to water.

These horses are living symbols of our nation’s history, and it is shameful that the agency charged with protecting these iconic creatures is recklessly chasing young foals to death.”

The video taken August 2-4, 2011, by Deniz Bolbol, on behalf of the ASPCA and AWHPC, shows a helicopter relentlessly chasing a tiny foal who becomes exhausted and unable to run farther, even as the helicopter hovers menacingly. Other foals fall behind and are roped by wranglers.

In a letter to Dean Bolstad, Acting Division Chief for the BLM’s wild horse and burro program, the animal welfare groups noted that the majority of horses who have died in the Triple B roundup to date have been foals. They called upon the BLM to implement a mora

torium on all roundups pending the results of a National Academy of Sciences review of the troubled federal program. Barring that, the groups demanded an immediate suspension of all summer roundup activities to avoid the stampeding of tiny vulnerable foals, as well as other horses in the high temperatures and low water conditions of the desert at this time of year.

“Tiny foals are still developing and their hooves are tender and vulnerable,” said Suzanne Roy, AWHPC Campaign Director. “The trauma inflicted on these babies during the helicopter stampede and as a result of separation from their mothers can be deadly.

For the survivors, the damage can last a lifetime.

Wild horses are protected as national symbols of freedom and their mistreatment at the hands of the federal government must end immediately.”

The Triple B roundup began on July 20, 2011. As of Sunday, August 7, 2011, 846 mustangs have been captured and nine horses have been killed, including six foals. The BLM is targeting 1,726 wild horses for permanent removal from the range. The roundup will leave just 472 wild horses in this vast, 1.7 million acre public lands complex. Meanwhile, the BLM authorizes nine times that number of privately owned livestock to graze these public lands and continues to violate the Wild Free-Roaming Horses and Burros Act of 1971, which was passed to protect wild horses and burros from capture and preserve the land used by them.

By Steven Long, photo by Terry Fitch,     HOUSTON, (Horseback) – Within hours of an adverse ruling for wild horse advocates attempting to halt a Navade “gather” and stampede in the heat of summer,  a feder

al appellate court has granted a temporary restraining order.

The federal Bureau of Land Management will be unable to proceed with it’s planned roundup, according to the Chicago based Equine Welfare Alliance, a consortium of more than 800 horse advocates and scores of equine welfare organizations. 

“Rachel Fazio, attorney for plaintiffs, The Cloud Foundation, Craig Downer and Lorna Moffatt, went to the Ninth Circuit Court with an emergency motion immediately after getting the negative ruling today at 4 PM by U.S. District Court Judge McKibben in Reno,” said Vicki Tobin, EWA vice president and director. ” The Ninth Circuit has granted a temporary injunction while they review the merits of the motion. So, the wild horses of the planned Triple B roundup will have a brief reprieve.

The hope is that the three Judges who look at the case will stop the roundup until the Appeal has been heard in August.”

the court grants temporary injunctive relief.

Appellees are enjoined from the

round-up of wild horses in the HMAs and Triple B Complex areas until further

order of the court.”