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JOHN W. HUBER, United States Attorney (#7244)
JARED C. BENNETT, Assistant United States Attorney (#9097)
LAKE DISHMAN, Assistant United States Attorney (Provisionally admitted; Licensed in VA)
185 South State Street, #300
Salt Lake City, Utah 84111
Telephone: (801) 524-5682
Attorneys for the United States of America ────────────────────────────────────────────────────────────────
IN THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH
CENTRAL DIVISION ────────────────────────────────────────────────────────────────
UNITED STATES OF AMERICA,
Plaintiff,
vs.
PHILLIP KAY LYMAN & MONTE
JEROME WELLS;
Defendants.
Case No. 2:14CR470RJS-BCW
UNITED STATES’ POSITION
STATEMENT ON SENTENCING
Honorable Robert J. Shelby
Magistrate Judge Brooke C. Wells
────────────────────────────────────────────────────────────────
The United States provides this memorandum regarding its position on sentencing for
Defendants Phillip K. Lyman (“Mr. Lyman”) and Monte J. Wells (“Mr. Wells”) (collectively,
“Defendants”). In sum, the United States recommends that this Court impose a sentence that
includes: (1) a reasonable term of incarceration based on Defendants’ willful conduct, their
disrespect for the law, and the need to deter similar criminal conduct; (2) a term of supervised
release; (3) a fine based on Defendants’ ability to pay; in addition to (4) restitution in the amount of
$95,955.61. Because the United States addressed the issues pertaining to restitution in its August
14, 2015 sealed filing, only the reasons for imposing a sentence of incarceration, supervised
release, and a fine are discussed below.
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INTRODUCTION
The United States Constitution established a federal government and made the laws thereof
“the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. Const. art. VI § 2. With the Constitution’s establishment of a
national government—whose laws were supreme over other conflicting laws—states, local
governments, and citizens have at various times dealt with the question of what to do when they
disagree with an action that the federal government has taken. Although there have been many
extra-judicial theories posited over the years on how to deal with this issue—ranging from
nullification to secession—every theory has eventually yielded to one axiom: “America is and
always has been a nation of laws.” Proclamation No. 9265, 80 Fed. Reg. 25,579 (April 30, 2015).
As such, the people of the United States appropriately expect everyone, including
Defendants, to stay within the boundaries of the law when expressing disagreement with any
action of the federal government. For this reason, the law provides anyone aggrieved by
government action—including the closure of federal public land to motorized use—may seek
judicial review. 5 U.S.C. § 702; Utah Shared Access All. v. Carpenter, 463 F.3d 1125, 1134 (10th
Cir. 2006) (reviewing temporary road closures under Administrative Procedure Act). Under the
law, the court may declare unlawful and set aside a road closure if the court deems it to be arbitrary
and capricious. 5 U.S.C. § 706(2). 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.
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Instead of choosing any one or more of these numerous legally-permissible mechanisms to
express their disagreement with federal decisions, Defendants chose crime. Defendants’ crimes
included recruiting dozens of others to join them in breaking the law. Defendants’ recruiting
efforts were significantly assisted by Mr. Lyman’s use of his political office, which provided the
specter of official imprimatur for his criminal acts. Where, as here, Defendants turn to crime to
express their disagreement with government decisions instead of using the numerous lawful means
at their disposal, the law must impose consequences that are significant enough to teach
Defendants respect for the law and to deter Defendants and others from engaging in similar
criminal behavior.
Although the United States defers entirely to this Court to impose the appropriate
punishment, the following factual background section and subsequent legal analysis seek to
inform this Court about the appropriate sentence under the United States Sentencing Commission
Guidelines (“Guidelines”) and the sentencing factors in 18 U.S.C. § 3553(a). United States v.
Pachco-Soto, 386 F.Supp.2d 1198, 1204 (D. N.M. 2005) (addressing the Guidelines first followed
by an analysis of the sentencing factors under section 3553(a)). Based on the factual background
and legal analysis below, the United States recommends that this Court impose a reasonable
sentence of incarceration, a term of supervised release, a fine based on Defendants’ respective
abilities to pay, and, in addition to the foregoing, restitution in the amount of $95,955.61.
FACTUAL BACKGROUND
A. Formation of the Conspiracy
On February 27, 2014, Mr. Lyman held a town hall meeting in Blanding, Utah. Trial
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Exhibit 23. At that meeting, Mr. Lyman stated that the community needed to “send a message” to
the Bureau of Land Management (“BLM”) on May 8, 2014. Trial Exhibit 23; ECF No. 72-2 at 19
of 34. To send the message, Mr. Lyman and his constituents resolved: “we can talk to our
congressmen, talk to our state legislature, or people right here have the ability to go and do
something, and we said, well, let’s go ride Recapture.” ECF No. 72-2 at 19 of 34.
