Phil Lyman Reply Brief

Appellate Case: 16-4007
Document: 01019687895
Date Filed: 09/14/2016
Page: 1
Case No. 16-4007
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States of America

Plaintiff-Appellee
vs.
Phillip Kay Lyman
Defendant-Appellant
On Appeal from the U.S. District Court for the District of Utah, Central
Division, Judge David Nuffer, District Judge
REPLY BRIEF FOR PHILLIP KAY LYMAN
Phillip Kay Lyman - Filing Pro-Se

1401 North Blue Mountain Road
Blanding, UT 84511
Telephone 435-459-2800
Email - phil@lymancpa.com
ORALARGUMENTISREQURESTED
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TABLE OF CONTENTS
I.
REPLY TO ARGUMENT THAT I WAIVED MY RIGHT TO RAISE

THE ISSUE OF BIAS IN MY APPEAL BECAUSE I FAILED TO
RAISE IT IN MY MOTION FOR A NEW TRIAL AND JUDGMENT
OF ACQUITTAL ............................................................... 1
II.
REPLY TO ARGUMENT THAT 'RECAPTURE CANYON WAS

LAWFULLY CLOSED TO OHV'S ................................................ 4
III.
REPLY TO ARGUMENT THAT STATUS OF THE ROAD EASEMENT IS

IMMATERIAL TO A CHARGE OF TRESPASS ........................... 18
IV.
REPLY TO ARGUMENT THAT RESTITUTION IN THE AMOUNT OF

$95,955.61 WAS APPROPRIATE .................................................. 25
CONCLUSION: ............................................................................... 28
APPENDIX
My Space Recaptured - Deseret News Opinion Piece
09/13/2007 Travel Restriction Order
Juan Palma 05/0112014 telephone transcript.
CERTIFICATE OF SERVICE
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APPELLANT'S REPLY BRIEF

Plaintiff-Appellee
vs.
Case No. 16-4007
Phillip Kay Lyman

Defendant-Appellant
I.
REPLY TO ARGUMENT THAT I WAIVED MY RIGHT TO RAISE
THE ISSUE OF BIAS IN MY APPEAL BECAUSE I FAILED TO RAISE IT
IN MY MOTION FOR A NEW TRIAL AND JUDGMENT OF
ACQUITTAL.
The U.S. Attorneys' argument that I waived my right to raise the issue of
impartiality on appeal because I failed to raise the issue in my motion for a new
trial, even though I had raised it in my motion to disqualify, disregards one
important fact- Judge Shelby did in fact disqualify himself.
We believed that Judge Shelby's impartiality "might" be reasonably
questioned. At the time we filed the motion, our concern could have been deemed
speculative. At the time we filed our motion for a new trial, Judge Shelby had not
responded to the motion to disqualify and I felt that it would be unwise to raise the
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point as a basis for a new trial since it was speculative at the point. I am certain
that, had I raised the issues in my motion for a new trial, the prosecution would
have been highly critical. Having passed the matter to Judge Shelby, the proper
course was to leave it alone until he made a decision. The Court of Appeals has
said "[t]here is as much obligation for a judge not to recuse when there is no
occasion for him to do so as there is for him to do so when there is." Hinman v.
Rogers, 831 F.2d 937,939 (lOth Cir. 1987). "A judge should not recuse on
unsupported, irrational, or highly tenuous speculation." Id.
The Tenth Circuit listed seven frequently alleged bases for recusal that
usually do not warrant it: (1) Rumor, speculation, beliefs, conclusions, innuendo,
suspicion, opinion, and similar non-factual matters; (2) the mere fact that a judge
has previously expressed an opinion on a point of law or has expressed a
dedication to upholding the law or a determination to impose severe punishment
within the limits of the law upon those found guilty of a particular offense; (3)
prior rulings in the proceeding, or another proceeding, solely because they were
adverse; (4) mere familiarity with the defendant( s), or the type of charge, or kind
of defense presented; ( 5) baseless personal attacks on or suits against the judge by
a party; (6) reporters' personal opinions or characterizations appearing in the
media, media notoriety, and reports in the media purporting to be factual, such as
quotes attributed to a judge or others, but which are in fact false or materially
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inaccurate or misleading; and (7) threats or other attempts to intimidate the judge.
Nichols v. Alley, 71 F.3d at 351. MacArthur v. San Juan County, 2005
WL2716300 (D. Ut. 2005).
At the point that Judge Shelby recused, our position changed from a
suggestion of possible impairment to a confirmation, at least sufficient to warrant
his decision, of actual impairment. Given the perameters for a judge to recuse or
not to recuse, the Judge's decision is, by all accounts, the best indication of actual
vs only perceived impartiality.
It has been the pattern of the U.S. Attorneys in this case to make a twisted
argument, and they do so in their brief saying: "Although Appellants pepper their
brief with vignettes relating to specific rulings and comments from the district
court that they believe show bias, 'Judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion ... Thus, judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to, counsel, the
party, or their cases, ordinarily do not support a bias or partiality challenge.' Liteky
v, United States, 510 U.S. 540, 551-52 (1994))." (U.S. Consolidated BriefPage
26).
The prosecution continues: "This is especially true where, as here,
Appellants do not identify facts that suggest, much less establish, that a reasonable
person would have questioned the district court's impartiality during the trial.
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Rather they offer only rumor, suspicion, and innuendo ... " (U.S. Consolidated Brief
Page 26).
Again - and I apologize for my lack of legal background - but how can Mr.
Wells and I stand accused of offering only rumor, suspicion, and innuendo, when
the Judge did in fact disqualify himself? This is, to quote Justice Scalia, "jiggery
pokery" on the part of the United States Attorneys in this case. Perhaps I am
oversimplifying this argument- or perhaps the attorneys for the United States are
overcomplicating it- but this section of the consolidated brief begs for rationality.
I would like to believe the United States Attorneys in this instance are
simply delivering hard blows as part of the adversarial process. I can see the value
in that and I respect it. But the government is not an ordinary litigant. In a civil
case it might make sense to win at all costs, but in criminal cases, the government's
interest should be in convicting only those who are proven guilty beyond a
reasonable doubt. I have been astonished that the U.S. Attorneys in this case, have,
from the outset, tended toward the use of praetorian methods. If the simple truth is
not sufficient to win a conviction, let the simple truth be told all the same. If
pejoratives are needed to strengthen the United States' argument, perhaps the
argument should not be made in the first place. These are low blows.
II.
REPLY TO ARGUMENT THAT 'RECAPTURE CANYON WAS
LAWFULLY CLOSED TO OHV'S.
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While section II of the U.S. Consolidated Brief dealt with the Government's
argument that our motions to dismiss should be denied because our First
Amendment defense required factual findings. They then add the conjunction "And
Recapture Canyon was legally closed to OHV use."(U.S. Consolidated Brief Page
27).
Since they direct most of the First Amendment language at Mr. Wells, I will
not try to reply to the U.S. attorneys other than to say that, simply because the
District Court disqualified a First Amendment defense, does not mean that the First
Amendment no longer protects much of what I said and, more particularly, what
Mr. Wells said and did. Just as Conspiracy is a serious charge, labeling speech
which has no criminal element as criminal, especially when it comes to people's
right to criticize the government, such censorship is un-American. Mr. Wells is a
reporter and actively runs an internet news business. News that interests the public
often deals with controversial topics. To cover a protest, to interview participants,
to attend the rallies, and to write about your observations and even promote the
story by promoting the event is standard procedure. Many newspapers promoted
the event. I was interviewed by a number of reporters who encouraged their
listeners to get out there and support the protest. Yet Monte Wells was singled out
not because of his role in the event itself, but because he had been critical of
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Southern Utah Wilderness Alliance, the Great Old Broads from Colorado, and
other special interest groups who determined to "teach him a lesson."
One other example of this effort to cover rather than uncover the facts it the
statement on page five of the consolidated brief where U.S. Attorneys state as a
fact: "Mr. Lyman began spreading the word by authoring an opinion piece about
the Recapture Canyon protest ride that a state-wide newspaper published on April
11, 2014. (Aplee. Supp. App. at 190-91.) Mr. Lyman was disappointed when he
saw that his invitation to the public to join the protest ride had been omitted. (Id. at
173.)." (U.S. Consolidated Brief Page 5). The Deseret News Article most certainly
included my invitation: "On May 8, 2014, we are planning another excursion into
Recapture. This time we are inviting all who would like to join us. Come and see
for yourself." (Deseret News, My Space Recaptured, in appendix).
But, what I would like to address is the statement that "Recapture Canyon
was lawfully closed to OHV's. ((U.S. Consolidated BriefPage 31, item 2 heading).
Misquoting United States' Motions in Limine

