An “inside” look at the hearing on the First Amendment case for Wild Horses and Burros

Laura Leigh and attorney Gordon Cowan entering Federal courthouse in Reno on February 20th to rebut BLM testimony (Elyse Gardner)

Laura Leigh and attorney Gordon Cowan entering Federal courthouse in Reno on February 20th to rebut BLM testimony (Elyse Gardner)

On February 19th and 20th in the Federal District courtroom of Judge Larry Hicks, attorney Gordon Cowan presented a case of the right of the public to have independent information on the care and handling of wild horses and burros during Bureau of Land Management (BLM) roundups and holding facilities. The case was brought with Laura Leigh, journalist (accredited Horseback Magazine) and founder of Wild Horse Education.

Mr. Cowan brought several witnesses to the stand (there were a few witnesses that failed to show because of varying reasons that involved a fear of retribution for their testimony). Those that came to the court created a compelling argument.

This case had been referred back to the lower court to hear testimony based on the following strict parameters:

“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.” Leigh v. Salazar No. 11-16088,D.C. No. 3:10-cv-00597- LRH-VPC, OPINION, Ninth Circuit Court of Appeals

A compelling case was created by Plaintiff that demonstrated that horse “gathers” were traditionally (historically) open to the public and that public participation plays a positive role. A compelling argument was made that BLM’s restrictions are arbitrary and based on non-specific (no basis in historical fact) criteria of safety concerns and financial inconvenience.

The government argued that: (at Silver King only) Leigh was treated like anyone else, that safety concerns create the protocol (without clearly defining protocol nor citing any specific instance but one, that generated concern) and that there was significant expense associated with opening facilities that are currently closed.

Transcripts of the hearing are being ordered so that the information contained in testimony can be shared with the public, to educate the people on the process of the creation of the record of this case.

Below are two “notes” to the public. The first is from Laura Leigh, Plaintiff in the case and founder and President of Wild Horse Education. The other contains excerpts from a letter written by attorney Gordon Cowan regarding this landmark freedom of the press case.

Note from Laura Leigh:

Running this marathon between range, roundup, meetings and courts often leaves very little time to absorb the human cost of the literal saga of trying to tell the story of the wild horse and burro. Often the daily reality is a lonely one. The travel, the time on the range gathering information, and the time spent editing and compiling is often done remotely. Thus requiring much of my contact with others to be via email or telephone.

Wild horses offloading into the "closed to the public" facility Broken Arrow after capture from the range out of public site

Wild horses being offloaded and then kept out of site at the Broken Arrow (Indian Lakes) facility in Fallon (Leigh)

At one point during our rebuttal of BLM testimony attorney Gordon Cowan asked me to rebut a statement made by Alan Shepard, BLM NV WH&B lead, that somehow the situation at the Pryor Mountains roundups is different and unique compared to any and all other wild horse and burro roundup locations and conditions. In particular he stated that the Pryor Mountain horses are tamer than any other wild horse herds. He claimed that only the Pryors reuse trap sites and the nature of the interest and horses makes it possible for the increased access. I corrected his statements and pointed out the reuse of traps at most locations. I spoke of my experiences on the range with wild horses in Nevada and on ranges throughout the West. Wild horses are peaceful family-loving beings that accept you if you approach them in peace. As I finished my testimony on this issue, looked into the gallery and witnessed something that I will remember for the rest of my life.

The people in the gallery were sitting side-by-side, wiping tears from their eyes, many holding hands. I know many of these people don’t always see eye to eye about many issues…. but the love for the wild horses and burros unites us in a way that in the moment wipes away any differences we may have. We were there to speak out as one voice. We were there to stand up for our rights to know, see, understand and create our own opinions about how our wild horses and burros are treated by our government. We were there to set the record straight, and we did it together.

The team of witnesses that came together represented varying interests and created a court record that demonstrates those voices in the process of documenting, and participating, in the journey of the wild horse and burro in an articulate, intelligent and sincere manner. I was so proud of us.

It was a high point in this crazy, mixed up, convoluted epic tale. I will never forget it.

