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The state of Utah has added a 9.22-mile "road" through Recapture Canyon to a list of 12,000 routes it is seeking to wrest from federal ownership.
The archaeologically rich canyon outside Blanding, which federal authorities closed to motorized use eight years ago, was the scene of the 2014 ATV protest ride that resulted in the criminal convictions of San Juan County Commissioner Phil Lyman and Monticello City Council member Monte Wells.
In a letter Wednesday to Interior Secretary Sally Jewell, state officials say the state enjoys a "right-of-way" through the canyon under the repealed frontier-era law known as RS 2477. The law allows Western counties to claim title to routes over public lands if they can demonstrate 10 years of continuous use prior to the law's repeal in 1976.
"The Recapture Canyon right-of-way is a small but important piece of the transportation system and economy of the State of Utah and San Juan County," wrote Kathleen Clarke, director of the Utah Public Lands Policy Coordinating Office.
The claimed route stretches from Recapture Dam south to Perkins Road.
Clarke's letter does not elaborate on the basis of the claim, but Lyman's supporters have argued that the canyon served as a historic thoroughfare between Monticello and Bluff and a conduit for cattle drives. So, the argument goes, the route should never have been closed and the protest leaders should not have been charged.
"They've had every opportunity to gather and present evidence" that a road existed in the canyon, said Joe Bushyhead, a staff attorney with the Southern Utah Wilderness Alliance. "The fact that they're only doing so now shows that it's a political decision, and not about claiming an 'important piece' of the County's transportation network."
The canyon also was inhabited for centuries by Ancestral Puebloans who abandoned their cliff dwellings and kivas around the 13th century.
BLM officials maintain unauthorized ATV trail construction damaged archaeological sites on the canyon floor, prompting them to close the canyon to motorized use in 2007. The agency then dragged its feet for years processing San Juan County's right-of-way application, which remains unresolved and a source of frustration for local leaders.
Now, federal land managers say the 2014 protest caused new damage.
Wells and Lyman face up to a year a jail, $100,000 in fines and more than $100,000 in restitution for the alleged damage. They were to be sentenced next month, but the proceeding has been stayed while the U.S. District Court weighs their request for a new judge.
On his blog "The Petroglyph," Wells hailed the state's legal strategy as evidence he and Lyman are innocent of the federal trespassing and conspiracy charges a jury convicted them of in May.
"If the road is found to be a county road, granted under RS2477 then [sic] would mean that those charged in the Recapture Protest Ride didn't commit the crime of trespass and therefore there could not be a conspiracy charge," Wells posted Thursday.
But Lyman's critics wonder why the county failed to include Recapture Canyon on the map it produced in 1978, shortly after RS2477 was repealed. The route also failed to pass muster for inclusion in the state's original list of routes it wanted to sue over, issued in 2000. Nor did Recapture appear in San Juan County's RS 2477 lawsuit filed in 2012.
"It's a canyon bottom and nothing more," Bushyhead said. "This is one of many attempts to claim cattle trails, single-tracks and other nonexistent routes as public highways.
San Juan County, Bushyhead said, has claimed more than 4,000 miles of alleged rights-of-way.
"The county had never considered [Recapture] part of their transportation network," he said, "let alone a highway allowing motor vehicle use."
Beyond a road built along a pipeline extending a couple miles below Recapture Dam, the canyon is largely impassable to cars and trucks.
A decade ago, Blanding ATV enthusiasts built a trail though the canyon. The trail winds through juniper trees and boulders, dropping down steep banks to cross the creek in several spots. Trail builders limbed numerous trees and used heavy equipment to push rocks aside to make the route rideable, according to SUWA.
The trail building project ultimately forced the closure.
Last year, Lyman unsuccessfully tried to convince his fellow commissioners to withdraw the Recapture right-of-way.
He reasoned that a RS2477 lawsuit would be a better avenue to restore motorized access.
Instead, the commission authorized a lawsuit against the BLM for failing to process the right-of-way petition. That suit has yet to be filed.
In an interview at that time, Lyman's predecessor on the county commission, Lynn Stevens, said an RS 2477 claim to Recapture would be weak since it would be hard to prove the canyon saw much unfettered motorized travel prior to 1976.
Stevens opposed Lyman's protest ride, correctly predicting that it would further complicate the county's right-of-way application.
BLM officials say they have made little progress on the application because of the investigation and litigation the protest has spawned.
Stevens, who once supervised the Utah public lands office, noted that the county's road claim to Salt Creek was stronger than any potential claim to Recapture, yet the county lost that case at trial. That decision was upheld by the 10th Circuit Court of Appeals.
The Utah attorney general's office declined to make anyone available for an interview Friday. Attorney General Sean Reyes recently took up the Recapture matter at the request of Gov. Gary Herbert.
"The Office has been evaluating the evidence for the past few weeks and has had a team of attorneys on the ground this week driving and walking the road [through the canyon], examining the historical record and speaking with witnesses who have personal knowledge of the road," Reyes' office said in a prepared statement.
This investigation unearthed sufficient evidence to initiate a claim, but Reyes' spokeswoman would not describe the evidence.