In their Consolidated Brief on page 13, under III,(2), the United States
Attorneys state "The United States moved to preclude Appellants from arguing at
trial that, among other things: [... ] (2) the closed portion of Recapture Canyon was
subject to an R.S. 2477 right-of-way."
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What the motions in limine said was "The United States asks the Court to
preclude evidence and argument at trial concerning, [... ] second, that the closed
road in the canyon was an RS 2477 right-of-way[.]" (USA v Lyman 4-22-15
Transcript, beginning on page 13 line 24).
Before addressing the R.S. 2477 contention, it is important to understand
that Recapture Canyon is NOT closed to OHVs. The final sentence of the
"Recapture Canyon Travel Restriction" notice dated September 13, 2007 reads:
"The areas and routes outside the closure area remain "open" to all types of
recreational use, including motorized," (See copy of notice included in court
record, and in Appendix). An area about eight miles long and a half mile wide is,
what the BLM terms, a "travel restriction" under 43 (C.F.R.) section 8341.2. The
notice says "it is appropriate to use this authority to close portions of Recapture
Canyon to OHV use." And continues, "it is my decision to close portions of the
Recapture Canyon area[] to recreational use." On a square acre basis, of the
roughly 46,800 acres that make up the 37 mile long Recapture Canyon, 4% (1,875
acres) is closed to off-road use. The rest is "open" according to the Travel
Restriction notice which is still posted at a specific spot several miles south of
Recapture Dam. Not until several weeks after the protest did the BLM post closed
signs in that same vicinity, in fact the signs that were posted as of the date of the
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demonstration were official trail signs advertising the open trails and directing
A TV users where to ride.
In this context, it becomes rather important to distinguish 1) which roads are
open and which are closed. 2) what constitutes "off-road" use, and 3) what
constitutes a "road." An "area" is not a "road," and a specific road or road segment
must have clarification so as not to be confused with a different road or road
segment. When Judge Shelby says "That road is closed," my only question is
which road is he referring to? Certainly not the one that is specifically not closed.
Once again, the U.S. Attorneys are overcomplicating a fairly straightforward misdemeanor trespass charge and trying to force the defendants into
defending the State of Utah's putative easement claim as part of their criminal
defense. It is not that complex. A brief reading of the BLM Right of Way grant
dealing with the Recapture Canyon Dam and pipeline explains the BLM's position
on the roads, the rights- of- way, etc., in the area to which the ROW Grant appies.
It is not feasible and the defendants all agreed that we were not arguing the
legality of the closure or the validity or invalidity of the R.S. 2477 road. What we
were saying and are still saying is that we did not trespass because we did not drive
on a road that was closed. Any of the defendants would have gladly plead to a
trespass charge if they had actually driven in an area that the BLM had closed.
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In their consolidated brief, the government acknowledges: "Appellants and

many others rode to the end of the Pipeline ROW, turned around and rode back
through the closed area." (U.S. Consolidated Brief Page 10).Why does the
prosecution now concur that we turned around a point certain, on a road certain, in
an area certain? What difference does it make if the whole canyon is, as they
assert, "closed" to OHV's." Would not anyone in the canyon be trespassing?
Would not those driving on the State Highway 191, which runs through Recapture
Canyon be trespassing? Would not those crossing through Recapture on County
Road 206, or State Highway 262, or State Highway 163, or County Road B218, or
B285, or B264, orB 110 be trespassing based on their standard? Is it only county
Road D5314 that is closed or is it all of them? Differenced do make a difference.
Driving on a road that is not closed, is not equivalent to driving on one that is
closed, even if the reason for being on the legal road is for purposes of legal,
peaceful, demonstration.
There is a section of trail that would be hard to argue that it was not closed.
It runs through some very sensitive archaeological sites. San Juan County even
dropped this section of road from its Title V application, but not before the BLM
had marked it as a legal trail. The BLM reported that there was no traffic on those
trails on the day of the demonstration. I had brought up the need for a bright line
of demarcation as is required of federal agencies making policy decisions. The
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discussion of the BLM's Internal Memorandums began in 2009 with the release of
BLM Internal MemorandumNo. 2010-028. This IM clarified that temporary travel
restrictions that lasted more than their two-year shelf life had to be updated. I asked
the BLM to update the Recapture travel restriction, and they declined. It was not
until 2011 that the BLM came out with an amendment to the 2009 IM stating that
the requirement was not retroactive, but that those Restrictions should be updated
all the same. Sometime in mid 2013, I asked Don Hoffheinz, the new BLM field
manager for the Monticello office, if he would not consider updating the travel
restriction so that people would not unwittingly find themselves the target of the
sort of prosecution that the government has pursued against citizens of San Juan
County. My contention was not that people were breaking laws, but that the BLM
themselves did not understand the restrictions. The BLM is a revolving door of
employees coming and going, and the agency loses the institution knowledge that
is needed when there are orders in place that are as unclear as the order relating to
Recapture Canyon. The road to the spot where the pipeline exits the canyon is a
perfect case-in-point
The trail cameras used by BLM law enforcement are another troubling part
of the prosecution's story. They say that 3 5 vehicles went beyond the end of the
pipeline terminus (again, why would that point be relevant?). At trial they said they
could only identify two people who traveled on ATV s beyond the pipeline
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terminus - Shane Marian, and Trent Holliday - both of whom were acquitted. With
four trail cameras, they should have had at least 140 pictures of vehicles passing
by, but they have zero, only registered times that the cameras were triggered. All
the photos were overexposed. One camera, the "Browns Canyon" camera, was
almost certainly set up outside the closure area on a trail that the event organizers
identified as a safe alternative for riders wanting to stay on the rim of Recapture.
Again the prosecution contradicts themselves by saying that, rather than 35
vehicles, "The damage assessment team saw three to five sets of OHV tracks that
exited the closed area at Brown's Canyon. (U.S. Consolidated Brief Page 16). This
is also illustrative of the lack of understanding on the part of the BLM; we have
come to refer to the mid-point exit from Recapture Canyon as the Browns Canyon
exit because that is the term used by BLM Law Enforcement Officer, Jason Moore.
Browns Canyon is actually an entirely separate canyon, and locals refer to Brown's
Gravel Pit, not because it in Browns Canyon but because the pit was started and
owned by the Brown's who homesteaded that region, and for whom Brown's
Canyon is named. It was incidentaly, Ken Brown who was falsely charged and
prosecuted by the BLM, at the insistence of Southern Utah Wilderness Alliance,
for constructing trails. Had the BLM clarified the status of Recapture Canyon there
would have been no resistance, but rather than take any of the avenues available to
them to clarify and resolve confusion, they chose prosecution. As a friend of Mr.
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Brown's I was not happy with that chosen course; but as Mr. Brown's County
Commissioner, these heavy handed tactics were more than a passing concern, they
became my responsibility to try to effect. In that context, Recapture Canyon was
very symbolic of the dysfunction, and frankly it was an easy fix. I wish that I could
say I was surprised that the BLM chose malicious prosecution rather than
methodical resolution to a very simple problem.
Stating that Recapture Canyon is "closed" is pure deception. When the
prosecution or the Judge talk about "that road" being closed, they never really
identify which road they are talking about. At trial, Judge Shelby was irate with my
attorney for his motion asking the prosecution to not refer to the defendant's ride
as illegal, saying: "I'll tell you, Mr. Stubbs, it's unclear to me, in fact it seems
contradictory to me the way that you argue this in your motion, the issue about
excluding argument and testimony about this being an illegal ride. Insofar as what
you mean by being an illegal ride, that the closure was legal is a legal issue.
I agree, it is purely a legal issue and it's been decided by the Court. You raised it,
we discussed it in the final pretrial conference, and I made a ruling. It is a legal
closure. This road is closed by the BLM legally and lawfully for purposes of this
trial. The Tenth Circuit may disagree with me, and you can take it up with them if
you wish. That is not an issue for trial. It's closed. If you meant that the illegality of
the ride in terms of whether it was criminal was the issue, then I agree with you
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completely. That is the entire purpose of the trial. But this is where the adversarial
process is helpful to us. You think it was not criminal, the United States thinks it
was and they've charged it as a crime. This is no surprise to anyone in the court, in
fact we read the allegations or summary of them to the jury yesterday." (USA v
Lyman 4-29-2015 Trial- Page 13). Certainly those who plead not guilty to trespass
were surprised by these allegations. I was more surprised that the Judge was
arguing the prosecution's case so vehemently.
Judge Shelby was wrong. The road was not closed, at least not the road on
which the demonstration took place. Recapture Canyon was not closed. Telling
defendants that they may take it up with the Tenth Circuit as soon as they get out
of jail is not what I expected. I expected a presumption of innocence and that the
prosecution would have to prove otherwise.
While it is not my place to identify motives, I am directly affected by the
impartiality of the judge and the Department of Justice, so I could not help
wondering why they would take such a vigorous position without ever even having
visited Recapture Canyon or questioning me or asking a the simple question of
why, as a respected member of the community, a respected business person, and a
well-respected elected county commissioner, I would "choose crime" (their words)
in order to effect some movement from the BLM.
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Can the Tenth Circuit acknowledge that problems are caused when interest
groups, which do not share the governments' interests in comity and cooperation
are allowed to hijack the process? When federal agencies appear to have
abandoned their authority in favor of placating groups like Southern Utah
Wilderness Alliance, the Wilderness Society, the Great Old Broads from Colorado,
The Conservation Lands Foundation, the Grand Canyon Trust, while excluding
local government and its authority and disregarding the elected representatives
who were put in position by a vote of the people most affected by land-use
decisions; when this is evidenced and witnessed, along with violent and heavyhanded actions against a community; and when all other avenues of recourse seem
to yield more of the same dismissive and degrading treatment, does not peaceful
protest seem to be in order?
My only interest as been in providing the simple facts of the protest,
including the fact that we did not trespass the letter or the spirit of the law as it
related to the route we traveled, peacefully and cheerfully, with the full support of
the Sheriff, the highway patrol, the owners of the mineral leases in the area, the
owners of the cattle permits in the area, the owners of the pipeline right of way in
the area, with full communication with Congressman Chaffetz, Senator Hatch,
Senator Lee, Governor Herbert, the State AG's office, our delegation of
representative on the State Legislature, the County's hired legal counsel, the San
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Juan County Commissioners and County Attorney, and under the observation of a
number of BLM law enforcement officers, and with the 100% concurrence of the
State BLM director Juan Palma. It is not surprising that some of these people are
not as supportive now as they were when the protest was being planned and carried
out. Many of these people are motivated more by politics and less by principle and
when the "witch hunt" was initiated by the special interest and the Salt Lake
Tribune started producing their cartoons, some of those who were supportive
before made an about face - State BLM Director Juan Palma making it very clear
his friendship with me up to that point had been a friendship of convenience.
Characteristic of the prosecution in this case, they said both in their opening
argument and at every opportunity since: "In addition to litigation, the law
provides many other non-judicial mechanisms to seek redress from agency
decisions. This list includes, among many other things, calling upon elected
representatives in the political process, grass-roots political movements, and
vigorous expressions of opinion through lawful protest. Case 2: 14-cr-00470-RJSBCW Document 182 Filed 08/24/15 Page 2 of 23 Instead of choosing any one or
more of these numerous legally-permissible mechanisms to express their
disagreement with federal decisions, Defendants chose crime." Why such
opprobium? Why the assumption that our protest was anything but lawful? Could
it have been the communications that they were receiving from the environmental
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special interest groups? Naturally we as defendants were not privy to those

