Laura Leigh v. Ken Salazar, et al

Filing

FILED OPINION (J. CLIFFORD WALLACE, JOHN T. NOONAN and MILAN D. SMITH, JR.) REVERSED AND REMANDED. Judge: JCW Concurring & dissenting, Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [8067432]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



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
D.C. No.
3:10-cv-00597LRH-VPC
OPINION



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

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COUNSEL
Gordon M. Cowan (argued), Reno, Nevada, and Bruce A.
Wagman, Schiff Hardin LLP, San Francisco, California, for
the plaintiff-appellant.
Nicholas A. DiMascio (argued), Ignacia S. Moreno, and
David S. Shilton, United States Department of Justice, Environment and Natural Resources Division, Washington, D.C.,
for the defendants-appellees.
Lucy A. Dalglish, Gregg P. Leslie, Kristen Rasmussen, and
Derek D. Green, Arlington, Virginia, for Amicus Curiae The
Reporters Committee for Freedom of the Press, and Mickey
H. Osterreicher, East Amherst, New York, for amicus curiae
National Press Photographers Association.

OPINION
M. SMITH, Circuit Judge:
Plaintiff-Appellant Laura Leigh, a photojournalist, contends that viewing restrictions at a Bureau of Land Management (BLM) horse roundup violated her First Amendment
right to observe government activities. Leigh moved for a preliminary injunction to require the BLM to provide her with
unrestricted access to horse roundups. The district court
denied Leigh’s motion, concluding that most of the relief
sought was moot because the roundup ended in October 2010.
Alternatively, the district court concluded that Leigh was
unlikely to succeed on the merits because the restrictions did
not violate the First Amendment.

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We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we
reverse. Because the preliminary injunction motion seeks
unrestricted access to future horse roundups, and not just the
one that took place in 2010, this case is not moot. As to the
merits of Leigh’s First Amendment claim, the district court
erred by failing to apply the well-established qualified right of
access balancing test set forth in Press-Enterprise Co. v.
Superior Court (“Press-Enterprise II”), 478 U.S. 1, 8-9
(1986). Courts have an unyielding duty to thoroughly analyze
whether the government has violated this fundamental constitutional right, which “serves to ensure that the individual citizen can effectively participate in and contribute to our
republican system of selfgovernment,” Globe Newspaper Co.
v. Superior Court, 457 U.S. 596, 604 (1982). Accordingly, we
remand this case for the district court to consider in the first
instance whether the public has a First Amendment right of
access to horse gathers, and, if so, whether the viewing
restrictions are narrowly tailored to serve the government’s
overriding interests.
FACTUAL AND PROCEDURAL BACKGROUND
The Wild Free-Roaming Horses and Burros Act, 16 U.S.C.
§§ 1331-1340, grants the BLM jurisdiction over all wild
horses on federal lands. If the BLM determines “that an overpopulation exists on a given area of the public lands and that
action is necessary to remove excess animals, [the BLM must]
immediately remove excess animals from the range so as to
achieve appropriate management levels.” 16 U.S.C.
§ 1333(b)(2).
The BLM controls overpopulation by conducting horse
gathers, also known as roundups, in which it uses helicopters
to herd the horses toward a temporary gather corral. Once the
horses are secured in the corral, the weaker horses are separated from the stronger ones. The horses are then moved by
pick-up or semi-trailer to a temporary holding corral, where
some are prepared to be shipped for adoption. The BLM

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allows the public to observe horse gathers, but it restricts the
viewing locations to protect the public from wild horses, helicopters, and vehicles. The BLM conducted a horse gather
from September 25, 2010 through October 13, 2010 at the Silver King Herd Management Area (Silver King) in Lincoln
County, Nevada, after determining that an overpopulation of
horses was depleting natural resources and posing a danger to
drivers on the nearby highway. Approximately 500 wild
horses were captured. The BLM allowed daily public viewing, and also scheduled two public observation days, during
which it led groups of up to ten observers, and provided BLM
employees to answer questions about the gather.
Leigh, a photojournalist for Horseback Magazine, reports
about the BLM’s horse gathers, and asserts that there is “no
true oversight or accountability” over the gathers. Leigh participated in the September 28, 2010 observation day at Silver
King, and she also observed the gather on non-observation
days. The BLM staff and law enforcement officers imposed
restrictions to “ensure that the public does not get in the way
of gather operations and follows necessary safety precautions.” The restrictions included designated viewing areas and
requirements that observers sit down or remain quiet during
parts of the gather.
On September 22, 2010, Leigh filed a complaint in which
she alleged that the BLM’s restrictions violated her First
Amendment rights. Leigh also filed motions for a temporary
restraining order and a preliminary injunction. On September
27, 2010, the district court denied the motion for a temporary
restraining order. Leigh then filed the present amended
motion for a temporary restraining order and amended motion
for a preliminary injunction, in which she asks the court to
require the BLM to provide her with unrestricted access to the
roundup of “all horses captured from Silver King.” She also
seeks various forms of affirmative relief, which could be summarized broadly as: (1) requiring the BLM to create a system
to track the horses’ locations after capture; (2) requiring the

