Full Lyman & Other Vs Federal Government Trial 2015

1
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
______________________________________________________________
UNITED STATES OF AMERICA,
10
11
12
13
CASE NO. 2:14-CR-470
PLAINTIFF,
VS.
PHILLIP KAY LYMAN; MONTE
JEROME WELLS; SHANE MORRIS
MARIAN; AND FRANKLIN TRENT
HOLLIDAY,
SALT LAKE CITY, UTAH

APRIL 29, 2015
14
DEFENDANTS.
15
______________________________________________________________
16
17
JURY TRIAL
BEFORE THE HONORABLE ROBERT J. SHELBY
UNITED STATES DISTRICT COURT JUDGE
18
19
20
21
22
23
24
25
1
2
3
APPEARANCES:
4
FOR THE PLAINTIFF:
5
UNITED STATES ATTORNEY'S OFFICE

BY: JARED C. BENNETT, ESQ.
LAKE DISHMAN, ESQ.
185 SOUTH STATE STREET, #300
SALT LAKE CITY, UTAH 84111
(801) 524-5682
6
7
8
FOR DEFENDANT LYMAN:
9
FILLMORE SPENCER, LLC

BY: JARED B. STUBBS, ESQ.
3301 NORTH UNIVERSITY AVENUE
PROVO, UTAH 84604
(801) 426-8200
10
11
12
FOR DEFENDANT WELLS:

SNOW, CHRISTENSEN & MARTINEAU
BY: NATHAN A. CRANE, ESQ.
10 EXCHANGE PLACE, 11TH FLOOR
(801) 521-9000
13
14
15
FOR DEFENDANT MARIAN:
16
GARRETT & GARRETT

BY: JAMES D. GARRETT, ESQ.
8 EAST BROADWAY, SUITE 615
(801) 581-1144
17
18
19
FOR DEFENDANT HOLLIDAY:

BY: SHARON L. PRESTON, ESQ.
670 EAST 3900 SOUTH, SUITE 101
(801) 269-9541
20
21
22
23
24
COURT REPORTER:
RAYMOND P. FENLON
351 SOUTH WEST TEMPLE, #7.430
(801) 809-4634
25
1
2
3
I-N-D-E-X
4
5
6
PLAINTIFF'S OPENING STATEMENT.........................PAGE 18
DEFENDANT LYMAN'S OPENING STATEMENT...................PAGE 26
8
9
10
WITNESS
DIRECT BY MR. BENNETT

CROSS BY MR. CRANE
CROSS BY MR. STUBBS
CROSS BY MR. GARRETT
REDIRECT BY MR. BENNETT
29
55
63
65
67
JOSHUA EWING:

CROSS BY MR. CRANE
CROSS BY MR. STUBBS
69
86
96
100
102
SCOTT WATSON:

CROSS BY MR. CRANE
104
110
JUAN PALMA:

CROSS BY MR. STUBBS
CROSS BY MR. CRANE
CROSS BY MS. PRESTON
RECROSS BY MR. CRANE
FURTHER REDIRECT BY MR. BENNETT
112
122
129
158
162
173
180
LANCE PORTER:
DIRECT BY MR. DISHMAN

CROSS BY MR. STUBBS
CROSS BY MR. CRANE
184
192
193
196
12
14
15
16
PAGE NO.
JASON MOORE:
11
13
EXAMINATION BY
17
18
19
20
21
22
23
24
25
1
2
EXHIBITS RECEIVED IN EVIDENCE
3
4
5
PLAINTIFF'S EXHIBITS RECEIVED IN EVIDENCE
6
7
8
9
10
11
12
13
14
15
EXHIBIT NO.
1A
1B
83
81
2A
15,16
7
5,6
17B,17C
2B
88
89,90
91
87A
23
22
24
26
PAGE NO.
31
33
35
38
39
47
49
50
54
77
82
83
84
86
117
120
125
191
16
17
18
19
20
DEFENDANTS' EXHIBITS RECEIVED IN EVIDENCE

EXHIBIT NO.
1000
PAGE NO.
94
21
22
23
24
25
P-R-O-C-E-E-D-I-N-G-S
(8:22 AM)
3
4
THE COURT:
number 2:14-CR-470.
Good morning everyone.
We'll call case
This is our Lyman matter.
Counsel, it's the first day of trial and ordinarily we
5
6
like to come and start turning to the substance of our trial
and the merits of the case, and this morning we have some
cleanup to do first.
So I told you yesterday we discussed, counsel, some late
10
filed motions that I indicated were denied and explained that
11
we'd be providing a ruling this morning.
12
MR. CRANE:
Your Honor, I'm sorry to interrupt.
13
We're just missing one counsel.
14
THE COURT:
Well, we should have everyone here.
Let
15
me take a moment also just outside the presence of the jury to
16
address any media that might be in the courtroom.
17
18
Ms. McNamee, did you already speak to the media about

where they may be?
19
(OFF THE RECORD DISCUSSION WITH THE COURTRO0M DEPUTY)
20
THE COURT:
I'm going to provide a ruling on the
21
outstanding motions and, counsel, you can share with
22
Mr. Garrett.
23
24
25
MS. PRESTON:
And he said that that was fine.
Thank
you.
THE COURT:
Thank you.
So we had two late filed
motions from Mr. Lyman, docket number 133, a motion to exclude
and preclude certain argument and evidence, docket 134, a
motion to exclude trial exhibits.
evening at about 5:00 o'clock at the close of business.
These were filed Friday
Mr. Marian through his counsel filed an exhibit list in
this case Monday morning, the day before trial.
And Mr. Wells
through his counsel filed a seven page brief yesterday morning
at 7:00 or 7:30, minutes before we met in the courtroom,
styled a trial brief concerning certain evidentiary issues.
10
There are motions to join filed by some of the Defendants in
11
some of those motions.
12
Those motions to join are granted.
The Court's trial order specifically required that
13
counsel file motions in limine, if any, by April 10th, and
14
there were deadlines for filing objections to exhibits as well
15
in advance of trial.
16
in every single case, both in civil cases and in criminal
17
cases, and there are really four reasons for this.
18
We do this in every single trial order
The reasons from my perspective managing these
19
proceedings are fourfold.
20
counsel when they are at the key period in which they're
21
preparing for trial.
22
timely raise issues that are known to everyone so they can be
23
addressed before the time that we're all in the middle of
24
trial prep.
25
Number one, to avoid impositions on
It's a courtesy to opposing counsel to
Second, it's a courtesy to the Court.
We have a very
full calendar and an awful lot of work to do.
And when
objections and motions in limine are timely filed, it enables
the Court staff and me to read everything that you've
submitted and carefully think about it when we have an
opportunity in our calendar.
Third, and related to the second point, it provides the
Court with the benefit of the adversarial process so that we
have an opportunity for opposing counsel to timely respond to
issues that are raised that are important for trial.
This is
10
very important to me because my singular objective is trying
11
to reach the correct, legally best rulings and results I can
12
with respect to legal issues.
13
doesn't require -- it's aided when I have the benefit of some
14
advance notice, briefing from the opposing side, the
15
adversarial process, and a time to educate myself about the
16
issues so that I can make the best rulings I can for all of
17
you.
18
That requires that I have -- it
The fourth reason that I include those deadlines in the
19
trial order is as a courtesy to our jurors.
We have 12
20
members of our community sitting in the jury room right now,
21
and the issues that have been raised untimely in my view in
22
nearly all of those pretrial submissions from the Defendants
23
are issues that it appears to me were well known to counsel
24
long before the day or day before trial, issues we could have
25
raised, even including the evidentiary objections if there
were some, hearsay issues, the legality -- the issues,
Mr. Stubbs, you raised about topical issues at trial.
What I feared is that we're going to be spending time
today and tomorrow now in trial at sidebar arguing about the
evidentiary basis for exhibits, hearsay objections and
exceptions and other things, either while the jury sits in
that box waiting for us or in the jury room waiting for us.
They are providing a great service to all of us by taking time
out of their lives and their schedules, away from their
10
families and their jobs, and we have a duty and obligation
11
back to them to be respectful of their time.
12
timely exchanging motions in limine and objections to exhibits
13
so we can take them up outside the presence of the jury so
14
when we're here, we're just putting on our case, and they're
15
hearing the case, and we're moving forward.
16
We do that by
I think the untimely filings by Mr. Lyman, Mr. Wells and
17
Mr. Marian implicate all four of those concerns that I have
18
that caused me to include deadlines in all of my trial orders,
19
and I think it's prejudicial to this process.
20
And at least with respect to all of the issues that are
21
raised, save possibly for the Government's exhibits that were
22
the subject of docket number 134, all of them could have been
23
raised in advance of trial in a manner that would have allowed
24
us to take them up, think carefully about them, discuss them
25
and reach good, sound decisions.
It's not a good way to start
1
2
trial.
Let me take up the motions now in turn, first turning to
Mr. Lyman's motions.
They're untimely, as I said, and they're
also not well taken.
Docket 134 is a motion to exclude or
preclude certain categories of evidence and certain phrases.
It's poorly conceived in my view.
to counsel.
filed at 5:00 o'clock the night before the weekend before
trial, which resulted in this case, of course, and the United
It raises issues long known
There's no explanation in the brief why it's
10
States doing the very thing that I seek to avoid.
11
not an issue about the United States or the Defendants or
12
criminal cases or civil cases.
13
And it's
The Saturday before trial the United States spent the day
14
preparing briefs and filing responses to your motion because
15
you waited until Friday night to file it.
16
of course my staff and I read them on Sunday, which is fine.
17
The motion is denied for that reason as untimely.
18
also, as I said, not well taken.
19
substance of that motion in just a moment.
20
It's unfair.
And
It's
We'll return to the
Docket 134 is Mr. Lyman's motion to exclude certain
21
exhibits from the Government, which in my view was at best
22
haphazard and incomplete and at worst misleading about what
23
was disclosed by the United States and when and how.
24
selective in presenting a partial picture of the facts in a
25
way that I think was misleading to me at least until I
It was
1
2
received the opposition from the Government Saturday night.

Those exhibits that were produced by the United States,
if the United States is correct, and of course I don't have a
reply brief from you, Mr. Stubbs, telling me if there was
anything incorrect in their opposition, tells me that
everything that was in that late disclosure was already
disclosed, and that these were only copies of exhibits that
were narrowed from exhibits previously produced to the
Defendants or in some instances redacted, and at least in some
10
instances at the request of the Defendants at the final
11
pretrial conference.
12
I would consider awarding attorney's fees as a sanction for
13
filing that motion just days before trial.
14
If this were a civil case, I'll tell you
That motion is also denied as untimely, and it's denied
15
as being without merit in view of the Government's response
16
over the weekend.
17
I do want to address two issues raised in docket 133, the
18
motion to exclude and preclude.
We spoke briefly yesterday in
19
the jury room about evidence and testimony relating to
20
firearms on the ride.
21
issues.
22
relevance given the theory of the Gate case that the United
23
States might try to articulate in this case, but I think that
24
any potential relevance is outweighed by the potential
25
prejudice to the Defendants.
My view is there are 401 and 403
It's conceivable that there's some potential
There's a Second Amendment right
10
to have their firearms, and unless there's some direct
evidence that ties exhibiting firearms, carrying firearms on
the ride as part of the conspiracy for some purpose, to
advance the objective of conspiracy, then I don't think it has
any place in this case.
sure.
It's not relevant to count two for
Insofar as any of the exhibits that the United States
intends to introduce, display photos or video of the
Defendants or anyone else on the ride with firearms, that's
10
fine.
11
public, then that's fine.
12
witnesses about it and we won't argue about the relevance of
13
that to the conspiracy in the case.
14
The Defendants chose to wear them, if they did, in

We just won't elicit testimony from
Do you wish to make a record about that, Mr. Bennett?
15
MR. BENNETT:
16
THE COURT:
17
MR. BENNETT:
May I please, Your Honor?

Would you.
Thank you.
The main reason for
18
discussing at least briefly with one of our first witnesses
19
about the gun is really to take on the defense that Mr. Wells
20
has raised that he's a neutral reporter.
21
very probative for the jury to be able to look at that and
22
consider whether a reporter goes out on a legal ride dressed
23
in cammo carrying a gun.
24
THE COURT:
25
MR. BENNETT:
I think it would be
Well -It seems -- sorry, I didn't mean to
11
talk over you.
THE COURT:
Go ahead.
MR. BENNETT:
No.
Make your record.
Just that it seems -- we just
want the jury to see that it's incongruent for a reporter to
be dressed in that fashion and just to negate the defense.
THE COURT:
Any more so because he happens to be
carrying a sidearm than if he's not?
I mean if he's holding
himself out as a reporter and reporting on the proceedings
only, don't you have the benefit of putting on evidence that
10
in fact you're not.
11
ride and wearing camouflage.
12
to that discussion, does it, enough to overcome 403 issues is
13
my question?
14
You're there participating in an unlawful
MR. BENNETT:
But the gun doesn't add anything
Well, I believe it does.
I mean if we
15
look at the United States versus Naranjo case out of the Tenth
16
Circuit, it quotes the Fifth Circuit in McRae.
17
that 403's function isn't to exclude evidence to make it close
18
if there is -- or to do anything to equalize the evidence.
19
The United States has presented evidence, it seems -- it's not
20
just to present the modicum of evidence necessary to prove the
21
information.
22
has chosen --
They've chosen to plead not guilty.
23
The COURT:
24
MR. BENNETT:
25
And it says
Mr. Wells
Which they have a right to do.

Absolutely.
And he's even -- he's
chosen to raise the defense, which of course he has the right
12
to do.
He has a second amendment right to wear the gun,
absolutely.
use their common sense notion as to whether reporters show up
to an illegal ride wearing camouflage and a gun.
But at the same time, the jury should be able to
THE COURT:
Good enough, thank you.
I respectfully
disagree.
elicit any testimony about the firearms, unless Mr. Wells or
his counsel or one of the other Defendants put it directly at
issue.
10
So we won't have any examination about witnesses or
All right.
There's a second issue raised, and I'll tell
11
you, Mr. Stubbs, it's unclear to me, in fact it seems
12
contradictory to me the way that you argue this in your
13
motion, the issue about excluding argument and testimony about
14
this being an illegal ride.
15
an illegal ride, that the closure was legal is a legal issue.
16
I agree, it is purely a legal issue and it's been decided by
17
the Court.
18
pretrial conference, and I made a ruling.
19
closure.
20
for purposes of this trial.
21
with me, and you can take it up with them if you wish.
22
is not an issue for trial.
23
Insofar as what you mean by being
You raised it, we discussed it in the final

It is a legal
This road is closed by the BLM legally and lawfully

The Tenth Circuit may disagree
That
It's closed.
If you meant that the illegality of the ride in terms of
24
whether it was criminal was the issue, then I agree with you
25
completely.
That is the entire purpose of the trial.
But
13
this is where the adversarial process is helpful to us.
think it was not criminal, the United States thinks it was and
they've charged it as a crime.
in the court, in fact we read the allegations or summary of
them to the jury yesterday.
You
This is no surprise to anyone
The United States can maintain its position that it's
criminal, you can maintain that it's not, and both sides can
argue from the evidence and the Court's instructions about
what the jury should find.
10
But I wanted to be clear about
that issue.
What we are not discussing in this trial, what we are not
11
12
arguing in this trial, what we're not inviting the jury to
13
consider in this trial is whether that was a lawful closure.
14
It is and it was.
15
a legal issue, as you pointed out, and would have no place
16
being considered by the jury in any event.
That issue is decided for trial.
It's also
17
Mr. Garrett, the status of your exhibit list that was
18
filed the day before trial, did you discuss it with the United
19
States when they should have been preparing for their trial?
20
I don't mean to be sharp about this, but I'm really frustrated
21
by the timing of the filings by the Defendants in this case.
22
It was I think potentially prejudice to the United States when
23
they're trying to prepare their case.
24
25
MR. GARRETT:
map.
What did you learn?
Your Honor, their map is similar to my
I like the colors on my map better, and that's the only
14
difference between the two.
nicer, so I would use theirs.
I just -- it seemed to me that for purposes of
cross-examination of one of the witnesses it would help me to
have my map.
to exactly the same.
THE COURT:
Theirs is actually bigger and

So that's what we've learned.
The United States' map the witness can testify
Provided there's foundation for the
map.
MR. GARRETT:
9
10
THE COURT:
Provided there's foundation.