communications, at least not until after the trial.
This is an excerpt from an email between US Attorney Jared Bennett and the
Steve Bloch, chief legal counsel for SUWA:
From: Bennett, Jared (USAUT) [mailto:Jared.Bennett@usdoj.gov]
Sent: Monday, April6, 20151:10 PM
To: 'Steve Bloch'
Subject: SUWA Witness in Recapture Canyon
Steve:
I hope you are doing well. We would like to call the SUWA representative that shot a video of the
rally before the ride. We just need him to authenticate the video or a still photo of the
frame in a video. Will he need a subpoena or will he be able to come to trial without a subpoena?
Either way is fine with me, let me know.
Cheers,
Jared C. Bennett
Assistant United States Attorney
Civil Division Chief
185 South State Street, Ste. 300
Salt Lake City, UT 84111
Tel. (801) 3253259
Fax(801)3253340
And here is the response:

From: Steve Bloch [mailto:steve@suwa.org]
Sent: Wednesday, April 08, 2015 1:11 PM
To: Bennett, Jared (USAUT)
Subject: RE: SUWA Witness in Recapture Canyon
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JaredThe person I believe you want to contact is Josh Ewing. Josh is not a SUWA representative/he
lives in Bluff and is the Executive Director of a small NGO there called "Friends of Cedar
Mesa." His contact information is below. I put a call into him this morning and followed up with an
email but have not heard back. If I do I'll direct him your way. Let me know if you have
questions.
Josh Ewing
josh@cedarmesafriends.org
Executive Director
www cedarmesafriends org

facebook com/cedarmesafriends
PO Box 3381 Bluff, UT 84512
801 410 0773
Steve
This is what Steve Bloch was publishing in the SUWA newsletter at the time of the
protest:
This from the Summer 2014 news letter:
Lyman charges that the BLM "arbitrarily shut down a road in San Juan County" and that
the illegal ORV ride was to protest the "jurisdictional creep" of the federal government.
Nothing to quarrel with here except virtually every one of the commissioner's facts. First,
the route is an illegally gouged trail on public lands, not a road. Second, the BLM's
action was far from arbitrary. The BLM based its 2007 closure of the trail to motorized
vehicles on evidence that the illegally constructed ORV trail and subsequent ORV use
was damaging the canyon's prehistoric cultural resources.
Commissioner Lyman broke the law. He ought to be punished for it... Commissioner
Lyman and his anti-federal government pals are not freedom fighters, they are
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lawbreakers that demonstrated a complete lack of respect for cultural heritage and
values ... The BLM, the Interior Department, and the U.S. Department of Justice must
land on Commissioner Lyman and his armed gang like a ton of bricks ... Granting a rightof-way to the county for the illegally constructed trail would send a clear message that
vandalism, illegal trail construction, and other unlawful behavior will be rewarded; it
would open the floodgates for more illegal construction and vandalism to archaeological
resources on public lands. There is no certainty that the lunatic fringe will learn anything
from vigorous prosecution. But it is certain that tepidity will only embolden them. That is
how bullies think. That is how bullies behave.
This is egregious language, hateful in tone and full of erroneous conclusions

and assumptions from people who clearly have no interest in the history of my
community or the genuine efforts of local residents to simply be considered in
decisions that affect them a thousand times more than they will ever affect Steve
Bloch, of SUWA. Certainly I take issue with SUWA's characterization of the
events surrounding the Recapture Protest, but I had no idea that Judge Shelby and
the U.S. Attorneys were wrapped up in this same pool of misinformation and
malignant vilification.
III. REPLY TO ARGUMENT THAT STATUS OF THE ROAD EASEMENT IS
IMMATERIAL TO A CHARGE OF TRESPASS.
When a person is charged with trespass, of course the ownership of the road
on which the alleged crime occurred is material. For purposes of replying
specifically to this argument by the U.S. Attorneys, it does not really matter
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whether the road was an R.S. 2477 road or a BLM Title V road, or a pipeline
maintenance road. Yet again the tactic for barring a defense was to use the various
rights-of-way as a shell game. "No you can't argue R.S 2477 because you lack
standing." "No you can't argue a pipeline maintenance road, because you didn't
have a shovel."" No you can't argue a road under Title V, because the Title V
grant does not authorize the construction of a road." Or, my favorite- "The road on
which we drove was illegally constructed in 2005 by Ken Brown and Dustin
Felstead," (two men who were accused of illegal trail construction in 2007, and
investigated and prosecuted before pleading to a lesser charge).
I believe I have beat this horse near to death, but only because it is
important, hopefully it has been adequately addressed; and space does not permit
superfluous elaboration. A short quote from Judge McConnell: "To say that the
County's claims are preempted until they are proven is to presume, without proof,
that none are valid. That defeats the point of vested property rights." (The
wilderness Society and Southern Utah Wilderness Alliance v Kane County 2009,
McConnell Dissenting, Pg 30). Neither the BLM nor any other federal agency has
argued that the road on which we traveled was not an R.S. 2477 road. The
government even states that "only a government entity has standing to claim that
an R.S. 2477 right-of-way exists in a particular location." (U.S. Consolidated
Brief Page 38). The County has included the road on its travel plan. The State has
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claimed the entirety of the road in its R.S. 2477 lawsuit. Even the BLM referred to
the road as an R.S. 2477 road in their 1979 Title V Right-of-way grant U-42412.
Brief History of the Road segment which begins at Recapture Dam and runs
down Recapture Canyon about 2.9 miles to the point where the pipeline exits
the canyon:
Recapture Canyon is a 37 mile long canyon that runs from Blue Mountain
on the North to the San Juan River on the South. It passes by the City of Blanding
Utah, San Juan County's largest community, running about 1 mile east of town. On
September 13, 2007, the BLM imposed a temporary travel restriction on an area
within Recapture Canyon about eight (8) miles in length.
The demonstration on May 10, 2014 was not in relation to the validity of the
closure. Had that been the contention, people likely would not have turned around
when they reached the end of the maintained county road (Road D5314 ). Yes this
road enters the area of the Travel Restriction but is specifically excepted from the
closure for permitted use. The road is regularly maintained by the County and/or
the water conservancy district. If there is a controversial segment of road in this
case, it is the .9 mile segment of this county road that is within the travel
restriction area.
I contended and still contend that this segment of the road is not closed. I
have traveled this segment of road many times since the demonstration in my
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pickup. But, because this segment of road seems to be surrounded with ambiguity
and misinformation, I felt it prudent to confirm with Juan Palma, State BLM
Director, whether or not we would be safe to travel to the end of this maintained
road as part of our demonstration. This segment of road was regularly traveled by
ATVs, OHVs, UTVs, full-sized vehicles, trackhoes, backhoes, dump trucks, bull
dozers, mountain bikes and the like. These vehicles travel this route legally, not
because it is part of the Title V Right of Way granted to the San Juan County
Water Conservancy District for the construction of the pipeline, but because it is a
County road.
In 1979 the San Juan County Water Conservancy District applied for a Right
of Way with the BLM to construct a Reservoir. On May 22, 1981, the application
was granted and the following language was included:
21
Document: 01019687895
I.
Description of the Proposed Lands Actfons
A.
Right-of-way
App11c~t1on
Page: 24
Number U-42412
February 15, 1979, San Juan water Conservancy District, 8land1ng,

