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Mesa Verde denies access to horse roundup

Access to federal government actions is a First Amendment right, court says

Planning has begun on a roundup of “trespass” horses at Mesa Verde National Park, and a public adoption process will follow. But the park has denied a request by The Journal to report on and document the roundup process.

Other horse roundups on federal land have included public and media viewing areas, and courts have ruled that media have a First Amendment right to witness federal government activities.

Park Superintendent Cliff Spencer banned media coverage of the roundup in an email April 24, stating that roundup representatives informed him they did not want anyone not involved in the roundup to be present because “the distraction would negatively affect the behavior of horses.”

The park is drawing up a memorandum of understanding with the Colorado Chapter of National Mustang Association, a 501(C)(3) nonprofit, to assist with the roundup and conduct the adoption process. And Tim McGaffic, an expert in low-stress roundup techniques, has been contacted by the park to run the roundup.

McGaffic told The Journal its plan for a reporter and photographer to observe the roundup “seems more or less fine.”

Spencer, in denying public access to the roundup, went a step further.

Both groups “were adamant we do not allow anyone that is not directly involved in the low-stress roundup be present,” he said. “I will accommodate their request and not allow anyone not directly involved in the roundup attend. That includes me.”

But the park’s approach of denying media coverage and allowing the “groups” to decide public access to government activities is misguided, according to legal precedent and constitutional experts.

Public access to government activities such as horse roundups on federal lands is protected under the First Amendment, said Denver-based lawyer Steve Zansberg, who is president of the Colorado Freedom of Information Coalition.

“Accommodating a single reporter and pool photographer for a limited period of time at a considerable distance from the wrangler-horse interactions is a constitutionally appropriate way to protect the public’s First Amendment right to access a National Park and to engage in protected newsgathering activities there,” Zansberg stated in an April 26 letter to Spencer.

“It is noteworthy that other federal agencies have permitted press coverage of horse roundups on federal lands,” he added.

Zansberg said a 2012 ruling by the U.S. Court of Appeals allows for a member of the public to photograph the conduct of horse roundups in federally controlled land.

While reasonable “time, place, or manner” restrictions may be imposed upon such First Amendment-protected activities, the government must show that its restrictions are narrowly tailored to further a significant public interest, he said.

Zansberg’s letter to Superintendent Spencer states that the “public, who are beneficiaries of the Cortez Journal’s reporting, are keenly interested in seeing for themselves how the actual process plays out.”

A 2012 decision by the 9th U.S. Circuit Court of Appeals addressed the issue, ruling that a lower court did not adequately analyze First Amendment claims for public access in the case of a reporter who sought to cover the 2010 Silver King wild horse gather.

In Leigh v. Salazar, photojournalist Laura Leigh objected to a restricted public viewing location for the 2010 Silver King wild horse gather in Nevada. She claimed the limited access provided by the Bureau of Land Management thwarted her from adequately viewing the roundup and violated her First Amendment right to observe governmental activities.

“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,” 9th U.S. Circuit Court of Appeals Judge Milan D. Smith Jr. stated in the majority opinion. “The Supreme Court has recognized that newsgathering is an activity protected by the First Amendment.”

By reporting about the government, the media are “surrogates for the public,” Smith said.

The Circuit Court ruled that the District Court erred in evaluating the First Amendment claim.

“If a government agency restricts public access, the media’s only recourse is the court system,” the appeals court said. “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.”

In an interview with The Journal, Leigh said the 9th Circuit Court decision affirms media and public access to horse roundups on federal lands. Under mediation from the case, the BLM had been allowing daily access to the roundups, she said.

“The First Amendment is not unique to the BLM,” said Leigh, who is president and founder of Wild Horse Education. “It applies to federal lands. Fish and Wildlife refuges and national parks. The ruling sets a tone and precedent on what the federal government should do for public access.”

Leigh monitors horse roundups for safety and humane treatment of horses and monitors what happens to them afterward as well.

Roundups of wild horses have sparked controversy when aggressive driving tactics such as helicopter herding is used. Gentler techniques such as bait trapping also are used, but Leigh noted there will always be some level of distress when a wild or free-roaming horse is captured and put in a corral.

According to the Mesa Verde National Park decision, 60 to 80 free-roaming horses will be captured over the next five years using low-impact bait-trapping and wrangler roundups as a priority method. Herding with a helicopter and darting with tranquilizers may be used to round up more elusive horses, according to the plan. The goal is to remove 50% of the horses this year and 80% in 2020.

Officials plan to condition the horses to human presence in the months leading up to the roundup. Eventually, herders on foot would herd the horse to corrals.

The method helps in the adoption process because the horses will have had a nonthreatening, positive human interaction, McGaffic said in an interview.

He told The Journal he is open to discussions on a media presence, but that in the end, the park administration will make the determination.

Having a reporter and a photographer with a long lens “on a hill seems more or less fine,” McGaffic said, emphasizing that the issue would need to be discussed and negotiated with all parties.

Showing off the effectiveness of gentle-herding techniques to the public has value, he said, and lowering stress levels improves the adoption process.

Latifia “Tif” Rodriguez, a spokeswoman for the Colorado Chapter of the National Mustang Association, based in Dolores, declined to comment for this article. She said she planned to bring it before the organization’s board of directors.

As of press time, Superintendent Spencer had not responded to Zansberg’s letter, written on behalf of The Journal.

Park horses do not have protected status

The park’s roundup decision came after years of debate and an Environmental Impact Statement that generated thousands of public comments. In 2014, a protest took place at park headquarters when it was discovered some horses apparently died of dehydration during a drought.

The free-roaming horses, dubbed “trespass livestock” by the park, have formed 17 or so bands spread out across the park, biologists say, and have survived and multiplied for decades. Over the years, they have wandered in from nearby ranches and Ute Mountain Ute reservation. Fencing is being installed to keep them out.

The Mesa Verde horses are not protected under the 1971 Wild Free-Roaming Horses and Burros Act. The law designates specific management areas, but the park is not one of them.

Horse advocates have urged the park to adjust its policy to allow a small population of horses and manage their numbers by using birth-control tactics that use specialized darts shot into mares at appropriate times.

The park is standing by federal policy that does not allow the horses, which are not considered wildlife. Park officials further justify their removal because the horses may damage archaeological sites and compete with elk for limited range and water sources.

Park researchers placed game cameras at a spring in Morefield Canyon that captured images of horses chasing elk from a water source. In their search for water, horses also have broken water and septic lines and an ice machine. The park also has claimed stallions and mares pose a risk to safety as they protect their territory and foals near trails and roads.


Apr 6, 2019
Mesa Verde to begin horse removal
Jan 13, 2016
Nearly 9,000 call for protections to Mesa Verde’s horses
Jul 30, 2014
Horse deaths trigger protest at Mesa Verde
Apr 11, 2014
Horses are wildlife, too

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