I think you can use it in
11
cross-examination.
12
not timely disclosed and I won't receive it.
13
cross-examination I think is fair game, provided it's an
14
accurate depiction of the area.
15
16
You can't offer it as an exhibit if it was
MR. GARRETT:
But
It would be -- it's produced, Your
Honor, by the BLM itself.
17
THE COURT:
All right.
Mr. Crane, I've now had the
18
chance to read the brief that you filed yesterday.
19
it?
20
It doesn't present the theories of the case or -- it basically
21
in my view is -- provides a preview of information or evidence
22
you'd like to strike.
23
limine.
Of course you're not required to file motions in
24
limine.
You included seven pages of case law.
25
of it late last night and early this morning.
It's not a trial brief.
What is
It's styled as a trial brief.
In that sense it's like a motion in
We read most
You don't
15
direct it at specific exhibits, though there is discussion of
categories of exhibits.
Insofar as it was intended to just preserve some issue
for the record, it's untimely.
Court and educate me about evidentiary issues you foresaw in
the case, of course it would have been helpful to have it
before 7:30 the morning that we start the trial.
event, it's been received.
States intends to respond.
10
If it was designed to aid the
In any
I don't know whether the United
If there are issues in that brief that we need to take up
11
while this jury is waiting, I'm especially displeased that we
12
waited until -- all of those issues must have been known weeks
13
ago when we received the Government's exhibits, but I'm going
14
to stop carrying on.
15
first morning of its jury service to wait 10 or 15 minutes for
16
us to take up issues we should have discussed last week at the
17
final pretrial conference.
18
19
20
We've caused the jury now on the very
Is there any -- go ahead and make a record, any of the

Defendants who need the benefit of a record now.
MR. CRANE:
I just want to say that the Government
21
in this case produced over a hundred -- excuse me -- and five
22
exhibits with multiple --
23
(MICROPHONE FEEDBACK)
24
MR. CRANE:
I apologize.
25
THE COURT:
That's all right.
16
MR. CRANE:
The Government in this case produced
over 105 trial exhibits with multiple subparts.
week on several different days they were producing subparts A,
B, C and D, which were redactions, so we're constantly going
through the exhibits and trying to figure out where the
Government was.
concerns we had with some of the material in the exhibits.
That's why they produced redacted versions.
going through those.
10
Through last
We had talked to the Government about
We were still
In addition, it's just me trying this case.
Our
11
resources are significantly limited, and it just takes time to
12
go through all this stuff.
13
prejudice the Government by the filing and the timing that we
14
did.
15
together when we can.
16
these -- these issues might raise at trial, we thought the law
17
might be helpful to the Court.
18
THE COURT:
19
There was no intent to try to
It's just we're doing the best we can and putting

And so as -- as we thought that
All right, thank you.
Is there anything
more before we call the jury?
20
MR. CRANE:
Yesterday it was mentioned potential for
21
maybe limiting instructions.
22
I provided it to counsel and I'm happy to give the Court a
23
copy.
24
prepared for that.
25
I did draft one just last night.
It may or may not come up in trial, just trying to be
THE COURT:
Let me just ask
17
counsel for the Defendants if you know whether you intend to
provide an opening or not.
intend to, I'll notify the jury.
you hear from the United States to make your election, that's
fine too.
If you already know that you

If you want to wait until
Mr. Stubbs?
MR. STUBBS:
I intend for Mr. Lyman to make an
opening statement.
intend to make an opening statement at this time.
10
I don't believe the other Defendants
MR. CRANE:
We will reserve, Your Honor, until the
11
start of our case in chief.
12
Exclusionary Rule.
THE COURT:
13
We'd also invoke Rule 615, the
Right, okay.
Has the United States
14
attempted to identify your witnesses and ensure that they're
15
all outside the courtroom save for the case agent?
16
MR. BENNETT:
17
THE COURT:
18
19
Yes, Your Honor.

All right.
Shall we bring the jury?
By
all means let's do.

Ms. McNamee.
20
THE CLERK:
All rise for the jury, please.
21
THE COURT:
Good morning, members of the jury.
22
Thank you for being here.
We're sorry to keep you for a few
23
moments.
We had just a few pretrial matters to take up and
24
resolve.
We will try to be respectful of your time while
25
we're here.
18
Is the United States ready to proceed?
MR. BENNETT:
THE COURT:
MS. PRESTON:
MR. CRANE:
MR. STUBBS:
MR. GARRETT:
THE COURT:
Yes, Your Honor.

Are the Defendants ready to proceed?
Yes, Your Honor.
Yes, Your Honor.
Yes, Your Honor.
Yes, Your Honor.
Mr. Bennett?
Mr. Dishman.
PLAINTIFF'S OPENING STATEMENT
9
10
MR. DISHMAN:
Thank you, Your Honor.
On May 10th, 2014 each of these four defendants crossed
11
12
the line.
13
and reviewing all the evidence, you will know that each of
14
these four defendants knowingly and willfully drove an ATV
15
through an area they knew was closed to off-road vehicles.
16
After listening to the testimony from the witnesses
The evidence will also show that each of these four
17
Defendants did this because they were protesting.
18
act of defiance against the BLM, because the Defendants wished
19
to express their frustration, their disagreement, with the
20
Bureau of Land Management.
21
This was an
The evidence will also show that each of these four
22
Defendants could not have made a mistake, that there was no
23
way for confusion or error, but that they chose to cross the
24
line.
25
There's one other thing that the evidence will show, and
19
that is that each of these four Defendants were the members of
a conspiracy, that they conspired or agreed with each other to
break the law.
Now, you will not learn that this was a complex
conspiracy.
shrouded in secrecy.
simple conspiracy, an open conspiracy, where the Defendants
were actively inviting others to join in their protest, to
join in their agreement to break the law.
10
You will not learn that this was a conspiracy

What you will learn is that this was a
Now, there is this line that the Defendants crossed.
It
11
surrounds a small Canyon in southeastern Utah.
12
person wished to go visit this canyon, they would take I-15
13
south, turn left at Spanish Fork Canyon and drop down past
14
Price and Helper and continue down to I-70.
15
turn left and go east on I-70 and drop down on Route 191 past
16
Arches National Park, past Moab, through Monticello until
17
arriving at the town of Blanding, Utah in San Juan County.
18
And if a
They would then
Just to the east of Blanding, Utah lies this canyon.
19
It's called Recapture.
20
there highlighted.
21
Maybe it's a couple hundred feet deep at its deepest point.
22
It might be half a mile wide across at its broadest point.
23
There's a small stream that meanders on through it.
24
25
It's this little green squiggly thing
Recapture Canyon is not a big canyon.
It's quite a charming canyon.
But setting aside its
natural beauty, there's something else that makes this canyon
20
special.
made hundreds of years ago.
floor is littered with artifacts left from the ancient people
that lived there.
Lining the canyon walls are ancient cliff dwellings

In certain places the canyon
And through the evidence you will learn that it was in
2007 the BLM, using the authority granted to it by Congress,
closed this canyon to off-road or motorized vehicles, and they
did so to protect those artifacts, those cultural resources.
This is a copy of that closure order.
And when they
10
closed it, you will learn in evidence that the BLM in order to
11
notify, among other things, other ways they did this, to
12
notify the public of the closure, posted these signs around
13
the canyon notifying anybody, warning them, that this area in
14
red hatch was closed to off-road vehicles.
15
The evidence will also show that this is the only
16
restriction BLM placed on it.
17
this canyon, a person can mountain bike through this canyon, a
18
person can horseback ride through this canyon.
19
the public in all those forms.
20
placed in 2007 was it limited it to motorized vehicles.
21
That a person can hike through
It's open to
The only restriction the BLM
During the Government's case you will hear from six
22
witnesses.
The first witness will be Jason Moore.
Jason
23
Moore is a Ranger with BLM, and he will testify that he on May
24
9th, the day before the protest, hiked down into this canyon,
25
and among other things he did you will learn that he checked
21
each one of these signs to make sure they were up, visible,
clearly posted and marking the closure area.
As a matter of fact, you will learn that this is the --
during the testimony, this is the actual sign each one of
those four Defendants sitting over there crossed when they
drove their ATV into the closed area.
You will also learn that on May 10th, early in the
morning, Ranger Moore hiked down into the canyon and he took
with him a camera.
He hiked about a half a mile to a mile in
10
the enclosed area along the proposed route that the protestors
11
were going to take, and he waited.
12
started coming down, he took pictures.
13
He took this picture here.
And when the protestors
I direct your attention to
14
the screens down in front of you.
15
Defendant, Mr. Lyman, seated right there, driving his ATV in
16
the closed area.
17
Mr. Wells, seated at the end in the front, driving his ATV in
18
the enclosed area.
19
20
You'll learn he took this next picture of
I'm sorry, Your Honor, there seems to be a problem with a

juror's monitor.
21
THE COURT:
22
A JUROR:
23
MR. DISHMAN:
24
25
He took this picture of the
just the big TV?
Are your monitors not on?

Just this one.
Can't get it.
Are you able to see it over there,
We'll wait for a juror to get her glasses.
THE COURT:
My apologies, Mr. Dishman.
It sometimes
22
1
2
happens with our new technology.

Members of the jury, while we're doing this, let me just
take a moment to say that you're the most important folks in
this courtroom.
that you can't hear or see, let me know.
you have a chance to view everything and hear everything that
you need to make your decisions.
If there's any piece of evidence or testimony

We want to make sure
(OFF THE RECORD DISCUSSION BETWEEN THE COURT AND THE CLERK)
THE COURT:
Mr. Dishman, one of the jurors asked if
10
we couldn't display the first exhibit again.
11
what if we -- counsel, do you have the exhibits on your
12
screens at table?
13
front of the jury for the time being.
14
15
16
17
You want to just wheel the screen over in
MR. CRANE:
doesn't stretch.
You'll have to unplug it.
The cord
There's another plug up here.
THE COURT:
Are enough of the screens on that the
jurors can see?
18
A JUROR:
19
THE COURT:
20
In the meantime,
Yeah.
All right.
My apologies on behalf of
the Court.
21
Go ahead, Mr. Dishman.
22
MR. DISHMAN:
No problem.
So visiting back to that
23
first photo, Ranger Moore will testify he took this photo of
24
Mr. Lyman driving his ATV in the enclosed area.
25
If we could see the next photo, please.
23
He also saw this photo.
He took this one.
And he'll
testify that this is Monte Wells, the Defendant seated at the
end on the front row.
individuals driving their ATVs.
He also took this next photo of two
Ranger Moore will testify he did not know at the time who
these individuals were, but he'll testify that because of this
and other photos of individuals riding the ATVs, he sought
help from other local law enforcement officers and showed them
the photos asking if they recognized any of these individuals.
10
The second witness you'll hear from is Josh Ewing.
11
Mr. Ewing is a resident of San Juan County, and he'll testify
12
that he too was in the canyon that day, May 10th, during the
13
protest inside the closure area, and he was filming and
14
documenting the protest.
15
see video that he took, again of each of the four Defendants
16
driving their ATV in the enclosed area.
17
Mr. Ewing will testify, and you will
The third witness you will hear from is Scott Watson.
He
18
is a ranger with the forest service.
And Ranger Watson will
19
testify that Ranger Moore, the first witness, came to him with
20
these photographs of individuals he could not identify.
21
Ranger Watson will testify, based on his personal knowledge of
22
Mr. Marian and Mr. Holliday, that the two individuals you saw
23
driving in that third photograph are in fact the two
24
Defendants, Mr. Holliday and Mr. Marian, seated in the second
25
row of tables.
And
24
Fourth witness will be Juan Palma.
Mr. Palma at the time
was the State Director of BLM.
will testify about his interactions with both Mr. Lyman and
Mr. Wells in the two months leading up to the ride.
He's since retired.
Mr. Palma
Among other things you'll hear from Mr. Palma is that he
received an e-mail from the Defendant Mr. Lyman on March 2nd
notifying him of his intent to ride Recapture Canyon in a
protest.
Mr. Lyman writes in this e-mail that he hoped and prayed that
10
the BLM would take some action which would turn their illegal
11
ride into a legal one.
12
Please pay close attention to this e-mail because
The fifth witness you'll hear from is Lance Porter.
13
Mr. Porter was the State -- or excuse me -- he was the
14
District Manager of BLM at the time, and his responsibility
15
was managing the lands in southeastern Utah, including San
16
Juan County and Recapture Canyon.
17
Among other things that Mr. Porter will testify to is
18
that on April 27th, about two weeks before the protest ride,
19
he was at a meeting with Mr. Lyman, and there -- excuse me --
20
April 28th.
21
that letter warned Mr. Lyman of the possible criminal and
22
civil consequences that any person that violated the travel
23
order, this travel restriction on BLM land, would face if they
24
decided to do it.
25
He handed a letter personally to Mr. Lyman, and
The sixth witness is Scott Watson.
He is a Special Agent
25
with the BLM, and he'll testify that after the protest
occurred he was tasked with conducting what is called an open
source internet investigation.
learn that an open source internet investigation is simply
accessing things on the internet that are available to
everyone.
need an invite.
internet.
And in his testimony you'll
You'll learn it's not behind a password where you

It's what any person could access on the
And through him you'll learn a lot about the conspiracy.
10
You'll learn that the conspiracy started on February 27th at a
11
town hall meeting hosted by the Defendant, Mr. Lyman.
12
learn that they used social media, Facebook and blog postings,
13
to inform the other members of the conspiracy about changing
14
the date of the protest, and important locations and times of
15
protest events.
16
Mr. Lyman were following each other on Facebook, that they
17
were liking each other's posts.
18
You'll
You will learn that Mr. Holliday and
At the end of the case, after you've been able to hear
19
from all of the evidence, both the United States' and any that
20
the defense may provide, the United States will return right
21
here and ask you to return a guilty verdict.
22
you -- the United States will ask you to find the Defendants
23
guilty of conspiring to break the law and find guilty of
24
operating an ATV in an area they knowingly and willfully knew
25
was closed to ATV use.
They'll ask
The United States will return and ask
26
you to find the Defendants guilty of crossing the line.

The Court:
2
3
Thank you, Mr. Dishman.
Members of the jury, I informed you yesterday in your
preliminary instructions that the Defendants have no
obligation to put on any evidence or make any argument at all.
They also have the option that I didn't discuss with you to
reserve making an opening statement until after the close of
the Government's case, and each of the Defendants can make
that decision individually for themselves.
10
11
Mr. Stubbs, I believe Mr. Lyman would like to open at

this point, is that right?
MR. STUBBS:
12
13
And I just need to
get the microphone from Mr. Dishman.
14
THE COURT:
15
Of course.
You have the floor.
DEFENDANT LYMAN'S OPENING STATEMENT
16
MR. STUBBS:
17
hear me?
18
Lyman.
19
Yes, Your Honor.
My name is Jared Stubbs.
Can you guys
My name is Jared Stubbs and I'm counsel for Phil
In 2007 -- excuse me.
In the fall of 2007 the BLM issued
20
a temporary closure for what is known as Recapture Canyon.
21
Recapture Canyon is a 37 mile long Canyon near the city of
22
Blanding in San Juan County.
23
closure order for seven miles of that canyon.
24
25
The BLM issued a temporary
Now, the local residents near Recapture Canyon were

frustrated.
This canyon is a canyon they loved and they'd
27
been visiting their entire lives, and the BLM closed a seven
mile portion.
agreed to work with the BLM to do what was necessary in order
to reopen Recapture Canyon.
would not lift the temporary closure.
However, despite their frustrations, they
However, year after year the BLM
Finally, seven years later, Phil Lyman, Commissioner for
San Juan County, decided to lead a lawful political protest
against the BLM's delays and inactions.
in 2014, Phil Lyman, citizens of Blanding and citizens of San
In May, on May 10th
10
Juan County gathered together in a public park to hold a
11
rally.
12
annoyance with the BLM's actions and inactions.
13
rally, Phil Lyman, people in Blanding, families, neighbors,
14
families with children, got on their ATVs and they road into
15
Recapture Canyon.
At this rally Phil and others expressed their

After the
16
Now, Phil and the others believed that they had a right
17
to be in that canyon, and evidence will be shown to you that
18
Phil and the other protestors did not violate the law.
19
you.
20
THE COURT:
21
22
Thank you, Mr. Stubbs.
Counsel, I understand the rest of you would like to

reserve opening?
23
MR. CRANE:
24
MS. PRESTON:
25
Thank
Yes, Your Honor, we reserve.

That's correct, Your Honor.
Thank
you.
28
MR. GARRETT:
THE COURT:
Very good, thank you.
Mr. Bennett, does the United States have a witness?

MR. BENNETT:
4
5
Yes, Your Honor.
Yes, sir.
United States calls Jason
Moore to the stand.
(BRIEF PAUSE IN THE PROCEEDINGS)
THE COURT:
Let me explain the delay.
Members of
the jury, we often invoke what's called the Exclusionary Rule
at a trial so that the witnesses that testify in the case
10
remain outside of the courtroom so that their testimony is not
11
affected by the testimony of other witnesses.
12
need to go retrieve them sometimes, and we may have a short
13
break in between sometimes.
14
you're welcome to stand up and stretch your legs, except not
15
right now.
16
17
18
19
20
21
22
23
24
25
This means we
If you wish while we're waiting,
Mr. Moore, good morning.
Come forward, if you would,
please, and let's have you sworn.

Right here will be fine, thank you.
The Clerk:
Please raise your right hand.
(JASON MOORE, PLAINTIFF'S WITNESS, SWORN)

Thank you.
Please be seated.
Please state and spell
your name for the record.