Utah 84511, filed R1ghtof-way Application Number U-42412, requesting
a site for construction of a dam and reservoir. The proposal,
known as the Recapture Dam, is to construct a dam across Recapture
Creek in T. 36 s R. 23 E Section 18: ~. This dam would
create a reservoir of water covering, at high water line of 6,080
feet approximately 270 acres 1n T. 36 s R. 23 E Sections 7 and
18; T. 36 s. R. 22 E Sections 12 and 13. The Recapture project
is part of a plan known as the Blanding Project, for storage and
use of water in San Juan COunty, Utah.
On
The application was f11ed per authority of Title V of the Federal

land Policy and Management Act of October 21, 1976 (90 Stat. 2776;
43 u.s.c. 1761) and regulations of 43 CFR Part 2800.
B.
Right-of-way Application Number U-45937

On May 15. 1980, Utah Department of Transportation, Salt lake Ctty,
Utah 84114, filed R1ght-of.way Application Number U-45937, requesting
use of land for construction of a public highway. The highway
would be a re-alignment of the present Htghway u.S.-163, with the
right-of-way proposed to bt 600 feet wide (300 feet on each side of
the centerline) and 3.034 miles in length. 8LH administered public
lands over whfch the highway would pass are: T, 36 s., R. 22 E.,
Section 13; T. 36 s., R. 23 E., Sect1ons 6, 7, and 18 for a total
of 220.63 acres. The highway would pass over the top of the dam
proposed for construction fn T. 36 S., R. 23 E Section 18, per
right-of-way app11cat1on number U-42412.
Under "Land Status" the grant laid out the various ownership interests of the area
being considered as follows:
I II Si te Data
A.
lands Status
Both surface and mineral estates of the public lands to be occupied
by the proposed projects are federally owned.
The portions of master title plats forT. 36 s. R. 22 E. and T.
36 S., R. 23 E. located in addenda of this report show locations of
rights-of-way for power lines and the present Highway U.S.-163,
and small tract leases, in relation to the locations of proposed
projects.
22
Document: 01019687895
Page: 25
locations of county roads in relation to the proposed projects is

not shown on the plats, since the roads were built per authority of
repealed R.S. 2477. The location of county roads in the area are
shown on the portion of topographic map depicting the dam and
reservoir site (in addenda).
Utah Power and light Company has a valid right-of-way (number
U-054148) for a powerline to supply power to the sawmil operation
in T. 36 s., R. 22 E., Section 12: SE~ (Small Tract leases U-037939
through U037946, which leases expire July 31, 1981). However, the
sawmill has not been operated for at least five years, and the
powerline constructed per authority of right-of-way Number U-054148
has been removed. BlM will not renew the leases and terms of the
leases require removal of the facilities and restoration of the
area.
The entire project area is included in oil and gas leases which are
"open end" (without special stipulations attached thereto).
There is no uranium mining activity in the immediate vicinity of
the appltcaiton sites. However, the area is blanketed with mining
claims. (Refer to minerals report prepared by Jeff Williams, Moab
District Geologist.)
This is not to prove or disprove the legality of the travel restriction order
which the BLM put in place but to put in its proper context. Above, we have a
listing of valid existing ownership rights including (in order listed above:
1. Federal ownership of both surface and mineral estates.
2. Power Line rights of way.
3. Highway rights of way for Highway U.S.-163
4. County roads in relation to the proposed project - noting that "since the
roads were built per authority of repealed R.S. 2477. And also noting that
the "location of county roads in the area are shown on the portion of the
topographic map depicting the dam and the reservoir site (in addenda)."
5. An additional power line right of way, which had been abandoned.
23
Document: 01019687895
Page: 26
6. Other "Small Tract Leases."

7. Oil and gas leases which are "open end."
8. Mining claims, stating: "the area is blanketed with mining claims."
In a letter to the BLM then State Historic Preservation wrote the following:
And the U-42412 Right of way grant included the following explanation of access
being on county roads.
2.
Existing access to the right-of-way will be used and no new access

will be constructed without approval of the authorized officer.
Blading of existing access must also be approved by the authorized
officer, or if on county roads, approved by San Juan County.
On September 30, 1985, ROW U-42412 was amended, "subject to all existing
terms and conditions of the original grant." Here is a clip from that amendment:
Amendment
Approve~
Ten1porary Usa Permit Granted

The San Juan l.fater Conservancy District. by application dated September 30.
1985, has filed to amend right-of-way U-42412 for Recapture tlar.~, to includs a
water transportation pipeline from the dam into the agricultural lands near
Blanding. Utah, across the followtng described lands:
Also the following:
24
Document: 01019687895
Page: 27
III.FINDING OF NO SIGNIFICANT IMPACT

Based on the analysis of potential environmental impacts contained in this
Environmental Assessment, I have determined that impacts are not expected
to be significant. Therefore an Environmental Impact Statement is not
required.
And this statement:
5.
Only the existing road, except those portions closed by Preconstruction

stipulation 2(C), or the pipeline route will serve as access. No
construction will be allowed outside the right-of-way or on the existing
road without approval of the authorized officer.
And this statement:
PUBLIC INTEREST AND INDIVIDUALS AND AGENCIES CONSULTED

This is continuation of the Recapture Dam project that has a great deal of
positive public interest because the pipeline is providing a permanent
agricultural water supplies.
The following map was included with the amended ROW application plotting the
location of the proposed pipeline. Marked in red is the section of pipeline that cuts
up and out of the canyon. At that point, the road turns to the Southeast and the
pipeline turns to the Southwest The road to that point is well-used and wellmaintained.
End of the
maintained road
25
Document: 01019687895
Page: 28
Contrary to what the prosecution claimed, the county road provides access to the
pipeline, not the other way around. It is the existence of a road, acknowledged by
the BLM, on which this case rests. This is not splitting hairs. This is not grasping at
straws. These are not "vignettes," or "Straw-Man arguments". This is not an
attempt to mislead. The prosecution's story, however, is based on nothing but wild
allegations of criminal intent and criminal action. It is appalling to anyone who is
familiar with Recapture Canyon, including the roughly 230 people who drove to
the end of the maintained road, stopped their vehicles, then turned around and left
the canyon the same way they came in. District Judge, David Nuffer's claim that
riders would logically drive south from that point to return to the park only
demonstrates how unfamiliar he is with the canyon. An experienced rider could
make the trip, but it would take three to four times longer than returning to town on
the maintained road. I did not observe a single rider who took that route, and I do
not believe the BLM reports of riders taking that route. With four trail cameras set
up, and claiming 35 riders went that route, they should have at least 140 images of
riders in the canyon, yet they were not able to produce even one image from those
cameras. The only photos they had were of people on the road. There is a trail that
goes along the top of Recapture Canyon, outside the travel restriction area, which
ends at the gravel pit near what the BLM is calling the Browns Canyon exit. If they
put a camera up in this vicinity, it may have indicated the presence of ATVs but
26
Document: 01019687895
Page: 29
those machines would not have come from within the travel restricted area but
from the trail that is wholly outside the travel restricted area.
IV. REPLY TO ARGUMENT THAT RESTITUTION IN THE AMOUNT OF
$95,955.61 WAS APPROPRIATE.
Just this week the BLM released their Environmental Assessment on

Recapture Canyon. They list 6 alternatives. Alternative A makes no changes to the
road and no changes to the trail. Alternative B is similar; it makes no changes to
the road, and several realignments to the trail, but is in all other respects quite
similar to Alternative A. The other four alternatives only address the ATV trail.
None of the alternatives suggest making changes to the road on which the protest
occurred - no realignments, no padding over sites, etc. Why? Because that road has
been in place for a century, has been constructed and used by heavy equipment etc.
It has undergone archaeological clearances for many different easements, all with a
finding of no significant effect to cultural resources. The damage report produced