Three days later, Mr. Lyman emailed Juan Palma, State Director of BLM, to notify him
about Mr. Lyman’s decision to illegally ride motorized vehicles in Recapture Canyon. Trial
Exhibit 23. In the email, Mr. Lyman stated, “We have endured one broken promise after another
regarding the trail in Recapture Canyon. The delays are systemic and are more consistent with
despotism than with government by, for, and of the people. Collectively we are ready to take
action.” Trial Exhibit 23. Mr. Lyman then asked Mr. Palma to take action so that the protest ride
would not have to be “an illegal movement.” Trial Exhibit 23. On that same day, Mr. Lyman
also posted on his public Facebook page that he hoped BLM would take some action “which
authorizes our activity.” Trial Exhibit 35C. BLM neither granted permission nor otherwise
authorized the protest ride.
B. Broadcasting the Conspiracy
Following these initial emails, Defendants set to work organizing and advertising the
protest ride. Mr. Lyman began by authoring an opinion piece about the Recapture Canyon protest
ride that the Deseret News published on April 11, 2014. Trial Exhibit 103A. Mr. Lyman
expressed his disappointment when he saw that the Deseret News removed his invitation to join the
protest ride. Trial Exhibit 35B.
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Defendants sought other venues to spread the word for the illegal ride. Mr. Lyman gave
interviews on talk radio and posted regular updates via his public Facebook page. Gov’t Exhibits
93 and 94 (not offered at trial); Trial Exhibits 35B, 35A, 34C, and 104A. Mr. Wells used his
website “The Petroglyph” and its companion Facebook page to give updates about and context for
the upcoming protest ride. Trial Exhibits 73, 74, 105A. Together, Defendants posted a series of
YouTube videos in which they discussed the history of Recapture Canyon and the need for the
protest ride. Trial Exhibits 74, 104A. The day before the protest, both gave television interviews
discussing the ride. Trial Exhibits 46A1, 46A2. During one of these interviews, Mr. Lyman
acknowledged that the protest ride was “breaking the law from a federal standpoint.” Trial
Exhibit 99A.
Defendants were so effective in their publicizing efforts that Mr. Lyman changed the date
of the illegal ride to Saturday, May 10, 2014, “so more people can come.” Trial Exhibit 35A.
Thus, as a San Juan County resident testified at trial, “if you lived in San Juan County and didn’t
know about the protest, then there was something wrong with you.” Testimony of Josh Ewing.
C. Attempts to Pressure the BLM
At the same time that Defendants were getting the word out, they continued to lobby BLM
to take some action to authorize the illegal ride. On March 27, 2014, Defendants met with Mr.
Palma over lunch in Salt Lake City to discuss the protest ride. Trial Exhibit 22, Testimony of
Juan Palma. When Mr. Lyman did not receive any follow up communication from Mr. Palma,
Mr. Lyman sent another email to Mr. Palma that twice warned that the protest would go forward
unless there was some sort of action from BLM. Trial Exhibit 22.
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As a San Juan County Commissioner, Mr. Lyman discussed the upcoming illegal ride at
meetings of the San Juan County Commission. During the April 21, 2014 meeting, Mr. Lyman,
referred to himself as the “ringleader” and “spokesman” of the protest ride. Trial Exhibit 18.
At the next San Juan County Commission meeting held on April 28, 2014, Mr. Lyman used
the meeting to describe the events planned for the upcoming protest. Trial Exhibit 19A. He
talked about a pre-ride rally that would be held at a pavilion in Blanding where he would “basically
give [the riders] some rules and where they can go, what the lay of the land is.” Trial Exhibit 19A.
He stated that if there were protesters who wished to use an all-terrain vehicle (“ATV”), “then
we’ll explain what the rules are, and they can make their choice on that day.” Trial Exhibit 19A.
He announced his intent to ride and that he needed to rent an ATV before the ride because he did
not own one. Trial Exhibit 19A. Also, in response to a comment about the large amount of
vegetation along the route and a doubt that an ATV could get through, Mr. Lyman mentioned that
he “was hoping to get the trail-cat down there . . . .” Trial Exhibit 19A.
D. Warnings of the Consequences
Following that meeting, Mr. Lyman attended a county coordination meeting with BLM
representatives at which Lance Porter, BLM District Manager, hand-delivered a letter to Mr.
Lyman. Trial Exhibit 24. The letter formally warned Mr. Lyman multiple times of the potential
criminal and civil penalties that he and any person might face if they were to violate the closure
order in Recapture Canyon. Trial Exhibit 24. In the event that Mr. Lyman refused to call off the
illegal ride, the letter also offered Mr. Lyman the opportunity to walk through the closed portion of
Recapture Canyon with a BLM archeologist so long as Mr. Lyman did not construe BLM’s action
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as approving the protest. Trial Exhibit 24. Mr. Lyman requested this walkthrough with the
archeologist so he could record the condition of any archeological sites in case the BLM later
claimed those sites were damaged by the ride. Trial Exhibit 24. BLM granted this request in an
attempt to minimize the damage it believed the protest ride would cause. Trial Exhibit 26.
