Story and Photo by By Laura Leigh, Horseback Magazine

FALLON, NEVADA, (Horseback) – The Bureau of Land Management (BLM) held a “public tour” at the Indian Lakes (Broken Arrow) short-term holding facility in Fallon. Unlike other short-term facilities this facility is “off-limits” to the public except for a couple of days a year.

After the Calico Roundup of 2009/2010 the BLM ceased public tours claiming that the facility was privately contracted and they did not have to open the doors to public scrutiny. Investigation into the closure of the facility did reveal the contract did have weekly public tours as part of the signed, completed contract. The real reason the facility was closed was revealed in email records of the written request to close the facility as “damage being done to the reputation” of BLM staff.

Images published after the weekly tours revealed serious issues at the facility. Each week images portrayed injuries, design flaws and even a foal that was born at the facility that apparently starved to death.

Throughout the winter of 2010/2011 the facility was utilized as intake for animals from various roundups including the Eagle HMA in Ely Nevada.

The Eagle roundup was particularly brutal. Temperatures, as operations began in the morning, went as low as 12 degrees below zero. Freezing fog was often present at dawn. A young horse was seen to stumble three times as its family was driven to the trap.

That horse was sent to Indian Lakes (Broken Arrow). After following the truck from the range to the facility access was denied to observe the horse at Broken Arrow. Inquiries to the BLM insisted that the animal was fine yet that week 4 horses of a similar age died of injury and others of respiratory distress.

After Calico the entire time the facility was used for intake of horses from the range the facility remained off-limits to view.

After Litigation was filed in an attempt to gain access to report to the public about the hands-on care and disposition of animals the BLM offered a public tour last summer. The tour this year was done in the same fashion.

The public was “checked in and briefed.” John Neil (manager of Palomino Valley Center and BLM manager of Indian Lakes) and Heather Emmons (BLM public affairs) were the personnel that were in the cab of the pick up truck that pulled the wagon that held the public.

The members of the public in attendance were varied. Two journalists, two advocates, a family that came to “see the wild horses” and a young girl participating in the Mustang Heritage Foundation’s youth challenge (she had her father and two friends with her. (An additional story will be filed on this young girl’s story).

Horses from roundups from the last two years and three different states are stored at the facility. Animals from the 2009/2010 Calico roundup were present. Also at the facility were animals from Triple B, Owyhee, Callaghan, Eagle, Silver King, Twin Peaks and several other HMA’s. Many of these animals have been housed at this facility for over two years. As the facility is off-limits to public view there are no adoptions.

During the tour Neil did inform the public that the facility will no longer be used as intake for animals taken from the range. This does not represent a policy and could change if space is required. Palomino Valley Center in Sparks will be used for intake and after a few months animals will be sent to Indian Lakes as an overflow facility. This option allows the public a couple of brief months to see animals after they come off the range toward generating interest in the sagging adoption program.

The facility held approximately 2,500 animals. The majority of animals appeared in good weight and coat.

Hoof care is done in a rotational fashion. Serious overgrowth in the row that was next on the schedule was noted. As the public is severely restricted access there is no way to know if this is a “one time” occurrence or status quo.

Hospital pens were off limits just as they were during the two tour days offered last year.

BLM staff was pleasant and frequently interacted with the public.

If you want to attend the public tour BLM is offering another opportunity on April 27.

From the BLM website:

April 27 from 11 a.m.-2 p.m. The tours can each accommodate up to 30 people and will be provided on a first-come, first-served basis. The public can sign up to attend and get driving directions to the facility by calling the BLM at (775) 475-2222. There will be 2 tours per day offered for 1 ½ hours each: one at 11 a.m. and one at 12:30 p.m. Each tour can hold a maximum of 15 people.

RENO, (Wild Horse Education) -  On Friday the Bureau of Land Management (BLM) filed a Motion for Reconsideration in the Ninth Circuit case challenging access to Wild Horses and information surrounding

the care of animals. The Motion addresses the win for Press Freedom granted by the Court on February 14 in the access case brought by Laura Leigh, journalist for Horseback Magazine and founder of Wild Horse Education.