by the BLM was an attempt to create an appearance of damage when no damage
existed. The fact that they spent $65,000 for the report is only more evidence of
mismanagement. The so-called trail damage which they document in their study
was not a result of any activity which took place on May 10, 2014. The emergency
stabilization work for which they paid another $30,000 was done on sites that they
27
Document: 01019687895
Page: 30
identified as needing that same attention in 2007 but which they had neglected to
perform.
The initial claim of the BLM was that there was in excess of$300,000 worth
of damage done by me. I hired an independent archaeological firm to assess the
damage and when they reported that there was no damage done, and that the
BLM's claim of damages was spurious, the BLM dropped all but the actual cost
which they had expended. To commission an assessment which fails completely to
support the claims it alleges, should negate the report, both its cost and its findings.
CONCLUSION:
I.
Judge Shelby's decision to recuse was made after my motion for a new trial.
The recusal was an admission of impartiality, which admission came not
only after our motion for a new trial, but after a conviction was obtained
with this impartial Judge presiding. Had he made a disclosure, as he felt
compelled to do three weeks later in a separate case, we would not be in this
unpleasant situation.
II.
While there are roads in Recapture Canyon which are closed, there are other
which are open. The small segment of road on which any controversy may
have existed was cleared for use for the purposes of our protest by the State
BLM Director, the Water Conservancy District, the owner of the mineral
28
Document: 01019687895
Page: 31
rights, and the owner of the cattle permits. It is a section of road that the
County maintains as part of our travel plan. In relation to the County, I am
not a bystander, I am an elected County Commissioner. So even though I
believed that I did not need permission to drive on my own county road, as a
precaution given the penchant for prosecution by the BLM, I confirmed with
every possible interest holder that they were OK with the protest on that
maintained county road. Mr. Palma said it would be wonderful.
III.
It is not the status as an R.S. 2477 right of way that is important in this
context, but the fact that there is a road which is permitted and used. For
whatever the reason the BLM has left the status of this road up in the air.
They have not challenged the R.S. 2477 status, and in fact it was the BLM's
disclosure of the maps and documents germane to the Title V Right-of-way,
after the fact and after trial, that confirmed that the BLM themselves had
identified the road as an R.S. 2477 road. Since the government has not
identified the authority for that segment of road that runs from Recapture
Dam to the point where the Water Conservancy Pipeline leaves the canyon,
and since the State ofUtah and San Juan County hold that it is an R.S. 2477
road, the government must either concur that the road is in fact an R.S. 2477
road or identify what it is; or simply continue to leave things in a mess. One
29
Document: 01019687895
Page: 32
thing is certain - the road exists and is maintained and traveled on a regular
basis.
IV.
Restitution is contingent on the determination of the above factual

arguments. While I believe the method used in arriving at the restitution
lacks foundation, it is a secondary consideration and I am more concerned
with the above facts than I am with the secondary consideration of damages,
especially when the report on which the damages is based has already been
shown to be politically motivated and technically flawed.
The facts and circumstances of this case are somewhat unusual. Given the
points laid out in my original brief, the Tenth Circuit has sufficient information to
overturn the District Court and vacate my conviction. Had Judge Shelby not
recused I would gladly accept the trial verdict even though I know that it fell short
of finding the truth. My hope in this appeal is that the Tenth Circuit will see the
errors in my trial proceedings and overturn my conviction in its entirety.
Respectfully,
Phillip Kay L m - Filing Pro-Se

1401 North B
ountain Road
Blanding, UT 84511
Telephone 435-459-2800
Email - phil@lymancpa.com
30
Document: 01019687895
Page: 33
'Recaptured'
By Phil Lyman
For the Deseret News
Published: April II, 2014 12:00 a.m.
Comments
1 of1
1 of 1
But!l:'r Ruim lli!ur Blu11din
r,
l!tuh
''The same soil is good for men and for trees. A town is saved, not more by
the righteous men in it, than by the woods and swamps that surround it. A
township where one primitive forest waves above, while another primitive
forest rots below- such a town is fitted to raise not only corn and potatoes,
Document: 01019687895
Page: 34
but poets and philosophers for the coming ages. In such a soil grew Homer
and Confucius and the rest, and out of such a wilderness comes the reformer
eating locusts and wild honey."- Henry David Thoreau
As kids growing up in Blanding, Utah, my friends and I spent a lot of time
hiking the canyons that surrounded our hometown. As fourth- and fifthgraders, our main concern was getting out of school and finishing our chores
early enough so we still had time to hike to a suitable camping spot before
dark.
It seems we too often fail to treasure what we have in the moment, only to
realize later that it was more important than we thought. It was not long
before our attention turned to football or girls. Whatever the distraction, we
spent less time in the canyons and more time pursuing other ambitions.
Today, Recapture Canyon, the wild frontier of my childhood, carries a
different emotional tone. One rep011er called Recapture Canyon, ''a signature
event in the war over public lands." Really? Is that what Recapture is? A
symbol of conflict? The contemplation of that reality creates in me a deep
sadness, and resolve, that is hard to put into words.
In July 2007, the Bureau of Land Management did an emergency closure of
Recapture Canyon. With 8,000 square miles in San Juan County to choose
from, they chose a canyon a quarter of a mile wide and 11 miles long, which
sits within spitting distance of Blanding. The reason the BLM gave for the
closure was illegal trail construction.
Recapture, once alive and mysterious, now feels restricted and subdued.
Where, once, you felt that you were treading on sacred ground as you started
your decent into this canyon, you now find BLM closure signs. The trails
Document: 01019687895
Page: 35
have tree limbs and rocks dragged onto them by self-proclaimed ''Site
Stewards" who have taken responsibility to "protect" these ''treasured
landscapes."
The trail maintenance that was done was not construction, nor was it illegal.
This canyon was designated as "open access" at the time, and motorized
travel was 100 percent permissible. The trail was one of the many trails in the
canyon that had been used for decades. Some of the trails had probably been
used since the Anasazis occupied the canyon. A 100-plus-year-old pioneer
wagon road once stretched from the San Juan River on the south to the base
of Blue Mountain on the nmih, following the creek the entire length of
Recapture Canyon. There are still active grazing permits for Recapture. Until
a few years ago, there was an active gold mine in the canyon. As you explore
the canyon, evidence of old structures and side roads are everywhere.
The trail maintenance done by two local citizens and friends of mine, Ken
and Dustin, was met with robust punishment by the BLM. They were
charged, then, with no legal counsel and under threat of imprisonment, and
with the promise of minimal action from the BLM, they pled guilty to lesser
misdemeanor charges. When they were fined $35,000, they were shocked and
confounded.
In 2012, I invited the BLM and the community to "walk" the Recapture Trail
and see the alleged "damages" firsthand. We had a nice hike, but no one was
able to point to damages caused by the existence of the trail or the work done
by Ken and Dustin. (Incidentally, San Juan County maintains that removing
overgrown limbs, shoring up cribbing, and other routine maintenance action
is within its jurisdiction on existing trails, routes and roads. In this instance,
the BLM overstepped its authority.)
Document: 01019687895
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In August of2012, I invited the BLM's state director to come and walk the
trail. He graciously did so. After a hot but pleasant morning in Recapture, we
visited with Ken and Dustin. Dustin said, "I would still like to know what I
did; what was the damage that they claimed I did; I have never even been
told." That is the story of Recapture: Taking something special and using it as
leverage over those who value it most. It is a ploy at least as old as King
Solomon.
Thomas Paine said, "It is not a field of a few acres of ground, but a cause,
that we are defending, and whether we defeat the enemy in one battle, or by
degrees, the consequences will be the same." On May 8, 2014, we are
planning another excursion into Recapture. This time we are inviting all who
would like to join us. Come and see for yourself; I think you will agree that
the real damage is the debris in the trail, the barricades blocking access and
the warning signs placed at every tum.
I was trying to think of a good name for this May 8th event. As I write this
article and think about happier times, the name that seems to fit best is
simply, "Recapture."
Phil Lyman is a San Juan County commissioner.
Document: 01019687895
Page: 37
RECAPTURE CANYO:ti AREA TRAVEL RESTRICTIONS

Under the Code of Federal Regulations 43 (C.P.R.) 8341.2, BLM has the authority to
close an area to motorized recreational use, including Off-Highway Vehicle (OHV) use,
when it concludes that the use is causin& or is threatening to cause, considerable adverse
effects to resources, including cultural resources.
Based on the damage to the cultural resources in the Recapture Canyon area resulting
from OHV use, which BLM personnel have observed and documented, and the likelihood
of continuing damage from OHV use, it is appropriate to use this authority to close
portions of the Recapture Canyon area to OHV use. Therefore, it is my decision to close
portions of the Recapture Canyon area, as depicted on the adjacent map, tomotorized
recreational use, including OHV use. This closure is effective September 13, 2007.
This closure order is not int ded to be a _permanent order and it does not change the
designation in the 1991 S Juan Resource Management Plan (RMP) that the lands
including the Recapture C yon area are "open" to cross-country motorized usc.
However, pursuant to 43 C.F R. 8341.2, the area shall be closed to OHV use until the
considerable adverse effects eading to the closure have been eliminated and measures
have been implemented to pr ent recurrence.
The routes depicted in the cl sed section of the adjacent map are now officially "closed".
to motorized recreational us except for permitted and/or administrative use. !he areas
and routes outside of the cl sure area remain "open" to all types of recreational use,
including mo
. :::e=
'1-13-07
Date
For more infonnation, pl

Bureau of Land Managemen
Monticello Field Office
365 North Main Street
P.O. Box 7
Monticello, UT 84535
(435) 587-1500
I I
Document: 01019687895
Page: 38
PHONE CONVERSATION BETWEEN JUAN PALMA