Mr. Lyman responded with a letter of his own to BLM the next day. Trial Exhibit 24.
Therein, he acknowledged that the walkthrough “will not be construed in any way to be BLM’s
consent for the proposed ride to take place.” Trial Exhibit 24. The walkthrough was scheduled
for and occurred on May 6, 2014.
On May 2, 2014, Mr. Porter and Mr. Lyman again exchanged correspondence, this time via
email. Trial Exhibit 26. Again, BLM warned Mr. Lyman of the potential criminal and civil
consequences for anyone who violated the closure order. Trial Exhibit 26.
E. The May 10, 2014 Protest Ride
On May 10, 2014, a large crowd gathered at the Centennial Park pavilion, and the pre-ride
rally began. Mr. Lyman and others addressed the crowd. Trial Exhibit 65A. Mr. Wells
documented the event. Trial Exhibit 65A. Following the remarks, dozens of people drove ATVs
to the north point of the Recapture Canyon closure boundary and entered into the closed area.
Testimony of Jason Moore. Defendants were two of those participants. Trial Exhibits 5,6, 7, 89,
and 90. Although some protesters, including Defendants, turned around at the end of San Juan
County Conservancy District’s BLM-authorized right-of-way (“the Pipeline Road”),
approximately 32 motorized vehicles proceeded further south until exiting the closure area at the
Brown’s Canyon Trail access point. The ride beyond the terminus of the Pipeline Road went over
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and through several riparian areas and archeological sites. Testimony of Jason Moore.
Due to Defendants’ publicizing efforts, some of the riders were affiliated with armed
militia groups, which mere weeks before had taken up arms against the United States. As a result
of the armed riders and their strong feelings against BLM, the San Juan County Sheriff was present
at the ride in order to prevent conflict. The San Juan County Sheriff told a reporter, “We don’t
want clashes between citizens and clashes between BLM and militia. This is not going to be
Bunkerville.” Salt Lake Tribune, http://www.sltrib.com/sltrib/news/57909181-78/amp-blm-
canyon-lands.html.csp (last accessed Aug. 21, 2015).
F. The Aftermath of Defendants’ Crime
Two days after the illegal ride, Mr. Lyman attended his regularly-scheduled meeting of the
San Juan County Commission. During the meeting, the subject of the illegal ride was raised. Of
the ride, Mr. Lyman said, “There is probably some—some repercussions that are going to come
from this. And as I’ve told anybody I’ve talked to, I know it was—it was my—it was my—my
event and I take responsibility for it and will continue to do that.” Exhibit A.
One of the repercussions that came from the ride was the Misdemeanor Information, which
was later superseded, that the United States filed against Defendants, among others. ECF Nos. 1,
41. In the Superseding Misdemeanor Information, Defendants were charged with one count of
conspiracy and one count of riding their motorized vehicles in an area closed to motorized use.
ECF No. 41. Despite stating that he would “take responsibility” for the illegal ride, Mr. Lyman
pled “not guilty” as did Mr. Wells. ECF No. 14. Both Defendants received a public defender
until Magistrate Judge Furse later determined that Mr. Lyman had sufficient resources to pay for
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his own attorney. ECF No. 34. Defendants later moved to dismiss this action, which this Court
denied. ECF No. 72, 78, 91.
Before trial, the United States moved to exclude several defenses including any argument
from Defendants that the closed road in Recapture Canyon was, in fact, a right-of-way under R.S.
2477. ECF No. 101. Mr. Wells responded that he would not raise R.S. 2477 as a defense at trial.
ECF No. 115. Mr. Lyman never responded to the United States’ motion. Therefore, this Court
granted the United States’ motion in limine.1 ECF No. 131.
At trial, the United States presented six witnesses and numerous exhibits showing that
Defendants knowingly and willfully conspired to ride motorized vehicles through Recapture
Canyon and actually did so on May 10, 2014. Defendants’ sole defense was that they only rode
the Pipeline Road, which the water master for the San Juan Water Conservancy District had
purportedly granted Mr. Lyman permission to use. However, no evidence showed that Mr.
Lyman ever communicated this alleged permission to other co-conspirators, the media, or to BLM.
The jury convicted both Defendants of conspiracy and for actually riding motorized vehicles in an
area closed to such use. Minutes after his conviction, when asked if he would do the illegal ride
again, Mr. Lyman responded, “Yes, yes. Absolutely.” KUTV News, http://kutv.com/news/local
/san-juan-co- commissioner-blogger-convicted-of-illegal-atv-ride (last visited August 21, 2015).
On July 20, 2015, Mr. Lyman moved to disqualify Judge Shelby from this action. ECF
1 BLM may close lands on which a county claims an R.S. 2477 right-of-way unless and until the
county quiets title to the right-of-way under the Quiet Title Act. Kane County v. Salazar, 562
F.3d 1077, 1088-89 (10th Cir. 2009). Moreover, individuals lack standing to raise an R.S. 2744
claim. Sw. Four Wheel Drive Ass’n v. Bureau of Land Mgmt., 363 F.3d 1069, 1071 (10th Cir.