The Ninth Circuit Court in granting Leigh’s Appeal recognized that roundups will occur as a matter of course. BLM had argued that the issue was “moot” because the roundup had ended. The Ninth Circuit ruled the issue was not moot because the Agency is mandated under the Wild Free Roaming Horse and Burro Act to remove excess animals (excess as defined by BLM) and that the animals will continue to reproduce. This created a win for journalists and the public attempting to gain meaningful access to the actions of their government.

Lawyers for the BLM write in their request to the Court, “that the mere possibility of agency action does not present a live controversy.”

“The BLM repeatedly asserts that populations double in size every four years, yet many areas are currently facing roundups every 2-3 years” said Leslie Peeples Co-Director of Wild Horse Education “it is a fact that they will do another roundup, not a possibility. We know it and the BLM knows it.”

Lawyers representing the BLM go on to write: “If the panel (Ninth Circuit) does not amend its opinion, future litigants will undoubtedly cite the opinion for the proposition that a possibility of agency action is sufficient to support a motion for a preliminary injunction.”

“The decision by the Ninth was a decision based on the valid issue of access to the actions of government, plain and simple,” says Leigh “For over two years the contentious struggle for meaningful access to our horses has been a constant reality while attending almost non stop removals of our horses. Both the struggle for access and the roundups are not possibilities but certainties.”

Perhaps this fight is more about the possibility that this case law will be used in future cases to negate a “mootness” argument? Turning the mootness strategy moot.

The Court Battle for Humane Care of Wild Horses Marches on

RENO, (Wild Horse Education) – On March 20, 2012 a Motion to reconsider the decision in the Triple B wild horse roundup “Inhumane” case has been filed.

On January 26 in Reno Federal Court, Hon. Judge Howard J.

McKibben denied the relief requested for Injunctive Relief sought by Laura Leigh, Founder of Wild Horse Education and VP of Wild Horse freedom Federation against the Bureau of Land Management’s (BLM) treatment of wild horses. That amended complaint sought to take an earlier motion past the end of the Triple B Roundup which ended when a Temporary Restraining Order was granted near the end of the roundup in August of 2011 after incidents of inappropriate treatment toward wild horses were witnessed. The Motion was denied based on the absence of the Triple B Complex from the 2012 roundup schedule.

The new Motion allowed by the Court is based on a ruling in another case brought by Leigh on First Amendment Rights issues that won a landmark win in the Ninth Circuit. In that case three Ninth Circuit Court Judges ruled that the roundups are inevitable based on the current basis of “Appropriate Management Levels” and BLM’s projected use of reproductive rates. The roundup does not need to be on the schedule to consider conduct (in this case the right of the press to report) based on demonstrated history.

The current Motion, filed by Reno attorney Gordon Cowan on Leigh’s behalf, states: “When, therefore, BLM returns to Triple B, there is no indication the Triple B horses to be rounded up, would be handled any differently than how they were mishandled previously.”

After the original TRO was granted to inhumane conduct in violation of the 1971 Act protecting wild horses and burros (August 2011) BLM did a review of the events at the Triple B roundup. That review contained admission of conduct that noted (among others): dragging horses by the neck, kicking in the head and pilot conduct including an incident where the pilot appears to hit an exhausted animal with the helicopter skids. BLM’s review included recommendations and outlined a timeline (90 days) for implementation of a protocol. No written policy has been published or implemented.

“Until there is a written clearly defined protocol, with provisions for violation, I have every expectation of continuing to document the same conduct I have in the past” states Leigh, “I have been on a non-stop marathon documenting wild horses and burros for over two years and witness the same things over and over. I have every reason to believe I will see it again.”

