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Although Phil Lyman himself caused no damage to Recapture Canyon, he and co-defendant Monte Wells are on the hook for the nearly $100,000 federal officials spent evaluating potential damage from the protest ride the San Juan County commissioner led into the canyon last year.
So ordered U.S. District Judge David Nuffer on Wednesday after arguments in his Salt Lake City courtroom concerning restitution for the illegal ride that prosecutors asked Lyman and Wells to pay.
Prosecutors say 32 riders ignored Lyman's request to stick to a pipeline road and continued several miles down the canyon, driving over eight ancient Native American sites and crossing the creek multiple times.
Lyman's lawyer, Peter Stirba, countered that any damage was caused by those who exceeded the scope of the protest, which he claimed was confined to a road built in 1986 to service the pipeline connected with Recapture Dam upstream.
"You can't award restitution for behavior the defendant didn't engage in," Stirba said.
The judge disagreed.
"The person who lights a fire is responsible for the consequences of the fire," he said.
The Bureau of Land Management had closed the canyon just east of Blanding to motorized use in 2007 to protect its priceless cultural resources, which had been compromised by unauthorized trail construction.
Protest riders caused more harm to the archaeological sites, riparian areas and upland soils in the scenic canyon, according to prosecutors. ATV wheels cut ruts between 4 and 10 inches deep on steep slopes, damage that required immediate attention to prevent destructive erosion.
"The government's loss of $95,955.61 is recoverable and I must order it," Nuffer said. "The BLM determined it needed to do emergency stabilization work on riparian areas and upland soils. The expenses were reasonable and necessary."
Defense lawyers declined comment after the ruling.
Nuffer, the fifth judge assigned to the politically charged Recapture case, is to sentence Lyman and Wells on Dec. 18 on their convictions of conspiracy and driving in an area closed to motorized use. Federal prosecutors want a prison sentence of 10 to 16 months for Lyman, considered a hero by fellow rural county commissioners for standing up to what they see as excessive federal control of public land.
The government had initially sought $300,000 to cover actual damage to archaeological sites, but prosecutors backed down and settled on expenses solely related to damage assessments, plus $11,800 to stabilize rutted areas.
Lyman and Wells, a Monticello city council member who promoted the ride on social media, must pay the $66,000 BLM paid consultants to evaluate the damage and related expenses. For example, $39,000 was spend on 3-D laser-scanning equipment and another $6,583 on pack animals to haul gear into the canyon, according to Assistant U.S. Attorney Jared Bennett.
Evaluators recommended that $82,000 was needed to cap the eight damaged archaeological sites.
"This is not the type of actual loss that would work for restitution. Determining whether it's a proper amount would be too complicated," Bennett said. "It is no longer in play."
BLM rangers shot photos of sensitive locations along the ride route before and after the ride.
"You will see the dirt is churned up as a result of motorized use," Bennett said. "The vegetation is scrunched down."
On the day of the ride, federal officers had an extremely limited presence out of respect to local law enforcement. Sheriff's deputies patrolled the canyon on horseback, and at least three heavily armed camo-clad deputies occupied concealed positions.
The day before the ride, however, chief BLM ranger Jason Moore rigged motion-triggered trail cameras at Brown's Canyon, the spot where he expected protest riders to exit Recapture a few miles south of the pipeline road. Those cameras captured images of 32 riders, but they were overexposed because of a camera malfunction. Officers could identify none of the riders but two, Shane Marian and Trent Holliday. Prosecutors originally charged them along with Wells and Lyman, but the jury acquitted the two riders, who played no role in organizing the ride.
That Lyman turned around at the end of the pipeline hardly absolves him from ATV damage caused by the 32 riders who continued down the overgrown trail, prosecutors argued.
"They were there because of a direct result of the conspiracy," Bennett said. "This was highly publicized. Many of the people came for the purpose of engaging in what the defendants illegally planned to do. The defendants should be held liable for the people they invited."
Among those who came were armed anti-federal militants fresh off the Cliven Bundy standoff with BLM officers.
Defense lawyers were mystified that locals could use Recapture with minimal restrictions for decades before 2007, but now a single day of ATV riding could give rise to such costly damage assessments. A gold miner named Dan Shumway, for example, ran heavy equipment into the canyon, including a D4 Caterpillar, as late as the early 1990s.
The canyon's closure was deeply disturbing to the county, and Lyman's goal was to spur the BLM to resolve the access question, Stirba said. Lyman actually took steps to ensure the ride would do no damage.
Wells' lawyer, Nathan Crane, blasted the BLM's investigation, which allowed days to elapse after the ride before conducting a thorough evaluation.
"We have 17 full days that are unaccounted for. We don't know who is in the canyon," Crane argued. "The government has a huge hole in their restitution case because we don't know who caused this damage."
But the judge concluded that BLM adequately documented damage and that protest riders were responsible. Which riders damaged the canyon did not matter so much as whether the damage was the result of a conspiracy.
Brian Maffly covers public lands for Salt Lake Tribune. He can be reached at firstname.lastname@example.org or 801-257-8713.