Two Utah men found guilty in protest ride

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MAY 2014 RECAPTURE CANYON ATV PROTEST

Motorists in an ATV protest ride in May 2014. Photo by Shannon Livick

SALT LAKE CITY – San Juan County, Utah, Commissioner Phil Lyman and a local blogger, Monte Wells, were found guilty May 1 of two federal charges in connection with an ATV protest ride a year ago near Blanding.

Two other men who had been charged, Trent Holliday and Shane Marian, were found not guilty.

The ride drew hundreds of people to a warm, dusty trail a few miles from Blanding on the morning of May 10, 2014. The route cuts through a portion of Recapture Canyon that has been closed by the Bureau of Land Management since 2007 under a temporary order designed to protect archaeological resources.

The verdict was hailed by some, criticized by others.

“I was pleased to see the guilty verdict for Commissioner Lyman and Monte Wells,” said Rose Chilcoat, associate director with Great Old Broads for Wilderness, an environmental group that has been involved in issues in San Juan County.

“Those were intentional and willful acts that just can’t be tolerated in a civil society where you have to have some constraints and it can’t be a free-for-all of everybody doing what they want. It is refreshing to see the federal government pursue cases where people have been flouting federal law, especially as it relates to public lands.”

Bob Turri of SPEAR (San Juan Public Entry and Access Rights), a grassroots group advocating for motorized use, had another take.

“I don’t feel good about the verdict,” he told the Free Press. “I feel those guys are being railroaded. They did some things that were probably wrong, but I don’t think the federal government is really upfront. Out of all the people who violated the rules that day, why were these four selected?”

Turri said he did not join in the protest ride, but watched it. “I told Phil Lyman I didn’t think it was probably a good thing to do, there was a better way to do this, there was all the ammunition in the world for a lawsuit against the federal government. He did what he believed was right, but that’s why I didn’t ride it, but the violation itself was not that serious.”

The 12-member jury deliberated seven hours, following two and a half days of testimony and arguments by attorneys for the U.S. government and the four defendants, who were tried simultaneously.

“On May 10, 2014, each of these four defendants crossed the line,” said assistant U.S. attorney Lake Dishman in opening arguments. “They willingly and willfully drove an ATV through an area they knew was closed to off-road vehicles.”

All four, he said, were members of a conspiracy. “They conspired or agreed with each other to break the law.” It was not a conspiracy “shrouded in secrecy,” he said, but an open one where they invited others to join them.

But Jered Stubbs, Lyman’s attorney, countered that locals were frustrated because “year after year the BLM did not lift the temporary closure,” so finally Lyman “decided to lead a lawful political protest.”

“Phil and others believed they had a right to be in that canyon,” Stubbs said.

Jason Moore, the state chief ranger for the BLM in Utah, testified that there is a multitude of archaeological sites in the canyon, including cliff dwellings, potsherds, fire hearths, midden piles, burial cysts, storage cysts, and rock walls.

He said on May 9, the day before the ride, he and other BLM officers set up four motion-activated trail cameras in the canyon and checked to make sure the closure signs were standing. On May 10 he hiked into the canyon about 6 a.m. but left about 11 a.m. at the request of San Juan County Sheriff Rick Eldredge.

The BLM and sheriff ’s office had agreed the sheriff would provide protection for BLM rangers so long as they agreed to follow his instructions. “At 11 o’clock he asked us to leave the canyon so we did,” Moore said.

The ride followed a rally in Blanding earlier in the day drew a large crowd of media, local citizens, and people from outside the area, including supporters of Cliven Bundy, the Nevada rancher who had clashed with BLM officials a month earlier for refusing to pony up grazing fees. Lyman has told the Free Press there were undercover instigators rabble-rousing at the ride. (See sidebar, Page 5.)

Chilcoat told the Free Press that Great Old Broads pulled back from initial plans to walk the trail during the protest. “Our organization and members had received death threats,” she said. “We ended up modifying our plans and just deciding to witness. Then, because of militia in town brandishing weapons, death threats, etc., we eventually were compelled by friends and others not even to go in San Juan County that day.”

The quiet, briskly air-conditioned courtroom in Salt Lake was a sharp contrast to the sunny trail rumbling with ATVs a year earlier.

Josh Ewing, director of Friends of Cedar Mesa, a nonprofit in San Juan County, testified the protest ride was the talk of the county for weeks.

“If you lived in San Juan County and hadn’t heard about this ride there was something wrong with you,” he said, to laughter.

Ewing said he served with Lyman on a citizens’ group that advises the county commissioners on public-lands issues. “Commissioner Lyman is one of the hardest-working, most responsible and knowledgeable public officials I’ve ever encountered,” Ewing said. “We don’t agree on public-lands issues entirely” but Lyman is willing to listen, he said.

“I certainly wouldn’t be here today if I wasn’t compelled to be.”

Friends of Cedar Mesa was not directly involved in the Recapture controversy, he said, and Ewing hadn’t planned to attend the ride.