THE WITNESS:
Jason David Moore, J-A-S-O-N,
D-A-V-I-D, M-O-O-R-E.
* * *
29
DIRECT EXAMINATION
BY MR. BENNETT:
Mr. Moore, what is your occupation?
I'm the State Chief Ranger for the Bureau of Land
Management in Utah.
And for how long have you been doing that?
Been doing that job since December of 2014.
What type of training did you receive in order to do that
job?
10
In order to do that job I attended the Federal Law
11
Enforcement Training Center Academy in Glenco, Georgia in
12
2001 --2002.
13
police tactics and real basic police academy.
14
law, constitutional law, a lot of physical training, arrest
15
techniques, had some Archaeological Resource Protection Act
16
training while there.
17
was.
18
19
occupation before being a BLM agent?
20
21
Texas.
22
And for how long did you work for the Border Patrol?
23
Approximately three and a half years.
24
And prior to that what was your educational background?
25
I have a Bachelor's of Science in Criminal Justice from
That was a 14 week course which dealt with basic

I had criminal
Just a real basic academy is what it
Prior to attending the BLM academy, what was your
Prior to that I worked for United States Border Patrol in
30
Southern Utah University.
of -- Chief Ranger for the Bureau of Land Management?
Correct, in Utah, correct.
What exactly do you do as a Chief Ranger?
As the State Chief Ranger I'm the top ranking uniform law
enforcement official in the State of Utah for the BLM.
provide broad program oversight of the law enforcement
program.
Now, is the -- you mentioned earlier you're the Chief
I provide training for the rangers, make sure
10
they're trained up in firearms, control tactics, legal
11
updates, stuff like that.

I also deal with disciplinary issues for the Rangers in
12
13
the state.
I interface with all of the county Sheriffs in
14
group settings and one-on-one.
15
program expert for the State Director, Associate State
16
Director and the District Manager and Field Office Managers.
17
18
Recapture Canyon.
19
Yes, I am.
20
Now, where is it located?
21
Recapture Canyon is located east of the town of Blanding,
22
Utah, just off of Highway 191 at the bottom of Recapture
23
Reservoir.
24
25
Exhibit 1A.
I go meet with them.
I'm the
I'd now like to direct your attention to a place called

Are you familiar with that place?
Now, I'm showing you what has been marked as Government

Do you recognize this?
31
I do.
What is it?
That is a map of the State of Utah with a general
location of Recapture Canyon down in the southeast corner.
Would it assist you in providing testimony here today?
It will.
7
8
MR. BENNETT:
into evidence as Exhibit 1A for illustrative purposes only?

The Court:
9
10
Your Honor, may I please admit this
For illustrative purposes it will be
received.
(PLAINTIFF'S EXHIBIT 1A RECEIVED)
11
12
MR. BENNETT:
13
THE COURT:
14
MR. BENNETT:
May I publish it to the jury?

You may.
Thank you, sir.
15
Q (BY MR. BENNETT)
Chief Moore, would you mind coming down
16
and just illustrating how we would get from the courthouse
17
down to Recapture Canyon on this map.
18
THE WITNESS:
19
THE COURT:
Sure.
And while you do that, any counsel for
20
the Defendants, if you're unable to see the map, reposition
21
yourself wherever you'd like so that you can see the testimony
22
as it unfolds.
23
Go ahead, Mr. Moore.
24
THE WITNESS:
25
everybody (inaudible).
So we are here, Salt Lake City and
32
The Court:
All right.
So one other thing,
Mr. Moore.
Our court reporter also needs to be able to hear
you, so will you please just keep your voice up while you're
facing the other direction.
THE WITNESS:
THE COURT:
THE WITNESS:
Yes, sorry, I will.

Thank you.
All right.
So start in Salt Lake
City, and you travel down to Price, get to Moab, take 191 down
through Moab, all the way through Monticello and down to
10
Blanding.
11
Reservoir, Recapture Canyon is right at Recapture Reservoir
12
right before the town of Blanding.
13
Q (BY MR. BENNETT)
14
Government Exhibit 1B, do you recognize that?
15
I do, yes.
16
What is it?
17
That is a close-up of the southeast corner of the state
18
showing in more detail the location of Recapture Canyon.
19
20
today?
21
It would, yes.
22
Is this a reasonably accurate representation of the
23
location of Recapture Canyon?
24
25
Right before you get to Blanding, Recapture
Also showing you what has been marked as
And would Exhibit 1B assist you in providing testimony
Yes, it is.
MR. BENNETT:
Your Honor, I move Exhibit 1B into
33
evidence for illustrative purposes.
MR. CRANE:
No objection.
THE COURT:
Without objection it's received.
(PLAINTIFF'S EXHIBIT 1B RECEIVED)
4
5
MR. BENNETT:
THE COURT:
May I publish it to the jury?

You may.
Q (BY MR. BENNETT)
and illustrating the -- where Recapture Canyon is in relation
to Blanding, Utah?
Yes.
Chief Moore, would you mind coming down
10
Blanding is right there, and Recapture Canyon is
11
just a couple miles to the east of the town of Blanding, Utah
12
in the green right there.
13
14
Chief Moore, which federal agency manages Recapture Canyon?
15
The Bureau of Land Management.
16
Are you aware of whether BLM has any restrictions on
17
Recapture Canyon?
18
I am, yes.
19
What are those restrictions?
20
You cannot operate an OHV within Recapture Canyon.
21
Now, you used the term OHV.
22
It's an off-highway vehicle.
23
Is any vehicular use possible in Recapture Canyon
24
according to BLM?
25
Thank you.
Please take your place back on the stand.
What does that mean?
There are certain right-of-ways that can be granted for
34
vehicular use within Recapture Canyon, yes.
What is the right-of-way that's granted by BLM?
A right-of-way being granted for maintenance purposes.
If, for example, you had a reason to go down to maintain
something, BLM could grant you a right-of-way to maintain
whatever it is you're going to maintain.
through Recapture Canyon?
No.
10
So it requires special permission from the Bureau of Land
11
Management?
12
Yes, it does.
13
I am now showing you what has been marked as Government
14
Exhibit 83.
15
recognize that document?
16
I do.
17
What is it?
18
That is a copy of the Recapture Canyon area travel
19
restrictions which was the closure order which closed
20
Recapture Canyon to recreational off-highway vehicle use.
21
22
closure order?
23
Without BLM permission, can anyone just drive a vehicle
Do you
And is it a true and accurate representation of the
Yes, it is.
24
25
That should pull up on your screen.
MR. BENNETT:
Your Honor, I move Exhibit 83 into
evidence.
35
MR. STUBBS:
No objection.
MS. PRESTON:
No objection.
MR. GARRETT:
No objection, Your Honor.
THE COURT:
It will be received.
(PLAINTIFF'S EXHIBIT 83 RECEIVED)
5
6
Members of the jury, let me just explain just for a
moment what just happened.
Ordinarily we provide
foundation -- hi.
exhibit with the witness before the exhibit is shown to the
Big board.
We provide foundation for an
10
jury.
So your screens will sometimes be blank as the witness
11
and the lawyer are talking about the evidence the witness is
12
looking at.
13
pop up on your screen.
14
into evidence and then it doesn't come up on your screen,
15
that's when you need to let us know.
And once it's received by the Court, it should

So if I admit or receive an exhibit
16
Go ahead, Mr. Bennett.
17
MR. BENNETT:
18
THE COURT:
19
MR. BENNETT:
20
THE COURT:
Okay.
Thank you.
Has that been published?
Well, it has now.

Okay.
Received and published.
21
Q (BY MR. BENNETT)
22
page of Exhibit 83, do you see in the second -- excuse me --
23
the first paragraph it mentions that OHV use was causing and
24
threatening to cause considerable adverse effects to resources
25
including cultural resources.
Just drawing your attention to the first
Do you see that?
36
Yes.
What are some of the cultural resources that are there in
Recapture Canyon that you've seen?
archaeological and cultural sights, to include cliff
dwellings, literally thousands of pieces of pot shards.
are fire hearths, midden piles, which is basically like a big
black area of middens, kind of like fire ash basically.
are burial cists, storage cists, stuff like that, rock walls
Throughout Recapture Canyon I've seen a multitude of
10
that are still -- still standing.
11
12
Moore?
13
I would say approximately six times.
14
Have you ever hiked it before?
15
Yes, I have.
16
How many times?
17
All the way through or just pieces of it?
18
Just pieces.
19
Probably six times.
20
How about the closure area?
21
The closure area, same, six times.
22
the closure area.
23
24
order to the public?
25
There
There
How many times have you been in Recapture Canyon, Chief
I've always been in
Do you know if BLM did anything to publish the closure
I do.
37
What did they do?
They published the closure order in the Federal Register.
They will also publish it at the field office.
it in newspapers.
closure order.
And what is the Federal Register?
The Federal Register is a document where you publish for
public comment and notification closure orders, supplemental
rules, stuff like that.
They publish
That's how they make the public aware of a
10
Showing you what has been marked as Government Exhibit
11
81, do you recognize that document?
12
Yes, I do.
13
What is it?
14
That is the Federal Register notice.
15
Is it an accurate representation of the Federal Register
16
notice, and specifically what Federal Register notice?
17
18
Recapture Canyon to recreational off-highway vehicle use.
19
What day was it published?
20
It was published September of 2007.
21
And the Federal Register notice itself, which day was
22
that published?
23
That was published on October 5th of 2007.
24
Is this a true and accurate copy of the Federal Register
25
notice of the Recapture Canyon closure?
That is the Federal Register notice for the closure of
38
Yes, it is.
MR. BENNETT:
2
3
Your Honor, I'd move Exhibit 81 into
evidence.
MR. STUBBS:
No objection.
MR. CRANE:
MS. PRESTON:
No objection.
MR. GARRETT:
No objection.
THE COURT:
No objection.
It's received.
9
10
MR. BENNETT:
11
THE COURT:
May we publish it to the jury?

You may.
12
Q (BY MR. BENNETT)
13
Government Exhibit 2A.
14
Yes, I do.
15
What is it?
16
That is the closure sign from Recapture Canyon.
17
When you say the closure sign, what do you mean by
18
that?
19
20
Recapture Canyon at the beginning of the closure area.
21
What's standing there now?
22
A replica of -- another sign just like that but new.
25
Do you recognize this exhibit?
That is the actual sign that came out of the ground in
23
24
I'd also like to draw your attention to
MR. BENNETT:
Your Honor, I move Exhibit 2A into
evidence.
MR. STUBBS:
No objection.
39
MR. CRANE:
None.
MS. PRESTON:
No objection.
MR. GARRETT:
THE COURT:
It's received.
5
6
MR. BENNETT:
THE COURT:
May we publish it to the jury?

You may.
Q (BY MR. BENNETT)
Chief Moore, when was that sign posted by
BLM at the closure area?
10
11
closed.
12
13
perspective, the right side of that sign.
14
Sort of.
15
If you need to get down and look at it, that would be
16
fine.
17
That sign was posted 2007, as soon as the canyon was
I'd like to direct your attention to, at least from my

Do you see that?
Is that okay, Your Honor?
18
THE COURT:
Of course, please.
19
Q (BY MR. BENNETT)
So looking at the right-hand side of that
20
sign, what do you see there on Exhibit 2A?
21
22
closure order.
23
And is that the copy we just saw in Exhibit 83?
24
Yes, it is.
25
I'd like to direct your attention to the left side of
The right-hand side of the sign is the copy of the
40
Exhibit 2A.
What is that?
That is a map of the closure area in Recapture Canyon.
Now, looking at the map, would that be helpful to you
today to illustrate the rest of your testimony?
Yes, it would, absolutely.
We'll come back to that in just a moment.
describe for the jury what comes after the closure sign in
Recapture Canyon?
Now, could you
After the closure sign there is a two-track road which
10
goes for approximately one mile to a turnaround or kind of
11
just a big clearing, and then the road ends.
12
What's a two-track road?
13
Two-track road is basically -- we call it -- all the time
14
we call it a two-track road.
15
here, barely wide enough for one vehicle.
16
has trees, you know, pinion, juniper trees on each side.
17
don't necessarily need a four-wheel drive vehicle to get down
18
a two-track road, but a high clearance vehicle does help.
19
can have, you know, brush in the middle, large rocks in the
20
middle, stuff like that.
21
Why is that two-track road there?
22
That two-track road is there for the San Juan Water
23
Conservancy District to access their pipeline.
24
25
that pipeline?
It's got a track here, track

This particular one
You
You
Do they have special permission from the BLM to access
41
They do.
And that pipeline is in the closed area?
Yes, it is.
Now, what comes after the -- you mentioned the clearing
at the end of the road.
Canyon?
know, kind of a turnaround, and then it narrows down to what I
would call a foot path or small trail that varies from, you
What comes after that in Recapture
After that the road stops.
There's a clearing where, you
10
know, 18 inches wide down through the bottom, through the
11
creek, and it's overgrown with brush in some spots.
12
there's other spots where it kind of gets up on the hill where
13
it's a little bit wider, four or five feet wide, but for the
14
most part it's a foot path down through there.
15
16
on Exhibit 2A where the closure sign is approximately.
17
18
And then
I'd like to ask you -- would you please mark on the map
So the closure sign is right there.

MR. BENNETT:
The witness has placed a piece of blue
19
tape where the closure sign is.
20
Q (BY MR. BENNETT)
21
if you can.
22
Yes, sign.
23
Now, could you please show where the clearing area or the
24
turnaround area I think you referenced earlier is on that map
25
approximately.
Would you please mark that as sign or --
Have you marked it?
Will you please mark T.O. on there.
42
T.O.
Have you done that?
Yes.
Okay.
like to ask you a little bit about the case we're here about
today.
case we're here about today?
Yes, I did.
How did you become involved in it?
10
In late February 2014 I was notified by a fellow law
11
enforcement officer of a ride that was planned down in
12
Recapture Canyon in May of 2014.
13
What did you do when you received that information?
14
When I received that information I notified my other law
15
enforcement officers working in the area, and I also notified
16
the Field Office Manager from Monticello Field Office, and the
17
Canyon Country District Manager in Moab, which the Monticello
18
Field Office is part of that district.
19
20
them?
21
22
law enforcement entities in the state to try to figure out a
23
way to deal with the ride if it actually did happen.
24
25
recall that date?
Please return to your seat.
Thank you.
Now, I'd
How did you become -- did you become involved in this
What did you do with that information after you notified
After I notified them, we began interacting with other
I'd like to take you up to May 9th of 2014.
Do you
43
Yes, I do.
Did you take any action on May 9th, 2014 regarding this
case?
Yes, I did.
Can you tell us what you did?
On May 9th of 2014 myself and three other BLM officers
went into Recapture Canyon to set up trail cameras at various
locations through the canyon.
What's a trail camera?
10
Trail camera is something -- hunters use them a lot.
11
It's about this big.
12
a camera, and it is motion activated, and when something goes
13
by, moves by it, it can take a series of one to three
14
pictures.
15
16
Canyon?
17
We set up a total of four cameras.
18
Was that within the closed area?
19
Yes, it was.
20
Would you please mark for the jury where those --
21
approximately where those trail cameras were placed on May
22
9th, 2014.
23
Yeah.
24
And that's on Exhibit 2A, is that correct?
25
Correct.
It's a pretty small box, and it contains
How many trail cameras did you place in Recapture
Would you just please mark that with a one.
44
Now, please mark the remaining trail cameras.
Now, would
you -- for the first camera, where is number one located
approximately?
the clearing, turnaround, the right-of-way, and just below
where I was in the canyon.
camera one?
Approximately one mile.
10
I notice that a little bit further down on Exhibit 2A you
11
put a second piece of tape.
12
piece of tape?
13
Two and three.
14
Correct.
15
the --
16
Two and three.
17
Where approximately was cameras two and three
18
installed?
19
They were in a place called Browns Canyon.
20
I notice the very bottom of Exhibit 2A you have another
21
piece of tape.
22
Yes, I do.
23
What is that?
24
That is the end of the closure area near Perkins Road.
25
And that was the fourth trail camera?
Number one was located about a quarter of a mile before
Approximately how far from the closure sign was trail
What did you mark that second
You're talking this piece of tape --
It would be the to fourth piece of tape on
45
Yes, it was.
All right.
installing trail cameras on May 9th, 2014, did you do anything
else?
No, we did not.
Did you check the signs?
Yes, we did.
And can you tell me the status of the -- of this closure
sign, Exhibit 2A, on May 9th, 2014?
Please take your seat.
In addition to
10
This sign was still in the ground on May 9th, 2014.
11
Was it in its place?
12
Yes, it was.
13
Now I'd like to turn your attention to May 10th, 2014.
14
Do you recall that date?
15
Yes, I do.
16
Where were you in the morning of May 10th of 2014?
17
The morning of May 10th, 2014 we were inside the closure
18
of Recapture Canyon.
19
And what were you doing there?
20
We were down there to take photographs.
21
Of what?
22
Of possible riders within the closure as they came down
23
the canyon.
24
25
where you were on the morning of May 14th -- excuse me -- May
Would you please mark for us on Exhibit 2A approximately
46
10th, 2014.
Right about there.
Would you please put your initials there.
Yes.
Approximately how far into the closure area away from the
closure sign were you stationed on May 10th, 2014?
Approximately one half of a mile.
Please take your seat.
earlier you were taking pictures; is that correct?
Thank you.
Now, you mentioned
10
That's correct.
11
What camera were you using?
12
A Canon EOS Rebel.
13
Was it in good working order that day?
14
Yes, it was.
15
MR. BENNETT:
I'd now like to show Exhibit 15 and 16
16
to the witness, please.
17
Q (BY MR. BENNETT)
18
those?
19
Yes, I do.
20
What are Exhibits 15 and 16, Chief Moore?
21
Those are photographs I took from my observation post
22
within the closure area of Recapture Canyon.
23
On what date were these photos taken?
24
That was May 10th, 2014.
25
Are these a true and accurate representation of the
They should be side-by-side.
Do you see
47
photos you took that morning?
Yes, they are.
3
4
MR. BENNETT:
Your Honor, I move Exhibits 15 and 16
into evidence.
MR. CRANE:
MR. STUBBS:
MS. PRESTON:
No objection.
MR. GARRETT:
THE COURT:
10
No objection.
They're received without objection.
(PLAINTIFF'S EXHIBITS 15 AND 16 RECEIVED)

MR. BENNETT:
11
12
No objection.
Publish those to the jury, please, may
we, Your Honor?