Excerpts of Letter from Attorney Gordon Cowan:

Justice Louis Brandeis (a wonderful member of the U.S. Supreme Court, no longer with us) once wrote, “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Buckley v. Valeo, 424 U.S. 1, 67 (1976) (quoting Louis D. Brandeis, Other People’s Money 92 (1914)).
“The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” From The Federalist, No.51. The press corps, journalists, make up these “auxiliary precautions.”
I think it was Ronald Reagan who said the nine scariest words he ever heard, were these: “I’m from the government and I’m here to help.” Reagan, I think, meant this: He was not chiding government. Instead, he recognized that, “man” is fallible. If man runs government, then the government is likewise fallable. And, when government has a watchful eye over its shoulder, then perhaps government makes fewer mistakes than it would otherwise, without the watchful eye.
Echoing all of these sentiments with beginning quotes from James Madison, Judge Milan Smith, who wrote the Ninth Circuit decision that brought the case back to Judge Hicks, said this: “The free press is the guardian of the public interest, and the independent judiciary is the guardian of the free press.” Leigh v. Salazar, 377 F.3d 892 (9th Cir. 2012).
When the Ninth Circuit sent me this decision, I called Laura. At that very moment, Laura was freezing her “petuties” off at a BLM roundup where she was being held back about a mile from the BLM’s roundup activities such that she could see nothing. What a dichotomy in that moment where, on the very day the Ninth Circuit stated that Ms. Leigh and others like her have a protected constitutional right of access to observe government in action, that Ms. Leigh was being precluded from viewing government in action on the very issue she brought before the court. And, the government still doesn’t “get it,” in my assessment.

Attorney Cowan meeting his witnesses the day before court. Terri Farley to the left.

Regarding our efforts to help our wild horses:
Thank you for paying tribute to those who truly contributed to putting forth a good case.
Terri Farley was a stellar witness I intentionally used as the first on “the stand” to set the tone for how the government must defend its disappointing efforts to block the public and press from observing its official activities. (When I can afford to order the first day’s transcript I will make sure you have a copy). Terri, of course, sold millions of books in a series that tracks a stallion. Her works are based on her range work several years past, at Calico near Soldier Meadows. She even dedicated her first book to BLM employees who were most helpful on the early roundups. Her books are distributed in Washoe County schools and also world-wide in multiple languages.
Sally Summers, second witness, talked of the importance of seeing wild horses on the range and how those horses are managed by BLM. She escorts a lot of folks out on the range where they anticipate seeing how the wild horses are rounded up. Those observers, in turn, buy the Nevada Wild Horse license plate. Funds from those license plate purchases go toward funding worthy causes in Nevada. But, because of the ever-tightening BLM restrictions Sally faces when attempting access to view horses and roundups, it is becoming increasingly difficult for her to justify spending the money to travel to roundups if ultimately, there is nothing there to see on her arrival, because of the BLM’s arbitrary, officious restrictions.
Rober Bauer came to the courthouse all the way from Indiana, to testify. No one has a greater passion for wild horses than does Robert. His first experience with wild horses came from viewing wild horses in the Pryor Mountains. When he saw how the horses were handled at BLM roundups, he dedicated a portion of his life’s existence to helping them the extent to which he could lawfully, as a public citizen. Bob’s passion for wild horses was felt in the courtroom.
Elyse Gardner making hike to observation location Calico 2012 (Leigh)

Elyse Gardner making the trek to observation area at Calico 2012 (Leigh)

Elyse Gardner testified to her experience of ever-tightening limitations on her access to roundups and to holding facilities. Elyse was a shining star when describing how horses could no longer be tracked because the BLM shut down “short-term holding facilities” (i.e., temporary wild horse warehousing locations, one in particular known as “Broken Arrow”) to the public. Elyse is responsible for facilitating a number of adoptions to those who love these horses. She could hardly accomplish this task when prevented from following or tracking horses where they disappear off the range into BLM trailers and then into facilities closed to the public. Those horses are not tracked. Some are never seen again.
Our final witness of “day one” was my client, Laura Leigh. Words do not account for the pride I have of her and how she bravely told her story. It is Laura Leigh who gets the dirty work done in terms of getting out to ranges, taking photos, freezing her butt off, enduring car breakdowns, horizontal blizzards, and then encountering BLM restrictions. Leigh has been to more BLM roundups than has any federal government employee or any other member of the public (although she acknowledges that roundup contractors probably have her “beat” in roundup attendance). She methodically identified every restriction, how it changed, how each restriction was arbitrary, and how some restrictions were put in place just for her (discriminatorily). Leigh also rebutted every account the government contended was necessary for keeping the public afar.
This team of five witnesses set forth an important issue before the court. I believe the record in place is ripe to make a difference for two American iconic symbols: wild horses; and hard-working journalists who merely seek to look over the shoulder of the government and report to the interested public on what transpires.
The vastness of Nevada’s Great Basin may be the only spot in America where government can hide evidence of its fallability while it destroys an iconic symbol of our spirit which defends transparent government and freedom. That, of course, is America’s wild horse.
Gordie Cowan

The wind blew and the snow fence rose to reveal for a few moments horses at temporary after capture. If the wind had not blown the condition of the wild horses would not have been documented that day.