“But I found out the other conservation groups weren’t going to be there, primarily out of concerns for safety of their volunteers,” he said. “I decided I couldn’t leave it to BLM or others” to document the event, so he decided to film it himself, hiking into the canyon to a point on the closed section “where I felt if people drove past there, they would do damage” to the natural or cultural resources.

Clips from Ewing’s footage were shown in court and included shots of ATVs, one driven by Wells, trundling down the road past Ewing. Lyman was in some footage as well.

Juan Palma, state director for the BLM in Utah from 2010 through 2014, when he retired, testified that no rightof- way had been granted to the county as of May 10, 2014. He also testified that he, Lyman and Wells had had lunch once prior to the planned ride and spoke about it, and that he and Lyman discussed the ride in emails and phone conversations. In one email, Lyman wrote Palma that “my hope indeed my prayer is that the BLM will. . .make this a legal rather than illegal movement.”

In another email, Lyman wrote that “San Juan County plans to withdraw our silly Title V right-of-way application,” but Palma said the other two county commissioners did not agree with that and the application was not withdrawn. San Juan County did not give approval for the protest ride and did not officially participate.

Meanwhile, BLM officials were urging Lyman not to hold the ride. Lance Porter, then BLM district manager for Utah’s Canyon Country District, wrote Lyman, “I strongly urge you to cancel the proposed ride” and added that “BLM will seek all appropriate civil and criminal penalties.”

Palma said the environmental assessment regarding the county’s right-of-way application was initially delayed because of litigation concerning two local men who illegally improved a road through the remainder of the canyon. Then reviews of impacts to wildlife, water, soil, and archaeology had to be conducted. Palma also said the county “kept changing the application,” causing delays.

“Throughout this whole thing Mr. Lyman and I had conversations about how close we were to completing our environmental work to complete this right-of- way,” Palma said, adding, “We were so close to the end.”

The defense brought up a May 1, 2014, phone conversation between Lyman and Palma, apparently recorded by Lyman, in which Palma, referring to the ride, said, “Nobody is going to get arrested and nobody is going to do all that kind of stuff.” Defense attorneys said that could be construed as giving permission for the ride.

Palma testified that the context of his remark was “given what occurred in other parts of the West, we [the BLM] were not going to have all kinds of law enforcement there to arrest people.”

Assistant U.S. Attorney Jared Bennett asked him, “Did BLM arrest somebody on May 10 in Recapture Canyon?”

“No,” Palma said, he’d just told his officers to observe and to photograph any damage done to archaeological sites.

Later, Porter testified that he had hand-delivered a letter to Lyman on April 28, 2014, asking him to cancel the ride.

BLM special agent Brian Loftin testified that he’d done an Internet investigation and found numerous instances in which Lyman discussed the planned ride on his Facebook page, even complaining that when the Deseret News published an opinion piece by him, the paper removed his invitation to people to join the ride.

Wells had also publicized the ride on his website, Petroglyph.com.

Holliday and Lyman had liked and shared some posts between them on Facebook. Marian’s name was not found in the Internet investigation, Loftin said.

The defense hung its hopes on the stalwart shoulders of Ferd Johnson, a seemingly ageless Blanding man who after working for the Utah Department of Transportation for 31 years then served 11 years on the board of the San Juan Water Conservancy District, then became its water master, a position he still holds.

He testified that he regularly rides the Recapture road from the district’s pumphouse at the north end to a turnaround point beyond which the route becomes a foot path. The road, he said, sits on top of the pipeline and the district has a right-of-way from the BLM that extends 25 feet from each side of the pipe.

The northernmost part of the route is open to motorized travel. Then there is a BLM closure, but the road is still pass able and the water district has a right-of- way continuing to the turn-around point, where the pipeline goes up a hill.

Johnson said Lyman had approached him prior to the ride and asked if it would be all right if the riders drove on the closed “pipeline trail” to the turnaround, and Johnson said yes.

A gate at the north end is “usually locked to keep cows out,” Johnson said, so on the Monday before the Saturday ride he made sure it was open.

“They had permission,” he stated.

However, a stipulation agreed to by both sides, and read to the jury, stated that the water district “held a limited right-of-way in a portion of Recapture Canyon [that] flowed from a grant from the BLM in 1986 for the purpose of operating and maintaining a pipeline.”

The prosecution pointed out that the protesters were not doing any maintenance.

Referring to a video clip of riders milling about in the closed area, attorney Bennett asked Johnson, “Do you see anybody digging? Do you see them looking at the pipeline?”

“They probably didn’t know they was on top of it,” Johnson replied.

Bennett then referred to Lyman, who was in the video. “Is he digging?” he asked.

“Why would he be digging?” Johnson asked, prompting laughter.

Although Lyman was careful not to drive onto the footpath part of the route, others did.

The jury apparently did not believe Johnson’s permission was sufficient to override the BLM closure, finding Wells and Lyman guilty on both charges. It acquitted the other two men despite the fact that photographs placed them on the closed pipeline road as well.

The charges of conspiracy and driving on public lands closed to motorized vehicles, both misdemeanors, carry penalties of up to one year in jail and $100,000 in fines. Lyman and Wells are to be sentenced July 15.

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From May 2015.