THE COURT:
13
You may.
14
Q (BY MR. BENNETT)
Chief Moore, do you know -- do you
15
recognize the folks that are on these ATVs here in Exhibits 15
16
and 16?
17
Do I recognize them or know them?
18
Do you know them?
19
No, I do not.
20
And at the time you took the picture, were you aware of
21
who they were?
22
No, I was not.
23
Did you subsequently learn who they were?
24
Yes, I did.
25
And how did you learn that?
48
I showed photographs to the Forest Service law
enforcement officer in Monticello and he was able to identify
them.
And who was -- who was the --
MS. PRESTON:
THE COURT:
Objection, hearsay, Your Honor.

Overruled.
Q (BY MR. BENNETT)
officer to whom you showed these photos?
Officer Scott Watson.
10
I'd now like to show you what has been marked as
11
Government Exhibit 7.
12
I do.
13
What is it?
14
That is a photograph that I took from my observation post
15
the morning of May 10th, 2014 within the closure area of
16
Recapture Canyon.
17
18
took that morning?
19
Do you recognize that exhibit?
Is it a true and accurate representation of the photo you
Yes, it is.
20
21
Who was the name of the Forest Service
MR. BENNETT:
evidence.
22
MR. CRANE:
No objection.
23
MR. STUBBS:
24
MR. GARRETT:
25
MS. PRESTON:
No objection.
No objection.
49
THE COURT:
It's received.
2
3
MR. BENNETT:
Publish it to the jury, please.
Q (BY MR. BENNETT)
individual in -- shown in Exhibit 7?
Yes, I do.
Who is it?
That is Monte Wells.
Do you see Mr. Monte Wells in the courtroom here today?
10
Yes, I do.
11
Could you please point him out to us?
12
Right there.
MR. BENNETT:
13
14
Chief Moore, do you recognize the
Let the record reflect the witness has
pointed to Monte -- Defendant Monte Wells, Your Honor.
15
The Court:
It will so reflect.
16
Q (BY MR. BENNETT)
How do you -- do you know Mr. Monte
17
Wells?
18
Yes, I do.
19
How do you know him?
20
Several years prior to this ride in Recapture there was
21
another protest in the area and a number of individuals from
22
the area walked down through Recapture Canyon, and I walked
23
down with them.
24
approached me and we struck up a conversation, and we hiked
25
and walked and talked for a while together.
I was in uniform at the time.
And Mr. Wells
50
I'd now like to show you what has been marked as
Government's Exhibits 5 and 6.
displayed side-by-side.
Yes, I do.
What are they?
Those are photographs I took from my observation post
within the closure area of Recapture Canyon on the morning of
May 10th, 2014.
you took that morning?
11
13
Yes, they are.

MR. BENNETT:
Your Honor, I move Exhibits 5 and 6
into evidence.
14
THE COURT:
15
16
Do you recognize Exhibits 5 and 6?
Are they a true and accurate representation of the photos
10
12
And, again, these will be
(PLAINTIFF'S EXHIBITS 5 AND 6 RECEIVED)

Q (BY MR. BENNETT)
Do you recognize --
17
And we publish those to the jury, please.
18
I'd like to direct your attention to the individual that
19
appears to be driving this vehicle.
Do you recognize that
20
individual?
21
Yes, I do.
22
Who is it?
23
That is Phil Lyman.
24
Do you see Mr. Lyman here in the courtroom today?
25
Yes, I do.
51
Would you please show -- point him out to us.
Right there behind you, right there.
MR. BENNETT:
Let the record reflect that Chief
Wells has pointed to Mr. Lyman.
THE COURT:
It will.
Q (BY MR. BENNETT)
Do you know Mr. Lyman?
Yes, I do.
I know him from -- I've attended county commission
10
meetings in San Juan County and I've seen him there.
I've
11
spoken to him on the phone once or twice, and know -- just
12
know him as a political figure in San Juan County.
13
14
Corners Adventures in Blanding, Utah?
15
Yes, I am.
16
What is it?
17
It's an ATV/UTV rental company.
18
Now, do they mark their vehicles that they rent out?
19
Yes, they do.
20
And just drawing your attention to Exhibits 5 and 6, do
21
you see any markings on the UTV that Mr. Lyman was driving?
22
Yes, I do.
23
And what are those marked?
24
They're marked Four Corners.
25
About how long were you in Recapture Canyon on the
Now, are you familiar with the -- the business Four
52
morning of May 10th, 2014?
about 6:00 o'clock in the morning and we left at about 11:00
o'clock in the morning.
Had all the riders gone past when you left?
No, they had not.
Why did you leave then?
We left -- prior to the ride I was working with the San
Juan County Sheriff, Rick Eldredge, a lot in regard to this,
We were in there approximately -- we started hiking in
10
and we agreed that the safest way to go about it was we would
11
be down there, and he guaranteed our protection in the canyon
12
as long as we listened to what he said.
13
his instructions.
14
us to leave the canyon, so we packed up our backpacks and we
15
hiked out.
16
17
cameras.
18
9th, 2014.
19
Yes, that's correct.
20
Did you ever check to see what those cameras had
21
recorded?
22
Yes, I did.
23
What did you find?
24
I found they took a lot of photographs, however, the
25
photographs were extremely overexposed.
We had to listen to
And at approximately 11:00 o'clock he asked
I want to talk to you for a moment about the trail

Now, you referenced that you had set those up on May
Is that a correct memory there?
53
What do you mean by overexposed?
Overexposed on the trail cameras.
take photographs of day or night, so as part of that they've
got a small light sensor on there, and somehow that light
sensor was malfunctioning so they thought it was nighttime all
of the time.
light in the photographs.
it looked like?
They're designed to
So in the photographs there's a lot of white
Kind of like a polar bear in a snow storm, is that what
10
That's exactly, yes.
11
I'd like to -- but were these overexposed photos useless
12
to your investigation?
13
No, they were not.
14
What did you find as you looked at these overexposed
15
photos?
16
17
Browns Canyon we could see riders going up the canyon, ATVs,
18
UTVs, saw people on horseback, people walking.
19
20
were those that you marked on Exhibit 2A?
21
Trail cameras two and three.
22
I'd now like to direct your attention to Exhibits 17B and
23
17C.
24
Yes, I do.
25
What are they?
At the overexposed photos we found the trail cameras in
Now, you mentioned Browns Canyon.
Which trail cameras
Do you recognize both of those?
54
Those are photographs from the trail camera in Browns
Canyon.
So is that trail camera two and three?
Yes.
Is this an accurate representation of what you found from
those trail cameras?
Yes, it is.
MR. BENNETT:
and 17C into evidence.
10
MS. PRESTON:
11
MR. STUBBS:
12
MR. GARRETT:
Your Honor, I would move Exhibit 17B
No objection.
No objection.
I would object, Your Honor, of them
13
not being a fair and accurate depiction.
14
this trail camera, you don't know or can't see what's in
15
there, and it may give reference to things that may not be
16
there, mislead the jury.
17
fair and accurate position -- a fair and accurate depiction of
18
what's in the picture.
19
prejudicial of what may -- or assumption of what may be
20
there.
21
22
Given the light of
So my -- my would be -- it's not a
THE COURT:
And also, Your Honor, I think it's
Overruled.
It's received.
Both
Exhibits 17B and 17C are received.
23
(PLAINTIFF'S EXHIBITS 17B AND 17C RECEIVED)
24
MR. BENNETT:
25
Q (BY MR. BENNETT)
Publish those to the jury, please.
Chief Moore, what do you -- what is
55
depicted here in 17B and 17C?
Canyon.
And this is past the turnaround area?
Yes, it is.
Both 17B and 17C show riders on ATVs traveling up Browns
MR. BENNETT:
THE COURT:
MR. BENNETT:
Your Honor, may I just have a moment?

Of course.
Thank you.
(BRIEF PAUSE)
9
10
Q (BY MR. BENNETT)
Chief Moore, are you aware of whether
11
anyone has filed any kind of a civil action to challenge the
12
closure of Recapture Canyon?
13
No, they have not.
14
MR. BENNETT:
15
No further questions.
CROSS-EXAMINATION
16
BY MR. CRANE:
17
18
Recapture Canyon; is that correct?
19
Yes.
20
And I think you testified you've been there approximately
21
six times in that Canyon?
22
Yes.
23
To your right is that binder there.
24
that up to defense proposed Exhibit 1000, should be the first
25
tab.
Chief Moore, you testified that you're familiar with
If you could open
56
You said 1000?
Yes.
document?
It's an aerial photograph is all I see.
Okay.
of?
No, I don't.
Okay.
I'm sorry?
10
You don't recognize defense exhibit -- proposed Exhibit
11
1000?
12
13
I don't know.
14
15
it Recapture Canyon or is it not?
16
I can't tell you for sure.
17
Okay, that's perfect.
18
and you marked some of the postings there.
19
talk a little bit about the trail and the map.
20
that the water conservancy put a pipeline into this area; is
21
that right?
22
Yes.
23
And in fact the trail up to the turnaround spot, the
24
pipeline is buried underneath that trail; isn't that right?
25
You can take a look at that.
Do you recognize what it's an aerial photograph
You don't -- you don't recognize this at all?
Well, I would assume it's Recapture Canyon, but with this
That's okay.
I don't want you to assume.
Can you -- is
You talked about the trail here,

I just want to
You mentioned
That's correct.
57
And this -- and this pipeline was put in back in 1986,
correct?
I don't know the date.
Okay.
and they continue to maintain this trail; is that right?
Whether they maintain it or not, I don't know.
Okay.
far as you know, correct?
Yes, correct.
10
And in fact oftentimes this trail is referred to as the
11
pipeline trail or the pipeline portion of Recapture Canyon,
12
correct?
13
I have never heard it called the pipeline trail.
14
Okay, that's fair enough.
But the water conservancy does have a right-of-way
But the pipeline is still there and being used as
15
If I could approach?
16
THE COURT:
On the map here --
Please.
17
Q (BY MR. CRANE)
18
just want to point to a couple things.
19
Yes.
20
Okay.
21
That's where you indicated the Recapture Canyon is closed and
22
where this sign was posted, correct?
23
Correct.
24
And so this portion of the trail, this is -- north of
25
that is part of Recapture Canyon, correct?
Chief Moore, can you see where I'm at?
So this first sticker here there's a red line.
58
Correct.
And this is actually open to ATV use, correct?
Correct.
And to access that point you have to come off the freeway
here and there's an entrance that goes down into Recapture
Canyon, correct?
Off the highway, yes.
Yes.
the freeway, and I think it's depicted right here; is that
And then the reservoir is just on the other side of
10
correct?
11
That's the location, yes.
12
And in fact -- do you still have the tape with you?
13
Yes, I do.
14
Can you come mark just the reservoir and put R for
15
reservoir.
16
I'll just put the tape over the reservoir, is that okay?
17
Just next to it.
18
depicted on the map, correct?
19
Correct.
20
Okay, thank you.
21
this -- this large piece of tape, which is the second one
22
down, you wrote sign, and the sign is actually right at that
23
red line; is that correct?
24
I cannot see the red line you're pointing to, sir.
25
Oh, sorry.
The reservoir on this map, it is the
You can sit down.
Just to clarify, so
Well, maybe can you come stand by me?
We'll
59
make it easier.
So there's a red line next to where you wrote
sign?
Which red line?
Sorry.
Yes, that horizontal red line.
And that's the northern most boundary of the closure
area, correct?
Correct.
And then this whole area in red depicts the closure area,
This red line right here.
10
correct?
11
Correct.
12
Okay.
13
wrote J.M., correct?
14
Correct.
15
And that's on the pipeline trail, correct?
16
Correct.
17
Where the pipeline is located, correct?
18
Yes.
19
All right.
20
the pipeline trail, correct?
21
Correct.
22
Thank you.
23
Recapture Canyon on the morning of May 10?
24
25
have been just north of the dam on the highway.
And you set up on the morning of May 10 where you
And then you put up camera number one next to
Sit down.
How -- where did you access
We parked just off the highway off of 191 up -- it would
60
Okay.
There's a -- it's not really a parking lot.
a pull-off.
of Recapture, open to ATVs, correct?
Correct.
And then went across into the closure area, and that's
where you set up with your camera, correct?
Correct.
10
When you were asked -- or when you left at 11:00 AM,
11
where did you go to exit Recapture Canyon?
12
We walked out the same way we walked in.
13
Okay.
14
on the map, that's the furthest south you went into Recapture
15
Canyon on May 10, 2014, correct?
16
That's correct.
17
You talked about some of the archaeological and ancient
18
things you can find in the canyon, including pottery,
19
dwellings.
20
artifacts are located in the southern part of Recapture
21
Canyon?
22
They are located throughout the Canyon.
23
Okay.
24
camp sites, the fire pits, those are located in the southern
25
part of Recapture Canyon?
Okay.
There's a parking lot up there?

It's more of
And then you walked down through the open section
So on the spot where you have your initials J.M.
Isn't it true that most of those relics and
But the vast majority of say potter shards, the
And I say southern part, let me
61
clarify.
South of the turnaround spot you identified -- you
identified with a T.O.; is that correct?
The majority?
Yes.
Was that your question?
Yes.
Yes, the majority would be.
Okay.
early 2014?
And you testified that you learned of this ride in
10
Correct.
11
Do you know what approximately -- approximate month of
12
when you learned about the ride?
13
It was late February.
14
Okay.
15
Correct.
16
And so you had plenty of notice about this ride.
17
wasn't a surprise to you?
18
No.
19
It wasn't a surprise to the BLM?
20
No.
21
And it wasn't a surprise to local law enforcement, was
22
it?
23
24
25
And this ride happened May 10th, right?
It
No, it was not.

MR. CRANE:
me, please.
Could you pull up Exhibit Number 7 for
Thank you.
Well, before you do that, let me ask
62
one question.
Q (BY MR. CRANE)
of different people; is that correct?
That's correct.
And some of those people were wearing helmets or goggles
that obscured their faces; is that right?
That is correct.
And in fact some of the people that rode had
handkerchiefs covering their faces, correct?
During the ride, you took pictures of a lot
10
Some of them probably did, yes.
11
If we look at Exhibit -- Government's Exhibit Number 7 --
12
I can just put it up on the ELMO.
That's easier.
13
THE COURT:
I think it's up, Mr. Crane.
14
MR. CRANE:
Oh, thank you.
15
Q (BY MR. CRANE)
When Mr. Wells drove by you, he didn't have
16
his face obscured, did he?
17
No, he did not.
18
I'm going to show you what's been marked as Government's
19
Exhibit Number 81.
20
actual closure of -- the actual closure that was published in
21
the Code of Federal Regulations; is that right?
22
That's correct.
23
Okay.
24
drawing your attention to it, it says the closure order does
25
not apply to, one -- and then it has a second one, says, any
This is -- you testified this is the
And here I have highlighted just a portion.
And
63
BLM employee, agent, or contractor while in the performance of
an official duty, or any person expressly authorized by BLM.
Did I read that correctly?
Yes, you did.
And that -- and that's what was published as part of the
closure order in -- in the Federal Register; is that right?
Yes, it was.
You testified you know Commissioner Lyman from going to
county commission meetings; is that right?
10
That's correct.
11
And in fact he is an elected official in San Juan County,
12
correct?
13
Correct.
14
And isn't it true that Recapture Canyon is within his
15
district, his elected district; is that right?
16
That's correct.
17
I'll pass the witness.
18
CROSS-EXAMINATION
19
BY MR. STUBBS:
20
21
attorney.
22
Good, thank you.
23
Good.
24
Canyon.
25
Were you a half mile into the Canyon?
Mr. Moore, my name is Jared Stubbs.
I'm Phil Lyman's
How are you doing?
Turning your attention to the map in Recapture
How far down into Recapture Canyon were you again?
64
We were approximately a half of a mile into the closed
area.
Half mile?
Correct.
Okay.
No.
Which was the pipeline road?
Correct.
Thank you.
That would be in the -- on the pipeline road?
So you didn't leave the pipeline road that day?
We went where the Sheriff told us to go.
And you saw -- you saw Commissioner Lyman on
10
the trail that day?
11
Yes, I did.
12
Okay.
13
identity, did he?
14
No, he did not.
15
Okay.
16
pipeline road?
17
No, I did not.
18
Isn't it true that he never left the pipeline road?
19
I do not know that.
20
see him again.
21
22
or this alleged crime, correct?
23
Correct.
24
And you don't know whether or not he turned around at the
25
end of the water conservancy district?
Okay.
And he didn't attempt to hide his -- conceal his
So did you ever see Commissioner Lyman leave the
Once he passed my location, I didn't
But you conducted an investigation of this crime
65
I do not know if he turned around there or not.

