SALT LAKE CITY — Federal prosecutors are urging an appeals court to uphold the conviction of San Juan County Commissioner Phil Lyman for leading an illegal ATV protest ride in a southern Utah canyon closed to off-road vehicles.
Prosecutors argue in a brief filed Friday in the 10th Circuit Court of Appeals that a district court judge appropriately denied Lyman's and co-defendant Monte Wells' motions seeking to dismiss the case, or short of that hold a new trial. They also say the judge correctly ordered them to pay $96,000 in restitution.
Lyman and Wells contend the judge should have dismissed the conspiracy charge against them because the First Amendment precluded their prosecution.
"Nothing in the First Amendment allows a person to commit crime in the name of free speech or freedom of the press," assistant U.S. attorney Jared Bennett wrote.
Lyman spent 10 days in jail and Wells five after a jury found them guilty of misdemeanor conspiracy and trespassing charges for organizing the 2014 protest ride in Recapture Canyon near Blanding. The two men are also serving 36 months of probation and paying $96,000 in restitution.
Lyman, who is now representing himself, wrote in his appeal that the protest he led didn't break any laws; that he was improperly disallowed from admitting evidence showing he was within the law; and that the judge who heard his case had a conflict of interest with an activist group that opposed the protest.
Prosecutors contend in their reply that Lyman and Wells argued judicial bias in one motion after the trial but didn’t raise it in later motions for a new trial and acquittals.
"Thus, they knowingly and voluntarily failed to argue this point and have waived it on appeal," Bennett wrote.
Lyman and Wells also contend that prosecutors failed to disclose a 1979 map showing the road in Recapture Canyon is a public right of way known as an RS2477 road.
Prosecutors say the Bureau of Land Management properly closed the road and the court has ruled that only state and local governments, not individuals, may raise RS2477 right-of-way claims. They also say Lyman and Wells were unaware of the map before the protest ride.
As for restitution, prosecutors contend it's appropriate because the government lost $96,000 due to the protest ride, including $65,500 to assess damage to archeological resources and $8,800 to repair riparian areas.
Eighteen of Utah's 29 counties filed a joint brief supporting Lyman's motion for an acquittal or a new trial, making many of the same arguments Lyman raised in his appeal.
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