The BLM has two weeks to answer the Motion.

~~~

Donations to keep the Wild Horse Education Teams researching, documenting and reporting are greatly appreciated.

Story and Photo by Laura Leigh, Horseback Magazine

RENO, (Wild Horse Education/Wild Horse Freedom Federation) – On February 18, 2012 the Bureau of Land Management offered the public an opportunity to adopt horses directly from their home range. The event was held adjacent to the temporary holding facility utilized during the roundup operation that ended February 17.

Potential adopters were given opportunity to view animals and talk to agency personnel and advocates working onsite in cooperation with BLM.  The animals were then freezemarked, haltered and loaded onto trailers.

In spite of the cold temperature the atmosphere at the event was warm and inviting. Seven out of twelve animals offered were adopted in private care during the event. Among the animals offered to the public was a youngster that had clubfoot. This young horse was adopted along with his friend and went to a rescue group.

Another adopter took a pair that had been removed from the range together and a motivating factor in her choice was to “make sure they stay together.”

Nevada Horse Power, the non-profit group partially funded by the sales of vanity license plates, was on hand and helped provide transportation for some of the adopters.

“I am against excessive removal of horses,” said Elyse Gardner, wild horse advocate that has a blog titled “Humane Observer, “ but when they need to come off the range this is a great option that may avoid additional trauma as long as all compliance checks are done.

The five youngsters that were not taken during this event were driven in a BLM trailer by Shawna Richardson, wild horse and burro specialist, to Palomino Valley Center north of Reno where they will be available for adoption.

All requirements of BLM adoption program apply.

The Tonopah field office will be removing burros from the Bullfrog Herd Management area starting March 1. An adoption event has been proposed at some point during this operation. To find out more contact Wild Horse and Burro Specialist Dustin Hollowell: dhollowe@blm.gov

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.

By Steven Long

Photos, Laura Leigh and Gordon Cowan

Ninth Circuit Decision Has Resonance With Free Press Groups

HOUSTON, (Horseback) – In a Nevada case with far reaching First Amendment implications, the Ninth Circuit Court of Appeals has struck down a ruling by a Reno federal judge and remanded the complaint of a Horseback Magazine news photographer back to his court. Laura Leigh, a freelance photojournalist on general assignment to cover massive Bureau of Land Management roundups of wild horses in the American West, sought a temporary restraining order on  grounds that her access to observe the capture process directly was being routinely denied by the federal Bureau of Land Management.

The BLM denies access to press and public to roundups it terms “gathers” in which scores of horses are stampeded and die. They are then held at taxpayer expense on vast pastures owned by private landowners when the agency controls 245 million acres where the horses could be kept for free.

It also sets up temporary holding pens where the press and public is denied on private land claiming it denies access on orders of the land owners.

Judge Larry Hicks of Reno had denied a temporary restraining order sought by Leigh in late 2010 saying it was moot since the roundups had already taken place. In the appellate court’s Valentine’s Day ruling Justice Milan D. Smith speaking for the court sternly pointed out the case became moot because Hicks was tardy in making a judgment either for or against Leigh.

She was represented by famed Nevada litigator Gordon Cowan.

The case was funded by the Wild Horse Freedom Federation. Amicus briefs in the case were filed by The Reporter’s Committee for Freedom of the Press and National Press Photographer’s Association. Also representing Leigh was San Francisco attorney Bruce Wagman.

Cowan, the Reno, Nevada attorney who handled the case from its inception, said “When federal appellate judges write compelling words that, ‘The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press,’ in my opinion they demonstrate their true heroism in standing guard for First Amendment freedoms.

And, they give press members like Ms. Laura Leigh hope that someone is looking out for them.”

In a call from the Nevada wilderness late Tuesday to Horseback Magazine, Leigh reported she is still being denied access to observe the handling the animals in temporary holding by the contractor at Stone Cabin in Tonopah despite her victory in federal court today.

In writing for the court Smith reminded Hicks, of an 1822 a quote from James Madison, author of the U.S. Constitution, saying, “a popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Face or a Tragedy, or perhaps both.” The justice went on to say “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 BLM’s chief Washington spokesman Tom Gorey refused comment on today’s developments in the California appellate court.

