A San Juan County Sheriff’s deputy watches motorized protesters ride through a closed portion of Recapture Canyon near Blanding, Utah, in May 2014. Phil Lyman and a second man convicted on misdemeanor charges related to the ride are seeking a new trial. Photo by Shannon Livick
The judge who presided over the trial of Phil Lyman and three other men on charges related to an allegedly illegal ATV ride in May 2014 near Blanding, Utah, has voluntarily recused himself from the sentencing portion of the case.
In a order filed Aug. 28, U.S. District Judge Robert Shelby wrote, “I conclude it is appropriate to recuse myself from further proceedings in this matter.”
Lyman, a San Juan County, Utah, commissioner, and Monte Wells, a Monticello man with a news blog, were found guilty by a jury May 1 in federal court in Salt Lake City on two misdemeanor charges related to the ride. Two other men were acquitted.
The ride took place on a route that traverses a portion of Recapture Canyon, which is rich in Ancestral Puebloan artifacts and sites. Part of the route had been closed to motorized use by the Bureau of Land Management in 2007 following the discovery of looting at a large archaeological site accessible from the road. ATV tracks were found all over the area, according to one report. The closure was done on an emergency basis and no final decision has ever been issued about closing the road permanently.
‘The appearance of impropriety’
Lyman had sought Shelby’s recusal in a motion filed July 20, on the basis of Shelby’s friendship with the legal director of the Southern Utah Wilderness Alliance, an environmental group. Lyman’s attorneys argued that because the judge is a personal friend of Steven Bloch of SUWA, he could not make an impartial sentencing decision.
Prosecutors responded that SUWA was not a party to the Recapture case and that judges could not be expected never to have friends with political opinions.
Another judge had been assigned to rule on the motion, but Shelby acted on his own to recuse himself before any ruling.
Shelby’s Aug. 28 order came shortly after Lyman – who hired new legal counsel this summer and has been receiving donations from the public to aid in his defense – filed a motion Aug. 25 requesting a new trial.
In the order, Shelby wrote that “until Mr. Lyman filed his disqualification Motion, the court was unaware of any involvement in this proceeding by SUWA—which is not a party to this case. . .”
However, he wrote that after Lyman and Wells were convicted, “SUWA and other groups submitted to the court. . . a letter seeking to influence the court’s sentencing decision in this case. This post-trial activity, together with the record now developed in the briefing on Mr. Lyman’s Motion, lead the court independently to conclude that recusal will promote confidence in these proceedings and avoid even the appearance of impropriety. . . .”
A new judge will have to be appointed, assuming the conviction stands and Lyman is sentenced.
‘A public highway’
But Lyman’s attorneys are also arguing that his conviction should be overturned and a new trial granted, based on what they call “newly discovered exculpatory evidence [that] demonstrates that Mr. Lyman was on an R.S. 2477 right-of-way that could not be closed to off-road vehicles by the BLM. . . ”
An RS 2477 right-of-way is an easement that stems from an 1866 statute involving highways across public lands. Counties across the West are seeking to have RS 2477 rights-of-way validated in order to keep motorized routes open, but in order to qualify as RS 2477 routes, roads have to be shown to have been in existence prior to the establishment of the particular national forest or BLM land they cross.
Wells, the man convicted with Lyman in the case, has joined in the motion for a new trial.
In support of that motion, attorneys for Lyman presented a 1979 BLM road map and an affidavit from a former BLM realty specialist who, at times between 1970 and the 1990s, served as acting area manager for the BLM’s Kanab, Utah, office.
The 1979 road map, according to the affidavit by Michael Noel, now a Utah state representative and a strong supporter of Lyman’s, “identifies a public highway running southward through the entire length of Recapture Canyon from the Recapture Dam site all the way down to where it joins onto a more main road.”
Noel also stated that the State of Utah claimed that road as an RS 2477 road in an Aug. 5, 2015, notice to the United States.
Lyman’s attorneys argued that the new pieces of evidence “would probably produce an acquittal because they create a reasonable doubt as to whether Mr. Lyman illegally operated an offroad vehicle on Recapture Canyon Road or conspired to do so.”
The ATV ride had been organized by Lyman – acting on his own and not as a representative of county government – to protest what he called heavy-handed BLM actions in San Juan County. Those include a 2009 raid involving illegal artifact-collecting, the 2007 emergency closure in Recapture Canyon, and the prosecution of two local men who had illegally improved the road through Recapture in 2005 without BLM permission.
Wells promoted the protest ride in his news blog.
The event, which came on the heels of rancher Cliven Bundy’s armed standoff with the BLM in Nevada over grazing, drew hundreds of participants, including some who were camo-clad and displaying weaponry. At a rally just before the ride, Lyman advised protesters not to travel the length of the route, which includes three portions – one open to motorized use, one closed to motorized use except by a water conservancy district, and one very narrow trail closed to all motor vehicles.
Lyman himself turned his vehicle around before the narrow portion, but many other protesters ventured onto it, breaking branches and plowing through vegetation.
Lyman later told the Free Press that the ride had gotten out of hand and claimed there were instigators among the crowd who urged people to go farther down the trail than he wanted.
Lyman and Wells could face up to a year in prison and $100,000 in fines. In addition, prosecutors are requesting that Lyman be forced to pay $96,000 restitution for damage done to the trail.
The sentencing was set for Sept. 15 but could be delayed.
