by Gail Binkly | February 4, 2016 9:12 am
The long and tortuous saga of Phil Lyman and the Recapture Road came to an end in December – or maybe not.
On Dec. 18 in Salt Lake City, Lyman, a San Juan County, Utah, commissioner, and Monte Wells of Monticello were sentenced for their parts in a motorized protest ride through Recapture Canyon near Blanding in 2014.
Lyman received a jail term of 10 days, Wells five days. Both were also sentenced to three years of probation.
Both had been convicted by a jury in May 2015 of two misdemeanor violations of federal law – riding on a closed road, and conspiracy to do so. Lyman had helped to organize and lead the ride, and Wells had promoted it on his news blog.
It’s difficult to say when the saga actually began. It may have been with a town hall meeting in Blanding on Feb.27, 2014, when the idea of the ride was raised. But many people would argue it really started in June 2009, when federal agents swooped down on Blanding and arrested 16 of its citizens for violations related to illegal trafficking in ancient artifacts. The agency’s alleged heavy-handedness contributed to deep and lingering resentment that helped spawn the ride.
Or it could be said the saga began Sept. 13, 2007, when the BLM closed a portion of the Recapture road to motorized use after finding looting near an Ancestral Puebloan site located just off the road, which has long been popular with motorized- recreation enthusiasts because of its proximity to Blanding. ATV tracks were reportedly found all over the area. The emergency closure was designed to protect the numerous cultural sites within the canyon, which include cliff dwellings, potsherds, fire hearths, midden piles, burial cysts, and rock walls. But, more than eight years later, the BLM has yet to decide whether to leave the road closed or reopen it, and the long delay in a decision has contributed to resentment.
Of course, antipathy toward the federal government existed in San Juan County and much of rural Utah long before any of those dates.
At any rate, on the morning of May 10, 2014, a number of riders convened near Recapture Dam at the northern end of the controversial road, on a part that remains open to motorized use. Earlier that morning they had been pumped up by speeches from people including Lyman and Jay Redd, son of James Redd, a prominent local physician who took his own life two days after being arrested in the 2009 artifacts bust.
The ride was given extra energy by the fact that a month prior, Nevada rancher Cliven Bundy had managed to stave off a BLM roundup of cattle he was grazing on public lands without paying fees. Angry ranchers, militiamen, and government- haters, many of them armed, descended on Bundy’s ranch, and the BLM backed down.
Some of the same crowd was present at the Recapture ride, which Lyman has repeatedly said was intended to protest not just that specific road closure, but BLM actions in general.
Lyman urged the crowd not to travel beyond the middle section of the roughly seven-mile route. The first section is open to motorized travel, while a second section is open to the San Juan Water Conservancy District, which has a right-of-way to maintain an irrigation pipeline. Lyman had obtained permission from the water district to ride on that portion that morning, but at his trial, prosecutors said the water district didn’t have the ability to let people use their easement for recreational purposes.
Lyman and many of his fellow riders did turn back at the end of the water-ditch easement. However, others rode onto the third part of the trail, which is narrow and overgrown, allegedly causing damage and threatening artifacts.
Personnel with the San Juan County Sheriff ’s Office watched the protesters, as did BLM officers and others. There had been fears that environmental groups such as Great Old Broads for Wilderness might also appear, potentially leading to violence, but the Broads backed off from their initial plans to walk the trail that day, saying they had received death threats.
No one was arrested the day of the protest, but on Sept. 17, 2014, Lyman, Wells, and three other men were charged with two misdemeanors each. Charges against one man were dropped, but the other four proceeded to trial.
The story of the legal proceedings was marked by numerous twists and minicontroversies. One was over the fact that Lyman, a certified public accountant who also draws a salary as a county commissioner, was initially given the services of a public defender. After complaints, those services were withdrawn and Lyman had to hire his own counsel. He said he had never asked for a public defender but had merely been given one along with the other three men.