2004). Thus, although Defendants’ case appears to have sparked an interest in declaring the
closed trail in Recapture Canyon an R.S. 2477 right-of-way, it is of no moment here.
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No. 164. This motion is still pending before Judge Waddoups. However, Judge Shelby ordered
Defendants and the United States to address restitution issues in this action by August 7 and
August 14, 2015 respectively via sealed submissions to protect against disclosing the location of
archeological sites. ECF Nos. 173, 176. Judge Shelby also ordered the United States and
Defendants to address all non-restitution related sentencing matters by August 24, 2015. ECF
No. 173. This memorandum addresses non-restitution related sentencing matters and shows
below that, under both the Guidelines and 18 U.S.C. § 3553(a), this Court should impose a
reasonable term of incarceration, a year of supervised release, and fine Defendants according to
their ability to pay.2
ARGUMENT
I. UNDER THE GUIDELINES, A SENTENCE OF INCARCERATION AND
SUPERVISED RELEASE IS APPROPRIATE FOR BOTH DEFENDANTS.
Under the Guidelines, this Court should impose a sentence of incarceration and supervised
release for both Defendants. To calculate the appropriate Guideline range: (1) this Court should
begin with §2X5.2 for the Base Offense Level of 6; (2) add 4 because both Defendants qualify as
organizer/leaders; and (3) add 2 to Mr. Lyman’s offense level for abusing a position of trust.
Each issue is discussed below and shows that Mr. Lyman and Mr. Wells have an offense level of
12 and 10 respectively.
A. Section 2X5.2 is the Appropriate Guideline To Provide the Base Offense Level.
Contrary to the Presentence Report, section 2X5.2 provides the appropriate Base Offense
2 The United States attaches a timeline of events for a chronological summary of the facts.
Attachment 1.
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Level for Defendants’ conduct. The Guidelines provide the Base Offense Level based upon
Defendants’ offense of conviction. USSG § 1B1.1(a)(1) (2014). Defendants were convicted of
18 U.S.C. § 371 and 43 U.S.C. § 1733(a). Of the Base Offense Level Guidelines listed in
Appendix A under 18 U.S.C. § 371, none of them provides the Base Offense Level for Defendants’
conspiracy to violate 43 U.S.C. § 1733(a). The closest applicable Base Offense Guideline is
section 2X1.1, which states that the Base Offense Level for conspiracy is the same as the Base
Offense Level for the substantive offense.
Here, the Base Offense Level for the substantive offense (i.e., 43 U.S.C. § 1733(a)) is
section 2X5.2. Although Appendix A states that section 2B2.3 applies to violations of 43 U.S.C.
§ 1733(a), Appendix A contains a parenthetical reference limiting the applicability of section
2B2.3 only to crimes that are based on violations of 43 C.F.R. § 4140.1(b)(1)(i).3 Appendix A at
564. Defendants’ substantive offense did not involve 43 C.F.R. § 4140.1(b)(1)(i) because
Defendants were not convicted of “[a]llowing livestock or other privately owned or controlled
animals to graze on or between [public lands] [w]ithout a permit, lease of other grazing use
authorization . . . .” Instead, Defendants’ violation of 43 U.S.C. § 1733(a) was based on violating
43 C.F.R. § 8341.1(c), which precludes the operation of “off-road vehicles . . . on those areas and
3 Whenever Appendix A contains a parenthetical reference beneath a statute listed therein, the
parenthetical reference constitutes a limitation. For example, Appendix A lists 26 U.S.C. § 7212(a)
twice. Each listing of section 7212(a) in Appendix A contains different associated Guidelines that
may be applicable. To guide the reader in determining which listing of section 7212(a) applies,
Appendix A provides a parenthetical reference under the second listing of 7212(a) that says “(omnibus
clause).” This informs the reader that if the conviction is under the omnibus clause of section 7212,
then the Guidelines listed thereafter apply. Otherwise, the other Guideline listed in the first reference
to section 7212(a) applies. Other examples of the limiting effect of the parenthetical references in
Appendix A are: 18 U.S.C. § 113(a)(5) “(Class A misdemeanor provisions only)”; 18 U.S.C. § 1716
“(felony provisions only)”; and 31 U.S.C. § 5311 “(section 329 of the USA PATRIOT Act of 2001).”
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trails closed to off-road vehicle use.” Consequently, Appendix A does not provide a Base
Offense Level Guideline for Defendants’ violation of 43 U.S.C. § 1733(a) here.
Where, as here, Defendants have been convicted of a Class A misdemeanor that is not
covered by any other specific Guideline, section 2X5.2 applies. USSG § 2X5.2. And under
section 2X5.2, Defendants’ Base Offense Level is 6. Given that the substantive offense carries a
Base Offense Level of 6, Defendants’ conspiracy conviction under 18 U.S.C. § 371 also carries a
Base Offense Level of 6. USSG § 2X1.1.