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BLM to provide the public with access to such information
without having to file a Freedom of Information Act (FOIA)
request; and (3) requiring the BLM to allow the public to
view the horses at holding facilities and after the gather.
On November 16, 2010, after the Silver King gather was
complete, the district court held an evidentiary hearing on the
preliminary injunction motion. Leigh testified that she was
escorted by the BLM’s staff during the first day of the gather,
and that the BLM’s staff, including armed guards, brusquely
instructed the observation group where to stand. She observed
the horses being moved into a netting area, but hills
obstructed her view of the horses being captured in the metal
panels. She also claims that she could not view the contractors
sorting the horses into various pens, nor was she able to view
whether the horses were injured. Leigh alleges that the BLM’s
contractors prohibited her from accessing certain areas even
though other members of the public were permitted in those
areas. Two other witnesses, Elizabeth Slagsvol and Debbie
Coffey, also testified that the BLM made it difficult to
observe the gather.
Chris Hanefeld, the BLM public affairs specialist who
oversaw public observation of the 2010 horse gather at Silver
King, testified that Leigh was not denied access that others
received. Hanefeld testified that the restrictions were intended
to avoid spooking the horses as they entered the trap. He
acknowledged that the BLM instructed observers to remain
seated and not to move, even when they were far away from
the horses.
On April 13, 2011, the district court denied the motions for
a temporary restraining order and a preliminary injunction.
The district court concluded that the bulk of Leigh’s requests
for injunctive relief are moot: “because the gather has been
completed, there is no conduct to enjoin.” Even if Leigh’s
request was not moot, the district court ruled, she has failed

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to demonstrate likelihood of success on the merits as to her
request to be allowed unrestricted access to the gather:
Leigh has made no showing that she was denied
access to the Silver King Gather, or that other members of the media were treated more favorably. Leigh
has not proven that she was denied access to gather
activities or that other members of the media
received special treatment. Rather, the evidence
before the court established that Leigh was provided
comparable access to, and observation of, the Silver
King Gather as other members of the public and
media.
The district court also denied Leigh’s other requests for affirmative injunctive relief regarding other horse gathers and
information about wild horses, summarily concluding that
“Leigh has made no showing that she is likely to succeed on
the merits of her First Amendment claim as it relates to access
to facilities, agency information, or the creation of a tracking
system.” Leigh timely appealed the denial of the preliminary
injunction.
STANDARD OF REVIEW
We review the district court’s legal conclusions de novo,
and its application of the preliminary injunction factors for
abuse of discretion. Stormans, Inc. v. Selecky, 586 F.3d 1109,
1119 (9th Cir. 2009). We review the district court’s factual
determinations for clear error. Klein v. City of San Clemente,
584 F.3d 1196, 1200 (9th Cir. 2009).
DISCUSSION
A court may grant a preliminary injunction only if the
plaintiff establishes four elements: (1) likelihood of success
on the merits; (2) likelihood of suffering irreparable harm
absent a preliminary injunction; (3) the balance of equities

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tips in the plaintiff ’s favor; and (4) injunctive relief is in the
public interest. Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).
The district court based its holding on the first element, concluding that Leigh was unlikely to succeed on the merits
because most of her claim was moot and she did not state a
valid First Amendment claim. We disagree with both conclusions.
I.