MR. STUBBS:
2
3
Okay.
All right.
Nothing further,
thank you.
MS. PRESTON:
No questions, Your Honor.
MR. GARRETT:
I have a few.
witness, Your Honor?
THE COURT:
8
9
May I approach the
You may.
CROSS-EXAMINATION
BY MR. GARRETT:
10
Illustrious map here.
Well, first let me ask you a
11
couple of questions to begin with before I show you this.
12
You've worked for the BLM for how long?
13
Since December of 2001.
14
So that's by calculation -- I'm an attorney, so I'm not
15
an accountant, but that's about 13 years, right?
16
13 years, yes.
17
Okay.
18
have you been into what's called the BLM field office here in
19
Salt Lake over by Gateway Mall?
20
Not that entire time, no.
21
Have you been in it before during that period of time?
22
Yes, I have.
23
Have you seen the pictures on the walls there?
24
Yes.
25
Have you seen the maps on the walls there?
That's what I thought.
During that period of time
66
There's maps everywhere.
Okay.
Can you tell me what that map is?
That is a land status map of the State of Utah.
What does that depict?
That depicts land status throughout the state, basically
ownership, who manages the land.
that on the wall there in your office?
Okay.
Let me show you one and see if you recognize this.
And your BLM land, that's not -- have you seen
10
Yes.
11
That's a -- that's a copy of that map in the office,
12
correct?
13
There's maps like that in the office, yes.
14
Okay.
15
color?
16
17
yellow.
18
19
percent of the State of Utah is managed by the BLM?
And your BLM land on that map is marked in what
Be marked in the -- the yellow.
Okay.
I guess you call it
And would you say that that's about -- over 60
20
MR. BENNETT:
Objection, relevance.
21
MR. GARRETT:
I'll tie that, Your Honor, throughout
22
the witnesses and even into my case.
23
question and it's answer, Your Honor.
24
25
THE COURT:
You should know that
Let's meet at sidebar.
(BENCH CONFERENCE OFF THE RECORD)
67
MR. GARRETT:
I have a couple more questions.
Could
you place Government's Exhibit 5 and 6 up on the screen.
Q (BY MR. GARRETT)
familiar with these pictures because you took them, correct?
Correct.
And they're a fair and accurate depiction of what
happened that day, correct?
Correct.
MR. GARRETT:
9
10
Are there other pictures -- or you're
I have no further questions.
I'll
retrieve my map.
REDIRECT EXAMINATION
11
12
BY MR. BENNETT:
13
14
statement of the pipeline road; is that right?
15
Could you say that again?
16
You heard defense counsel ask you questions about the
17
pipeline road?
18
Correct.
19
Is the pipeline road in the closed area?
20
Yes, it is.
21
Does -- are you aware of an entity that has a
22
right-of-way to use the road that defense counsel talked
23
about?
24
25
Conservancy District.
Chief Moore, you heard defense counsel ask you about the
The only entity I'm aware of is the San Juan County Water
68
And what is the -- what do they get to do with that
right-of-way?
They get to maintain their pipeline.
Do they get to ride recreational vehicles up it?
No, they do not.
MR. BENNETT:
MR. CRANE:
MR. STUBBS:
MR. GARRETT:
Nothing further.
10
MS. PRESTON:
Nothing.
11
THE COURT:
12
Nothing further, thank you.
Nothing further.
May this witness
be excused?
13
MR. BENNETT:
14
THE COURT:
15
much.
16
if you'd like.
Yes.
Very good.
Chief Moore, thank you very
You're welcome to stand down, and you're free to leave
17
THE WITNESS:
18
THE COURT:
Thank you.
Mr. Bennett, we were a few minutes late
19
bringing the jury in this morning, but we've been going for
20
well over an hour and a half.
21
our mid morning break at 10:00 o'clock.
22
I think this is about time for
Members of the jury, we'll break for 15 or 20 minutes or
23
so.
I'll remind you of the general admonition not to talk
24
about the case amongst yourselves or with anyone else, and of
25
course to keep an open mind as the testimony is coming in.
69
Thank you.
We'll be in recess.
THE CLERK:
2
3

(JURY EXCUSED)
THE COURT:
(RECESS FROM 9:57 AM UNTIL 10:18 AM)
5
6
7
Let's be back about quarter after.
THE COURT:
Anything we need to take up, counsel,
before we bring the jury?
MR. BENNETT:
THE COURT:
All right, Ms. McNamee.
10
THE CLERK:
11
THE COURT:
Mr. Bennett, the United States' next
12
witness.
MR. BENNETT:
13
14
No, Your Honor.
The United States calls Joshua Ewing
to the stand.
15
THE COURT:
Mr. Ewing, welcome.
16
and be sworn if you would, please.
17
you.
Please come forward
Right here is fine, thank
18
THE CLERK:
19
(JOSHUA EWING, PLAINTIFF'S WITNESS, SWORN)
20
21
Thank you.
Please be seated.
22
THE WITNESS:
23
Joshua Ewing, J-O-S-H-U-A, E-W-I-N-G.

DIRECT EXAMINATION
24
BY MR. BENNETT:
25
Mr. Ewing, what do you do for a living?
70
I run a nonprofit group called Friends of Cedar Mesa.
We
work on protecting public lands in San Juan County.
For how long have you done that?
About a year and half now.
Prior to that what did you do for a living?
Communications and video production consulting.
And where did you do that?
In San Juan County for about a year and a half when I
first moved down there, and then previously to that up here in
10
Salt Lake City.
11
12
how long have you lived there?
13
It will be three years in July.
14
Now, do you serve on any boards or councils in San Juan
15
County?
16
17
commissioners in San Juan County have put together that I've
18
served on for last about year and a half.
19
And to whom do you report on that lands council?
20
Well, it's a -- it's a -- it's a group of citizens that
21
are put together to -- to give advice to the county commission
22
on public lands issues.
23
24
Lands Council?
25
So you just mentioned you moved to San Juan County.
For
There's a Public Lands Commission that the county
Do you work with any of the Defendants on the County
Well, Commissioner Lyman was one of the main organizers
71
of the committee and therefore I interacted with him pretty
frequently on that county commission.
How is your working relationship with Mr. Lyman?
Well, I would say Commissioner Lyman is one of the
hardest working, most responsive and knowledgeable public
officials I've ever encountered.
lands issues entirely, but he has always listened to my
concerns and the concerns of my group and treated us with
respect.
We don't agree on public
I've attempted to return that courtesy to him and,
10
you know, I certainly wouldn't be here today if I wasn't
11
compelled to be.
12
13
subject of Recapture Canyon ever been discussed?
14
15
very controversial topic in San Juan County politics and
16
certainly was mentioned at -- at many meetings.
17
18
during those discussions?
19
20
had about the canyon being closed, how long it had taken the
21
BLM to -- to process the request from San Juan County so,
22
yeah, the closure of the canyon was discussed many times.
23
24
Canyon was being discussed?
25
Now, during the County Lands Council work, has the
Sure.
It came up in quite a few of our meetings.
It's a
Did the BLM closure order of Recapture Canyon come up
It was certainly discussed the frustration that people
Was Mr. Lyman present when the closure of Recapture
I'm sure he would have been since he was at almost all of
72
the meetings.
2
3
I would object to foundation, date and
THE COURT:
Well, let's have at least some
time.
4
5
MR. CRANE:
foundation.
MR. BENNETT:
Q (BY MR. BENNETT)
meet?
Certainly.
How often does the County Lands Council
We've met on about a monthly basis for -- since January
10
of 2014.
11
12
date?
13
14
meeting.
15
but I don't have that with me.
16
17
said?
18
19
would have a meeting that would happen, you know, a month and
20
we'd say when can we meet again?
21
might be two weeks, it might be six weeks.
22
our last meeting that we had met 18 times over the course of
23
the last -- since January 2014.
24
25
discuss the closure of Recapture Canyon in your Lands Council
And you've served on the County Lands Council since what
Since the first meeting.
I don't have the date of the
It was in January 2014.
I Could look it up for you
So do you recall which -- is it a monthly meeting you
It wasn't held on, you know, an exact monthly basis.
We
It might be three weeks,

But we counted at
Now, between January of 2014 and May 10th of 2014 did you
73
meetings?
that we had during that time period.
three meetings?
he would have been present at at least one of them.
Do you know Mr. Monte Wells?
I have met Mr. Wells.
10
And how do you know him?
11
He did attend a couple of the County Lands Council
12
meetings, and I've also met him at public meetings in San Juan
13
County on public lands issues.
14
Do you know what he was doing there at those meetings?
15
I think he was --
I'm sure it came up in at least three of the meetings
And do you recall if Mr. Lyman was present during those
I'm not sure he was present at all of them, but I'm sure
16
MR. CRANE:
Calls for speculation, Your Honor,
17
objection.
18
Q (BY MR. BENNETT)
19
was doing at those meetings?
Well, do you have knowledge as to what he
20
MR. CRANE:
21
THE WITNESS:
22
THE COURT:
23
THE WITNESS:
Same objection.
He was attending.
I'm sorry, what's the answer?
I didn't talk to him about that so I
24
don't -- I don't know what his purpose for attending was.
25
Q (BY MR. BENNETT)
Do you know if Mr. Monte Wells runs a
74
website?
Petroglyph.
Are you familiar with The Petroglyph?
I have read a good number of the articles on that site.
Are you familiar with Recapture Canyon?
I am.
About how many times have you been there?
Well, Recapture Canyon is a big place.
Yes, he does run a website.
I think it's called the
I would say I've
10
been in Recapture Canyon maybe a hundred times.
11
the canyon where the ATV ride and protest happened, probably
12
only been in about six times.
13
Do you recall the date of the protest ride?
14
I do.
15
What date was that?
16
May 10th, 2014.
17
Now, were you in the canyon anytime just before May 10th
18
of 2014?
19
20
documentary filmmakers had contacted me that wanted to capture
21
what happened the day of the protest ride and they weren't
22
familiar with the canyon, and so I took them into the canyon
23
the day before.
24
25
before?
Yes.
I was in the canyon the day before.
The part of
A couple of
Now, did you see any signage when you were there the day
75
Sure.
There's quite a bit of signage walking down from
the dam.
any signage notifying you that it was closed?
area just as you go into the -- go into the closure.
Exhibit 2A.
That looks to me to be the placard that was there
Now, in the closed area of Recapture Canyon did you see
Well, there was a placard there that outlined the closure
I'm showing you what has been received as Government
Right.
10
that I walked by the day before.
11
12
2014?
13
14
from the dam there's like a no trespassing sign that you see.
15
And then further down past that there's signs, BLM signs,
16
marking a open ATV trail that goes off on the west rim of
17
Recapture Canyon up toward the town of Blanding.
18
19
near to that sign is the sign showing where open ATV trails
20
are?
21
22
down right near that point.
23
open ATV trail the day before to walk the documentary
24
filmmakers past that sign you showed me.
25
Were there any other signs that you saw on May 9th of
Sure.
I mean when you first -- when you first come down
How near the metal sign, Exhibit 2A that we just saw, how
It was pretty close.
Like the trail that is open comes

I recall walking down that other
So as you come to Exhibit 2A when it was placed in the
76
line showing the closed area of Recapture Canyon, could you
also see the sign that showed where open ATV access was?
do recall seeing it when I came down that trail and it's very
close to that area, but I don't recall exactly the placement
of that sign in relation to this one here.
you recognize that?
You know, I don't recall exactly how close they were.
I'm showing you what has been marked as Exhibit 2B.
Yeah.
Do
That's the trail -- a trail closed sign that I
10
would have seen the day before when I went into the canyon.
11
Did you see this sign on May 9th of 2014?
12
Can't tell you it was exactly that sign, but a sign that
13
looked a lot like it for sure.
14
15
you saw on May 9th, 2014?
16
Is this a fair and accurate representation of the sign
It does look like it, yes.
17
18
19
20
It said trail closed.
MR. BENNETT:
Your Honor, I move Exhibit 2B into
evidence.
MR. CRANE:
Your Honor, If I can ask two questions
in aid of an objection, voir dire.
21
THE COURT:
All right.
22
MR. CRANE:
Thank you.
23
Mr. Ewing, are you -- isn't it true that this sign was
24
not at the head on the north end of the closure boundary on
25
May 10, 2014.
77
THE WITNESS:
boundary.
what you mean by that.
On the north end of the closure
You'll have to be a little bit more clear to me
MR. CRANE:
I guess my question is you said you saw
this in the canyon.
you saw it May 9th, 2014.
Where did you see it on May -- you said
THE WITNESS:
Where did you see it in the canyon?
It would be as you're walking -- as
you're walking toward -- you know, as you're walking into the
canyon, you know, you come by this sign.
I don't recall if it
10
was like right there or if it was down the trail just a little
11
bit, but it was certainly in that canyon.
12
So at the northern part of the canyon?
13
Right.
14
to describe it I know -- I don't know if you all have seen a
15
map of the canyon or whatever, but you -- you come down from
16
the Recapture dam, and it's kind of an old road, and you get
17
to an open point where -- where that sign was placed that has
18
the -- that marks all of the boundaries.
19
kind of continues on from there.
20
close to that sign.
Well, it would be the northern part.
You know,
And then the road
And it would have been very
21
MR. CRANE:
Thank you, Your Honor, no objection.
22
THE COURT:
All right.
23
exhibit is received.
24
25
Without other objection, the

MR. BENNETT:
Move to publish to the jury.
78
THE COURT:
You may.
Q (BY MR. BENNETT)
Now I'd like to take you to the events of
May 10th, 2014.
Yeah.
What -- where exactly were you on the morning of May
10th, 2014?
Blanding.
BLM road on the west side of the canyon and I hiked down into
Do you recall that day?
Yes, I do.
Well, I got up real early and drove up from Bluff up to

It's about 25, 30 mile drive.
And I drove out on a
10
the canyon with a couple of friends of mine.
11
camera at a location that I thought was important to people,
12
you know, knowing the story of what happened in the canyon
13
that day, and waited for the riders to come by.
14
Why were you there?
15
Well, my organization, which is called Friends of Cedar
16
Mesa, had not been involved with the Recapture controversy
17
that had been going on for years, so I wasn't planning on
18
going.
19
out that the other conservation groups that had been involved
20
weren't planning to attend and document and witness what
21
happened there, primarily out of fear for the safety of their
22
volunteers.
23
And I set up my
But in the 48 hours leading up to the ride, I found
You know, I decided we couldn't leave it to the BLM and
24
we couldn't leave it to the riders in the ride to tell the
25
public what happened, to show the public what happened, have
79
an objective view of the events in the canyon.
afraid of going.
3
4
And I wasn't
I knew people that were going to be there.
MR. CRANE:
Your Honor, I object to the
nonresponsive narrative at this point.