Help keep us in the field and the courtroom!

Help keep us in the field and the courtroom!

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16 thoughts on “An “inside” look at the hearing on the First Amendment case for Wild Horses and Burros

  1. “Nothing is hidden that shall not be revealed” …
    “It requires the spirit of our blessed Master to tell a man his
    faults, and so risk human displeasure for the sake of doing
    right and benefiting our race. Who is telling mankind
    of the foe in ambush? Is the informer one who sees the
    foe? If so, listen and be wise. Escape from evil, and
    designate those as unfaithful stewards who have seen the
    danger and yet have given no warning.” MBEddy
    I commend you Laura Leigh!

  2. First, as always, I have to wonder WHY so much effort is being expended by the BLM, in frank and open violation of the First Amendment, to keep Laura as far away as possible. You’d think she were asking for permission to observe at a munitions facility or listen in on a wire tap, for all the blocking and parrying…

    The Wild Horse and Burro Program is over 40 years old, and seems to have become more archaeic now than when first enacted. The more open and accessible information, the more wild equine supporters are coming to realize that 40+ years of the same insane behaviors toward ‘management’ of wild equines is nothing more than a series of bad habits the BLM seems unwilling to break. And the lengths the Bureau seems willing to go to to keep it ‘traditional’ are both tiresome and troubling. While observers, journalists and ordinary citizens are sweeping away the legitimacy of those traditions every day – in simple science and biology, in simple math and accounting, and in the matter of Laura’s legal cases, the right to observe & report and If Not, Why Not.

    A goodly portion of what I know of wild equine ‘management’ has been learned through Laura’s interactions with the BLM – the friendly as well as the malignant. It’s taught me that there is so much more under the surface – some of it dark – and that no amount of spin from a 30 year veteran of the Bureau can make it sound ‘right’.

    Mr. Cowan’s courage, energy and efforts, his erudite language, polished performances and kinship with The Law despite his miniscule paychecks, are beyond inspiring and the Bureau should be aware – Mr. Cowan is a force: Underestimate him (and his client) at your peril. Anyone can create when provided all the finest materials, tools and resources that money can buy, but it takes a true craftsman to build something of value with only the elements at hand.

    Still, it all rolls back around to the questions of why this has become an issue and why the issue is deemed so contentious. How something as simple and ‘justifiable’ as roundups have acheived an entitled status on par with National Security, and how the Bureau expects the courts to support that entitlement.

  3. Thank you Laura and Gordon for your Insiders’ look at the court case of this week. Both of you speak beautifully of what is at stake here and I take heart from your views. I used to be very involved as a BLM compliance officer, helping to encourage and advise adopters at adoptions, going to roundups etc. The BLM culture has really taken a turn for the worse with its secrecy and luckily we have folks like Laura and Elyse who are trying to bring the light of day to the treatment of the horses and burros which has also fallen to a new low in the last say ten? years.

  4. Amazing report, thanks for doing a job that most of us are either unwilling or uncapable of doing. Your perserverence and dedication is awe inspiring.

  5. Awesome report and thank you to ALL of you for your tenacity and devotion to our Wild Horses and Burros!!!

  6. I stand in awe of both Laura and Gordon’s tenacity, focus, courage, and devotion to both the horses AND upholding the very laws of this land that are suppose to apply equally to ALL of us! Whatever “deal” that was created between the BLM and cattle ranchers has been below the radar for years – and because of Laura’s tenacity and backbone we have come to see just how corrupt the agency has become over the last 10 years – and with Gordon’s knowledge of law as well as HIS tenacity in all of this – everyone of us involved (in whatever way possible) have learned how important and powerful “WE THE PEOPLE” really can be! Until both of you are better paid, THANK YOU SO MUCH FOR WHAT YOU HAVE DONE AND ARE STILL DOING for the horses, for the country, and for WE THE PEOPLE! Blessed Be!