Mootness

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

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ver King. Although the preliminary injunction does not apply
to horse gathers conducted in other locations, it is not moot
as applied to future gathers in Silver King.
The government contends that In Defense of Animals v.
United States Department of Interior, 648 F.3d 1012 (9th Cir.
2011), supports the district court’s mootness decision. In that
case, an animal rights group filed a motion for a preliminary
injunction and temporary restraining order on August 5, 2010
to stop the initial phase of a roundup of horses scheduled to
begin on August 9, 2010 and to last 45 to 60 days. Id. at 1013.
The district court denied the motion, and the roundup
occurred. Id. On appeal, we found that the “interlocutory
appeal from the denial of a preliminary injunction is moot
because the roundup sought to be enjoined has taken place.”
Id. at 1013. In Defense of Animals is inapposite because the
preliminary injunction motion in that case sought only to
enjoin the initial stages of a single roundup that had already
been completed. In contrast, Leigh’s preliminary injunction
motion is not limited to one roundup.
Moreover, the district court’s mootness ruling applied only
to Leigh’s request for unrestricted access to horse gathers at
Silver King. The district court did not find that Leigh’s
requests for three general forms of affirmative relief were
moot. Leigh has waived requests for two forms of relief —
requiring the BLM to create a horse tracking system, and
requiring BLM to provide the public with access to information about horses without filing a FOIA request — because
she failed to raise them in her opening brief. See Brownfield
v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir. 2010)
(“We review only issues which are argued specifically and
distinctly in a party’s opening brief.”) (quoting Greenwood v.
Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)).
However, Leigh’s opening appellate brief reiterates her
request for the third form of relief: access to horses after they
are gathered. The government contends that this request also
is moot. In her opening brief, Leigh identifies only one hold-

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ing facility to which she was denied access: the Indian Lakes
Short-Term Holding Facility in Fallon, Nevada. Leigh participated in a public tour of this facility on June 3, 2011, and the
BLM plans to offer periodic tours of the facility in the future.
However, this limited access does not render Leigh’s entire
request moot because it does not provide her with the unrestricted access to the holding facility that she seeks in her preliminary injunction motion.
[3] In sum, the completion of the 2010 gather does not render the preliminary injunction moot because it still could
apply to future horse gathers at Silver King, and to Leigh’s
request for unrestricted access to horses in holding facilities
after they are gathered.
II.

First Amendment

The gravamen of Leigh’s complaint is that the BLM’s
viewing restrictions violated her First Amendment right to
observe governmental activities.1
Open government has been a hallmark of our democracy
since our nation’s founding. As James Madison wrote in
1822, “a popular Government, without popular information,
or the means of acquiring it, is but a Prologue to a Farce or
a Tragedy; or, perhaps both.” 9 WRITINGS OF JAMES MADISON
103 (G. Hunt ed. 1910). Indeed, this transparency has made
possible the vital work of Ida Tarbell, Rachel Carson, I.F.
Stone, and the countless other investigative journalists who
have strengthened our government by exposing its flaws.
1
In 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
2

See 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).
3
Amici 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 PressEnterprise 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
4

We 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.
5
See, e.g., United States v. Miami Univ., 294 F.3d 797, 821 (6th Cir.
2002) (applying Press-Enterprise II analysis to attempts to access university’s student disciplinary records); Whiteland Woods, L.P. v. Township of
W. Whiteland, 193 F.3d 177, 181 (3d Cir. 1999) (planning commission

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the common understanding that the Press-Enterprise II right
of access test is not limited to criminal judicial proceedings.
Accordingly, we hold that the Press-Enterprise II test applies
to Leigh’s claim that the BLM’s viewing restrictions violate
her First Amendment rights. Press-Enterprise II balances the
vital public interest in preserving the media’s ability to monitor government activities against the government’s need to
impose restrictions if necessary for safety or other legitimate
reasons.
Under this framework, a court cannot rubber-stamp an
access restriction simply because the government says it is
necessary. By reporting about the government, the media are
“surrogates for the public.” Richmond Newspapers, 448 U.S.
at 573 (Burger, C.J., announcing judgment); see also Cox
Broad. Corp. v. Cohn, 420 U.S. 469, 490-91 (1975) (“[I]n a
society in which each individual has but limited time and
resources with which to observe at first hand the operations
meetings); Capital Cities Media, Inc. v. Chester, 797 F.2d 1164, 1174 (3d
Cir. 1986) (state environmental agency records); Alexandria Real Estate
Equities, Inc. v. Fair, No. 11 Civ. 3694 (LTS), 2011 U.S. Dist. LEXIS
138455, at *4-6 (S.D.N.Y. Nov. 30, 2011) (arbitration award records);
Ginsberg v. DeHart, 1:10-cv-00452-JAW, 2011 U.S. Dist. LEXIS 31124,
at *37-38 (D.N.H. Mar. 22, 2011) (attorney disciplinary proceeding
records); In re September 11 Litig., 723 F. Supp. 2d 526, 530-31
(S.D.N.Y. 2010) (settlement records in property damage litigation); In re
Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1, 10 (D.D.C. 2009)
(habeas corpus proceedings); ACLU v. Holder, 652 F. Supp. 2d 654, 662
(E.D. Va. 2009) (sealed qui tam complaints); Chase v. Pub. Util. Comm’n,
Civil Action No. 1:05-CV-2375; 2008 U.S. Dist. LEXIS 25702, at *21
(M.D. Pa. Mar. 31, 2008) (transcripts of state utility commission meetings); Cincinnati Enquirer v. Cincinnati Bd. of Educ., 249 F. Supp. 2d
911, 915 (S.D. Ohio 2003) (resumes of candidates for school superintendent); Uniontown Newspapers, Inc. v. Roberts, 839 A.2d 185, 191 (Pa.
2003) (legislator’s telephone records); Mayhew v. Wilder, 46 S.W.3d 760,
776-77 (Tenn. Ct. App. 2001) (meetings of state legislature); Boston Herald, Inc. v. Sharpe, 737 N.E.2d 859, 869 (Mass. 2000) (divorce records);
Johnson Newspaper Corp. v. Melino, 564 N.E.2d 1046, 1048 (N.Y. 1990)
(dentist’s professional disciplinary hearing).

