Court skeptical of BLM’s roundup secrecy

A Minden photographer and wild horse advocate who has been blocked from watching roundups in Nevada scored a First Amendment victory in the 9th U.S. Circuit Court of Appeals on Tuesday.

A three-judge panel in San Francisco overturned a lower court ruling and sent the case back to a federal judge in Reno to determine whether the Bureau of Land Management's restrictions on media access to roundups are constitutional -- while strongly indicating they're not.

"When 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," wrote Judge Milan Smith Jr.

Laura Leigh, a photojournalist and writer for Horseback magazine, filed a lawsuit in the summer of 2010 seeking to halt the roundup of about 500 wild horses in Lincoln County, near the Utah state line. She said the BLM's closure of 27,000 acres of public lands, where the Silver King roundup was taking place, amounted to a violation of the First Amendment and prevented her from observing in a watchdog role.

BLM lawyers argued Ms. Leigh had been granted no less access than anyone else and that the restrictions were necessary for the safety of the horses and the observers.

"A court cannot rubber-stamp an access restriction simply because the government says it is necessary," Judge Smith wrote. "When wrongdoing is under way, officials have great incentive to blindfold the watchful eyes of the Fourth Estate. ... The relevant question is not whether the BLM prohibited Leigh from observing the horse gather altogether. 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 9th Circuit has sometimes been known to forget that all 10 planks of the Bill of Rights outweigh the convenience of government agents -- that citizens with nearly unlimited rights are the agents who delegate to the bureaucrats their limited powers, not the other way around.

A few minimal safety rules to keep bystanders out from under horses' hooves might make sense. But closing off 27,000 acres at a time? That sounds like an agency with something to hide.

The court got this one right.