by Gail Binkly | August 5, 2015 9:38 am
Motion seeks Shelby’s recusal; prosecution calls charge ‘unfounded’
A federal judge’s friendship with the legal director of an environmental organization has led to a motion to have him removed from a case against two Utah men involved in a protest ATV ride in 2014.
Phil Lyman, the San Juan County commissioner who initiated the ride last summer, and Monte Wells, a Monticello man, were found guilty by a jury May 1 in U.S. District Court in Salt Lake City on two misdemeanor charges related to the ride. Two other men were acquitted.
The protest, in which motorized users drove through a closed portion of the Recapture Canyon trail near Blanding, drew hundreds of attendees as well as nationwide attention. Lyman said it was intended to object to what he sees as over-reaching actions by the Bureau of Land Management, which closed part of the trail in 2007 to protest Ancestral Puebloan ruins.
Lyman and Wells were slated to be sentenced July 15, but the date was extended by 60 days when Lyman hired new counsel.
Now, Lyman is seeking to have U.S. District Judge Robert Shelby removed from the case, charging that his friendship with Steven Bloch of the Southern Utah Wilderness Alliance, an environmental non-profit, shows he is too biased to act fairly.
In a motion filed July 20, Lyman’s attorney said they recently learned that Shelby had a “direct, personal relationship” with Bloch, legal director of SUWA, and this indicated he was biased.
Shelby has asked Chief Judge David Nuffer to assign a different district judge to rule on Lyman’s motion.
The motion, written by attorney Anneli Smith of Clyde Snow & Sessions, quotes comments Shelby made as part of an unrelated case involving litigation over road claims under a federal statute called RS 2477.
Shelby is quoted as saying that he wanted to disclose that, “Steve Bloch and his wife Kara are friends of mine and have been for a long, long time,” having socialized with Shelby and his wife since 1999. “We have dinner, are couples together and with other friends not infrequently,” Shelby stated.
He further explained that he would not preside over any cases involving Bloch personally, but does not recuse himself from all cases related to SUWA. “I don’t hear any cases in which Steve appears. . . I don’t recuse from any matters involving SUWA. I don’t think I know anyone else that works at SUWA. If I do, I don’t know who they are. And so long as Mr. Bloch’s not involved in our case [the civil matter involving road claims], I intend to remain in the case, but I wanted to make that disclosure.”
SUWA was not a party to the charges against Lyman and Wells. However, in the motion seeking Shelby’s removal, Lyman’s attorney said that his prosecution for the ATV ride had been “strongly urged” by SUWA, that it had “sharply criticized” him on its website, and that SUWA “has also had extensive direct contact with the government concerning the prosecution of this case.”
The motion also notes that SUWA was “made the subject of voir dire [questioning] of the jury in this case.”
Additionally, the motion charges, Bloch attended Lyman’s trial, and “Mr. Bloch and others at SUWA have been actively involved in the prosecution of Mr. Lyman. SUWA has joined with the Grand Canyon Trust, the Natural Resources Defense Council and the Utah Chapter of the Sierra Club in writing a letter to this Court advocating a stiff sentence for Mr. Lyman.”
“This relationship and involvement lead a reasonable person to question the Court’s impartiality, and thus require that this Court disqualify itself,” the motion states.
But in a response filed July 28, the U.S. Attorney’s Office said any insinuation that SUWA or Bloch had a role in the United States’ decision to charge Lyman, or other decisions regarding the trial, was “unfounded.”
“No member of SUWA ever met or corresponded with the United States Attorney or any Assistant United States Attorney to discuss whether to file charges or which charges to file against Mr. Lyman for his organization of and participation in the illegal May 10, 2014 ride through Recapture Canyon,” the response states. “The United States Attorney at that time made the charging decisions after consulting with the senior managers and line prosecutors in the USAO and with BLM law enforcement. Neither Mr. Bloch nor any other representative of SUWA participated in those charging discussions.”
