Leigh

Opinion by Judge MILAN D. SMITH, JR.; Partial Concurrence and Partial Dissent by Judge WALLACE.

ORDER

The opinion filed on February 14, 2012 is amended as follows:

On slip opinion page 1775, line 33, add the following sentence after “wild horses that should be removed.”:

With this amendment, the panel has voted to deny the petition for rehearing.

Subsequent petitions for rehearing or rehearing en banc may not be filed.

OPINION

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 *894 Leigh was unlikely to succeed on the merits because the restrictions did not violate the First Amendment.

We have jurisdiction under 28 U.S.C. § 1292 (a)(1), and we reverse. Because the preliminary injunction motion seeks unrestricted access to…

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-Enterprise Co. v. Superior Court, 478 U.S. 1 , 106 S.Ct. 2785 , 92 L.Ed.2d 1 (1986) (Press-Enterprise 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…

Gordon M. Cowan (argued), Reno, NV, and Bruce A. Wagman, Schiff Hardin LLP, San Francisco, CA, 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, VA, for Amicus Curiae The Reporters Committee for Freedom of the Press, and Mickey H. Osterreicher, East Amherst, NY, for amicus curiae National Press Photographers Association.

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.

The opinion filed on February 14, 2012 is amended as follows:

On slip opinion page 1775, line 33, add the following sentence after "wild horses that should be removed.":

With this amendment, the panel has voted to deny the petition for rehearing.

Subsequent petitions for rehearing or rehearing en banc may not be filed.

M. SMITH, Circuit Judge:

Plaintiff-Appellant Laura Leigh, a photojournalist, contends that…