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A year and a half after leading a motorized protest into Utah's Recapture Canyon, San Juan County Commissioner Phil Lyman will learn next week whether his defiance against federal authority over public lands will land him in a jail cell.
U.S. District Judge David Nuffer on Dec. 18 will decide punishment for Lyman and Monte Wells, both 51-year-old family men with strong histories of civic engagement and public service. They earned misdemeanor convictions for their roles organizing and promoting the illegal May 2014 ride through a canyon near Blanding.
Federal prosecutors insist jail time is in order, on top of the $96,000 in restitution Nuffer has already ordered, while defense lawyers say probation would meet the needs of justice and the men have endured enough punishment.
"The heartache, pain, and financial strain this criminal case has placed on Monte and his family has been, and will be, a significant deterrent on Monte. Others will look to the significant costs, including emotional and financial, that Monte has bore and will be deterred from similar conduct," wrote defense lawyer Nathan Crane in Wells' sentencing memo filed Monday.
Wells, himself a former federal lawman, was convicted for not only participating in the ride, but also promoting it on his blog and elsewhere via social media.
But Lyman is the more culpable player who deserves incarceration because his illegal conduct was willful and blatant, and he used his elected office to recruit others, including armed anti-federal militants, to join the illegal protest, according to prosecutor Jared Bennett.
The canyon's imperiled archaeological sites prompted the Bureau of Land Management to close the canyon to motorized use in 2007. The agency's slow response on the county's right-of-way application is what prompted Lyman's protest. But Bennett rejected claims that this excuses Lyman's conduct.
"Given the high societal cost of indulging the commission of crime to show disagreement with the law, incarceration is an appropriate penalty to deter defendants and others from acting on the mistaken belief that disagreement with the law entitles them to commit a crime," Bennett wrote.
Lyman could have chosen many lawful means to express his displeasure with BLM.
"This list includes, among many other things, calling upon elected representatives in the political process, grass-roots political movements, and vigorous expressions of opinion through lawful protest," Bennett wrote. "Instead of choosing any one or more of these numerous legally permissible mechanisms to express their disagreement with federal decisions, defendants chose crime."
Lyman's claim that he was acting as a county commissioner is now being used against him by prosecutors, who say the claim is further proof that Lyman used his elected office "to facilitate his crimes."
"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," Bennett wrote.
A jury found them guilty of one count each of conspiracy and riding in an area closed to motorized use, misdemeanors that carry a maximum of 12 months and a $100,000 fine.
The Recapture ride has drawn frequent comparisons with climate activist Tim DeChristopher's phony bids that disrupted a 2008 BLM auction of oil and gas leases. Environmentalists reason that if DeChristopher's spontaneous prank deserved a two-year prison sentence, Lyman should also get jail time. Unlike DeChristopher's crimes, Lyman's protest caused actual damage to the land, induced others to violate the land, and brought a cloud of fear over BLM operations for weeks.
In their sentencing memo, prosecutors asked for "a reasonable sentence of incarceration," supervised release and a fine based on Lyman's and Wells' abilities to pay. Nuffer has already set restitution at $96,000.
This sum does not reflect actual damage to archaeological resources, but rather the cost of conducting an assessment of the damage, as well as the cost of repairing erosion and rutting caused by the 32 riders who continued beyond the end of an existing road.
While Lyman and other protesters turned around at that point, most of the riders continued south down the canyon and exited at Brown's Canyon where BLM rangers had set up a motion-activated trail camera.
The defendants continue to emphasize that they stuck to an existing road on the day of the ride and had no control over riders who continued down the canyon. Those riders, the BLM says, followed an unauthorized trail, trampling willows, crossing the creek in many places and driving over eight archaeological sites. Their conspiracy convictions hold them accountable for the conduct of these riders, which included co-defendants Trent Holliday and Shane Marian, who played no role in organizing the ride and were acquitted by the jury.
According to Lyman's legal team, led by Peter Stirba, Lyman was acting in his capacity as county commissioner, although fellow commissioners made it clear he was not acting as a private citizen and resisted Lyman's requests to sanction the ride.
In his sentencing memo, Lyman now concedes the ride was misguided effort to resolve a long-standing dispute over motorized access to the canyon, and it may have actually backfired.
Prosecutors are not recommending specific prison terms, but they do argue that under federal sentencing guidelines, Lyman's offense qualifies him for a term of 10 to 16 months and a fine of $3,000 to $30,000. For Wells, the potential term would be six to 12 months and a fine between $2,000 and $20,000. Both dispute the government's interpretation of the sentencing guidelines, claiming supervised probation is warranted considering the defendants' clean prior records.
Lyman, a prominent local accountant, has accepted responsibility, his lawyers say.
"Given what Mr. Lyman is required to pay in restitution, and the very public humiliation and ridicule he has already experienced, with the distinct possibility of limitations on his CPA license, it is clear that he has already been punished severely," they wrote in Lyman's memo.