Phil Lyman on the costs of his county’s legal battles

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Note: The following is a transcript of a recorded interview between the author and San Juan County, Utah, Commissioner Phil Lyman. The interview took place on April 20, 2018, and was done as research for an article appearing in the May 2018 issue of the Four Corners Free Press. It has been edited slightly for clarity, and two minor errors in transcription have been fixed.

Z: The litigation with the Navajo Nation is entering its sixth year. Are you confident you’ll get a favorable ruling this time in the Tenth Circuit?

P: Not at all confident. I’ve dealt with the Tenth Circuit. Hopeful but not at all confident.

Z: What happens if the appeal fails?

P: Nothing changes. We’re where we are.

Z: I know that the Navajo Nation’s attorneys have submitted attorney’s fees for the last six years of litigation and if the appeal fails the county will be asked to pay those, is that correct?

P: They have been asked to pay those, and that’s part of the appeal. If the appeal fails then that will become the next question whether those are awarded or not. They haven’t been awarded those, they’ve just asked for them.

Z: Would that be a separate case?

P: I believe if the appeal fails at the Tenth Circuit it would come back to Judge Shelby in Salt Lake on the attorneys’ fees.

Z: You’ve suggested in the past that going back to at-large voting would be a good move for the county. Do you still feel that way, and if so how would that interact with the 1984 consent decree? Is the county able to go back to at-large voting?

P: That’s the beautiful thing, the one beautiful thing that Judge Shelby did, was essentially lift the 1984 consent decree, we’re no longer under the consent decree. I asked him to his face if that was his intention, and he didn’t answer the question. The whole idea that the federal government can say you’re under a consent decree, wherein the federal court retains all jurisdiction over voting in San Juan County, yet turns around and sues San Juan County at the same time for unconstitutional districts which they themselves created. The whole thing is just so convoluted that you can’t make sense of it. In my mind, Judge Shelby lifted the 1984 consent decree, and there’s no language in this new decree that says the federal court is in charge of all voting matters in San Juan County. So yeah, we can do what we want to do.

Z: My understanding was that the 1984 decree just said the county had to elect commissioners by district but didn’t say anything specific about what the boundaries of those districts should be. Is that your understanding as well?

P: It’s a very similar process to what took place this time. We had to propose districts that met the demand of the Navajo Nation and the federal court. There was a lot of external input into those things. It was imposed on San Juan County, and San Juan County complied just like they did with this one. You know the county accepted the precincts. Judge Shelby calls on Jan 25th and says, ‘if you don’t accept this by Jan 31st you’ll be held in contempt.’ And then people turn around 30 years later and say, San Juan County did this. That’s why I said I’m happy to be held in contempt. I am in contempt. And the other two commissioners were not willing to do that. So it was a 2-1 split decision on accepting the decision of Judge Shelby. They didn’t want to go to jail, and I said I’m happy to. And that’s where we are. And 20 years from now they’ll say it was San Juan County that did this. It wasn’t it was the special master in San Francisco or wherever and Robert Shelby, best friends with Steve Bloch with SUWA, and it’s all Bears Ears related and it has nothing to do with race or voting or anything else. It’s completely environmentally driven by the same folks that have been filing lawsuits for the last 25 years in San Juan County.

Z: I’ve heard you say that before.

P: Well it’s true.

Z: I’m not familiar with the timeline exactly for the national monument, but I know this lawsuit started in 2012. Do you think Bears Ears was a motivating factor in the beginning of that suit in 2012?

P: Well, if you go back 25 years you can follow the career of Steven Boos and see where he’s at with San Juan County. The Red Rock Wilderness Bill has been on the books for 30 years, if you look at what started with Utah Diné Bikéyah to protect Cedar Mesa, the county was completely on board and working towards the same ends until Conservation Lands Foundation, Southern Utah Wilderness Alliance, they get involved and now you’ve got something that looks identical to the Red Rock Wilderness Bill as far as the San Juan County portion. So yeah, you can call it Bears Ears, you can call it Nahodishgish, you can call it Cedar Mesa, you can call it Red Rock Wilderness Bill. Now it’s called Bears Ears, I guess now it’s actually called Sash Jaa [laughs]. Don’t act naive that just because the monument was designated in 2016 or whatever it was not the motivating factor for the last 25 years. I know the designs of these groups and so do you.

Z: I’m getting a little far away from my story here, but I’m curious, when you’re referring to working with Diné Bikéyah in 2012 are you talking about the PLI [Public Lands Initiative]?

P: We rejected the PLI because we had [inaudible] MOU with Navajo Nation and Utah Diné Bikéyah. It was Utah Diné Bikéyah that came back and said, ‘we want San Juan County to do the PLI.’ Bob Bennett had done that in 2010 and was pushing for similar type things. Bob Bennett did it. As soon as Bob Bennett was done Rob Bishop picked up the torch. But in the meantime Utah Diné Bikéyah, which at that time was a local effort, at least from our perspective, wanted federal designation. It’s usually contrary to the county’s interest to pursue a federal designation. It doesn’t make sense for a county to go and seek federal oversight over the county, but if the citizens asked for it, which they did with Utah Diné Bikéyah, we said, ‘hey if it’s important to you, it’s important to us.’ We pursued it very earnestly and we had a proposal until Rob Bishop showed up with his PLI and that’s when Utah Diné Bikéyah said that they would prefer that the county join that. We rejected it on the front.

