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With part of a $96,000 restitution bill and up to 16 months in jail hanging over their client's head, attorneys for San Juan County Commissioner Phil Lyman want a new trial.
Federal prosecutors this week filed sentencing recommendations for two Utah men convicted for their roles in the May 2014 Recapture Canyon protest ride.
Calling Lyman's and Monticello City Councilman Monte Wells' behavior "a calculated, mass defiance of the criminal law," prosecutors plan to ask U.S. District Judge Robert Shelby for nearly $100,000 in restitution for damage riders allegedly caused the canyon's archaeological sites.
At the same time, government attorneys suggest between six and 16 months of jail time and more fines for the men.
Lyman faces more stringent punishment as the ringleader.
Meanwhile, Lyman's attorneys including Peter Stirba, a new addition to the team cited recently surfaced "exculpatory" evidence they say prosecutors failed to disclose.
In a motion for a new trial, they say they have uncovered a 1979 map from Bureau of Land Management files that proves protest riders drove on a right of way through the canyon east of Blanding. Therefore, Stirba and attorney Anneli Smith write, riding off-road vehicles was legal, despite the BLM's decision in 2007 to close the canyon to motorized use to protect its archaeological sites.
The provenance of the map is guaranteed by former BLM realty specialist and Lyman supporter Mike Noel, a Republican state representative from Kanab. Noel swore in an affidavit attached to the motion for a new trial that the map shows the rugged canyon track qualified as a "public highway."
The map included shows the region of southeastern Utah crisscrossed by red lines. At the top of the canyon, someone has scrawled a red circle to denote a proposed dam "project area."
Now a leading Utah crusader against federal control of public land, Noel worked for the BLM from 1970 through the mid-1990s, when he handled real estate and served as acting area manager for the Kanab field office.
Noel has become one of Lyman's most ardent defenders, alleging the federal government deliberately withheld evidence in an unethical effort to set him up.
"People are going to be red-faced. They are going to be sorry about how they castigated this commissioner," Noel said last week during a meeting of the Utah Commission for the Stewardship of Public Lands.
Lyman's defenders have changed their arguments since his May trial from insisting the protesters had BLM managers' tacit approval for their ride, to maintaining the canyon was meant to be included in the state's inventory of RS 2477 road claims.
In their sentencing memo, however, federal prosecutors note that defense lawyers had specifically declined to raise such a defense at trial.
Defense attorneys' argument that Lyman had "permission" to ride through the canyon failed to sway the jury, which convicted him of conspiracy and driving in an area closed to motorized use.
Lyman and co-defendant Wells, a blogger who helped promote the ride on social media, had plenty of legal pathways to contest the closure of Recapture or other BLM actions restricting land use, according to the sentencing memo written by Assistant U.S. Attorney Jared Bennett.
"Instead of choosing any one or more of these numerous legally permissible mechanisms to express their disagreement with federal decisions, defendants chose crime," Bennett wrote. "Defendants' crimes included recruiting dozens of others to join them in breaking the law. Defendants' recruiting efforts were significantly assisted by Mr. Lyman's use of his political office, which provided the specter of official imprimatur for his criminal acts.
"The law must impose consequences that are significant enough to teach defendants respect for the law and to deter defendants and others from engaging in similar criminal behavior."
Lyman's and Wells' convictions carry a maximum of one year in jail on each count and $100,000 in fines. Their sentencing has been postponed while the court entertains Lyman's motion to have Shelby recused.
His attorneys claim Shelby's friendship with a Southern Utah Wilderness Alliance lawyer makes him unfit to hear the Recapture case.
At the same time, prosecutors are seeking to stiffen Lyman's sentence because he was an organizer and was "abusing a position of trust" to "significantly facilitate the illegal ride."
Lyman used his commission email account and county letterhead to communicate with constituents about the ride. The event was so well-publicized that "if you lived in San Juan County and didn't know about the protest, then there was something wrong with you," Bluff resident Josh Ewing testified at trial.
Besides the total restitution bill, prosecutors recommend a jail term of 10 to 16 months and a fine between $3,000 and $30,000 for Lyman, based on his ability to pay. They recommend six to 12 months of jail, and a fine of $2,000 to $20,000 for Wells.
The sentences could combine incarceration with substitute punishment, according to the memo.
"Defendants knew that their conspiracy to and actual ride through the closed area of Recapture Canyon was illegal, but they did it anyway and provided an opportunity for many others to join them," prosecutors wrote. "BLM warned Mr. Lyman of the potential consequences of the illegal ride numerous times before May 10, 2014, but neither Mr. Lyman nor Mr. Wells listened."
The government initially asked for $172,000 in restitution, but reduced the amount to $95,955.61 after defense lawyers objected. They still oppose the reduced restitution.
Prosecutors based restitution on a damage assessment the BLM conducted after the ride, documenting impacts to archaeological sites. The court sealed that document as well as related filings in an effort to avoid disclosing locations of the sites, which are subject to looting.
The alleged damaged occurred where an ATV trail, which the BLM says was illegally built by off-road enthusiasts, extends beyond the end of the pipeline. The trail repeatedly crosses Recapture Creek and runs over eight archaeological sites, hard-to-see remnants of American Indian communities that inhabited the lush canyon 1,000 and more years ago.
Lyman's new legal team now says the BLM lacked authority to close the area, pointing to the 1979 BLM map, which shows a faded dotted red line down the canyon. The map in question does not include a key explaining what the dotted red lines indicate. Undisputed roads are shown as double lines.
Defense attorneys also cite Utah's Aug. 5 filing of a notice of intent to sue the federal government over Recapture, belatedly claiming an RS 2477 right of way.
An actual decision to add Recapture to the list of 12,000 routes the state is suing over is months away, according to Assistant Attorney General Tony Rampton, Utah's point man on its mass RS 2477 litigation.
He maintains the potential RS 2477 claim and Lyman's defense are separate issues.
"He says it's all part of the same thing, but it's not," Rampton said in an interview last week.
At Gov. Gary Herbert's request, the attorney general investigated whether the state can claim a right of way through the canyon and whether the BLM acted legally when it closed it to motorized use.
Other than the modern ATV trail, Rampton said, his staff did find evidence to support a historic right-of-way claim, even though there is little sign of a road running through the rugged canyon, whose steep, timbered banks fall to a perennial creek.
The office has yet to determine whether the canyon closure was legal.