B. This Court Should Add 4 Levels to Defendants’ Base Offense Level Because They
Are Both Leader/Organizers.
In addition to the Base Offense Level of 6, this Court should add 4 levels because
Defendants organized and led dozens of people in the illegal protest ride. Section 3B1.1
provides: “If the defendant was an organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive, increase by 4 levels.” USSG § 3B1.1. As shown
below, both Mr. Lyman and Mr. Wells meet the requirements for this 4-level increase.
First, the 4-level increase should apply to Mr. Lyman because he was the undisputed leader
and organizer of the conspiracy and May 10, 2014 illegal ride. When discussing the illegal ride in
a San Juan County Commission meeting on April 21, 2014, Mr. Lyman proclaimed himself to be
the “ring leader” and the “spokesman” of the ride. Trial Exhibit 18. The evidence at trial
corroborated that assertion because Mr. Lyman was the person who: (1) sent out information to his
constituents and to BLM about the ride, Trial Exhibit 22, 23, 24, 26, 34C, 35A, 35C; (2) changed
the date of the ride to May 10, 2014 so that “more people can come,” Trial Exhibit 35A; (3) held
pre-ride rallies; Trial Exhibit 19A, 46A1, 65A, 70A; (4) appeared on television, radio, and in the
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print media to promote the ride, Trial Exhibit 46A1, 99, 103A; and (5) instructed protestors which
trials were legal to ride and which were not. Trial Exhibit 105A. On May 10, 2014, dozens of
people, including Mr. Lyman, crossed the closure line with their motorized vehicles and rode into
Recapture Canyon. Accordingly, Mr. Lyman was the leader and organizer of the illegal ride,
which involved far more than 5 people.
Second, Mr. Wells should also receive a 4-level increase because he took an organizing
role in the offense. Mr. Wells met early on with Mr. Lyman and BLM State Director, Juan Palma,
to discuss the upcoming illegal ride. Testimony of Juan Palma; Trial Exhibit 22. He also
repeatedly served as an important medium through whom Mr. Lyman was able to convey his
messages about the ride to the public. Trial Exhibit 73, 64A, 65A, 69A, 70A, 71A, 74, 105A;
ECF No. 72-2. Mr. Wells also added his own flourishes to recruit others to come and join the
illegal ride. Trial Exhibit 73. Mr. Wells interviewed Mr. Lyman in a three-part YouTube series
so that Mr. Lyman could explain the reason for the upcoming illegal ride. Trial Exhibit 74
(transcript at ECF No. 72-2). After providing this extensive assistance in getting the word out
about the illegal ride, Mr. Wells joined Mr. Lyman and dozens of others by crossing the line with
his motorized vehicle and riding into the closed area of Recapture Canyon. Thus, Mr. Wells is an
organizer and should receive a 4-level increase.
C. Mr. Lyman Should Receive an Additional 2-Level Increase For Abusing a Position
of Trust.
This Court should add 2 more levels to Mr. Lyman’s Offense Level because he abused a
position of trust to commit his crimes. Section 3B1.3 provides:
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If the defendant abused a position of public or private trust . . . in a manner that
significantly facilitated the commission or concealment of the offense, increase by
2 levels. This adjustment may not be employed if an abuse of trust or skill is
included in the base offense level or specific offense characteristic. If this
adjustment is based upon an abuse of a position of trust, it may be employed in
addition to an adjustment under § 3B1.1 (Aggravating Role) . . . .
USSG § 3B1.3. Section 3B1.3 applies to elected officials who use their public office to help
facilitate the crime. See, e.g., United States v. Burke, 431 F.3d 883, 888 (5th Cir. 2005) (applying
section 3B1.3 to city alderman who used his position to transport “drugs through his city”).
Mr. Lyman used his position as a San Juan County Commissioner to significantly facilitate
the illegal ride. The conspiracy to engage in the illegal ride was hatched at a February 27, 2014
town hall meeting that Mr. Lyman convened. Trial Exhibit 23. Mr. Lyman used his San Juan
County Commission email address and letterhead to communicate with constituents and BLM
about the ride. Trial Exhibit 22, 23, 24, 26. Mr. Lyman used his public Facebook page to
communicate about the ride and was referred to as “County Commissioner Lyman” in all of his
radio, television, and newspaper appearances. Trial Exhibit 34C, 35C, 74, 99, 103A, 104A. Mr.
Lyman availed himself of the record at official meetings of the San Juan County Commission to
discuss the ride. Trial Exhibit 18, 19A. Indeed, even at trial, Mr. Lyman repeatedly argued that
he did these illegal acts as an elected official on behalf of his constituents. Thus, Mr. Lyman used
his elected office to facilitate his crimes and, accordingly, should receive a 2-level increase.