AND PHILIP LYMAN
TRANSCRIPTION OF ELECTRONICALLY RECORDED

TELEPHONE CONVERSATION
HELD MAY 1, 2014
* * *
RENEE L. STACY
Registered Professional Reporter
Certified Realtime Reporter
Document: 01019687895
Page: 39
May 1, 2014
2
3
(Phone ringing.)
JUAN:
BLM.
This is Juan.
PHIL:
Juan,
this is Phil.
JUAN:
Hey,
PHIL:
Sorry I
JUAN:
No,
Phil,
good morning.
(inaudible)
that's okay.
tried to call.
(Inaudible)
tied
up on stuff.
10
PHIL:
Yeah.
11
JUAN:
Hey,
It's busy.
listen,
12
said that we just
13
can work things out or not, but I thought I'd check
14
in with you and just see how-- if there's anything
15
that I can do and -- but I wanted to respond to your
16
question,
17
me a couple days ago, which was did we release that
18
letter to the media,
and I checked with everybody
19
inside of my office,
and none of us did,
20
know where they got that
21
PHIL:
Phil,
(inaudible)
I -- you and I always

and I don't know if we
that you asked me when you talked to
All I -- all I know,
22
Lance says,
23
county,
24
he hands it to me and I come -- and I
25
I get back to my office,
so I don't
Juan,
is when
in a face-to-face meeting with the
"This is a letter.
RENEE
L.
It's from me to you," and

by the time
I've got a phone call saying
STACY,
(801)
CSR,
328-1188
RPR
2
Document: 01019687895
Page: 40
they've seen the letter,
and I pull it up and it's
that letter -- I mean,
stamp on
I mean,
like the
it's not like the Attorney General's
Office letter.
and it's -- and I mean,
that's -- it doesn't matter.
It's a public document.
I could get it to you if I
want to do a FOIA request.
on a
the exact letter with the date
it's Lance's letter.
It's not
It's got Lance's stamp on it and
If I was on a -- if I was
on the mailing list for things at the BLM,
10
then they would send it to me,
11
Greenwire,
12
kind of privilege.
13
opposite sides of the fence on this,
14
the part that's like -- I don't understand how BLM
15
and Greenwire,
16
(inaudible}, all these people are on the opposite
17
side of the fence and the county has to take -- take
18
a defensive posture against not only all those groups
19
but their own -- their own federal agency as well.
20
It's mind boggling.
but -- but the counties don't get that
JUAN:
21
like they did to
We --we're --we're on the

Juan,
the environmentalists,
and that's
the
But let me ask you this,
22
not so sure that we're on opposite sides.
23
you may feel very strongly that we are,
24
certainly,
25
that way and-- but we're not.
Phil.
I'm
I mean,
and,
that's -- you have every right to feel
RENEE
L.
STACY,
(801)
In fact,
CSR,
328-1188
we,
the BLM,
RPR
Document: 01019687895
Page: 41
are in the process of processing it right away,
we are looking at all sides,
sides with anybody at this point in time.

PHIL:
Well,
and
so we haven't taken any
you should take a side.
You
should take a side.
talked to the county and the county doesn't want
this.
historical significance to people who live in
Blanding, and we've already" -- "we've already harmed
You should say,
"No.
We've
They value that trail for its cultural,
10
that community by the raids we did in 2009 that
11
resulted in loss of life,
12
side on this.
13
opening the trail."
and we are going to take a
This is the right thing to do.
We're
That should be the decision that comes out
14
If BLM wanted to do the right thing,
15
today.
16
would say,
17
that trail.
18
enough."
"Enough of this nonsense.

This is ridiculous,
We're opening
and enough is
But -- so you should take a side.

JUAN:
19
they
Phil,
is,
And,
you know,
you know,
the side that we
20
take,
the laws that we have.
We
21
have our NEPA process that we have to comply with.
22
You know, we have all of the other laws that we have
23
to comply with,
24
taking,
25
following through with those steps.
and that's the side that we're
is we've got to stay on that track of
RENEE
L.
STACY,
(801)
CSR,
328-1188
And that's
RPR
Document: 01019687895
that's where we are,
Page: 42
so --
PHIL:
Uh-huh.
JUAN:
At the end of the day,
you know,
we'll look at all the facts,
arrive at a decision for the proposed right-of-way.
PHIL:
at the end of the decade?
JUAN:
all the information,
and
Did you say at the end of the day or
No,
not the end of the decade, but,
you know, we are proposing --
10
PHIL:
(Inaudible)
years now,
11
JUAN:
I realize that,
so --
Phil, but,
you know,
12
what we've got is that -- we are so close to
13
releasing our draft environmental impact -- draft
14
environmental assessment.
15
PHIL:
Uh-huh.
16
JUAN:
And that -- we're going to stay on
17
that course.
18
regardless.
I mean, we're staying on that course,
19
PHIL:
Right.
20
JUAN:
Because that's what the county has
You know,
the county has not asked us to
21
requested.
22
cancel the right-of-way,
23
24
25
PHIL:
so we're going to proceed
I asked them, but Bruce refused
to -- refused to do it,
JUAN:
so
Uh-huh.
RENEE
L.
STACY,
(801)
CSR,
328-1188
RPR
Document: 01019687895
PHIL:
Yeah.
Page: 43
So -- so Bruce -- Bruce
will -- Bruce will end up suffering the repercussions
of that from local people as well,

JUAN:
4
5
mean,
Well,
I don't know.
so
I hope not.
I mean,
that -- I
It's up to you guys, but that --
PHIL:
Uh-huh.
JUAN:
I would hope that somewhere inside
of all of us,
us
and I'm convinced of that,
you know,
it's -- it's not about being angry or
10
about any of that stuff.
11
know,
12
and it -- no matter who we are,
13
I think,
14
matter what it is,
15
dominant force inside of our hearts,
16
hope that
It's about having,
you
lots of room in our heart to love one another,

and that ought to be,
the dominant force inside of our hearts,
coming from you,
no
and that anger wouldn't be the
Juan,
PHIL:
17
18
that all of
Phil.
And so I
that -- I -- I believe that,
and --
19
JUAN:
It's true.
20
PHIL:
Every -- everything that I do here
is purely motivated by my affinity for the
21
is
22
people and the culture of Blanding.
23
This is where I live.
24
raided.
25
painted out by hateful people, and it's BLM that's
This is my town.
These are my friends that were
These are my -- my friends that are being
RENEE
L.
STACY,
(801)
CSR,
328-1188
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Document: 01019687895
Page: 44
capitulating through the hateful groups,
are,
you know,
groups -- and they're hateful themselves.
I've -- I've been on the other side of the fence from
Dan Love.
disdain that he holds for -- for the regular citizen.
I've witnessed it,
and it's happening right and left,
and they
and -- and,
if BLM wants to continue to pander to those
I can see the -- you know,
You know,
the
so
JUAN:
Yeah.
10
PHIL:
-- I mean,
don't -- don't -- don't
11
think that by saying those words,
12
have the higher ground,
13
terms of my respect and love for this area and these
14
people and this cause that I'm-- that I'm engaged
15
in.
16
because I can trump you in
You know,
JUAN:
Uh-huh.
Phil.
You know what?
17
the past,
18
happened at those times,
19
can only change the future,
20
past I cannot change.
21
PHIL:
that somehow you
I can't change
I don't know what
but I cannot change that.
You know,
but I -- you know,
the
your -- your comments back
22
to me basically trying to turn this into a racial
23
thing are -- are extremely offensive.
24
notion that -- that somehow we -- by -- by wanting to
25
use the pioneer trail that our grandparents and our
RENEE
L.
STACY,
(801)
CSR,
328-1188
The -- the
RPR
Document: 01019687895
Page: 45
great grandparents and our great-great grandparents
have used for over a century is a racist,
inconsiderate motion on our part.
words that come, even though you say that it's with
the -- you know,
I understand the tears of a mother for a child.
have ancestors,
people in inconvenient locations,
things.
10
Those are hateful
the tears of a mother for a child.
too.
I have people that buried

all of these
We respect those things.

But to pull that out and use that as some
11
kind of an argument for BLM to exercise coercion and
12
control and not listen to county people is to decode
13
the whole argument into something that it is not even
14
remotely connected to.
15
hurts -- it hurts -- it hurts my trust level for you
16
and -- anyway ...

JUAN:
17
Phil.
19
is that -- you know --
21
22
23
You know, my question to you
None whatsoever.
PHIL:
sent to me?
It
Phil -- there's no coercion here,
18
20
And it bothers me.
Did you read the letter that you
Tell me that's not coercion.
JUAN:
Phil, we have certain laws,
Phil,
and we have to comply with them.
24
PHIL:
Uh-huh.
25
JUAN:
The B- -- you know,
RENEE
L.
STACY,
(801)
CSR,
328-1188
certainly we
RPR
I I
Document: 01019687895
have a democracy that -- it is a represented
democracy that -PHIL:
and yeah,
It's a Republican states or states,
it's a -- it's a republic.