In a statement Wild Horse Freedom Federation President, author R.T. Fitch wrote, “The bottom line is the BLM obviously has something to hide, because of their efforts to stop the public from seeing what they are doing to these horses.” Leigh is Vice President of the organization. “This is a government program, on government land, affecting our greatest symbol of American history, and the BLM wants to be able to eliminate and terrorize them under the cover of darkness. BLM’s conduct flouts the right of the press under the First Amendment, and the right of these horses to be protected.”

In another development regarding wild horse litigation, Suzanne Roy of the American Wild Horse Preservation Campaign wrote to supporters saying, “We wanted you to be among the first to know that today, Valentine’s Day, the U.S. Department of Justice signed an agreement with our attorneys to cancel the roundup and removal of 198 wild mustangs living in the Monte Cristo Wild Horse Territory (WHT), which is administered by the U.S. Forest Service. The action is a direct result of our lawsuit against the Bureau of Land Management (BLM’s) in Nevada, and specifically against the BLM’s roundup plan for the Pancake Complex, of which the Monte Cristo WHT is a part. This is just the latest development in this critically important legal effort, which we have launched in conjunction with The Cloud Foundation and Western Watersheds Project.”

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-
LEIGH v.

SALAZAR 1775
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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).
LEIGH v. SALAZAR 1781
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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
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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.”
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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.
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RENO, (Horseback) – The BLM is offering what they call a ”trap site adoption” at the Stone Cabin/Saulsbury roundup operation. On Feb. 18th, approved adopters can adopt a horse from the BLM corrals set at the holding area adjacent to the contractors temporary facility.

No animals will go to sale through this operation.

This option allows animals to bypass  the ride on the semi in addition to bypassing processing at the various facilities. This allows the adopter more control over the external stimulus that the animal receives.

The very first congressionally approved wild horse roundup after the passage of the Wild   Free-Roaming Horse and Burro Act of 1971 was conducted in this HMA in 1975, with Velma Johnston herself in attendance.

The last roundup of the Complex occurred Feb.

2007.

From BLM handout: The Stone Cabin Complex wild horses exhibit common colors associated with wild horses such as bay, brown, chestnut, sorrel and black. What makes the Stone Cabin Complex unique is the Stone Cabin Grey, which is unique to the areas and was reportedly revered by Velma Johnston. Some sources indicate that the Stone Cabin Grey  horses are descendants of a Steeldust Grey Thoroughbred, well known in Texas that Jack Longstreet (a famous gunfighter) put  out in the Stone Cabin Valley.  Additionally, fine quarter horses owned by local ranchers in the area years ago may have contributed to the quality of the horses in the area today. The Stone Cabin Grey is typically born black or dark, and begins to ‘roan out’ as early as 3 or 4 years of age, continuing to become more grey until they are  nearly white by the age of 15. Many of the grey horses retain dark black or grey manes and tails.

Photos of adoption horses can be found at www.wildhorseeducation.com

BLM webpage for the adoption can be found at this link: http://www.blm.gov/nv/st/en/fo/battle_mountain_field/blm_programs/wild_horse_and_burro/Stone_Cabin_Complex/adopting.html

If you are interested in adoption please contact Thomas Seley, Field Manager, Bureau of Land Management Tonopah Field Office at (775) 482-7801, Shawna Richardson s1richar@blm.gov, or Wild Horse Education at wildhorseeducation@gmail.com

This commentary was written and posted today on the personal website of Horseback friend and photographer Laura Leigh, a true American Hero cut from the mold of Wild Horse Annie herself.

The Editor

Note: this site is my “blog.” The information site on “Wild Horses” is http://wildhorseeducation.org

Laura

Poster art by Fortunino Matania

“War Horse,” the much anticipated screen adaptation by Steven Spielberg opened in theatres across the country on Christmas Day.

As someone deeply involved in the issues facing both our wild and domestic equines, I actually went to a movie theatre for the first time in ages to view the film. Not only was this film about my favorite subject, horses, but it was done by one of my favorite directors of all time, Steven Spielberg.

Speilberg first “rocked my world” with “Empire of the Sun,” (not ET). Released in 1987 this autobiographical tale tells the story of James Graham, a boy “of privilege” that has his life shattered after the invasion of Shanghai in 1941. Spielberg wove his tale so that the audience became “Jim.” You experienced everything through the masterful performance of Christian Bale and through the vision of a great director. “Jim, try not to think so much!” is a line delivered at just the right moment, in just the right way, that it has haunted me for over twenty years.