Based on the foregoing, Defendants both have a Base Offense Level of 6 under section
2X5.2, a 4-level increase for leader under section 3B1.1, and, Mr. Lyman should receive a 2-level
increase under 3B1.3. Neither Mr. Lyman nor Mr. Wells should receive any reduction for
acceptance of responsibility under section 3E1.1 because they “put the government to its burden of
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proof at trial by denying the essential factual elements of guilt.” USSG 3E1.1 comment (n.2).
Thus, Mr. Lyman has an Offense Level of 12, and Mr. Wells has an offense level of 10.
An Offense Level of 12 and a Criminal History Category of I places Mr. Lyman in Zone C
with a potential term of incarceration of 10-16 months. However, the statutory maximum of
incarceration for a Class A Misdemeanor is 12 months. 18 U.S.C. § 3581(b)(6). Because Mr.
Lyman’s sentence falls within Zone C, he is eligible to serve a sentence of imprisonment or a
sentence of imprisonment combined with substitute punishment. USSG § 5C1.1(d). An Offense
Level of 12 also places Mr. Lyman within a fine range of between $3,000 and $30,000 based on his
ability to pay, USSG § 5E1.2(c)(3), which is beneath the maximum fine of $100,000.00 for Class
A misdemeanors. 18 U.S.C. § 3571(b)(5).
Mr. Wells’s Offense Level of 10 places him in Zone B, with a potential term of
incarceration of between 6-12 months. Zone B provides for a sentence of imprisonment; a
sentence of imprisonment combined with substitute punishment; or a sentence of probation in
combination with intermittent confinement, community confinement, or home detention. USSG
§§ 5B1.1, 5C1.1. An Offense Level of 10 also carries a fine range of between $2,000.00 and
$20,000. If imprisonment is imposed, Defendants should receive up to one year of supervised
release. 18 U.S.C. § 3583(b)(3); USSG §§ 5D1.1(b), 5D1.2(a)(3). Thus, under the Guidelines,
Defendants should receive a sentence of incarceration, pay a fine based on their ability to pay, and
receive up to one year of supervised release.4
4 In the event that this Court relies on section 2B2.3 for the Base Offense Level—which it should
not—then both Mr. Lyman and Mr. Wells will have an Offense Level of 10. Section 2B2.3
begins with a Base Offense Level of 4. But because Mr. Wells “possessed” a firearm while
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II. UNDER THE FACTORS OF 18 U.S.C. §3553(A), A TERM OF
INCARCERATION IS APPROPRIATE.
Similar to the Guidelines, the factors under 18 U.S.C. § 3553(a) favor a sentence of
incarceration, supervised release, and a fine based on ability to pay.5 When imposing a sentence,
section 3553(a) requires a court to consider, among other facts, “the nature and circumstances of
the offense and the history and characteristics of the defendant” in addition to the need “to promote
respect for the law” and “to afford adequate deterrence to criminal conduct.” Each factor is
discussed below for both Defendants.
A. The Nature and Circumstances of Defendants’ Offenses Coupled With Their
History and Characteristics Militate in Favor of Incarceration.
Defendants’ conduct and characteristics strongly support a sentence of incarceration.
Defendants knew that their conspiracy to and actual ride through the closed area of Recapture
Canyon was illegal, but they did it anyway and provided an opportunity for many others to join
them. Trial Exhibit 99A. BLM warned Mr. Lyman of the potential consequences of the illegal
ride numerous times before May 10, 2014, but neither Mr. Lyman nor Mr. Wells listened. Trial
Exhibit 24, 26. Their actions amount to a calculated, mass defiance of the criminal law.
committing his crime, he would receive a 2-level increase. Trial Exhibit 7. As discussed above,
both Defendants would receive a 4-level increase for their leadership and organizing roles in the
crimes, and Mr. Lyman would receive an additional 2-level enhancement for abusing the public
trust. Thus, both Mr. Lyman and Mr. Wells would share an Offense Level of 10, which puts them
in Zone B for incarceration purposes and a fine amount of between $2,000 and $20,000.
However, as shown above, section 2B2.3 does not provide the proper Base Offense Level because
Appendix A clearly limits section 2B2.3 to an offense that does not apply here.
5 Because the imposition of a fine is dependent upon each Defendant’s ability to pay—which
would require discussion on confidential financial matters as to each defendant—the reasons for
imposing a fine under 18 U.S.C. § 3553(a) are not discussed further.
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Further, as shown above, Mr. Lyman used his elected public office to bring his crimes
about by using his official title, official email, official letterhead, and county commission meetings
to discuss and promote his upcoming crime. Mr. Lyman also sent information about the ride to
the Bundy family, who mere weeks earlier had used militia members to take up arms against the
United States. And, not surprisingly, riders believed to be affiliated with the militias showed up
armed, which necessitated the presence of the San Juan County Sheriff who stated that his
presence at the ride was to avoid another Bunkerville. Salt Lake Tribune, http://www.
sltrib.com/sltrib/news /57909181-78/amp-blm-canyon-lands.html.csp (last accessed Aug. 21,
2015). Similarly, Mr. Wells greatly assisted in getting the word out about the ride and chose to
wear a firearm as he rode up the closed trail knowing that BLM law enforcement would be present.