It was SUWA attorney Liz Thomas, not Bloch, who repeatedly contacted BLM personnel, usually by email, to send them news articles about the ride, as well as some of Lyman’s Facebook posts, the response says. Thomas did urge the agency to enforce its closure order in the canyon, and on occasion BLM officials met with her to discuss Recapture Canyon.
Meeting with representatives of various interests is not unusual, the response states. “BLM has met with many interested parties, including San Juan County, for several years regarding San Juan’s County’s application for a right-of-way through Recapture Canyon and BLM’s general management of the canyon.”
Furthermore, the document states, “none of the BLM officials with whom Thomas may have met have the authority to charge Mr. Lyman, to decide which charges to bring, or how to try the case. That function is entirely within the United States Department of Justice.”
The U.S. Attorney’s Office also said that although SUWA and other conservation organizations sent a joint letter to Shelby regarding sentencing, it was not signed by Bloch or anyone else personally.
“And instead of ‘advocating a stiff sentence for Mr. Lyman,’ as he alleges in his Motion. . . the unsigned letter from the conservation groups asks the Court to impose ‘punishment commensurate with the severity of their crimes’ and ‘punishment that reflects the egregiousness of their crimes.”
As far as the voir dire process (in which jurors are questioned to see if they have biases), it was Lyman and his co-defendants who “actually proposed the voir dire questions about whether potential jurors had any affiliation with SUWA,” according to the response.
“. . . . Judge Shelby’s decision to ask Mr. Lyman’s proposed voir dire questions demonstrated Judge Shelby’s desire to give Mr. Lyman a fair trial by allowing him to investigate whether each potential juror who admitted affiliation with SUWA and other conservation groups was indeed biased.”
Expecting judges never to have friends who have any interest in a particular case would pose a ridiculous burden, the response states.
“According to Mr. Lyman, a judge must recuse him/herself when the judge has a friend who serves as an attorney for a group that is merely interested in the outcome of a case but is not a party thereto or a participant therein. . . . Indeed, if such a standard obtains, then judges will have to recuse themselves in nearly every case because, unless a judge is bereft of any family or friends, the interests of the groups with which friends and family affiliate will be imputed to a judge. . . Such a standard would impose an absurd burden on judges and the administration of justice, which no objective observer of the judiciary could tolerate.”
A Garfield County commissioner recently wrote Utah Gov. Gary Herbert urging him to intervene to have Judge Shelby recused from the case, according to the Deseret News. Commission Chairman Leland Pollock sent a letter to the governor recently with “my most aggressive personal request for your strongest efforts to influence a recusal by Judge Shelby in the Phil Lyman case.” The governor’s office said it would not be appropriate for the governor to intervene in a court case, according to the News.
As of press time, the sentencing was still scheduled for Sept. 15 in Salt Lake City. Lyman and Wells face penalties of up to a year in prison and fines of up to $100,000, as well as possible restitution for alleged damages to the trail estimated at more than $170,000.
Lyman, who initially was represented by a public defender but then had to hire his own counsel after he was found not to qualify for public assistance, has incurred steep legal costs. (Wells has a public defender.)
Lyman sought assistance from Utah’s taxpayer-funded Constitutional Defense Council, which helps in efforts to fight battles with the federal government over public-lands issues, but that group – which has never funded an individual’s defense in a criminal case – chose not to aid him.
However, he is receiving numerous private donations, including a $10,000 gift from Governor Herbert. Lyman’s supporters say the BLM’s “interim” closure of Recapture Canyon to motorized use was not done properly and has continued for too long without a permanent decision being made.
Following his conviction, Lyman told the Free Press that the protest ride burgeoned into something beyond what he’d envisioned and that there were outsiders in the crowd urging people to go onto the closed part of the route (Free Press, May 2015).
“There were a lot of undercover organizations there,” he said. “That was so unfair. That wasn’t Blanding’s protest. We’re very law-abiding, normal, and peaceful and most of all we value the resources.”
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