Despite historical documents submitted by Wells supporting the defendants’ premise that Recapture road was illegally closed by BLM, the court refused to revisit its decision. Wells himself also performed a great deal of investigative reporting on the coordination between federal agents and local environmental activists.

by Marjorie Haun

Despite the support of sixteen Utah counties, which issued amicus briefs on their behalf, on October 23, the Tenth Circuit Court in Denver, denied Monte Wells and Phil Lyman their appeal of convictions stemming from a ‘freedom ride’ in Recapture Canyon. Wells and Lyman were convicted by a federal court on charges of trespass and conspiracy for the 2014 ATV ride into Recapture Canyon, protesting the Bureau of Land Management’s (BLM) closure of the road, which they believed was illegal. The case was originally tried in 2015, and Wells and Lyman filed their appeal on the premise that the ride did not constitute trespass because the road into Recapture Canyon was, and still is, under jurisdiction of the county and not the federal government. As part of their appeal they cited a conflict of interest by the first judge in the case, whom they believe was biased by his close friendship with Steve Bloch, an attorney for the Southern Utah Wilderness Alliance (SUWA).

Background

The trail into Recapture Canyon became a flashpoint of controversy when Phil Lyman, who is a commissioner in San Juan County, supposedly encouraged locals to participate in an ATV ride to protest the federal government’s closure of the well-traveled road. Map maker and blogger, Monte Wells, who was also at the time a Monticello City councilman, was charged with conspiracy for posting an interview with Lyman about the planned ‘freedom ride’ on his website, The Petroglyph.

Lyman and Wells were both convicted in May of 2015. Lyman was given a sentence of 10 days, and Wells a sentence of 5 days to be served in a federal facility. The men were also ordered to pay $96,000 in restitution for purported damage caused by the ATV ride. During the course of the Recapture trial, a total of four judges recused themselves from the case due to entanglements with BLM employees and environmentalist interests in southern Utah. Environmental activists, including some associated with SUWA, colluded with BLM employees to gather evidence in order to further the prosecution of Wells, Lyman, and others charged in the case.

The decision issued by the Tenth Circuit Court states:

The ride took place in May 2014.  Defendant-Appellant Phil Lyman, a County Commissioner for San Juan County, was a major promoter of the ride. He was charged along with Defendant-Appellant Monte Wells in a misdemeanor criminal information with operating ATVs on lands closed to such use by the BLM and conspiring to do so.  Mr. Wells owned a  small business and ran a  website entitled The PetroGlyph that reported on issues of local concern in San Juan County, especially issues relating to  public lands.

Following a  trial, a  jury found both men  guilty of  the charged offenses. The district court sentenced them to terms of probation and brief terms of imprisonment.  They were also ordered to pay restitution for the costs of assessing and repairing the damage that the protest ride caused to the land.

It also cites the defendants’ argument that Judge Shelby was compromised:

They ask for a new trial because the district judge (Judge Shelby) presided over their trial while a reasonable observer allegedly would have questioned his impartiality; he did ultimately recuse before their sentencing. Furthermore, they appeal the denial of their motions to dismiss; they make a Brady claim stemming from the government’s failure to produce a map showing a possible public right- of-way through Recapture Canyon, which allegedly would have called into question whether the BLM’s 2007 closure order was lawful; they challenge the district court’s restitution order and the amount they were ordered to pay; and, lastly, Mr. Lyman argues that he was denied constitutionally adequate counsel.

But the court rejected that point, indicating that Shelby did no wrong by failing to recuse during the actual trial, and that recusing prior to sentencing was sufficient to ‘promote confidence’ in a process which appeared to be tainted by the influence of outside groups which sought to make examples of Wells and Lyman. The decision states:

Judge Shelby recused, “conclud[ing] that recusal will promote confidence in these proceedings and avoid even the appearance of impropriety in connection with the court’s sentencing duties.” More specifically, Judge Shelby recused based largely on a letter to the judge signed by SUWA and other conservation groups that expressed views adverse to Defendants-Appellants regarding sentencing, as well as evidence developed in connection with Mr. Lyman’s motion to disqualify.  

Despite historical documents submitted by Wells supporting the defendants’ premise that Recapture road was illegally closed by BLM, the court refused to revisit its decision. Wells himself also performed a great deal of investigative reporting on the coordination between federal agents and local environmental activists. Frustrated by the apparent lack of judicial accountability, and inadequate consideration of possibly exculpatory evidence, Wells said of the court’s denial: 

“The court’s decision is on par with the non-justice I have experienced over the last 3 years in the federal court system. The fact is, the road was never closed and the BLM doesn’t have a title 5 on the road, which they have admitted. So therefore they didn’t have authority to charge me for trespassing because it’s a county road. The judge refused to allow us to bring that issue, or the voice recording of the BLM  director Juan Palma** giving Lyman the okay to go forward with the ATV ride as long as he stayed on the road, as evidence. Now the 10th circuit just covered the lower courts actions as well as the BLM and the US Attorneys action, where they knowingly fabricating evidence, claiming there was a title 5, to charge us and convict us.”

**Below is the voice recording of Palma mentioned by Wells:

Wells, who was convicted on a charge of ‘conspiracy,’ appealed the $96,000 in restitution that the defendants were ordered to pay severally, on the basis that the ‘conspiring’ with which he was charged could not have caused damage on the disputed road.

When Wells was asked about a possible appeal to the Supreme Court, he indicated that the expense would be make it very difficult, but as of this writing, neither Wells nor Phil Lyman have indicated whether or not they will take further action in their case.

Wells posted the following video after receiving word about the rejection of the appeal.


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