THE COURT:
5
6
Q (BY MR. BENNETT)
May 10th, 2014?
phone.
Overruled, but the next question.
Where exactly were you in the canyon on
I could give you GPS coordinates.
I have them in my
But I was near the end of kind of a service
10
maintenance road in the canyon near some archaeological sites
11
and at a point that I felt if people continued past there they
12
would do damage.
13
14
actually been received as Exhibit 2A.
15
showing the jury where -- approximately where you were set up
16
on May 10th of 2014?
17
Sure.
18
Get this thing to work.
19
off the stand and I will give you a piece of tape, a whole
20
roll of tape, and a Sharpie.
21
jury approximately where you were set up on the morning of May
22
10, 2014.
23
24
entire Canyon from that point further on later on in the
25
day.
I'm showing you what's been marked as Exhibit 2A,

Would this help you in
Would you mind just coming down
Would you please mark for the
So I should definitely clarify that I walked through the
80
MR. CRANE:
Objection, nonresponsive to the
THE COURT:
Overruled.
THE WITNESS:
question.
Go ahead.
You asked me where I was in the
canyon.
I was in a lot of the canyon.
But when I shot the
majority of my footage, I was -- look closely at this.
right about here.
Sharpie on that piece of -- on that piece of tape you just
Yeah,
And if you can, would you please indicate J.E. with that
10
placed on the map.
Now, is that within the area that was
11
closed to motorized use?
12
Yes.
13
Were others filming with you that day?
14
There were others filming.
15
documentary filmmakers that had contacted me were filming.
16
They weren't necessarily with me, but I, you know, did text
17
with them for example to let them know -- you know, they let
18
me know the riders were coming, and I let them know where I
19
was filming at so that they wouldn't duplicate what I was
20
filming.
21
22
mentioned they texted to you that the riders were coming.
23
did they know that?
24
25
know what was happening at the rally and how much longer I'd
As I mentioned, the two
Go ahead and take your seat back on the stand.
You
How
They had attended the preride rally and were letting me
81
be waiting in the canyon.
Where was the preride rally held?
It's a public park south of Blanding.
Approximately how far from the closure sign is that
public park?
From this closure sign or other closure signs?
Just from this closure sign here.
I would guess maybe seven miles maybe.
measured it, but something in that range.
I haven't
10
Do those who were filming the preride rally, did they
11
ever share their footage with you?
12
13
photos that I had requested as I was putting together my
14
report of the ride.
15
Did you review that footage?
16
I did review it quite carefully.
17
I'm showing you what's been marked as Government Exhibit
18
88 -- at least I think I am.
They shared their finished product with me and a few
19
THE COURT:
20
THE WITNESS:
Is it on your screen?
Yes.
21
Q (BY MR. BENNETT)
22
23
camera.
24
25
you captured on May 10th, 2014?
Yes.
Do you recognize Government Exhibit 88?
That's footage that I captured that day with my
Is this a true and accurate representation of the footage
82
It looks to be the raw footage that I shot, so it hasn't
been changed.
3
4
MR. BENNETT:
evidence.
MR. CRANE:
MR. STUBBS:
MR. GARRETT:
THE COURT:
No objection.
No objection.
It's received.
9
10
11
No objection.
MR. BENNETT:
Can we publish that to the jury,
please.
12
THE COURT:
13
MR. BENNETT:
14
Do you intend to play it, Mr. Bennett?

Yes, just a few seconds.
(VIEWING VIDEO)
15
Q (BY MR. BENNETT)
16
17
89?
18
I don't see anything on my screen yet.
19
It was there.
20
There we go.
21
Is that a true and accurate representation of the footage
22
you shot on the morning of May 10th, 2014?
23
Do you recognize Government Exhibit
Yes, that's also footage I shot that day.
Yes.
24
25
Now I'd like to turn your attention to
MR. BENNETT:
evidence.
83
THE COURT:
2
3
4
MR. BENNETT:
Would you please publish it to the
jury.
Your Honor, I've been told there's about a 30 second
5
6
It's received without objection.
delay between that, so I apologize for the time.
THE COURT:
That's all right.
(VIEWING VIDEO)
Q (BY MR. BENNETT)
Now, did you -- do you know who was
10
driving that blue vehicle that you filmed?
11
Yeah, it was Commissioner Lyman.
12
And how do you know Commissioner Lyman?
13
As I mentioned before, I've served on the Lands Council
14
with him and attended many meetings with him.
15
16
Do you recognize that?
17
Yes.
18
Is this a true and accurate representation of the footage
19
you captured on May 10th, 2014?
20
I'm now showing you what has been marked as Exhibit 90.
It's also footage I captured that day.
Yes.
21
MR. BENNETT:
22
MR. CRANE:
23
MR. STUBBS:
24
MR. GARRETT:
25
THE COURT:
Move Exhibit 90 into evidence.

No objection.
No objection.
No objection.
84

MR. BENNETT:
Publish it to the jury, please.
Q (BY MR. BENNETT)
Do you recognize the last individual that
was shown on that video clip?
Yes.
I'm now showing you what has been marked as Exhibit 91.
Do you recognize this footage?
That's also footage that I shot that day.
Is it a true and accurate representation of the footage
That was Mr. Wells.
10
you shot on May 10th, 2014?
11
Yes.
12
MR. BENNETT:
13
MR. CRANE:
14
MR. STUBBS:
15
MS. PRESTON:
No objection.
16
MR. GARRETT:
No objection.
17
The COURT:
18
Move Exhibit 91 into evidence.

No objection.
No objection.
It's received.
19
MR. BENNETT:
20
Let's publish it.

(VIEWING VIDEO)
21
Q (BY MR. BENNETT)
22
23
taken that you see -- you saw.
24
point where folks who were gathering, some people continued on
25
and some people turned back and went back out the north part
Where was this footage shot, Mr. Ewing?
It was About 50 feet from where those previous shots were

It's kind of a turnaround
85
of the Canyon.
frame there.
shirt?
Sure.
Who is that?
Commissioner Lyman.
Is this area still in the closed section of Recapture
Canyon?
I'm going to focus your attention to the middle of the

You see an individual dressed in a green
10
Yes.
11
I'm now showing you what's been marked as Exhibit 87A.
12
13
14
footage that was shot by the two documentary filmmakers that I
15
was coordinating with.
16
Yes.
Is it a true and accurate representation of --
17
18
This is a -- a still -- a still screen capture of
MR. STUBBS:
Your Honor, I'm going to object as to
hearsay.
19
THE COURT:
Overruled.
20
Q (BY MR. BENNETT)
21
of the footage that you saw?
22
Is it a true and accurate representation
Yes.
23
MR. BENNETT:
I'd move Exhibit 87A into evidence.
24
MS. PRESTON:
25
MR. STUBBS:
86
1
2
MS. PRESTON:
Objection on relevance and based on it
being more prejudicial than probative.
THE COURT:
Overruled.
It's received.
MR. BENNETT:
Let's publish it.
Q (BY MR. BENNETT)
Direct your attention to the left-hand
side of Exhibit 87A.
standing behind the people with the signs?
The fellow in the red jacket and the black shirt?
10
Correct.
11
No, sir.
Do you see two individuals there
Do you recognize those individuals?
MR. BENNETT:
12
CROSS-EXAMINATION
13
14
BY MR. CRANE:
15
16
that right?
17
That's correct.
18
And with the Friends of Cedar Mesa you're the Executive
19
Director for that organization?
20
That's right.
21
And in terms of hierarchy with the organization, you're
22
the head of the Friends of Cedar Mesa; is that right?
23
24
everything else.
25
Mr. Ewing, you work for the Friends of Cedar Mesa; isn't
Yeah.
Right.
I'm also the Secretary and the bill payer and
You get lots of duties in that organization,
87
right?
Prior to working for Friends of Cedar Mesa, you worked
for several different conservation organizations otherwise
known as environmental groups; is that right?
No, not really, that's not correct.
You've done a lot of pro bono work for them, for
different organizations?
I haven't worked for other conservation groups.
I have volunteered for different groups, but I haven't --
That's fair enough, and maybe the more proper question is
10
you've worked with other environmental groups?
11
Yes, in the past.
12
Part of the mission of the Friends of Cedar Mesa, their
13
stated mission, is the good stewardship that protects the
14
natural and cultural integrity of public lands in San Juan
15
County Utah; is that right?
16
Yeah, that's right.
17
And Recapture Canyon falls within San Juan County,
18
correct?
19
That's right.
20
And so the Friends of Cedar Mesa is very concerned about
21
what happens in Recapture Canyon, correct?
22
23
that the cultural resources there are protected.
24
Your primary focus being the Cedar Mesa area?
25
Right.
It isn't our primary area of focus, but it is a concern
88
But Recapture Canyon also is something that your group
has taken an interest in?
Yes.
And that's why you participated and went down the canyon
on May 10th, correct?
Right.
And in fact your group is opposed to ATVs being in
Recapture Canyon, correct?
We have not taken an official position on that, and I
10
personally would be totally fine with a ATV trail that was
11
correctly constructed and properly approved in that Canyon.
12
think there are members of my board of directors that would
13
disagree with that position, but my personal opinion is that
14
that would be okay if it was done correctly.
15
16
should be open to just hikers and nonmotorized vehicles,
17
right?
18
19
are completely welcome to public lands.
20
routes is very important to protect the natural resources, as
21
well as the cultural resources of the area.
22
23
Executive Director of Friends of Cedar Mesa, agree with the
24
BLM's closure of the site?
25
But your position in general is you think these lands
No, that's not correct at all.
Responsible ATV riders

Staying on designated
But you and the Friends of Cedar Mesa, you as the
I have never -- I have never stated that, and we have
89
never made an official position that I'm aware of to that
point.
would be riding in the canyon that day, right?
happened in a somewhat, you know, unfiltered way.
I was down there.
in identifying those who traveled on the trail on May 10th,
Okay.
But you went down there to document those who
I felt it was important for the public to see what
Okay.
That's why
And you've been cooperating with law enforcement
10
correct?
11
12
that if I didn't I'd get in trouble.
13
14
agencies prior to today's testimony, correct?
15
After being subpoenaed and forced to send them footage.
16
I'm sorry, forced -- I'm sorry, I missed the last part of
17
what you said.
18
19
They subpoenaed me for that footage because they must have
20
seen it on my website or something, on the Friends of Cedar
21
Mesa website.
22
23
footage and they asked you if you could identify anyone in the
24
footage, correct?
25
I responded to a subpoena because it was my understanding
Sure.
But you met with federal agents and agents --
Forced to send them footage, the footage that you saw.
Okay.
And then later you met with them to review the
I did not meet with them until I think it was
90
yesterday -- no, until Monday when, you know, they had me
come up here and they took me into the office up there on
State Street.
correct?
That's correct.
And you publish -- you're responsible for the content
that goes on that website, correct?
That's correct.
10
And in fact you publish a lot of articles on that
11
website, correct?
12
13
about the area.
14
Sure.
15
That's correct.
16
And you again are the one that publishes the content on
17
the Facebook page, right?
18
19
Cedar Mesa are published by me, although I also have an
20
employee now that helps me with that.
21
22
you at least see and approve of before it's published,
23
correct?
24
Yes.
25
And in fact Friends of Cedar Mesa has indicated that it
Okay.
Friends of Cedar Mesa has it own website,
Yeah, blog posts and news of interest that people care
Friends of Cedar Mesa also has a Facebook page?
Most of the official comments that come from Friends of
Okay.
But a lot of the content you're responsible for
91
strongly advocates for policies to protect the natural and
cultural resources of the area, for example, closures.
the position of the Friends of Cedar Mesa, correct?
that we very much support in the area.
anything specific about Recapture Canyon but in other areas
there are closures that we feel are very important.
website or on your Facebook page?
To protect the area.
That's
And there are definitely closures

We haven't expressed
So was that a statement that was published on your
10
If you want to read to me that again.
11
If I showed you, would it help you refresh your
12
recollection as to whether or not it was published?
13
I'm sure it would.
14
Here is the entire document.
15
that.
16
Okay, yeah.
17
Having reviewed that document, does it refresh your
18
memory as to the statement made by the Friends of Cedar
19
Mesa?
20
Yes.
21
All right.
22
you.
23
closure of certain roads to ATV traffic, correct?
24
25
clarify to that point as I don't -- didn't think that intended
Take a second and review
If I can just take it back from you.
Thank
And so in fact Friends of Cedar Mesa agrees with the
Yes.
As I said, there are important closures.
I will
92
to specifically apply to Recapture Canyon, that parenthetical.
You know, I think people would be well served by seeing the
actual wording of how that was written on the page.
Canyon and the Recapture Canyon protest, correct?
Right.
And in fact you enjoy hiking, right?
Absolutely.
You do a fair amount of hiking every week?
10
That's why I moved down to where I live instead of living
11
up here in Salt Lake.
12
13
you don't want other people to know about; isn't that right?
14
I don't want irresponsible people to know about.
15
Okay.
16
Or looters or grave robbers or people who would do damage
17
to those cultural resources.
18
19
locations without disclosing the locations because you didn't
20
want the knowledge of those areas to be made public,
21
correct?
22
That's correct.
23
You indicated -- you testified you've been to Recapture
24
Canyon approximately 100 times or over 100 times, and you
25
testified that you have been to the Recapture Canyon about six
But that's in an article you wrote about the Recapture
Sure.
Okay.
And you've discovered areas on your hiking that
But it's fair to say you've written about
93
times where the protest took place?
Right.
Is that referring to the northern part of Recapture
Canyon?
Blue Mountains all the way down to the San Juan river, and the
portion that's by the San Juan River, which is Recapture
Canyon, is near where I live and I hike there quite
frequently.
Right.
So the Recapture Canyon runs all the way from the
10
Okay.
11
But the northern part where the ride occurred, that's
12
where I said I've only been there about a half dozen times.
13
14
cultural artifacts are in the southern part of Recapture
15
Canyon, correct?
16
17
evidence would indicate that that Canyon was heavily used
18
throughout its entirety and probably less in the middle
19
portion of Recapture Canyon than in -- than in the northern
20
and southern part -- portions of the canyon.
21
22
tab to tab 1000, the first tab there.
23
that?
24
I don't think I've seen this particular map before.
25
Okay.
All right.
And the reason for that is most of the
I wouldn't say that actually.
There's a binder next to you.
The archaeological
If you could open up the

Do you recognize
Do you recognize it having looked at it now?
94
yeah, Highway 191 going through where the dam is.
I'm pretty clear where I am now, yeah.
What does it depict?
It shows the Recapture Canyon, Browns and Lems Draws
area, part of Blanding, those sort of things.
area?
10
Yeah.
So, yeah,
Is it a fair and accurate depiction of Recapture Canyon
Looks to be a satellite photo so I don't think I could
argue with that.

MR. CRANE:
11
12
I'm starting to place things on the map here,
Okay.
Your Honor, I'd move Defense
Exhibit 1000 into evidence.
13
MR. BENNETT:
No objection.
14
THE WITNESS:
I mean the one thing I would say is
15
that, you know, these arrows that are on here, I can't hardly
16
read the text.
17
THE COURT:
18
THE WITNESS:
Exhibit 1 -I don't know that I can verify the
19
accuracy of those arrows, but it looks like the satellite
20
photo is correct.
21
22
23
24
25
The COURT:
Exhibit 1000 is received without
objection.
(DEFENDANTS' EXHIBIT 1000 RECEIVED)
MR. CRANE:
Thank you.
If I may look at the map
where he marked, Your Honor?
95
THE COURT:
You may.
MR. CRANE:
Your Honor, If I could have the witness
come down next to me.

The COURT:
Would you, please, Mr. Ewing.
Q (By MR. CRANE) I just want to clarify.
what looks like the initials J.E., and that's what you
wrote -- those are your initials you wrote during direct
examination?
Uh-huh.
10
And this -- yes or no?
11
Yes, I'm sorry.
12
Just for the record.
13
indicates where you were located filming individuals that were
14
driving down Recapture Canyon, correct?
15
Right.
16
And this is before the turnaround spot to that Canyon,
17
correct?
18
19
people left and some people went on.
20
from there is where I was filming --
21
Okay.
22
-- in those images you saw.
23
Perfect, thank you.
24
place the morning of May 10 at the public park.
25
attend that rally?
It's okay.
I'm pointing here to
And this tape here
Yeah, the kind of place where people congregated and some

It was about 50 feet
You discussed the rally that took

Did you
96
No, I did not.

MR. CRANE:
If you can pull up Exhibit 90, please.
Your Honor, if we may publish, display it.
a couple seconds long.
I think it's just
(VIEWING VIDEO)
Q (By MR. CRANE) The voice we hear on this video, is that your
voice?
Yeah, that's me.
Okay.
And you recognized at least a couple of
10
individuals that were riding down the trail, right?
11
Right.
12
And your chiropractor, and then you said Mr. Shumway.
13
that Shane Shumway?
14
That's correct.
15
Do you know where he works?
16
He works for himself.
17
roofer, kind of all hands on deck sort of guy.
18
19
Conservancy District as well; isn't that right?
20
21
22
Is
He's kind of a rancher and miner,
And he also works for the San Juan County Water
I'm not aware of that.

MR. CRANE:
Okay.
Thank
you.
23
CROSS-EXAMINATION
24
BY MR. STUBBS:
25
Good afternoon.
I'm Phil
97
Lyman's attorney.
said you were on the Public Lands Advisory Council?
completely formal name.
Council.
Okay.
Right.
stakeholders that were participating in that group.
Yeah.
How are you doing?
Okay.
Mr. Ewing, you
I don't know that it's ever been given a

We kind of refer to it as the Lands
And you said you're on that with Phil Lyman?