And I can't -- you know,
JUAN:
change that.
to change that.
can make the case --
I can't
It's not within my domain and my power

Certainly our representatives can --
PHIL:
Page: 46
And the people -- and the
Right.
10
people have the right to gather and to protest,
11
and --
12
JUAN:
Right.
13
PHIL:
-- that's all we're doing.
14
you're doing your thing,
15
we'll continue to do that.
16
have a problem with that.
17
JUAN:
Yeah.
So
we're doing our thing,
and
That's not a -- I don't
Exactly.
So,
from our side,
18
you know,
19
expression.
20
there anything that I can do?
21
we,
22
out and break this closure order that's out there?
23
Is there -- what can we do from our side?
I mean,
the only thing that I -- is

Is there anything that
the BLM, can do so that people don't really go
Well,
PHIL:
24
25
there's not a problem with -- with that
think,
you know,
I think you've done it.
the threats -- the threats are
RENEE
L.
STACY,
(801)
CSR,
328-1188
RPR
Document: 01019687895
Page: 47
probably as much as you can do to dissuade people
from doing that.
want to arrest people,
before they go down the trail.
But the threats are there,
effective.
Unless you want to -- unless you

you know,
You can do that,
too.
and I think they're very
I think people are reluctant to go down.

My biggest
before they --
my biggest dissuasion from
going down the trail is the -- is the overgrowth of
willows on the north end.
It would be hard on -- on
10
a piece of equipment to -- to go through there,
you
11
know,
12
application,
13
I don't have support from -- from Bruce to do that,
14
not because he wouldn't like to see it done,
15
because he'd like to see me,
16
and in trouble with BLM and any other federal agency,
17
and that's his -- that's his prerogative.
18
your problem.
19
So,
so I wanted to withdraw the right-of-way

take the Trailcat down and fix that,
you know,
you know,
but
but
get crosswise
That's not
I -- I doubt that you're
20
going to have four-wheelers on that -- on that closed
21
portion of the trail on Saturday.
22
do,
23
decision.
24
there.
25
herd every one of his cows up through there and --
If they -- if they
they'll just -- I guess that's going to be their

You probably have a bunch of horses down
If I had my way,
RENEE
L.
I'd have every cattleman
STACY
(801)
CSR,
328-1188
RPR
1 0
I I
Document: 01019687895
just to show that,
think that a hundred horses will do less damage than
one person rolling along on soft rubber tires across
that terrain?
honestly,
do you really
The whole thing is just -- it's just mind
boggling that
against ATV use.
the arguments that -- that --
You know,
you know,
Page: 48
Heidi Rudd,
I was in a meeting yesterday with
and she said,
"I have never dealt with a
10
group as respectful and polite and courteous as the
11
ATV users.
12
with."
13
this strange closure that says "Anyone can come in
14
here and do anything they want, unless they're on an
15
ATV," and then-- you know,
16
of the picture.
17
don't -- I don't care about ATV use, but
They are the best people I've ever dealt
That's the truth of it.
But you guys have
then you're somehow out
And I don't even own an ATV,
so I
18
JUAN:
Uh-huh,
19
PHIL:
But it's a -- it's a -- just -- it's
20
a silly,
ridiculous position for the BLM to take.

JUAN:
21
uh-huh.
Uh-huh.
Well,
let me tell you,
22
Phil,
that from the BLM side, we intend to continue
23
to process the right-of-way application from the
24
county,
25
(inaudible) .
and we're going to keep that course

The -- that's my commitment that we
RENEE
L.
STACY,
(801)
CSR,
328-1188
RPR
1 1
,j
Document: 01019687895
you know,
Page: 49
made,
I would absolutely agree with you that it has taken
too long.
none of them are good.
that we are where we are,
is that I am talking to our staff.
everything we can.
environmental assessment
to have controversy over that.
10
and,
we put some time and energy,
and
There's probably a thousand excuses why

And the fact of the matter is
and -- and all I can commit
We are doing
We are going to come up with the

(inaudible).
We are going
I have no question
about that.
We,
11
the BLM, are going to follow our
12
process,
and at the end of the day,
13
decision,
14
the information that we have.
it will be based on all the facts and all
And I can see,
15
when we make the
Phil,
you know,
your
16
proposal to do what you're doing on the -- what
17
you're proposing to do on the lOth.
18
BLM came out with a decision that was not -- not what
19
the county wanted -- I mean,
20
point in time,
21
and you say,
22
am really protesting that decision" -- I mean,
23
see that in my mind when we arrive at that.
the BLM,
you know,
indeed,
I can see if,
my mind,
came up with a decision
"That's a crazy decision.
Phil, at least from that perspective,
RENEE
L.
STACY,
(801)
the
at that
CSR,
328-1188
I can
But because we haven't arrived at that,
24
25
we,
If,
in
just
RPR
12
.1
Document: 01019687895
Page: 50
from the perspective of the trail -- I'm not talking
about the State's rights,
whole different domain, but I don't have any control
over that.
Trail,
several trails that we're proposing,
see where -- where this event would be one that would
be -- yeah.
decision that we thought they were protesting that,
federal rights.
That's a
But in terms of just to recapture Canyon
and that's just one of them,
I mean,
and there's
I mean,
I can
the BLM did not make the
10
but to do it now,
in my mind,
Phil,
is a little
11
premature,
12
you said,
13
have the right to -- to protest and to do all those
14
things at any point in time, but that's just my
15
thought.
but that's just my opinion.
I mean,
you're certainly absolutely-- you know,
We haven't come up with a decision.
16
like
We
17
will soon,
18
not for the county,
19
you would be upset about that.
20
you is that we're going to speed this process as fast
21
as we can without violating our own processes.
22
and if the decision at the other end was
PHIL:
then I can see where,
Well,
you know,
And all I can tell
and that's -- that's -- that's
23
my-- that's my argument for withdrawing the
24
right-of-way and just claiming it,
25
it's been there and it's -- and it belongs to -- you
RENEE
L. STACY, CSR,
(801) 328-1188
because it's
RPR
1 3
Document: 01019687895
know,
those roads belong to the county.
that's been pretty well established.
Page: 51
That's --
Now,
whether we could win this in an
RS-2477 claim,
would win.
we -- we -- we won in Salt Creek with all of the
evidence, everything that's there,
judge with an activist,
working for Green Peace,
I doubt it.
That's -- I doubt we
And the reason I say that is because
you know,
and yet a federal

daughter who's out
or whoever else,
you know,
10
an activist judge makes the decision,
11
no -- I have no faith in the federal courts,
12
But -Well,
JUAN:
13
14
mean,
Phil,
15
you know,
come on,
and so I have
either.
You know,
Phil.
the reason the country of laws fail and,
the -And I think you
A country of laws.
16
PHIL:
17
read my response to that.
18
that the people prevent the abuses of others,
19
especially governments.
20
law where governments rule by force,
21
where's the love and kindness and persuasion and long
22
suffering in maintaining your power?
23
You have only coercion.
24
by law to do what you do,
25
no support,
Rule of law is the way
We -- we live in a nation by
and,
It's not there.
Only coercion and the rule

and there's no -- there's
and if there -- if there is,
RENEE
L.
you know,
STACY,
(801)
CSR,
328-1188
it's
RPR
14
I I
Document: 01019687895
Page: 52
dwindling rapidly, because it's counterfeit, because
it's disingenuous.
not serving people.
serving special interests,
see it,
unpleasant path until something
snaps.
It's serving government and

and I see it,
other people
and I think we're going to continue down that

till something
And if there's ever a community that has
It's -- it's not serving -- it's
the right to that perspective,
it's Blanding, Utah,
10
because we've experienced it repeatedly,
11
abusive and it's insulting and

You know,
12
Juan,
and it's
I've got a kid in med
I've got --my other kids are 4.0 students.
13
school.
14
They work hard.
15
to.
16
There's no -- there's no Walmart.
17
is a place where people live because they're
18
connected to it.
19
and erase a trail and say,
20
recapture.
21
constructed by your friends,
22
them $35,000."
23
don't think you even -- I don't think it even starts
24
to register how deeply insulting it is.
25
it did,
They do everything they're supposed
We're down here in Blanding.
"No,
There's no mall.
This is a -- this
And the BLM thinks they can come in

"There is no trail," and
that doesn't exist.
No,
that was
and we're going to fine

the whole notion is -- I
The whole
If it -- if
you wouldn't write an article back about,
RENEE
L.
STACY,
(801)
CSR,
328-1188
you
RPR
15
Document: 01019687895
know,
tears.
That's also part of my heritage here.
what I'm connected to.
situation to be in this position,
who loves America,
own federal agencies and governments.
have thought I'd be in this spot.
Page: 53
an Anasazi mother burying her daughter with

It's like -- I know that.
JUAN:
I understand that.
That's also
It seems -- it's just an odd

for me,
a person
to be in this position with their
You know what?
I would never
And I appreciate it,
10
Phil.
11
love for this country,
12
that I don't think I could ever give back what it has
13
given me.
14
to be in Utah,
15
this culture and this society of Utah.
16
appreciate it.
17
and appreciation for -- for this.
18
blowing smoke at you,
19
this stuff at a -- at a very deep level.
20
could never pay back what I've been given in my life.
21
I really do.
So I am,
Like you,
I have a tremendous
as it has given me so much
like you,
(beeping sound) proud

in
extremely proud to live in this
I really do.
Phil.
I have a great affinity

And I'm not just
I really deeply feel
But I want you to know that,
--
regardless of
22
what -- what all goes on,
we all have different
23
opinions, and I -- and I believe on this one, we
24
simply gracefully agree to disagree,
25
that's America.
and that's
We can gracefully disagree on
RENEE
L.
STACY,
(80l)
CSR,
328-1188
RPR
1 6
Document: 01019687895
certain topics,
to feel the way you feel,
believe.
off from where you are.
from where you are.
Page: 54
and you absolutely have every right
Absolutely.
PHIL:
to believe the way you
And I -- and I'm not that far

