Leigh v. Salazar, No. 11–16088.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: M. SMITH
• Citation: 12 Cal. Daily Op. Serv. 4078,677 F.3d 892
• Parties: Laura LEIGH, Plaintiff–Appellant, v. Ken SALAZAR, Secretary, U.S. Department of the Interior; Bob Abbey, Director, Bureau of Land Management; Ronald Wenker, Nevada State Director of Bureau of Land Management, Defendants–Appellees.
• Decision Date: 16 April 2012
• Docket Number: No. 11–16088.

12 Cal. Daily Op. Serv. 4078
677 F.3d 892

Laura LEIGH, Plaintiff–Appellant,
v.
Ken SALAZAR, Secretary, U.S. Department of the Interior; Bob Abbey, Director, Bureau of Land Management; Ronald Wenker, Nevada State Director of Bureau of Land Management, Defendants–Appellees.

No. 11–16088.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 2012.Filed Feb. 14, 2012.Amended April 16, 2012.

[677 F.3d 893]

Gordon M. Cowan (argued), Reno, NV, and Bruce A. Wagman, Schiff Hardin LLP, San Francisco, CA, 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, VA, for Amicus Curiae The Reporters Committee for Freedom of the Press, and Mickey H. Osterreicher, East Amherst, NY, for amicus curiae National Press Photographers Association.Appeal from the United States District Court for the District of Nevada, Larry R. Hicks, District Judge, Presiding. D.C. No. 3:10–cv–00597–LRH–VPC.

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.

ORDER

The opinion filed on February 14, 2012 is amended as follows:

On slip opinion page 1775, line 33, add the following sentence after “wild horses that should be removed.”:

And the BLM's Record of Decision authorizes the BLM to gather additional Silver King horses through 2013.

With this amendment, the panel has voted to deny the petition for rehearing.

Subsequent petitions for rehearing or rehearing en banc may not be filed.

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

[677 F.3d 894]

Leigh was unlikely to succeed on the merits because the restrictions did not violate the First Amendment.

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, 106 S.Ct. 2735, 92 L.Ed.2d 1 (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 self-government,” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604, 102 S.Ct. 2613, 73 L.Ed.2d 248 (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 over-population 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 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

[677 F.3d 895]

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 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 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.”

[677 F.3d 896]

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...