What the state can do here is show that the road was not properly closed. It brings a winnable area that would then establish many, many points across the front line. We talk about money and spending $100,000, but I am telling you it has very little to do with money, but it costs us in so many other ways." —Rep. Keven Stratton, R-Orem
SALT LAKE CITY — San Juan County Commissioner Phil Lyman hired a new attorney to represent him in his Recapture Canyon ATV ride case and received a 60-day delay for sentencing in the federal matter.
In the interim, the Utah Attorney General's Office is reviewing the Recapture Canyon pipeline road to determine why it is not part of the state's pending lawsuit against the federal government involving right-of-way claims on 12,000 roads and if it should be.
Public Lands Section Chief Tony Rampton said based on the information compiled, it may be that the state could add that road to the San Juan County list of roads claimed in a pending lawsuit, or initiate a separate action to assert ownership.
The decision could have ramifications for the long-term outcome of Lyman's criminal trespass and conspiracy case before U.S. District Judge Robert J. Shelby and an anticipated appeal to the 10th Circuit in Denver.
Sentencing before Shelby is set for Sept. 15, but Rep. Mike Noel, R-Kanab, is hopeful the state will initiate legal intervention before then.
"We hope to file a lawsuit and bring in new evidence," Noel said during a caucus early Wednesday.
Lyman and Monticello City Councilman Monte Wells were the lone participants in the May 2014 protest ride who were convicted criminally for their actions. Two other men, Shane Marian and Franklin Holliday, were acquitted by the jury, and another man's charges were dismissed by federal prosecutors.
In a meeting with a small group of lawmakers Wednesday, Lyman discussed his case, the community frustrations that led to the protest ride, and his fear that his conviction and sentence will deter others from protesting against the federal government.
"No. 1, this is not my right of way," he said. "The ride was in response to a town hall meeting with citizens who were really frustrated."
Lyman, who is now in his fifth year as a commissioner and is chairman of the San Juan Heritage Council, organized the protest ride via Facebook and other media to demonstrate frustration over the Bureau of Land Management's closure of the Recapture Canyon Road in 2007.
The federal agency closed the road to off-road vehicle use, citing damage to cultural artifacts in the area, but let other authorized uses continue on some sections, such as use by the San Juan County Water Conservancy District and a local miner.
Lyman and others contended the closure was "illegal" because the agency prohibited access by an administrative directive rather than going through the federal environmental review process, or the National Environmental Policy Act.
The BLM said it was forced to act quickly to protect 1,800-year-old Anasazi ruins on the canyon floor that were being damaged or at risk from increased ATV use in the canyon.
The county filed a right-of-way application with the BLM for construction of an ATV trail in Recapture Canyon, but Lyman said years of inaction left elected officials and residents frustrated.
San Juan County was also chaffing under federal action to protect the Gunnison sage grouse, which if implemented would have impacted more than a third of the privately owned land, Lyman said. There were also severe financial consequences to San Juan County from the federal government's October 2013 closure of national parks and recreation areas like Lake Powell.
"People were saying, 'Talk is cheap. We need to do something,'" he said.
Lyman said he does not own an ATV and has worked closely with the State Historic Preservation Office to determine where access would have little to no impact on existing cultural resources.
The portion of the Recapture Canyon Road where Lyman rode in the ATV is part of a historic 38-year-old road that he says was actually the first county road established in San Juan County for multiple purposes.
"This was not some isolated trail," he said.
The Constitutional Defense Council has agreed to take up a legal analysis of Lyman's case after several lawmakers expressed concern that federal prosecution of Lyman and Wells could stymie subsequent protest or actions by local and state officials opposed to federal policies. That expense account has a monetary limit of $100,000.
In addition, politicians that include Utah Gov. Gary Herbert have donated thousands of dollars to help Lyman pay for the costs of his defense, which is now being handled by Neil Kaplan of Clyde Snow & Sessions.
Several lawmakers at Wednesday's caucus say Lyman's case is emblematic of the larger fight Utah has launched against the federal government to claim ownership of thousands of miles of historical routes, trails or roads throughout the state.
"What the state can do here is show that the road was not properly closed. It brings a winnable area that would then establish many, many points across the front line," said Rep. Keven Stratton, R-Orem. "We talk about money and spending $100,000, but I am telling you it has very little to do with money, but it costs us in so many other ways."
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