There's -- there were several different
Isn't it true that Phil Lyman invited you to be on that
10
council?
11
That is true.
12
All right.
13
hardest worker -- hardest working public officials that you've
14
known?
15
That's true.
16
Would you agree with me that he's someone who respects
17
and upholds the law?
18
19
what some people would say was breaking the law in this
20
case.
I have never seen him break any laws other than -- well,
21
22
And you said that Phil Lyman is one of the
MR. STUBBS:
again.
Thank you.
Could we put up Exhibit 90
Could you play that, please.
23
Is it a touch screen?
(VIEWING VIDEO)
24
Q (BY MR. STUBBS)
Isn't it true that Mr. Shumway also serves
25
on the Land Council -- on the Land Council with you and Phil
98
Lyman?
Yes, sir.
Thank you.
starts at the Blue Mountains and extends south to where?
To the San Juan River.
Okay.
Blue Mountains to the San Juan River?
I would guess 40 miles.
And approximately how much of Recapture Canyon is
Now, you talked about Recapture Canyon.
It
And approximately how long is that canyon from the
10
closed?
11
It's like probably five miles.
12
Okay.
13
Well, actually I should take that back.
14
The vast majority of the canyon is closed, much more than five
15
miles is closed.
16
Juan County only allows travel on designated routes, and there
17
is not a designated route in most of that Canyon, so -- so
18
much more than that -- that closure here is actually not open
19
to motorized vehicles.
20
21
said -- is that the one that you're referring to that's only
22
about five miles long?
23
Right.
24
Now, that day you said that you were just in the northern
25
portion of the -- of the Recapture Canyon, correct?
That's not true.
The 2008 Resource Management Plan for San
But the section that we're talking about here today, you
99
Right, the portion where the ATV trail that spurred the
closure of the Canyon was constructed.
Okay.
Well, I was filming right at the end of the pipeline
road, and then I walked from the pipeline road all the way
south through the entire closure area to witness what had
happened, you know, when the riders passed through over the
trail all the way going south.
And that's on the pipeline road?
But you only saw Phil Lyman on the pipeline road,
10
correct?
11
That's right.
12
And Mr. Lyman in fact in -- in advance of the ride said
13
that he was only going to go to the end of the pipeline road,
14
correct?
15
That's right.
16
And he kept his promise, and at the end of the pipeline
17
road he turned around and went back?
18
Yeah, he was good to his word there.
19
Thank you.
20
Was it Phil Lyman that told you about the protest?
21
22
If you live in San Juan County and you hadn't heard about this
23
ride, you were -- had something wrong with you.
24
25
conceal the protest?
No.
And how did you know about the protest ride?
I mean it was in the newspaper, you know, Facebook.
So there was no -- there was no attempt by anyone to
100
No.
Could we put up Exhibit 87A, please.
87A, Mr. Shumway -- not Mr. Shumway, I'm sorry, Mr. Ewing?
Yes.
And, again, who are those two individuals?
know?
Which two individuals?
The two individuals holding the signs?
Yeah.
10
11
Do you
I don't -- I don't know who those folks are.

MR. STUBBS:
Okay.
Thank
you.
12
THE COURT:
13
MR. BENNETT:
14
THE COURT:
15
Do you see Exhibit
your chair.
16
Mr. Bennett.
Yes.
Mr. Garrett, you're about to jump out of
Do you have some --
MR. GARRETT:
I'm debating, Your Honor, if I want to
17
ask this question or not.
18
questions before Mr. Bennett stands up, Your Honor.
19
trying to formulate the question.
20
quicker.
21
not.
I think I need to ask a few

And I'm
Sorry I didn't jump up
I didn't know whether co-counsel would jump up or
22
CROSS-EXAMINATION
23
BY MR. GARRETT:
24
25
about you felt you were going to go to an area, and I don't
You made the comment that -- in your direct examination
101
remember your exact -- your exact comment there, but it seemed
to deal with the fact that this area of the Canyon was -- when
you said you set up your camera, what did you say about
setting it up at that location?
location?
two reasons.
archaeology that's in the canyon where the ATVs were, and I
also thought that it was a point based off of, you know, past
Why did you choose that
I thought that was an important point in the canyon for

One is it allowed people to see some of the
10
use of the Canyon where folks who continued past that point
11
would likely do some damage to the natural or cultural
12
resources.
13
just -- you know, I know other people maybe were documenting
14
other places, but I thought it was important to document, you
15
know, if people went past that point.
16
people would not go past that point based off of Mr. Lyman's
17
encouragements not to, but many people did.
18
19
this was a legal ride?
20
21
paper and so forth leading up to the ride.
22
23
not throughout --
24
25
So I thought it was important to document, not
You also made the remark that some people thought that
Sure.
And there were arguments to that point in the
So there is controversy over whether this was legal or
MR. BENNETT:
Q
And I was hopeful
Objection.
-- San Juan County?
102
1
2
THE COURT:
Sustained.
That question is stricken.
You're not to consider that question, members of the jury.
Go ahead, Mr. Garrett.
Q (BY MR. GARRETT) Where did these conversations you heard or
where were they -- where did they take place?
Which conversations?
The conversations about whether or not this was a legal
ride?
In the grocery store, at the Lands Council meetings.
10
Yeah, pretty much everyone in San Juan County was talking
11
about this event leading up to it.
12
MR. GARRETT:
13
THE COURT:
14
MS. PRESTON:
15
Ms. Preston?
I don't have any questions, Your
Honor, thank you.
16
THE COURT:
17
Mr. Bennett.
18
BY MR. BENNETT:
19
20
10th, 2014?
21
22
Digital camera, and then I had an iPhone camera.
23
Are you pretty familiar with both of those?
24
Yes.
25
Do they take different pictures for environmentalists
Mr. Shumway, what kind of camera were you using on May
I was using two different cameras.
I have a Canon 7D
103
compared to ATV enthusiasts?
Not that I'm aware of.
Now, are you aware -- I'd like to pull up Exhibit 1000,
please.
right-hand corner of that map where it says -- there's a logo
that says Off the Beaten Path Maps.
Yes, I do.
Do you know who owns Off the Beaten Path Maps?
I do not.
10
Just one other question.
11
about that in your testimony with defense, correct?
12
That's right.
13
It's in the closure area, isn't it?
14
That's correct.
Like to direct your attention to the bottom
Do you see that?
The pipeline road, you talked
15
MR. BENNETT:
16
THE COURT:
Anything more, counsel?
17
MR. CRANE:
No, thank you.
18
MR. STUBBS:
19
MR. GARRETT:
20
The COURT:
21
Nothing further, Your Honor.
No, Your Honor.

be excused then?
22
MR. BENNETT:
23
THE COURT:
24
25
May this witness
Yes, Your Honor.

Mr. Ewing, thank you.
You're welcome to
stand down and you're free to leave if you'd like.

Mr. Bennett.
104
MR. BENNETT:
Watson to the stand.
THE COURT:
United States calls Officer Scott
Members of the jury, feel free to
stretch your legs if you'd like for a minute.
coming for you about noon.
with testimony.
Officer Watson, hi.
would, please.
will be fine, thank you.
We have lunch
We'll go another 50 minutes or so
Come on forward and be sworn, if you
We're just stretching our legs.
Right here
10
THE CLERK:
11
(SCOTT WATSON, PLAINTIFF'S WITNESS, SWORN)

Thank you.
12
13
Please be seated.
14
15
THE WITNESS:
My name is Scott Watson, S-C-O-T-T,
W-A-T-S-O-N.
16
DIRECT EXAMINATION
17
BY MR. BENNETT:
18
Officer Watson, what do you do for a living?
19
I work for the United States Forest Service as a Federal
20
Law Enforcement Officer.
21
What's involved in that occupation?
22
I investigate and -- investigate laws of the United
23
States Government pertaining to the occupancy and use of the
24
United States Forest Service.
25
For how long have you been doing that?
105
I was hired in September of 2008.
And what training did you receive to become an officer of
the Forest Service?
Management Training Program in Georgia from -- I was there
from October of 2008 until March of 2009.
What kind of training do you receive there?
We receive training in archaeological resources
protection, general law enforcement training pertaining to the
Officers of the Forest Service goes through the Land
10
Constitution and rights.
We also receive training in
11
surveillance and firearms, defensive tactics, dealing with
12
individuals, that sort of thing.
13
14
Forest Service?
15
I live in Monticello, Utah.
16
And for how long have you lived there?
17
My family and I moved there in June of 2009.
18
Do you know any of the Defendants that are here today?
19
I do.
20
How do you know them?
21
I've interacted with them in professional and -- both
22
professional and personal capacities.
23
So let's start with Mr. Lyman.
24
I know Mr. Lyman just through interacting with him as a
25
county commissioner.
Where do you live now that you're working in -- with the
Do you know Mr. Lyman?
106
Do you know Mr. Wells?
I do.
I've interacted with Mr. Wells both professionally and
privately.
he had with the forest and forest management.
rides with Mr. Lyman to different sites and I've bought maps
from his business.
I've interacted with him regarding concerns that
I'm sorry.
He owns Off the Beaten Path Maps.
owns Off the Beaten Path Maps?
11
12
Beaten Path Maps.
I was on -- sorry.
MR. BENNETT:
13
And --
You said Mr. Lyman just a second ago.
10
Oh, sorry.
I've gone on
Who
Mr. Wells owns Off the
Could we bring up Exhibit 1000,
14
please.
15
Q (BY MR. BENNETT)
16
evidence as Exhibit 1000, and could we please highlight the
17
bottom right-hand corner of that exhibit.
I'm showing you the
18
bottom right-hand corner of Exhibit 1000.
Do you recognize
19
the logo on Exhibit 1000?
20
I do.
21
What is it?
22
It's a logo for Off the Beaten Path Maps.
23
And who owns that?
24
Mr. Wells.
25
Do you know a Mr. Franklin Trent Holliday?
I'm showing you what's been received into
107
Yes, I know Mr. Holliday.
I've interacted with him on the mountain.
friends on Facebook until recently, and talked to him on the
phone several times.
Do you know Mr. Shane Marian?
I do.
Mr. Marian and I have interacted several times on the
We were
10
mountain.
His wife is employed by the Forest Service since
11
the time that I've been there, and then he currently is
12
employed by the Forest Service.

MR. BENNETT:
13
I want to bring up Exhibits 15 and 16,
14
please.
These have been received into evidence.
15
Q (BY MR. BENNETT)
16
individuals shown in Exhibits 15 and 16?
17
I do.
18
Who are they?
19
In exhibit 15 at the front is Mr. Holliday.
20
How do you recognize him?
21
Just by his face, his appearance.
22
the same make, model and color as -- as one that I've seen him
23
post on Facebook.
24
Mr. Holliday.
25
Officer Watson, do you recognize the
I recognize the ATV is
It looks exactly like what I know of
Now, the second rider in Exhibit 15 and the loan rider in
108
Exhibit 16, do you recognize that individual?
I do.
Who is it?
That individual is Mr. Shane Marian.
Now, do you recognize Mr. Holliday and Mr. Marian in the
courtroom today?
I do.
Where are they seated?
Mr. Holliday is seated on the second row in the green
10
tie, second from the middle, and Mr. Marian is seated on the
11
end of the second row in the gray suit.

MR. BENNETT:
12
13
Let the record reflect the witness has
pointed out Defendants Holliday and Marian.
14
THE COURT:
It will.
15
Q (BY MR. BENNETT)
I'm now showing you what's been marked as
16
Government's Exhibit -- or has been received as Government
17
Exhibit 87A.
18
side of this photograph.
19
on the left side of that photograph?
20
I do.
21
Who are they?
22
The one in the black shirt looks exactly like
23
Mr. Holliday, and the one in the red jacket looks exactly like
24
Mr. Marian.
25
I'd like to direct your attention to the left

Do you recognize the two individuals
I'd now like to go to Exhibit 90.
109
1
2
This has already been received, so if we could just play

it, please.
(VIEWING VIDEO)
Could we pause it right there, please.
Do you recognize the individual that just is currently in
the frame and just drove past?
I do.
How do you recognize him?
That's the same clothes that Mr. Wells usually rides
That's Mr. Wells.
10
around in when he's out in the woods and the same make, model
11
and color of ATV that Mr. Wells generally rides.
12
Have you seen that ATV before?
13
Yes, I have.
14
Where have you seen it?
15
Mr. Wells and I went on a ride a few years ago up to
16
North Cottonwood Guard Station and he road an ATV very similar
17
to that.
18
19
been received into evidence.
I'd like to show you now Government Exhibit 88, which has
20
(VIEWING VIDEO)
21
I'd like you to take a look at the second and third
22
riders going past the screen right now.
23
24
is Mr. Holliday and the third rider was Mr. Marian.
25
Who are they?
The second rider and the third rider -- the second rider
MR. BENNETT:
I tender the witness, Your Honor.
110
CROSS-EXAMINATION
BY MR. CRANE:
Mr. Wells on ATV rides?
least.
local individuals in the search and rescue.
Number 7.
Approximately how many times have you ridden with
I couldn't say for sure.
I know for sure one time at
He may have been on other rides where I've gone with
Showing you what's been marked as Government's Exhibit
10
THE COURT:
It's received, Ms. McNamee.
11
Q (BY MR. CRANE)
The camouflage outfit he was wearing is the
12
same outfit he's worn every single time he's ridden ATVs with
13
you; is that right?
14
No, sir.
15
No?
16
No.
17
You testified that he -- on the last ride you went to
18
Guardsman Pass he was wearing that outfit, right?
19
20
Guardsman Pass, I don't know that I rode with him there.
21
went to the North Cottonwood Guard Station with him.
22
Oh, the North Cottonwood Guard Station --
23
Yes.
24
-- he was wearing similar camouflage when he rode on that
25
trail, right?
I can't testify to that, no, sir.
I don't know.
On
I
111
Yes, sir.
Okay.
don't know if that's the exact jacket and pants he was wearing
previously but something similar; is that right?
Yes.
And that's what Mr. Wells rides -- wears when he rides
his ATV?
And that's -- Your -- what you're saying is you
Yes.
MR. CRANE:
10
The Court:
Anyone else, any questions for this
11
witness?
12
MS. PRESTON:
No questions here, Your Honor.
13
MR. GARRETT:
No questions, Your Honor.
14
MR. STUBBS:
15
The Court:
16
MR. BENNETT:
17
The COURT:
18
MR. BENNETT:
19
THE COURT:
20
21
24
25
Mr. Bennett?
Nothing further.
May this witness be excused?
Yes, sir.
Officer Watson, thank you.
You may
stand down, and you're free to leave if you'd like, sir.

Mr. Bennett.
22
23
No questions.
MR. BENNETT:
The United States calls Mr. Juan
Palma.
THE COURT:
Mr. Palma, hi, welcome.
Come forward
and be sworn, if you would, please.
112
THE WITNESS:
THE COURT:
Right here will be fine.
THE CLERK:
Thank you.
Please be seated.
7
8
Thank you.
(JUAN PALMA, PLAINTIFF'S WITNESS, SWORN)
Thank you.
THE WITNESS:
Juan Palma, spelled J-U-A-N, last name
Palma, P-A-L-M-A.
DIRECT EXAMINATION
9
10
BY MR. BENNETT:
11
12
jury.
13
14
for the BLM in Utah as of March 7th.
15
State of Washington, a place called Yakima, where I grew up as
16
a child, and -- but my mother came from Lockhart, Texas where
17
she was born and raised.
18
Both parents came Mexican descent.
19
workers that followed the crops from Texas, California, ended
20
up in the State of Washington.
21
Young University, earned my undergraduate degree, but married
22
a girl from Oregon so ended up in the State of Oregon at
23
Oregon State University where I finished my undergraduate.
24
25
Mr. Palma, would you please introduce yourself to the
You bet.
My name is Juan Palma, retired State Director

I was raised in the
And my father came from Mexico.