Trial Exhibit 7. Because of Defendants’ success in getting the word out for the ride, dozens of
motorized riders crossed the closure line, and approximately 32 motorized vehicles rode from the
northernmost closure sign to the Brown’s Canyon Trail access point. This route took riders
through several riparian areas and over the top of eight archeological sites. The flagrant nature of
Defendants’ acts warrants incarceration.6
Despite the foregoing, Defendants attempt to distance themselves from their actions.
Specifically, they argue that their intent all along was only to ride the BLM-approved right-of-way
that the San Juan County Water Conservancy District has held since the 1980s (“the Pipeline
Road”). This is revisionist history. In his initial email to his constituents on March 2, 2014
announcing the illegal ride, Mr. Lyman stated, “Either way, I plan to work with the County to see
6 Although Defendants’ crimes are Class A Misdemeanors, the aspects to their crimes described in
the text above increase the seriousness of their offenses. 18 U.S.C. § 3553(a)(2)(A).
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what trail work will need to be done in order for the trail to be passable by May 8.” Trial Exhibit
23 (emphasis added). Again, in an April 12, 2014 email, Mr. Lyman told Mr. Palma: “I have the
County’s trail-cat ready to do the re-route if you have that marked. Otherwise we are OK with the
existing trail.” Trial Exhibit 22-3 (emphasis added). During an April 28, 2014 San Juan County
Commission meeting, Mr. Lyman said that he “was hoping to get the trail-cat down there . . . .”
Trial Exhibit 19A. Additionally, on May 1, 2014—9 days before the ride—Mr. Lyman reiterated
his desire to re-route the trail. In a phone call that Mr. Lyman surreptitiously recorded with BLM
State Director Juan Palma, Mr. Lyman said,
My biggest—my biggest dissuasion from going down the trail is the—is the
overgrowth of willows on the north end. It would be hard on a piece of equipment
to—to go through there, you know, so I wanted to withdraw the right-of-way
application, take the Trailcat down and fix that . . . .”
Exhibit B (emphasis added). Mr. Wells echoed Mr. Lyman’s understanding of what needed to be
done to ride Recapture Canyon. In the YouTube interview that Mr. Wells conducted with Mr.
Lyman before the illegal ride, Mr. Wells states: “We’ve got some issues with the [Recapture
Canyon] trail itself, where it hasn’t been maintained for the last 8 years, 7 years. And so there are
some places where you can’t get through unless we do some trail maintenance actually . . . But
that may prevent us from riding parts of it. . . .” ECF No. 72-2 at 29 of 34 (emphasis added). If
Defendants were truly planning all along to ride only on the Pipeline Road, then there is absolutely
no reason to “do some trail maintenance” or to use heavy machinery like a “Trailcat” to do “trail
work” to make a decades-old right-of-way passable for a protest ride.
Further, the first time that Mr. Lyman even mentions driving only on the Pipeline Road
was his post on The Petroglyph May 7, 2014 where he says: “For my part, I plan (as of this writing)
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to come into Recapture from the North end” and to drive the Pipeline Road “until you come to
where the water pipeline leaves the canyon. . . . I expect to turn around at that point. . . .” Trial
Exhibit 105A (emphasis added). Stating that his plan “as of this writing” was to ride exclusively
on the Pipeline Road—in addition to all of his talk about re-routing the trail—shows that Mr.
Lyman made a last-minute, personal decision to stay on the Pipeline Road. Thus, Defendants’
assertion that their conspiracy was limited to the Pipeline Road is revisionist history and, if
anything, shows their knowledge that driving beyond the Pipeline Road would cause damage.
This evidence prevents Defendants from minimizing the nature of their offense, and their
arguments to the contrary merely reflect a disturbing refusal to accept responsibility for their
actions.7
Moreover, Defendants’ history and personal characteristics strengthen the need for
incarceration. Defendants are well educated and have been, for the most part, law abiding
citizens for almost their entire lives. In other words, Defendants know what the law means and
how to follow it. The fact that they conspired to and actually rode through a canyon that they
knew was closed to motorized use reflects a deliberate departure from what they knew to be right.
Moreover, the fact that they would recruit dozens of others to join them in their illegal ride is
indicative of how far Defendants departed from their prior behavior. Where, as here, Defendants
7 In a further effort to distance himself from the conspiracy, Mr. Wells contradicts a prior
representation that he made to this Court. In his motion to dismiss, Mr. Wells represented: “In
February 2014, Wells, in his role as a reporter for The PetroGlyph, attended a town hall meeting
organized by County Commissioner Lyman. . . . At the meeting County Commissioner Lyman
discussed a protest rally as a way to bring attention to the BLM’s inaction.” ECF No. 72 at 6.
Now, however, Mr. Wells claims that he was at another meeting instead of at the town hall
meeting. This post-conviction story change further shows his failure to accept responsibility.