Z: Was it a National Conservation Area that was being considered at that point?

P: Yeah it was an NCA that they were seeking. That was before Josh Ewing showed up. It was before Gavin [Noyes] showed up. It was before Round River came on the scene and then Conservation Lands Foundation came in. And then we find out a year after the fact that Utah Diné Bikéyah had sold their soul to CLF and then Friends of Cedar Mesa, a group that I was proud to be a member of for years with Bill Lipe and archaeologists that care about this area, sold their soul to CLF. And you can go look at the CLF minutes that say they’re going to hitch their wagon to the Navajos. People go berserk when you say that the Navajos are being taken advantage of, but it’s still the truth. People can freak out over it but it’s still the truth. And it is very essential that to that story you’re doing on the voting.

Z: Yeah, I’ve heard you say that Judge Shelby has ties to SUWA members.

P: They’re going to teach San Juan County a lesson. The thing that’s sad about it is they think they’re the conservationists when the conservationists are the people in San Juan County. We’re the people that are saying just because this is a special place doesn’t mean that we have to sell it. It doesn’t mean that we have to put a big national monument sticker on it and invite the entire world. It’s great for business but it’s not great for Indian ruins and artifacts and sacred sites. But the narrative is if you’re not in favor of the Red Rock Wilderness Bill, it’s because you’re unintelligent, ignorant, racist, anti-government, religious, whatever other label the Left wants to put on the people who actually live here and care deeply about these things. So that’s the narrative, and Four Corners Free Press has done a really great job of perpetuating that narrative and I’m sure they will continue to. It’s sad because it’s the opposite of the truth. And it’s damaging. You know David Bonderman probably gave money to Four Corners Free Press and they’re obligated to him. I know he gave money to High Country News and he bought them out so they run stories that David Bonderman appreciates and Yvon Chouinard. I suspect that’s ultimately where your paycheck comes from.

Z: [laughs] Well I’m just a freelancer. This is my first story for them so I haven’t got a paycheck yet but I don’t imagine it will be very big if I do get one.

P: Just know that it’s probably Yvon Chouinard and Patagonia that’s paying.

Z: I’ll write them a letter asking for more when I get $50 for this article.

P: I don’t mean to be, you know, rude. I’m just being snide, I guess.

Z: No, I’m curious to hear all of this.

P: What I tell you is the truth.

Z: Yeah, so you don’t think any Navajo constituents in the county felt like it was impossible for them to win elections based on how the districts were drawn. It was all environmental groups?

P: I’m not sure what you’re asking.

Z: You seem to be suggesting that the voting rights case was entirely driven by environmental groups, not Navajo constituents in the county that felt disenfranchised.

P: I think the Navajos in San Juan County have every right to feel disenfranchised. They have been disenfranchised. They were put on a reservation. Their sheep herds were controlled and kept down. They were driven off their allotments north of the San Juan River. The important distinction there is that all of that was done by the federal government. None of that was done by San Juan County. San Juan County lobbied in the early 1900s, I can’t remember the date, to give the Navajo strip to the Navajo Nation. And the governor of Utah protested. The congressmen protested. And it was the people of San Juan County, the council of nine, that said, no this is the right thing to do. And when the BLM came in and drove the Navajos and their sheep into the river and off the north end, it was done at the protest of their friends who lived in Bluff, their neighbors, the white settlers, the Navajo settlers, the Ute settlers. Anyway, everything that San Juan County is criticized for and why people say we need the federal government to take over has all been done by the federal government. I’m not saying white citizens of San Juan County are saints. I’m not saying there aren’t some egregious historical abuses going in every direction, all directions. But when it comes to administrative, systematic disenfranchisement of Native Americans, that’s been done by the federal government. So it’s ironic that now the federal government now claims to be the savior of Native Americans with voting rights.

 

Z: So, I just dug through the county finance reports and it looks like the general fund has dropped from $9 million in reserve to $5 million over the last two years, and I know that the Navajo Nation’s attorneys are requesting $3 million more and there’s the pending RS 2477 lawsuit in Recapture. If all of that gets assessed this year, that could be between $3 million and $4 million. Would that come out of the general fund?

P: That’s where it comes out of. Yeah, that’s where it comes out if it’s paid.

Z: What happens if the general fund runs out? If $4 million gets assessed this year it will be down to $1 million based on my calculations.

P: Uh huh.

Z: Are you concerned about that at all?

