4 Judges Recuse Themselves In Utah ATV Protest Case

November 2015 Powersport News Phil Taylor, E&E Reporter

Two more federal judges recently recused themselves from a high-profile case involving a Utah county commissioner's conviction for leading an illegal all-terrain vehicle ride through Recapture Canyon.

Two other judges recused themselves Aug. 28 and in mid-September.

The recusals will further postpone the U.S. District Court for the District of Utah's sentencing of San Juan County Commissioner Phil Lyman, who was convicted May 1 by a jury for conspiracy and operating an ATV in a portion of Recapture that is closed to motorized vehicles.

Lyman faces up to two years behind bars and potentially hundreds of thousands of dollars in fines and restitution for his role in the May 10, 2014, ride.

Sentencing, which was originally set for September, is being closely watched by conservationists, who want a stiff penalty to deter future lawlessness on the public estate, as well as Lyman's defenders, who maintain his innocence.

On Aug. 28, Judge Robert Shelby, an appointee of President Obama, recused himself from the case, acknowledging that his personal friendship with an attorney for the Southern Utah Wilderness Alliance could compromise the public's confidence in the proceedings.

Last Friday, Judge Jill Parrish, another Obama appointee, also recused herself after disclosing that she had worked as a federal attorney for nearly a decade in Utah, defending the Bureau of Land Management's oversight of roads across federal lands.

In September, Senior Judge David Sam and Chief Magistrate Judge Brooke Wells also stepped down from the case, leaving it in the hands of Chief Judge David Nuffer, an Obama appointee.

Sam said in a memorandum that "I must step aside in the above matter," but he did not elaborate. Wells' recusal was noted in the court's electronic docket. Magistrate judges typically do not oversee sentencings of this nature.

"I've never heard of that many recusals in one case," said Jeff Ruch, executive director of Washington, D.C.-based watchdog group Public Employees for Environmental Responsibility, who formerly served as a deputy district attorney.

Before Nuffer sets a new sentencing date, he will likely have to resolve Lyman's Aug. 25 request for a new trial based on the discovery of a decades-old map he claims proves the canyon was open to ATVs. The 1979 BLM map shows that the commissioner and his followers were riding a valid highway under a 19th-century mining law, Lyman's attorneys argued (Greenwire, Aug. 28).

Passed in 1866, the R.S. 2477 law allowed miners and homesteaders to build trails or roads over any public lands not yet reserved or claimed for private use. Congress repealed it in 1976 but said pre-existing R.S. 2477 rights must be honored. Utah is suing the government for the title to more than 14,000 roads on federal lands covering 35,000 miles.

Shelby, who presided over the jury trial, recused himself just days later.

Lyman's attorneys had requested the recusal July 20, noting Shelby's disclosure in a separate federal court case that he was a longtime friend of SUWA's legal director, Steve Bloch, and formerly practiced law with Bloch's wife, Kara. Their sons also attend the same school and play on the same soccer team, Shelby said.

Shelby said SUWA and other groups had sent the court a letter following Lyman's conviction seeking to influence the sentencing.

"This post-trial activity, together with the record now developed in the briefing on Mr. Lyman's motion, lead the court independently to conclude that recusal will promote confidence in these proceedings and avoid even the appearance of impropriety," Shelby wrote.

Lyman's ride was a protest of BLM's decision in 2007 to close Recapture to off-highway vehicles to protect Native American areas, including Anasazi and Pueblo sites dating back more than 2,000 years. The canyon is open to hikers and horseback riders.

Twitter: @philipataylor Email: ptaylor@eenews.net

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