The Heavy Hand of the Federal Government: Five Charged in Recapture Canyon Protest Ride — by Brian Maffly

The BLM drops the hammer on several people it is accusing of organizing and participating in the Recapture Canyon ATV Protest Ride back in May, 2014.

According to an article originally published in the Salt Lake Tribune on September 19, 2014, federal authorities are accusing a San Juan County commissioner and a handful of protesters of conspiracy and illegally riding ATVs into southeast Utah’s Recapture Canyon in May.

The Bureau of Land Management closed the canyon to motorized use in 2007 to keep wheels off its many archaeological sites. About 50 riders motored into the canyon following a May 10 rally in Blanding denouncing federal “overreach” and mismanagement of public lands.

But only those suspected of organizing or promoting the illegal ride were targeted in charges announced Wednesday by acting U.S. Attorney Carlie Christensen.

The charges allege that Commissioner Phil Lyman, a Blanding accountant and a vocal critic of BLM policies that inhibit access to public lands, “advertised” the ride through a newspaper article and social media.

“We respect the fact that the citizens of this State have differing and deeply held views regarding the management and use of Recapture Canyon, and recognize that they have the right to express those opinions freely. Nevertheless, those rights must be exercised in a lawful manner and when individuals choose to violate the law, rather than engage in lawful protest, we will seek to hold those individuals accountable under the law,” Christensen said in a prepared statement.

During the week leading up to the ride, BLM state director Juan Palma warned would-be protesters that their actions could damage cultural sites, which are protected under federal law, and said illegal riders would face legal consequences. Ancestral Puebloans who lived in the canyon until 800 years ago left artifacts, dwellings and graves.

The five defendants, all current or former San Juan County residents, were charged with “operation of off-road vehicles on public lands closed to vehicles” and conspiracy, offenses that carry up to one year in jail and $100,000 in fines.

None was charged with damaging archaeological sites, but prosecutors said the investigation remains open.

The defendants include Monte Wells, Shane Marian, Franklin Holliday and Jay Redd. The men are ordered to appear Oct. 17 before U.S. Magistrate Evelyn Furse.

Redd, who now lives in Santa Clara, is the son of the late James Redd, the Blanding physician who took his life five years ago after his arrest in an BLM investigation into artifacts trafficking.

On Wednesday, Lyman declined to comment. But he has repeatedly argued that the BLM illegally closed a long-standing “highway” through the canyon and that the agency has sat on the county’s right-of-way application for seven years.

“We’re not proponents of breaking the law,” Lyman told reporters before the ride. “This was a supervisor’s discretionary closure. It’s a county road. We claim it. Just because BLM owns the property, that doesn’t mean they own the right-of-way that exists.”

The BLM had closed the canyon after officials discovered an illegally constructed ATV trail had damaged archaeological sites. Two Blanding men were ordered to pay $36,000 in fines.

“Today’s actions by the U.S. Attorney’s Office underscore the importance of protecting culturally significant areas and holding accountable those who broke the law,” said BLM Director Neil Kornze in a prepared statement. BLM officials declined further comment.

The idea for a protest ride was hatched at “town hall” in February. Lyman began promoting it on his Facebook page, and later with a series of online interviews with Wells, shot on the canyon rim.

This spring, the BLM became embroiled in an armed standoff with militant supporters of Nevada rancher Cliven Bundy. To avoid a similar confrontation at Blanding, BLM officers took no steps to block the Recapture ride.

They were not present at the north end of the canyon, where riders entered on an established road below Recapture Reservoir. But federal officers were in the canyon monitoring the ride and archaeological sites, officials said at the time.

Public Employees for Environmental Responsibility has been critical of the U.S. Justice Department for going months without prosecuting Recapture riders, as well as the self-styled militiamen who thwarted BLM officers’ attempts to round up Bundy’s trespassing cattle.

“While we are gratified that charges have finally been filed, we are mystified as to why it took more than four months to bring two misdemeanor counts based on facts that everyone knew back in May,” said Jeff Ruch, PEER’s executive director. “The U.S. Attorney notes that the road closures are needed to protect irreplaceable archaeological features but silent on whether those resources were damaged by these illegal entries.”

Leaders of Great Old Broads for Wilderness, a Colorado-based group that has long advocated for protecting the canyon from motorized use, were pleased charges were filed, but raised similar questions

“We are somewhat disappointed that conspiracy charges were not extended to include violations of the Archaeological Resources Protection Act,” said Rose Chilcoat, the group’s associate director. “It is hard to imagine that the number of vehicles that drove through the canyon had no impact to any of those resources. We are hopeful that this is the first step to bring the others involved in this illegal act to justice.”

The conspiracy component of the prosecution stems from alleged steps the five men took to incite people to participate in an illegal activity. Lyman gave details about the ride and a rally on his Facebook page. His postings announced a date change to a Saturday so more people could participate.

The May 10 event started with a rally in Blanding’s Centennial Park, where a few hundred people gathered to hear Lyman, Redd and others criticize what they describe as federal mismanagement of San Juan County’s lands, belligerent law enforcement and illegal road closures.

Redd’s speech recalled his late father and his love of the land around Blanding, and attributed his father’s suicide to federal officers’ aggressive interrogation in the Redd family’s garage. According to the charges, these speeches were “instructing and encouraging the group regarding the proposed ATV ride.”

However, Lyman appeared to get cold feet during his speech. He encouraged protesters to stay on legal trails on the canyon’s periphery, saying driving into the canyon could turn public opinion against his cause. But the ride’s more strident supporters, including Bundy’s son, Ryan, and other out-of-state protesters, shouted this suggestion down.

Lyman drove his blue side-by-side Polaris into the canyon with a Go-Pro camera strapped to his head. He traveled the established road for about a mile, then turned around where the route disappeared into the brush.

Most of the other riders, however, continued down the canyon for a few more miles and exited at Brown’s Canyon. These riders likely would have crossed archaeological sites, which are hard for an untrained eye to detect, but they left the canyon before reaching its most vulnerable sites.

Redd, who could not be reached Wednesday, rode into the canyon on a side-by-side ATV driven by someone else. He climbed out when he realized they had entered the part of the canyon closed to motorized access, he said, and continued down the canyon on foot talking with a reporter.

Gregory Skordas, a Utah defense lawyer not involved in the Recapture controversy, said the conspiracy charges could draw First Amendment challenges. For example, Lyman and Wells’ alleged participation in a conspiracy arises, in part, from communicating criticism of federal influence on public lands.

“Publishing plans to commit a crime could be conspiracy,” Skordas said. “But publishing thoughts that may later provoke people to commit a crime would be free speech.”