  7. As someone who has supported Laura Leigh and Gordon Cowan and Wild Horse Education, I am always amazed what could be accomplished if the BLM was actually serious in wanting to “protect” our wild mustangs and burros and work with Leigh and Cowan rather than against them. Laura Leigh has documentation, on film, of the incredible inhumane and brutal way our wild mustangs and burros are treated by the BLM and their contractors. This simply cannot be denied, we can see it for ourselves. It also has not escaped me that a private citizen has to take it upon herself, as Laura Leigh has done to do the job the BLM is paid by taxpayers to do: protect our mustangs and burros. This is a shameful reflection upon the BLM, the entire Congress, and the administration of President Barack Obama, who refuses to even acknowledge the thousands and thousands of pleas from concerned and angry taxpayers to stop the roundups, and stop wasting taxpayer dollars. Thank you Laura Leigh and Gordon Cowan for continuing to document the plight of our wild mustangs and burros. You will continue to have my support in this effort to speak for our wild ones.

  8. Thank you Laura and Gordie for dedicating a good portion of your lives and your exceptional efforts to America’s wild horses and burros. At present they have no other advocates representing them in the legal system, and you are their hope for receiving the justice and the protection they are supposed to be provided under the law. This is all about justice. It is clear that BLM is purposely and disciminatorily denying access to Laura because they dont want the public to see the illegal and inhumane things they are doing to these wild herds. They are hiding the injured and dying horses following roudups, the horses and burros that languish and die, without care or any compassion, in short and long term holidng, and those that are illegally and secretly sent to slaughter. BLM has a lot to hide becasue somehow they have gone down the wrong road. I am sure that there are many BLM employees who dont want this to be happeneing and dont want the herds treated this way, but they are not in control of the agency. BLM is not protecting the wild horses and burros, as they are supposed to be doing according to the 1971 Act passed to proctect our wild herds. Instaed BLM is, in effect, exterminating these iconic animals, and tortoring them in the process. It is the role of those in the legal system to uphold the law and rule for the side of justice, no matter who will suffer the consequence for violating the law. If this case is denied and sent back to the Ninth Circuit, justice will not have been served.

  9. Thank you, thank you, thank you! I speak for many people who are following your progress on speaking for America’s wild mustangs & burros, because now everyone knows that the BLM operates behind the curtain of deception. What they say & do are two separate issues. BLM is not above the law, even though they think they are. If they were a trusted entity we wouldn’t be here, would we.

  10. Thanks to Laura Leigh that is bringing transparency to the public..lord knows the ‘BLM’ keeps us from it..and has proven that over and over! I feel it is my duty to support the truth where I see it..Bless you LL. I have shared your photos and honest reporting with many others and now they feel as though someone cares enough to do that..so earns respect!

  11. After we are done cheering, please don’t forget this is just “round ???” in the scenario. BLM will be gearing up to continue their illegal activities this summer (when they are running spring foals in 100+ temps) if we are not ready for them. As Laura has pointed out, they will be using the excuse of “emergency situations” most likely focused on waterholes being dried up. Let’s get ahead of them by photo/video waterhole locations and the actual situation BEFORE they start their BS! Don’t doubt for a minute that they have not started planning their strategies – we need to start planning ours now!

  12. Thank you Laura Leigh and attorney Gordon Cowan for fighting so hard for our wild horses and burros. Transparency is our only hope for changing the cruel practices that have become so accepted. We the People, should have the right to know what is happening! I want to see what my tax dollars are being used for and know I can trust the BLM to proceed with the best interests of the wild ones. When the BLM fights transparency, (especially after seeing so much cruelty and suffering inflicted when they know we are right there watching and documenting!), my distrust of the BLM becomes validated, without question! Transparency is imperative!

  13. Again, on May 15, 2012, The Wildlife News published the article titled “BLM Report: Public lands ranching fails rangeland health standards on a third of rangelands assessed, 33 million acres”. Livestock grazing was identified, by BLM experts, as the primary cause (nearly 80%) of BLM lands not meeting health standards. The BLM actually directed scientists to exclude livestock grazing as a factor in changing landscapes as part of that study. They have proven themselves untrustworthy in the field and on the books over and over! Nothing will change if the truth is not told, and it cannot be told unless the public has a way to see for themselves! Please keep fighting Laura Leigh and attorney Gordon Cowan, we are counting on you, and so are the wild ones! Thank you so much!

  14. Thank you Laura and Gordon for fighting for the wild horses and burros. Without them the public would not know what goes on in the “Public” lands. The management of our wild horses/burros by the BLM leaves a lot to be desired. The cattlemen, oilmen, and “investors” seem to have other plans for the land that was originally for the protection of them in 1971. At the rate the BLM is going, these equines will be gone in just a few short years..

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