The subject of war, and it’s cost to the human spirit, was again tackled by this master film maker in “Schindler’s List” and “Saving Private Ryan.” Both of these films, although executed with very different directorial choices, speak directly to the transformation of the human soul through the horror of human action and the ability of the human spirit to transcend. We all remember Shindler agonizing that he could have saved “Just one more.”

So Christmas Day of 2011 I took my “war weary” self to the theatre to watch “War Horse.”

Now you may not like the analogy of “war weary.” But that is how I feel. Most of you know my work for the wild ones but are unfamiliar with a past that includes a decade of work in the “horse slaughter” issue. Our “front” is taking a massive onslaught this year as our rear scrambles to deal with the issues at the front and behind our own lines. Our beloved equines, both wild and domestic, are under siege.

I plunked down the ticket price, that has gone up significantly since the last time I treated myself to a film, anticipating another “masterpiece.”

Waiting in line to find a seat I watched the movie goers leave the theatre after watching the film. There were mixed reviews. One man said “It was good” as he made the “so-so” motion with his hand. Another said “If you don’t have a tissue, don’t go in.”

A woman in line next to me confided that she had not been to a movie in a long time, but this one was about a horse. “Me, too,” I smiled.

We eagerly took our seats.

After 23 minutes of previews that flickered and had to be reset, the film began.

I began to realize that I was not going to see the Spielberg I had anticipated. I was watching a Director held by constraint.

The first third of the film is too long.

offer flagyl er

It had a “made for TV feel.” Spielberg then focuses his camera lens on a plow during a scene that is to demonstrate the heart of “Joey,” our equine “star,” and “Albert” our human “spirit” focus of the film. That is when I remembered this film was created for Disney.

Don’t get me wrong here. I cried. I cried eight times during the film. The opening scene had me in tears as “Joey” the newborn demonstrates his legs by running side by side with his mom. I have seen so many youngsters that can’t keep up to their mothers during the helicopter chases on public land and moms so tired they are fighting to just keep the pace. I have seen so many babes taken from that protective space and stuck in pens during the most horrific experience of their bands existence… it didn’t take much for me to need a tissue.

Archive photo of WWI (photographer not credited at source)

As we enter into the war, a third of the way through the film, we begin to comprehend the first World War.

In a battle (the first the British engage in the story and the first time you actually are told you are in Britain and not in Scotland, Wales or Ireland) you are taken to what I assume is the battle at Mons. The only true cavalry charge of WWI takes place at Mons. WWI is the transitional point in human warfare into the “mechanization” era. Spielberg does demonstrate very effectively how the cavalry charge does not meet the machine gun successfully, regardless of the belief of British officers of the day.

After that point we learn that horses are utilized for transportation of wounded and the machines we now rely on to win wars.

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But we see these things in small vignettes.

Each time I feel that Spielberg will take me to that “real” place of experience, that had been relayed to me by my grandfather, we get close to the destination but never truly arrive. It kept making me wonder how Spielberg would have portrayed the story without restraint of a PG-13 rating. Not a thought you want as you wait to be transported from your seat into a film.

Casualty counts are not kept on horses and mules. Yet the estimate is more than 8 million horses and mules died in the conflict on all sides. 8 million died. It is estimated that 2 and one half million were treated for wounds and 2 million of those returned to the war.

A quarter of a million horses were purchased or taken from farmers at the beginning of the war for the British army.

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As the conflict raged on more countries joined the efforts and horses were needed.

Yes, the “Yankees” entered in the war. The “Yankees” were not only American Soldiers, but America’s horses. America’s horses carried our soldiers but also those of other Nations. During the conflict two-thirds of the horses used by Britain were supplied by the US.

During World War I ranchers went into business selling horses to the military. All of Sheldon National Wildlife Refuge and much of the area we now call the “Tri-State Complex” had horses “harvested” and sent into battle in Europe and Africa. It is estimated that a million wild horses went in to conflict, none of them returned

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to American soil.

American horses from the open plains of the west were described by Captain Sydney Galtrey of the British Cavalry ”in a rough and ready shape – they were shoeless, long-haired, tousled-maned and had ragged hips. But they were tough; generations of their kind had become completely at home with roaming out in the open and in all kinds of weather.”