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make a calculated and deliberate choice to violate what they know to be the law, their education,
past behavior, public office, and family status should not inure to their benefit in terms of avoiding
incarceration and supervised release. Thus, the circumstances surrounding Defendants’ crimes
along with their personal characteristics warrant incarceration and supervised release.
B. Defendants Need Incarceration to Promote Respect For the Law and to Deter
Criminal Conduct.
Incarcerating Defendants will promote respect for the law and will help deter criminal
conduct. First, incarceration will help promote respect the law among Defendants and those who
joined them in the illegal ride. As shown above and at trial, the entire premise behind
Defendants’ crimes was to violate the law to show their disapproval of BLM policies. The
decision to willfully commit a crime shows a significant disrespect for the law. But Defendants’
showing of disrespect for the law went further because they entirely ignored all of the available
legal options that they had to challenge BLM’s decision to close Recapture Canyon and committed
crimes instead. ECF No. 72-2 at 29 of 34.
This level of disrespect for the law is especially troubling here because Defendants are both
public officials and took an oath of office in which both Defendants agreed that they would
“support, obey, and defend the Constitution of the United States . . . .” Utah Const. art IV, § 10.
This duty to “support” and “obey” the United States Constitution includes the Supremacy Clause,
which makes the laws of the United States the “supreme Law of the Land.” U.S. Const. art VI,
§ 2. When confronted before the ride with this conflict between the illegal ride and his oath of
office, Mr. Lyman said, “I have heard too many people say that I took an oath to ‘OBEY THE
LAW.’ I didn’t. I feel a stronger moral obligation to defend the customs and culture of the
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people of San Juan County.” Exhibit C (attached hereto). On another occasion, Mr. Lyman
added, “While BLM may claim jurisdiction, and while a federal judge may grant a federal agency
jurisdiction over everything, the basic right of self[-]government (along with Statehood) nullifies
such fantastic innovations.” Trial Exhibit 22-4. Mr. Lyman’s statements reflect an unhealthy
and misguided disrespect for the “supreme Law of the Land,” and his oath to support and obey it.
Although Mr. Lyman has a right to disagree with the Supremacy Clause of the United States
Constitution by believing that local and state law “nullifies” federal law, his conduct demonstrates
that he is willing to commit a crime to express that disagreement and to use his elected office to
encourage others to do the same. In fact, minutes after being convicted by a jury, when asked
whether he would do the illegal ride again, Mr. Lyman said, “Yes. Yes. Absolutely.” KUTV
News, http://kutv.com/news /local/san-juan-co-commissioner-blogger-convicted-of-illegal-atv-
ride (last visited August 21, 2015). A period of incarceration and a term of supervised release will
promote respect for the law among Defendants and among those who followed them.
Second, a sentence of incarceration will deter similar criminal acts. Lest any
misunderstanding arise, the United States in no way seeks to impose a “chilling effect” on lawful
protests of federal action. Instead, the United States seeks to deter criminal acts; including crimes
that are committed under the pretext of a First Amendment “protest.” The First Amendment was
never intended to be used as the exception that swallows all other laws. See United States v.
Maldonado-Norat, 122 F.Supp.2d 264, 265 (D. P.R. 2000) (“Supreme Court precedent makes it
pellucid that the principle of freedom of the press does not support the edifice that Defendants here
attempt to construct: freedom of the press to violate the law.”). Instead, the First Amendment was
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intended to preclude the government from abridging lawful speech, not to empower citizens to
commit crime. Indeed, if empowering citizens to commit crime is what the First Amendment has
come to mean, then the United States is no longer a “nation of laws.” United States v. Moylan,
417 F.2d 1002, 1008-09 (4th Cir. 1969)(“[E]xercise of a moral judgment based upon individual
standards does not carry with it legal justification or immunity from punishment for breach of the
law . . . . Toleration of such conduct would [be] inevitably anarchic.”). Worse yet, accepting such
a theory of the First Amendment would legitimize all the heinous acts against the United States
and its citizens that individuals and groups commit in protest of United States policies. Given the
high societal cost of indulging the commission of crime to show disagreement with the law,
incarceration is an appropriate penalty to deter Defendants and others from acting on the mistaken
belief that disagreement with the law entitles them to commit a crime.
CONCLUSION
Based on the facts that this Court observed at trial and for the reasons stated above, the
United States recommends that this Court impose upon Defendants a reasonable term of
incarceration given the nature of their offenses, their disrespect for the law, and the need for
deterring similar criminal acts. The United States also recommends a term of supervised release
and a fine based on Defendants’ ability to pay. In addition to, and not in lieu of the foregoing, this
Court should also order Defendants to jointly and severally pay restitution in the amount of
$95,955.61 for the reasons stated in the United States August 14, 2015 sealed filing.
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DATED this 24th day of August 2015.
JOHN W. HUBER
United States Attorney
/s/ Jared C. Bennett
JARED C. BENNETT
Assistant United States Attorney
/s/ Lake Dishman
LAKE DISHMAN
Assistant United States Attorney
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