FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAURA LEIGH, 

Plaintiff-Appellant,

v. No. 11-16088

KEN SALAZAR, Secretary, U.S. D.C. No.

Department of the Interior; BOB  3:10-cv-00597-

ABBEY, Director, Bureau of Land LRH-VPC

Management; RONALD WENKER,

OPINION Nevada State Director of Bureau

of Land Management,

Defendants-Appellees. 

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

1767
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.

1770 LEIGH v. SALAZAR
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

LEIGH v. SALAZAR 1771
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

1772 LEIGH v. SALAZAR
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

LEIGH v. SALAZAR 1773
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

1774 LEIGH v. SALAZAR
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 SilLEIGH v. SALAZAR 1775
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 hold1776 LEIGH v. SALAZAR
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. 

LEIGH v. SALAZAR 1777
[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

1778 LEIGH v. SALAZAR
[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). 

3Amici 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.

LEIGH v. SALAZAR 1779
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

4We 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

1780 LEIGH v. SALAZAR
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). 

LEIGH v. SALAZAR 1781
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

1782 LEIGH v. SALAZAR
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 PressLEIGH v. SALAZAR 1783
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

1784 LEIGH v. SALAZAR
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.”

LEIGH v. SALAZAR 1785
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.

1786 LEIGH v. SALAZAR