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New defense attorneys in the Recapture Canyon case are trying to disqualify a federal judge before he can sentence embattled San Juan County Commissioner Phil Lyman.
Lyman, who was found guilty in May of misdemeanor charges for organizing an illegal ATV ride into the artifact-filled canyon east of Blanding, now is challenging the impartiality of U.S. District Judge Robert Shelby, citing the jurist's friendship with a Southern Utah Wilderness Alliance staffer and his family.
Steve Bloch is legal director for the Salt Lake City-based group, which had urged the Bureau of Land Management to close Recapture to motorized use and criticized Lyman's ATV-mounted protest.
"SUWA has had a high level of involvement in this matter as one of the principal groups urging the BLM and the U.S. attorney's office to prosecute Mr. Lyman and now advocating that this court stiffly punish Mr. Lyman," attorney Anneli Smith wrote in a motion filed Monday.
"This relationship and involvement lead a reasonable person to question the court's impartiality," Smith added, "and thus require that this court disqualify itself."
Judges often recuse themselves from cases in which they are close to one of the parties. Under the logic of Lyman's motion, however, Shelby should consider recusing himself from the many public lands cases in which SUWA has a stake.
But friendships and other associations between judges and lawyers appearing in their court are common, particularly in a legal community as small as Salt Lake City's, according to University of Utah law professor Wayne McCormack, an expert in judicial process.
There is nothing in Utah's Code of Judicial Conduct barring judges from hearing a case when they are friendly with the lawyers involved.
"It would mean a judge would never sit on a case," McCormack said. "It is not surprising the judge [Shelby] would know people who would have a strong opinion in the case. Notice I didn't say 'strong interest' in the case. That's a term of art. Here the issue is more about someone who has a strong opinion and has engaged in advocacy. There is nothing in the code that speaks to that at all."
Lyman objected to Shelby's failure to disclose his ties to the Blochs. But it's unclear the judge would have known that such a disclosure was necessary since SUWA and Bloch have no legal interest in the case's outcome, McCormack said.
"Ethics are a matter of both reality and appearance. Appearance is in the eye of the beholder," McCormack said. "[Lyman's lawyers] do have an argument about the appearance of partiality. Is it a winning argument? I would hesitate to say yes."
Chief Judge David Nuffer will make the call. Until then, Shelby has stayed all proceedings in the Lyman case.
Lyman and co-defendant Monte Wells, who both face up to a year in prison and $100,000 in fines, were to be sentenced Sept. 15. The sentencing judge will also determine whether to stick Lyman with a $172,302.70 bill for damage the BLM alleges protest riders caused, according to the motion. Lyman's supporters say that damage assessment was trumped up.
SUWA and other groups did call on federal prosecutors to charge those who violated the Recapture closure during the May 2014 protest.
"Failing to enforce federal laws that were enacted to protect priceless archaeological treasures merely opens the door for further vandalism and other illegal acts," SUWA attorney Liz Thomas wrote in a July 8, 2014, post on the group's website.
However, SUWA's site and public correspondence have been silent on the question of Lyman's punishment.
Behind the scenes, Lyman's new lawyers allege, SUWA had "extensive direct contact" with the federal agencies handling the Recapture case, and Bloch was "actively involved" in Lyman's prosecution. Smith's filing references a letter SUWA "sent to this court advocating a stiff sentence."
The letter in question was sent to the probation officer responsible for making a sentencing recommendation, according to Bill Hedden, executive director for Grand Canyon Trust. The officer solicited the input from environmental groups and at least five joined the SUWA letter. The document urges "punishment that is commensurate with the severity of their crimes," but does not specify a jail term or fine amount.
Shelby disclosed his family's ties with the Blochs during a recent hearing in a federal roads case in which SUWA was involved.
"Steve Bloch and his wife, Kara [Pettit, now a 3rd District judge], are friends of mine and have been for a long, long time," he said at the May 26 hearing. "I practiced with Kara at Snow Christensen [and Martineau] starting in 1999. My wife and I have socialized with the two of them since that time; we continue to socialize."
Shelby, who was named to the bench in 2012, said he felt obliged to tell the parties about the relationship upon learning that Bloch had made court appearances in other RS 2477 road matters. He declined to recuse himself from matters involving SUWA, although he won't hear cases in which Bloch appears before the bench.
Earlier this month, Lyman's supporters highlighted Shelby's disclosure to raise doubts about the legitimacy of the conviction.
They argue Lyman is innocent because the BLM lacked the authority to close the road leading into the canyon, and that the closure was not valid at the time of the protest. In a pretrial ruling, however, Shelby declared that the canyon was properly closed and instructed attorneys not to argue otherwise.
At the time, defense lawyers responded that they had no intention of raising such a claim. Lyman hired his new attorneys after the trial.
Now, Utah Attorney General Sean Reyes is investigating whether the road segment entering the canyon was legally closed and whether it should be included in the state's RS 2477 lawsuits seeking title to 12,500 other routes. And Gov. Gary Herbert intends to divert $10,000 from his re-election campaign to Lyman's defense — even though at the time of the 2014 rally, he had urged protesters to obey the law.
Twitter: @brianmaffly