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Federal overreach? Public lands commission wants legal analysis of ATV trespass case

SALT LAKE CITY — The prevailing sentiment of Utah's public lands commission is that an "illegal" ATV ride through Recapture Canyon is a states' rights case, and the county commissioner's conviction for trespass sends a chilling message.

For that reason, the Commission for the Stewardship of Public Lands voted 6-2 to have the state's Constitutional Defense Council perform a legal analysis of San Juan County Commissioner Phil Lyman's case and ensuing misdemeanor conviction in federal court.

"I think this is as important as anything we do up here on the hill," said Sen. Scott Jenkins, R-Plain City, and to turn a "blind eye" on the issue means "turning a blind eye to our very responsibilities."

The lawmakers in favor of having the case reviewed for possible appeal or other action — with a cap of $100,000 in funding for the effort — stressed they are not taking Lyman's side because they support breaking the law.

"I don't think he broke the law," said Rep. Mike Noel, R-Kanab, following a detailed history lesson he delivered on the road in question.

The road, he said, has a long tradition of many uses over the decades and is even documented in a 1950s-era Rand McNally map. Noel said Lyman was unable to use the historical use of the road in his defense.

"The justice department is completely out of control," he added, likening Lyman's May 1 conviction for the 2014 protest ride to rounding up protesters at the Utah Capitol, tossing them in prison for two years, and fabricating the damage to the building's carpet and walls.

About four months after Lyman participated in a protest ride of the Recapture Canyon road, the federal government filed charges against him and several others accusing them of conspiring to operate off-road vehicles on public lands where that activity is prohibited.

Lyman and other critics of the Bureau of Land Management did not believe the federal agency's closure of the road was legal and that a 2007 decision to prohibit access was done outside the scope of the federally required process.

San Juan County has had a pending right-of-way application for the road with the BLM since 2006, and frustration over inaction on the issue spurred Lyman and others to participate in the protest.

Sen. Jim Dabakis, D-Salt Lake City, said for the public lands commission to insert itself in the judicial process is "completely inappropriate."

"'Poor Commissioner Lyman' does not play with me," Dabakis said. "He made the decision to have a public protest, and now he needs to go face the music."

Rep. Joel Briscoe, D-Salt Lake City, also spoke against having the case reviewed and said it will appear lawmakers are taking the untenable position of endorsing lawbreakers.

But Rep. Mel Brown, R-Coalville, and other lawmakers said the move to have the analysis is less about Lyman individually and more about the federal government's trumped-up charges and limiting access to public lands.

"It's really sad they'd spend money on something this ridiculous," Brown said, "on a case where there is no case at all. Talk about a protest. We should be marching."

Sen. Dave Hinkins, R-Orangeville and co-chairman of the commission, told Dabakis that a review of the legal merits of the case falls outside the purview of the public lands commission, so it is entirely appropriate for the Constitutional Defense Council to take a look.

Noel added that he believes if the conviction is allowed to stand, it will have a chilling effect on county commissioners and other state and locally elected officials throughout Utah who may have a beef with how public lands are managed by the federal government.

"There's a strong connection between the transfer of public lands and the actions that are occurring in San Juan County and throughout the state to shut down the use of these public lands," he said. "This is another issue that is germane to what we do as a body."

Afterward, the Southern Utah Wilderness Alliance — which has been leading a fight against the state's efforts to gain control over certain federal lands in Utah — denounced the commission's move.

“Today’s decision by the Commission for the Stewardship of Public Lands to recommend paying $100,000 for San Juan County Commissioner Lyman’s legal fees for his illegal ride into Recapture Canyon is a travesty,” said Steve Bloch, legal director for the organization.

In other action, the commission voted to award a legal services and public relations contract to New Orleans-based Davillier Law Group and Strata Policy, a Utah-based public policy research organization.

The contract, authorized by the Utah Legislature, is for up to $2 million and is to provide legal consulting services and public relations messaging in the state's bid to take over certain federal public lands.

Three Democrats on the Legislative Management Committee voted against the final approval of the contract, House Minority Leader Brian King, D-Salt Lake City; Rep. Patrice Arent, D-Millcreek; and Sen. Luz Escamilla, D-Salt Lake City.

“I have a hard time signing off on that,” King said after being told the up to$2 million, two-year contract covered only legal consulting and public relations services, not litigation help.

Senate Minority Whip Karen Mayne, D-West Valley City, said she was concerned others could be brought in, increasing the cost to the state.

“We don’t want a gravy train,” Mayne said, calling for oversight “so they don’t bring more and more people in.” She said the contract is big now, but could “blow up to something we can’t control.”

Thomas Vaughn, legislative associate general counsel, said the state is not anticipating anyone will have to be brought on to assist with the work. He said the initial draft of the legal brief the law firm is preparing should be finished within about six months and is expected to cost $250,000.

The Legislative Management Committee later that afternoon endorsed the selection.

Contributing: Lisa Riley Roche

Email: amyjoi@deseretnews.com

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