“You put your mask on him first,” said Grandpa “He can carry you out, you can’t carry him.”

Many soldiers were moved deeply and carried stories of the mounts that carried them to safety or that they saw die horrific deaths.

Gas mask for man and horse demonstrated by an American Soldier National Archives and Records Administration cir 1917-18

I sat in the theatre with this knowledge. We would briefly touch the reality of a “War Horse” in the film and then it would vanish.

Then the scene came… (used in the trailers) a scene where “Joey” looses a companion and is faced with the “machine.” The war blazes around him as he flees an early tank. He seemingly can’t escape and vaults over the “beast.” His flight takes him through an horrific battlefield where earlier we had witnessed the casualties to man. He crashes through barbed wire. He begins to collect it as he runs through the destructive path laid by man. (I was crying and teeth clenched as I have seen what barbed wire can do and we lost some of our wild ones this year during roundups to the cruelty of the invention).

He becomes immobilized.

As dawn rises and snow begins to fall we watch as the combatants come together for a brief moment to recognize the spirit of an “amazing horse.” The scene is pure Spielberg. As the tears stream down my face I watch as “enemies” cooperate to free “Joey.” I care about “Joey” and the two men involved.

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I am finally “in” the film.

Only for a brief moment at the end of the piece do we even peripherally become aware of the possible fate of many of the horses. A “butcher” is present at auction. If you are not informed, you are never told the truth. You are never told how many the “butcher” actually takes.

This film will be on the shelf next to “The Black Stallion” and “My friend Flicka.” It is a “love story” story of a horse and a boy/man.

Does this film have the power of “Black Beauty” to raise the consciousness of a nation? A novel that was responsible for creating a climate to pass the first humane care laws in our country… I don’t know.

Photo by Laura Leigh

HOUSTON, (Horseback) – The United States Department of Agriculture has an unusually stout influence over appointments to the Wild Horse and Burro Advisory Board of the federal Bureau of Land Management.

The giant cabinet department that serves the needs of farmers and ranchers has veto power to appointments to the panel that oversees equine wildlife management on BLM lands.

“It’s in the board’s charter but is not in a statute,” said Tom Gorey, BLM chief Washington Spokesman. The charter was updated in July, 2010.

While the board’s responsibility is not to set policy, but to advise, the Wild Horse and Burro panel has served as a rubber stamp for BLM “gather” policy that has resulted in the capture, killing, and holding of tens of thousands of wild animals in giant pastures at taxpayer expense. The policy has cost so much in   that the federal agency depletes its entire $60 million wild horse budget each year. Often, as soon

as horses are removed they are replaced by cattle.

Last year hundreds of horses died in the “gathers” including one in Nevada during the dead of winter. Typically, the horses are stampeded by helicopter into a trap. One foal ran so hard during a chase it lost its hooves and died.

The agency is the subject of several lawsuits in different jurisdictions over alleged inhumane treatment of the animals, and denial of access to press and public access its captures. Recently allegations have surfaced that BLM vets routinely castrate stallions without the benefit of anesthesia.

Asked how the USDA, and by extension the ranching industry, got veto power over a wildlife board in the first place, Gory responded saying, “The charter was renewed (and possibly revised) during the late 1990s when Pat Shea of Utah was BLM Director. The reason USDA is involved is that the Forest Service manages a small number (2,000 or so) of wild horses and burros, in accordance with the Wild Free-Roaming Horses and Burros Act of 1971.”

Wild horse advocates claim that more than a million cattle graze on BLM lands, much of which is covered under the Free Roaming Wild Horse and Burro Acto of 1971, the “Wild Horse Annie Law.” Stockmen lease BLM land at the below market price of $1.35 per cow and calf per month. Yet Gorey was unable to provide Horseback the exact number of animals grazing under lease.

“We manage cattle in accordance with the provisions of the Taylor Grazing Act of 1934, the Federal Land Policy and Management Act of 1976, and the Public Rangelands Improvement Act of 1978.” He told Horseback Magazine. “We don’t count head of cattle but do keep track of forage used. In Fiscal Year 2010, livestock consumed 8.2 million forage units, known as animal unit months. Since most grazing is seasonal, the way to estimate the number of livestock grazing on BLM land year-round is to divide 8.2 million by 12 (months). For more info, see our grazing page on www.blm.gov in our “What We Do” section.”

Three board members terms expire January 8, 2012. They include Robyn Lohnes, a controversial appointee who operates the Washington based American Horse Protection Association, Dr. Boyd Spratling, a Nevada vet from the extremely rural town of Deeth, and Janet Jankura of Richfield, Ohio.