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SALT LAKE CITY — Federal prosecutors want San Juan County Commissioner Phil Lyman to spend time in jail and pay more than $95,000 in restitution for his illegal ATV protest ride in Recapture Canyon.
The Utah U.S. Attorney's Office doesn't specifically say how long Lyman and co-defendant Monte Wells should be incarcerated. But according to a sentencing memorandum filed in U.S District Court, a "reasonable term" is necessary based on their willful conduct, disrespect for the law and to deter similar criminal actions.
Meantime, Lyman's new lawyers have asked Judge Robert J. Shelby to set aside his conviction and give him a new trial because he rode on a legal right-of-way that the Bureau of Land Management could not shut off.
Lyman's attorney argues that there is a high likelihood that the new evidence would change the verdict.
A jury convicted Lyman and Wells, a Monticello councilman, of conspiring to operate off-road vehicles on public lands closed to off-road vehicles and operation of off-road vehicles on public lands closed to off-road vehicles. Both counts are misdemeanors and carry up to a one-year prison term, 12 months of probation and a $100,000 fine.
The BLM closed the road in Recapture Canyon to off-road vehicles, 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. Many locals objected to the 2007 closure, asserting it was arbitrary and unnecessary, and thwarted a review process mandated by federal law.
In the motion for a new trial, Lyman's attorneys argue that the BLM failed to disclose a map showing the road through the canyon is a "public highway" known as an RS2477 road.
Utah is seeking quiet title to 12,000 segments of so-called RS2477 roads in the state in an ongoing lawsuit against the federal government. Earlier this month, it added the Recapture Canyon road to the list.
Shelby did not allow defense attorneys for Lyman and Wells to dispute the BLM's closure of the road during the trial because the court had already found it legal.
Prosecutors say Lyman's and Wells' disrespect for the law is especially troubling because they are public officials who took an oath of office to support and obey the Constitution.
"Defendants know what the law means and how to follow it. The fact that they conspired to and actually rode through a canyon that they knew was closed to motorized use reflects a deliberate departure from what they knew to be right," the court filing states.
Defendants know what the law means and how to follow it. The fact that they conspired to and actually rode through a canyon that they knew was closed to motorized use reflects a deliberate departure from what they knew to be right.
–Federal prosecutor court filing
Incarceration is an appropriate penalty to deter them and others from acting on the mistaken belief that disagreement with the law entitles them to commit a crime, prosecutors argue.
Lyman in an email said he's disappointed that prosecutors continue to make false inferences in his case and that he has great respect for the law.
"I could not find a single instance in this memorandum where the prosecution did anything but color the facts so as to mislead the court," he said.
"Petitioning for a harsher sentence because we have a long history of respect for the law is an interesting argument, but it is in line with the course they have chosen from the start."
Under a federal sentencing formula, prosecutors calculated that Lyman should receive a 10- to 16-month prison term, but noted the maximum sentence is 12 months. They also recommend he pay a fine between $3,000 and $30,000, based on his ability to pay.
That Lyman was the "ring leader" and abused his position as a county commissioner to organize and promote the ride were factored into the suggested sentence, according to the memorandum.
Prosecutors recommend Wells spend 6 months to 12 months in prison and pay a fine ranging from $2,000 to $20,000.
Prosecutors also suggested Lyman and Wells pay restitution totaling $95,955 for alleged damage to the canyon. Their arguments for restitution were not included in the sentencing memorandum but are sealed in a previous court filing.
A sentencing hearing is scheduled for Sept. 15.
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