There were allegations that Lyman had been “set up” by the BLM, as Juan Palma, the former state director for the agency, had told Lyman in a phone conversation on May 1, 2014 (apparently recorded by Lyman), “Nobody is going to get arrested and nobody is going to do all that kind of stuff.” Defense attorneys argued that could be construed as giving permission for the ride. But at the trial, prosecutors pointed out that no one was arrested on May10 in Recapture Canyon.
They also noted that the BLM had warned Lyman several times in letters and emails not to go forward with the ride. Lance Porter, then BLM district manager for Utah’s Canyon Country District, wrote him, “I strongly urge you to cancel the proposed ride,” adding, “BLM will seek all appropriate civil and criminal penalties.”
Lyman told the Free Press shortly after his conviction that, once it was organized, the ride got out of hand and he felt powerless to rein it in. He said there were instigators in the crowd who pushed others to engage in unlawful activity and he suspected some of them carried intentionally misspelled signs, to make the protesters look bad.
A jury ultimately acquitted two of the accused, Trent Holliday and Shane Marian, but found Lyman and Wells guilty on both charges.
Another controversy occurred last fall when the Utah Association of Counties, made up of county officials, voted Lyman the state’s County Commissioner of the Year. Lyman is very popular among many rural Utahns, but in urban areas such as Salt Lake City he has many critics. Some of the urban counties threatened to withdraw from the association and Lyman then gave back his award to end the controversy.
After his conviction, Lyman, who had obtained new legal counsel, filed a complaint alleging that U.S. District Judge Robert Shelby, who had presided at trial, was too biased to sentence the men – based on Shelby’s comments in an unrelated legal case that he and his wife are close friends with the legal director of the Southern Utah Wilderness Alliance, an environmental group. SUWA was not directly involved in the Recapture case.
Shelby then voluntarily recused himself from the sentencing and there followed a scramble in which one judge after another also withdrew, saying he or she might have potential conflicts. Finally U.S. District Judge David Nuffer, the fifth, took the case.
On Oct. 28, Lyman and Wells were sentenced to $96,000 in restitution. The sum was for the cost of a BLM assessment of damage done to the third part of the road and for emergency stabilization of slopes rutted by ATV wheels. “The person who lights a fire is responsible for the consequences of the fire,” Nuffer reportedly said.
On Dec. 18, the men received their jail terms. They could have gotten as much as one year in prison and fines of $100,000. Instead, they will be allowed to serve time in jail. Lyman is reportedly allowed to wait until after tax season ends before turning himself in to serve his time in St. George. The Salt Lake Tribune reported that, during their probation, they are not to “make any statement or engage in behavior that advocates or encourages others to violate federal land-use laws.”
The Tribune in an editorial said the sentence was appropriate, but noted the disparity with the sentence handed down to another protester against the BLM, Tim DeChristopher, who was sent to federal prison for two years in 2011 for fouling up an auction of oil leases by bidding on them when he had no money to do so. “The injustice is apparent,” wrote the Tribune.
“DeChristopher sought to save fragile lands that belong, by right and by law, to the American people, now and forever. …
“Lyman was agitating for the right of a few people who care about neither land nor law to play with their noisy toys on someone else’s property.”
However, the newspaper noted, De- Christopher’s crime was a felony, while Lyman’s was only a misdemeanor.
At press time, Lyman was reportedly considering an appeal of his conviction. He has received thousands of dollars in donations from numerous supporters, including $10,000 from Utah Gov. Gary Herbert.
But shortly after his conviction, he told the Free Press that it would be difficult juggling his duties as a commissioner with worries about actions such as the protest. “Ethically I have a dilemma,” he said. “I guess my dilemma is, to be a commissioner right now the prudent thing is to do less and stay out of issues to do with jurisdictional conflicts. Yet I feel like that is the job of a commissioner.
“If I put something on my commissioner [Facebook] page and someone shares it or likes it, they’re charged with conspiracy. I can’t really function in that environment.”
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