P: Deeply, deeply concerned about that. The vexatious lawsuits, you know, a group of people, Yvon Chouinard decides to go bankrupt a small county like San Juan County. Steven Boos should be ashamed of himself. Robert Shelby should be ashamed of himself. But unfortunately for them they’re not dealing with a bunch of cowards in San Juan County. They’re dealing with a bunch of people who know the difference between a lie and the truth. If the media knew the difference we might have a fighting chance. What’s the word for taking money away from people? I don’t… Anyway, they come in and file lawsuit after lawsuit until the county is either bankrupt or we give them what they want.

Z: I saw the settlement offers going back to 2012 that made it pretty clear what the plaintiff’s costs were in the case and they were willing to settle with districts that are pretty similar to the ones that are in place now.

P: When they brought their map in and threw it down on the table, I said, explain to me, I’m okay with that. I mean, San Juan County can’t propose racially–we can’t take race into consideration when we’re drawing districts. The Navajo Nation can. And the federal courts can. San Juan County can’t. We still can’t. Even ratifying what Judge Shelby sent down is in my estimation way outside the legal boundaries of county government. We cannot make racially motivated districts in San Juan County. It’s against the Voting Rights Act. It’s against the law.

Z: I’ve got Judge Shelby’s ruling here. It says under Tenth Circuit precedent, “states may intentionally create majority-minority districts and otherwise take race into consideration without coming under strict scrutiny so long as traditional districting criteria are not subordinated.” And I believe that was the source of the lawsuit in 2012 was that Navajo Nation attorneys were contending that other processes weren’t being considered after the census data came in in 2010.

P: They lost on that case in court about the equal population–one man, one vote–position because they showed that San Juan County was more than compliant on that so they come back to this racial thing and say they’re suing under Article 2 vs. Article 5 or whatever those are. And they just keep working at it. I mean do a story on the mail-in ballots lawsuit because we spent a ton of money on that too and find out that the plaintiffs had requested mail-in ballots for years even though they’re saying that they don’t want mail-in ballots. They requested it long before it was mandatory. They were serving as translators at the polls and then they come back and say, ‘it’s not fair, we can’t speak English.’ They’re saying they live two hours from a polling place when they live 15 minutes from it. You’re talking about a bunch of hateful people who hate San Juan County, and yeah they’re being successful. But just because a lie is successful does not make it the truth. San Juan County has not districted themselves. The federal government districted San Juan County and they mandated the districts and when the population changed in 2010, we moved Ucolo and Cedar Point into my district and it balanced things out. And Judge Shelby comes down and says, ‘we want it as close to zero as possible.’ I’m like, well the law says there’s a little bit of variance. You’re dealing with the fastest growing county in the nation according to the census. And they’re going back to 2010 and saying we’re doing this based on the 2010 census in a vacuum, oblivious to the notion that things are not the way things were in 2010. The county took 2010 into consideration. We’ve done everything in compliance. We have not violated any laws. And yet we’re going to be bankrupted by Yvon Chouinard and David Bonderman and Southern Utah Wilderness Alliance and Robert Shelby. And it’s got absolutely nothing to do with voting. It’s got absolutely nothing to do with the rights of Native Americans. It’s got everything to do with their misconception of who they are and their false notion of domination over little rural towns in Utah that they wish were not here.

Z: Is it a serious concern that the county might go bankrupt?

P: [pause] Um, you know, sometimes you do the right thing and deal with the consequences as they come. If the alternative is to cow down to Robert Shelby, I’ll spend every resource at my disposal to fight what is a tremendous injustice. I’m a CPA. My whole purpose in getting into politics was the county’s financial situation. We were the highest taxed county in the state. The general fund was shrinking dramatically. I reversed that and changed that around. We’re now about middle of the pack on taxes. Our general fund is way up. And this is why the taxpayers of San Juan County pay taxes, so the government will protect their individual rights. If we bend on this, if we fold on this, and just turn over San Juan County to Robert Shelby and Scott Groene and Steven Bloch and Four Corners Free Press. You tell me what’s honorable and dishonorable. I don’t know anymore. But other than I won’t cave into bully tactics. Now [your article] will come out talking about the irresponsibility of San Juan County’s spending when it should talk about the irresponsibility of frivolous, vexatious lawsuits with a completely ulterior motive. I don’t know how you combat that. I’m hoping to go up to the state legislature and try to influence things a little bit there. I told the governor that it’s not right that the state sits with their hands in their pockets and watches these counties get torn to shreds by these lying, vicious environmental groups. The county may lack the resources and hopefully the state does not lack the resources. Voting is done under the Lt. Governor’s office. Counties do not have any authority in and of themselves other than what they receive as a sub-unit of the state of Utah. When they fail to step forward and defend their rights, their interests, and their citizens, you know, bad things happen. Either those rights are lost or the ones fighting for them go bankrupt doing it, personally and county-wise. And I’ve fought it personally and I’ve fought it county-wise. I detest these people. I detest these groups. I think they’re a disease and at some point people are going to recognize them for what they are and we’ll see things change and get rid of them. I’m talking about the environmental groups.

Z: Thanks very much for your time. Good luck with the campaign.

P: I’ll look for the article.

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From May 2018.