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of his government, he relies necessarily upon the press to
bring to him in convenient form the facts of those operations.”). When wrongdoing is underway, officials have great
incentive to blindfold the watchful eyes of the Fourth Estate.
See Timothy B. Dyk, Newsgathering, Press Access, and the
First Amendment, 44 STAN. L. REV. 927, 949 (1992) (“[W]hen
the government announces it is excluding the press for reasons such as administrative convenience, preservation of evidence, or protection of reporters’ safety, its real motive may
be to prevent the gathering of information about government
abuses or incompetence.”). If a government agency restricts
public access, the media’s only recourse is the court system.
The free press is the guardian of the public interest, and the
independent judiciary is the guardian of the free press. Thus,
courts have a duty to conduct a thorough and searching
review of any attempt to restrict public access.
[9] The district court’s order denying Leigh’s motion for a
preliminary injunction fell short of the rigorous scrutiny that
Press-Enterprise II requires. The district court focused mostly
on its conclusion that Leigh was not treated differently than
other members of the public, a consideration that is not part
of the Press-Enterprise II balancing test. The district court
also implied that Leigh’s First Amendment claim was
unlikely to succeed because she did not show that she was
denied access. The relevant question is not whether the BLM
prohibited Leigh from observing the horse gather altogether;
as in California First Amendment Coalition, the issue here is
whether the viewing restrictions were unconstitutional. On
that question, the district court failed to conduct the proper
First Amendment analysis. The district court did not consider
whether horse gathers have traditionally been open to the public, whether public access plays a positive role in the functioning of horse gathers, whether the BLM has demonstrated an
overriding interest in the viewing restrictions, or whether the
restrictions are narrowly tailored to serve that interest. See
Press-Enter. I, 464 U.S. at 510 (“The interest is to be articulated along with findings specific enough that a reviewing

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court can determine whether the closure order was properly
entered.”). Because these questions are fact-intensive and
likely require further evidentiary development, it would be
inappropriate for us to rule on them based on the district court
order and record. See Bank of N.Y. v. Fremont Gen. Corp.,
523 F.3d 902, 910 (9th Cir. 2008) (“If issues of fact exist, we
must remand to the district court to conduct, as necessary, further evidentiary proceedings to resolve those issues.”).
[10] Accordingly, we reverse the denial of the preliminary
injunction. We remand this case for the district court to conduct the analysis that Press-Enterprise II requires. First, the
district court must determine whether the public has a right of
access to horse gathers by considering whether horse gathers
have historically been open to the general public and whether
public access plays a positive role in the functioning of gathers. Second, if the district court determines that a right of
access exists in this case, it must determine whether the BLM
has overcome that right by demonstrating an overriding interest that the viewing restrictions are essential to preserve
higher values and are narrowly tailored to serve those interests.
CONCLUSION
For the foregoing reasons, we reverse and remand to the
district court for proceedings consistent with this opinion.
REVERSED AND REMANDED.

WALLACE, Senior Circuit Judge, concurring in part and dissenting in part.
Judge Smith has crafted an excellent opinion and I agree
with nearly all of it. I agree that Leigh’s request for preliminary injunctive relief is not moot. I also agree that Press-

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02/14/2012

ID: 8067432

DktEntry: 49-1

Page: 16 of 18

LEIGH v. SALAZAR

Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (PressEnterprise 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

Case: 11-16088

02/14/2012

ID: 8067432

LEIGH v. SALAZAR

DktEntry: 49-1

Page: 17 of 18

1785

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.”

Case: 11-16088

1786

02/14/2012

ID: 8067432

DktEntry: 49-1

Page: 18 of 18

LEIGH v. SALAZAR

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.