I'm not really that far off
I know.
I don't think -- I think
that's true of most individuals when you get down to
it'
so
yeah.
I didn't mean to interrupt you.
JUAN:
No,
that's okay.
for me,
where can we,
the BLM
10
it's really about,
11
you know,
12
Phil.
13
in the late '80s or the -- whenever all this stuff
14
happened.
15
Nobody is going to get arrested and nobody is going
16
to do all that kind of stuff.
17
that.
18
I'm here now in Utah, because I do have an affinity
19
to both a tremendous heritage that you have, which I
20
do not have,
21
into it, but you certainly can feel it a lot more
22
than I can,
23
and spirit.
24
adoption to it.
25
you know,
And so,
I cannot change the past.
There's nothing I can do.
Whatever happened
But I can make some change,
And I can't
(?)
you know.
We're not going to do
change that,
but I -- you know,
just can't,
you know, because
I've been adopted
the affinity to that pioneering culture

You know,
And,
I only can feel it from an
But I really do appreciate it.

Phil,
RENEE
I just wanted to say that,
L.
STACY,
(801 )
CSR,
328- 1188
RPR
17
Document: 01019687895
Page: 55
regardless of what you all decide to do on the
lOth -- and I hope it is you've just described,
know,
can,
That would be wonderful.
call you on the
about all kinds of other issues that we need to do in
San Juan County,
that you feel very passionate and strongly about.
you
that you can have your celebration and that you

you know,
ride or walk down into the canyon.

But you and I,
I'm going to
next week and we're going to talk
and to add value to the community
10
I -- I cannot say that I could ever have those kinds
11
of feelings,
12
what you have, which is a tremendous heritage that
13
you have.
because,
you know,
I -- I don't have
And so what I can tell you is that you and
14
15
I are going to talk,
regardless,
16
after,
17
it's going to be a month,
18
We're going to talk about these things.
it's going to before,
19
PHIL:
Uh-huh.
20
JUAN:
And some
and it's going to be
it's going to be during,
it's going to be a year.
in some cases we will
21
agree on what needs to be done right away,
and in
22
some cases, we simply -- I hope you will say
23
gracefully we'll disagree.
24
you know,
25
for this place we call Utah,
And it doesn't change,
the tremendous affinity that we both have
RENEE
L.
STACY,
(801)
and so I
CSR,
328-1188
just wanted to
RPR
18
call,
Document: 01019687895
Phil,
Page: 56
and just continue our conversation.
PHIL:
And I do appreciate it,
Juan.
enjoyed every
I respect you and I -- and I'm
genuinely enjoy talking to you as a person.
I've
every interaction I've had with you.

and I -- I
JUAN:
Thank you.
PHIL:
We've got -- we've got kind of an
Thank you.
impasse here and
JUAN:
Yeah,
10
PHIL:
And yeah, we'll
11
JUAN:
Yeah.
12
let's keep talking.
13
stop calling you.
we --
Well,
And,
thanks,
again,
Phil.
But
I'm never going to
14
PHIL:
Okay.
15
JUAN:
And I hope the same way with you.
16
We don't have to agree a hundred percent on
17
everything or every issue or everything to be
18
wonderful human beings.
19
have some very wonderful graceful disagreements,
20
in this case we have one,
and it's really not like
21
it's a big disagreement.
It just simply is a --
22
we're going to continue to work on it right away,
23
that's my commitment to you,
24
to keep it -- I'm going to keep that commitment to
25
the county.
RENEE
L.
We don't have to.
STACY,
(801)
and, by golly,
CSR,
328-1188
We can
and
and
I'm going
RPR
1 9
Document: 01019687895
Page: 57
And then if, at the other end, we come --
you know,
that we
(inaudible)
the county,
I could
really see where you would -- you would have this
event, but that is a long ways from being decided.
Thank you,
Phil.
PHIL:
Well,
JUAN:
Uh-huh.
PHIL:
Okay.
JUAN:
Bye.
thanks,
Juan.
We'll talk to you soon.

Bye.
* * * *
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RENEE
L.
STACY,
(801)
CSR,
328-1188
RPR
2 0
Document: 01019687895
Page: 58
STATE OF UTAH
ss.
COUNTY OF SALT LAKE
I,
RENEE L.
STACY,
Registered Professional
Reporter and Certified Realtime Reporter for the

State of Utah,
do hereby certify that the foregoing
transcript was written stenographically by me from an

electronic recording and thereafter transcribed;
That the foregoing pages contain a true and
accurate transcription of the electronically recorded
proceedings and was transcribed by me to the best of
my ability.
IN WITNESS WHEREOF,
I have subscribed my
name and affixed my seal on this 27th day of April,

2015.
RENEE L. STACY, RPR, CRR

Notary Public in and for the
County of Salt Lake, State of Utah
My Commission Expires:
November 9,
2015
RENEE
L.
STACY,
(801)
CSR,
328-1188
RPR
21
Document: 01019687895
Page: 59
If this sign was altered in 2010, at what point was this trail illegally constructed? Prior to placing
this sticker, was the trail open or closed.
~fwmCmmeycmwru~ro~~
ers to tlout
. and ride into tlte canyon.

(photo and ~o.ri cOurtesy of~ sSlt Lake,'frj'bune)
Document: 01019687895
Page: 60

CERTIFICATE OF SERVICE

Plaintiff-Appellee
Case No. 16-4007
vs.
Phillip Kay Lyman
Defendant-Appellant
I hereby certify that FOUR {4) copies of this APPELANT'S REPLY BRIEF WAS
SERVED ON 09/12/2016 via U.S. Mail.
To: Elisabeth A. Shumaker at Byron White United States Courthouse,
1823 Stout Street, Denver, Colorado 80257.
05/20/2016
Date~
/sl
fhilli~ K~
Signature
Copy mailed to:
United States Attorney's Office

185 South State Street, Suite 300
Salt Lake City, Utah 84111
For:
1. John W. Huber, United States Attorney
2. Jarred C. Bennett, Assistant U.S. Attorney
3. Lake Dishman, Assistant U.S. Attorney
4. Elizabethanne C. Stevens
Document: 01019687911
Page: 1

OFFICE OF THE CLERK
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80257
(303) 844-3157
Elisabeth A. Shumaker
Clerk of Court
September 14, 2016
Chris Wolpert
Chief Deputy Clerk
Mr. Phillip Kay Lyman

1401 North Blue Mountain Road
Blanding, UT 84511
RE:
16-4007, United States v. Lyman

Dist/Ag docket: 2:14-CR-00470-DN-1
Dear Appellant:
Your reply brief is deficient because:
There is no certificate of compliance regarding type-volume limitation. See Fed. R. App.
P. 32(a)(7)(B) and (C).
You may correct the stated deficiency by the following method:
1. Filing a corrected reply brief with the clerk and providing the clerk with seven
hardcopies of the corrected brief.
Corrections, however made, must be accompanied by proof of service on all other parties
to the appeal.
If you fail to correct the stated deficiency within 10 days of the date of this letter, the
deficient brief will not be filed.
Document: 01019687911
Please contact this office if you have questions.

Sincerely,
Elisabeth A. Shumaker
Clerk of the Court
cc:
Jared Carl Bennett

Paul Lake Dishman
Elizabethanne Claire Stevens
Jeannette Frazier Swent
J. Mark Ward
EAS/at
Page: 2

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Appellate Case: 16-4007

Date Filed: 09/14/2016

Case No. 16-4007

UNITED STATES COURT OF APPEALS

United States of America

REPLY BRIEF FOR PHILLIP KAY LYMAN

Phillip Kay Lyman - Filing Pro-Se

Appellate Case: 16-4007

Date Filed: 09/14/2016

REPLY TO ARGUMENT THAT I WAIVED MY RIGHT TO RAISE

REPLY TO ARGUMENT THAT 'RECAPTURE CANYON WAS

REPLY TO ARGUMENT THAT STATUS OF THE ROAD EASEMENT IS

REPLY TO ARGUMENT THAT RESTITUTION IN THE AMOUNT OF

Appellate Case: 16-4007

Date Filed: 09/14/2016

UNITED STATES COURT OF APPEALS

APPELLANT'S REPLY BRIEF

United States of America

Case No. 16-4007

Phillip Kay Lyman

Appellate Case: 16-4007

Date Filed: 09/14/2016

Appellate Case: 16-4007

Date Filed: 09/14/2016

Appellate Case: 16-4007

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Misquoting United States' Motions in Limine

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In their consolidated brief, the government acknowledges: "Appellants and

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special interest groups? Naturally we as defendants were not privy to those

And here is the response:

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www cedarmesafriends org

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This is egregious language, hateful in tone and full of erroneous conclusions

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