And we were migrant
And ended up going to Brigham
And subsequent to that I went to the University of Nevada

Reno where I got my Master's in environmental sciences later
113
in my life.
The -- I worked with the BLM most recently both
here in Utah as well as I managed 31 states east of the
Mississippi River.
Forest Service.
organization called the Tahoe Regional Planning Agency in Lake
Tahoe, California.
the western United States, including the manager of all the
lands in southern Nevada out of Las Vegas.
And then prior to that I was with the
And then I was The Executive Director of an
And I've had a number of other jobs across
Mr. Palma, what does the State Director of the Bureau of
10
Land Management do?
11
12
are divided by states, as such, as a State Director you manage
13
all of the BLM affairs for that particular state, in this case
14
the State of Utah.
15
million acres of land or about 46 percent of the State of Utah
16
through about 850 employees, a few more in the summer when we
17
have our firefighting capacity.
18
19
in Utah?
20
21
so approximately four and a half years I was the State
22
Director here in Utah.
23
24
receive any awards from any -- from any state officials or any
25
recognition?
In the -- all states are divided -- the western states
And in my case for Utah I managed 23
Now, for how long were you the State Director of BLM here
Here in Utah my assignment began on July -- July of 2010,
Did you receive -- prior to your retirement did you
114
I did, a number of awards that I received from both
counties, the state.
presented an award on behalf of the state, as well as various
commissions from Iron County, other states across the State of
Utah.
Do you know Phillip Lyman, Mr. Palma?
I do.
Mr. Lyman and I became acquainted once he was elected to
The Governor came to my retirement,
10
the Commission of San Juan County.
As I try to meet almost
11
all county commissioners in the State of Utah, Mr. Lyman and I
12
were acquainted through his role as a county commissioner.
13
14
Canyon?
15
16
southern portion of the canyon, walked down into the Canyon
17
some years back to take a look at some of the issues and
18
concerns that he had as county commissioner.
19
Why did you walk into the Canyon?
20
I had made it a point at that time to personally visit
21
two individuals who were -- had come to court and case had
22
been completed.
23
homes.
24
that meeting those two individuals, I -- we actually walked
25
down into the canyon, as again, to that southern part of the
Did you ever meet with Commissioner Lyman in Recapture
We did.
In fact Mr. Lyman and I went down to the
Subsequent to that I went to one of their
Mr. Lyman took me with him to that home.
And after
115
Recapture Canyon.
Why didn't you ride in it on an ATV?
It was closed, so we walked.
Now, did you ever have a chance to communicate with
Mr. Lyman further about Recapture Canyon while you were State
Director?
communicated with him both about the current right-of-way
application that the County had in front of the BLM on that
Yes.
There was a number of occasions where I
10
topic, but as well as other topics as well.
11
What is a right-of-way application?
12
A county, as an example, in this case San Juan County,
13
can apply for a right-of-way to get a grant for a particular
14
road or -- or trail that they may want or may request.
15
we have to process that right-of-way, we in the BLM.
16
17
permission from BLM first?
18
They cannot.
19
On May 10th of 2014 had BLM granted San Juan County a
20
right-of-way?
21
No, not -- had not.
22
On May 10th, 2014 was Recapture Canyon still closed for
23
recreational motorized use?
24
It was.
25
Now, I want to talk to you specifically about the May
Then
So can someone go out on that right-of-way without
116
10th, 2014 ride.
Did Mr. Lyman ever communicate with you his
intention to ride the Canyon that day?
He did.
How did you first find out about it?
You know, there was some verbal communication with
Mr. Lyman and I, as well as some e-mail communication with
Mr. Lyman and I, and that's how -- the two mediums which I
became acquainted of his intention to ride the canyon on May
10th.
Now, originally it was May 8th, and then it was changed
10
to May 10th on a Saturday.
That's how I became acquainted of
11
that.
12
13
23.
14
In this book?
15
No.
16
time.
17
I do.
18
What is it?
19
It's an e-mail traffic between Mr. Lyman and I.
20
How do you know this is from Mr. Lyman?
21
He addressed the e-mail to myself that -- and he
22
addressed myself as wanted to inform me --
23
24
Just want you to direct your attention to the e-mail
25
addresses.
I'm showing you what's been marked as Government Exhibit
It will be appearing on your screen at some point in
Mr. Palma, do you recognize Exhibit 23?
You can't get into the substance of the exhibit yet.
Who was the sender?
117
Mr. Lyman.
And which e-mail address is he using?
Using San Juan County.org.
Does Mr. Lyman work for San Juan County?
He is a county commissioner.
Is this e-mail in exhibit 23, is this a true and accurate
representation of the e-mail you received from Mr. Lyman?
It is.
And it's dated March 2nd, 2014, is that correct?
10
That's correct.
MR. BENNETT:
11
12
evidence.
13
THE COURT:
14
MR. GARRETT:
No objection.
15
MS. PRESTON:
No objection.
16
17
Q (BY MR. BENNETT)
18
third paragraph at the top of Exhibit 23, specifically the
19
third sentence where it says, my hope, indeed my prayer.
20
you see that line, that sentence?
21
I do.
22
And in that what did you understand Mr. Lyman to mean?
23
Quoting from the sentence, my hope, indeed my prayer, is
24
that the BLM will recognize the sincerity of our people and
25
actually do something to wrap this up and make this a legal
I'd like to direct your attention to the
Do
118
rather than an illegal movement.
mean by this?
Based on what you understood in the letter, what did he
I would assume that this meant the ride, this ride.
MR. STUBBS:
THE COURT:
understanding, if you have one.
8
9
10
meant the -MR. STUBBS:
THE COURT:
19
Are you testifying about what you
understood from this letter or this e-mail?

THE WITNESS:
That's what I understood from the
sentence, Your Honor.
17
18
Again, calls for speculation,
speculating.
15
16
As I read that sentence, this legal
rather than an illegal movement, I would assume the movement
13
14
Well, Mr. Palma, talk about your own
THE WITNESS:
11
12
Speculation.
THE COURT:
answer.
Go ahead, Mr. Palma, and finish your
Thank you.
THE WITNESS:
So what I understand from the sentence
20
of this letter is that this movement or this ride, to make it
21
legal or illegal.
22
Q (BY MR. BENNETT)
23
exhibit -- excuse me.
24
this Exhibit 23, this March 2nd e-mail, did you and Mr. Lyman
25
have any further discussions about Recapture Canyon?
I'd like to direct your attention now to

Before we go to there.
After receiving
119
We did.
Mr. Lyman had lunch with me on or about --
subsequent to this e-mail to talk about again this potential
ride on Recapture Canyon.
Was Mr. Lyman by himself at that lunch with you?
No.
Monte Wells.
Mr. Monte Wells, Mr. Lyman and I.
that lunch?
He brought in another constituent of his, Mr. Wells,

So it was the three of us that had lunch,
Did you discuss the closure of Recapture Canyon during
10
That was the subject of the conversation, Recapture
11
Canyon.
12
13
still?
14
15
whether we could approve the right-of-way prior to this May
16
8th subsequent May 10th ride.
17
18
Exhibit 22.
19
yourself with it and let me know when you're ready.
20
I can see it.
21
Do you recognize Exhibit 22?
22
I do.
23
What is it?
24
It is an e-mail traffic between Mr. Lyman and I.
25
And how do you know it's from Mr. Lyman?
Did Mr. Lyman say that he was going to ride the canyon
You know, at that time there was conversation still about
I'm now showing you what's been marked as Government

Let's take a look at it and just familiarize
120
It's from Mr. Lyman, San Juan County e-mail address dot
org to myself, Juan Palma, at the BLM.
that as mine.
e-mails you received and exchanged with Mr. Lyman?
Do you recognize this as a true and accurate copy of the
It is.
7
8
That's -- I recognize
MR. BENNETT:
evidence.
MR. CRANE:
No objection.
10
MR. STUBBS:
11
MR. GARRETT:
No objection.
12
MS. PRESTON:
No objection.
13
THE COURT:
14
No objection.
15
Q (BY MR. BENNETT)
I'd like to draw your attention to page
16
six of Exhibit 22, and I'd like to draw your attention to the
17
second paragraph beneath the phrase Dear Mr. Palma.
18
see where I'm -- do you see where I'm pointing to,
19
Mr. Palma?
20
I do.
21
Specifically directing your attention to the second
22
sentence -- well, excuse me -- the first and second sentences.
23
It says with no response from you, I'm moving forward in
24
Recapture.
25
Do you
Do you see where I'm at?
I do.
121
A little further in that second sentence it says San Juan
County plans to withdraw our silly Title V right-of-way
application.
I do.
What -- do you know which right-of-way -- and this is
again based on your own understanding -- which right-of-way
application did you understand him to mean?
which was Recapture Canyon, so I understood this e-mail to say
Do you see that?
This is the only conversation we're having at the time,
10
to me, to try to tell me, that the San Juan County was
11
planning to withdraw this Title V right-of-way.
12
13
county?
14
15
Mr. Lyman as well as to the other two county commissioners to
16
see if that's what their wishes were, to withdraw this
17
right-of-way from Recapture Canyon.
18
19
application?
20
No, not that I'm aware of.
21
Did BLM grant it before May 10th, 2014?
22
No.
Did you verify that assertion with others in the
In my response to this e-mail I did respond to both
Did San Juan County ever withdraw its right-of-way
23
MR. BENNETT:
24
MR. STUBBS:
25
I have nothing further.

One moment, Your Honor.
* * *
122
CROSS-EXAMINATION
BY MR. STUBBS:
attorney.
on a temporary closure order since 2007?
That is true.
Okay.
reopened yet?
Has not.
10
Okay.
11
assessment before it's reopened?
12
Yes, it has to do environmental assessment, right.
13
When did that start?
14
It started some years back.
15
environmental process we have to review what impacts such a
16
right-of-way would have on wildlife, water, soil, archaeology,
17
other impacts.
18
not because it was in litigation, given that two individuals
19
took it upon themselves to open that road.
20
21
Lyman was planning this political protest on May 8th and then
22
May 10th, correct?
23
Yes.
24
There was no secret about it?
25
It was on the media.
Mr. Palma, my name is Jared Stubbs.
I'm Phil Lyman's
Isn't it true that Recapture Canyon has been closed
When was -- has it been reopened?
Has it been
Isn't it true that you have to do an environmental
The -- as part of our
However, for the first few years we could
Okay, Thank you.
That's enough.
Now, you knew that Phil
It was on the websites.
123
And you spoke to him personally about it?
I did.
And he tried to get you to get your blessing for this,
didn't he?
He tried.
Okay.
e-mails?
I did.
Did you discuss it with him in meetings?
10
I did.
11
And isn't it true that you also had telephone
12
conversations with Phil Lyman about this?
13
14
going on at that time.
15
16
And did you discuss this with Phil Lyman in
It's very possible.
MR. STUBBS:
There's a lot of communications
Could we please put up Government's
Exhibit 44 -- 24.
17
THE CLERK:
You said 24?
18
THE COURT:
It has not been offered yet.
19
MR. STUBBS:
20
Can I lay foundation for it
with the witness?
21
22
I know.
THE COURT:
You may, please.
I was just notifying
our Courtroom Deputy so we don't inadvertently publish it.
23
MR. STUBBS:
24
Q (By MR. STUBBS)
25
24.
Oh, thank you.
Mr. Palma, could you please look at Exhibit
And just look up to me when you're done.
124
Thanks for making it bigger.
letters, but, yes, I see it.
Okay.
Mr. Lyman.
And how do you know that Mr. Lyman sent the e-mail?
It's Phil Lyman at San Juan County.org.
Do you recognize that -- have you received e-mails from
Mr. Lyman at that e-mail address before?
I do.
10
Okay.
11
It is addressed to myself, to the other two county
12
commissioners, as well as to congressional delegation members,
13
Mr. Chaffetz, and many others from the congressional
14
delegation, including Sheriff Eldredge and Mike Noel from
15
Kanab, Utah.
16
What's the date on this e-mail?
17
April 30th, 2014.
18
Is this a true and accurate e-mail that you received from
19
Phil Lyman?
20
And who sent that e-mail?
And who is it addressed to?
It is.
21
MR. STUBBS:
22
THE COURT:
23
MR. BENNETT:
24
25
My eyes can't see the small
Okay.
Move to admit, Your Honor.
Mr. Bennett?
Just want to be sure the attachments
are on.
MR. STUBBS:
Just like to move to admit the first
125
page, Your Honor.

THE COURT:
2
3
require it all if the United States wishes.

MR. BENNETT:
4
5
Yes.
THE COURT:
And they're attached to the Government's
exhibit marked as Exhibit 24?
MR. BENNETT:
THE COURT:
10
There is an attached letter, so
it would be subject to the rule of completeness.
6
7
Well, the rule of completeness would
Yes.
There is a letter from --
Then the exhibit in its entirety is
received.
MR. STUBBS:
11
Okay.
12
13
Q (BY MR. STUBBS)
And please look at page 24-1, just the
14
first page.
15
of -- the first sentence of the second paragraph, can you
16
please read what it says?
17
I'm sorry, sir, is this the letter or the e-mail?
18
This is the e-mail, yeah, just the first page, the second
19
paragraph and the first sentence.
20
21
that what you want me to read?
22
I want you to read the e-mail.
23
Okay.
24
Uh-huh.
25
I do not plan to break any federal laws on May 10th.
Isn't it true in that on the second sentence
I do not see the letters.
I only see the e-mail.
Is
Second paragraph?
126
Thank you.
Isn't it true that in May, the first part of
May of 2014, you had a telephone conversation with Mr. Lyman
where you told him nobody in regards to Recapture Canyon,
nobody is going to get arrested and nobody is going to do all
that kind of stuff?
It is possible that I would have told him that.
Okay.
conversation, would it help reflect your recollection?
Did you tell him that?
If I showed you a transcript of the telephone
Yeah, If you have such a transcript.
10
MR. BENNETT:
I don't have it.
Judge, He didn't say he doesn't
11
remember, so there's no foundation for recollection
12
refreshed.
The COURT:
13
Sustained.
14
Q (BY MR. STUBBS)
Did you tell Phil Lyman also that -- in
15
this conversation, I hope, you know, that you can have your
16
celebration and that you can, you know, ride or walk down into
17
the canyon.
18
in your conversation?
19
20
traffic.
21
22
Mr. Lyman?
23
24
recall exactly every word that we talked in our telephone
25
conversations.
That would be wonderful.
Did you tell him that
It was clear Recapture Canyon was closed to ATV
But the question is did you say these statements to

Did you make these statements to Mr. Lyman?
It is possible that I made those statements.
I do not
127
Okay.
You say you don't recall.
Would it help refresh
your recollection if you were to read it?
Sure.
MR. STUBBS:
May I approach?
The COURT:
Well, do we have --
MR. BENNETT:
MR. STUBBS:
The Court:
Can I see it first?

Oh, I'm sorry, yes, of course.
Mr. Stubbs, let's have some foundation
from the witness before we begin.
You can show it to him, but
10
let's have some foundation from the witness before we begin
11
publishing statements.
12
Q (BY MR. STUBBS)
13
14
was not aware of?
15
Can you please read that?
So I would assume this was recorded conversations which I
THE COURT:
Mr. Palma, the question will be -- take
16
a moment and familiarize yourself with that and let us know if
17
it's something you recognize.
18
THE WITNESS:
It would seem familiar to me, this
19
conversation.
20
Q (BY MR. STUBBS)
21
representation of a conversation that you had with Phil Lyman?
22
23
date of this conversation?
24
date of this conversation?
25
So do you feel like is this an accurate
It would have been.
But I would ask the question, the

It's not here, but what is the
If you flip to the front page, the cover page --
128
May 1st.
So the context of this conversation and my
comments were relation to --
it later, but is that an accurate copy or transcript of the
phone conversation you had with Phil Lyman on May 1st?
occurred.
So I could only tell you that this seems familiar of a
conversation I would have had with Mr. Lyman.
That's not my question.
You'll have a chance to explain
I cannot say that it is an accurate transcription of what

I mean obviously I had no knowledge or awareness.
Whether this is
10
an actual transcription, I cannot ascertain that.
11
Would it help you to listen to the conversation?
12
Sure, if you have that.
13
Okay.
14
THE COURT:
I don't think there's foundation to
15
publish that -- any audio to the jury at this time,
16
Mr. Stubbs.
17
18
MR. STUBBS:
impeachment.
19
20
THE COURT:
MR. STUBBS:
22
THE COURT:
24
25
Well, do you have other questions for
this witness?
21
23
It's being used for purposes of
No, Your Honor.

Why don't we reserve this question for a
moment.
Do other counsel have questions for this witness?
MR. CRANE:
Yes.
129
THE COURT:
MR. STUBBS:
Mr. Crane.
May I approach and get the transcript,
please?
THE COURT:
Would you, please.

CROSS-EXAMINATION
5
6
BY MR. CRANE:
Land Management for about four and a half years I believe was
your testimony?
Mr. Palma, you were the State Director for the Bureau of
10
I was, yes.
11
Meaning that with the -- you were responsible for the
12
entire state and all the agents and employees within the
13
Bureau of Land Management in the State of Utah, correct?
14
Correct.
15
And your higher-ups were I'm guessing in Washington,
16
D.C.?
17
They were, yes.
18
Prior to being the Director of the -- at the Bureau of
19
Land Management, otherwise known as the BLM, how long were you
20
with the BLM?
21
22
Service for about 17 years.
23
24
and they -- isn't that right?
25
Approximately 11 years.
Okay.
Prior to that with the Forest
And the BLM manages public space and public lands
Correct.
130
And there's rules and regulations that go with
individuals who are on those public lands, correct?
Correct.
And unfortunately from time to time people break those
rules; is that right?
Yes.
What types of crimes or violations of the law did you see
as -- in your time with the BLM?
There is a multitude of activity -- illegal activities
10
that occur.
11
12
this down.
13
vandalism, trespassing, various different offenses that do
14
occur, right?
15
Yes.
16
And isn't it true that the vast majority of time for
17
these offenses the BLM finds out about them after the fact,
18
right?
19
Sometimes.
20
Okay.
21
say I'm going to go and vandalize some public property that's
22
managed by the BLM, right?
23
Well, there are cases where they do.
24
Okay.
25
Correct.
Let me give you a couple then and maybe we'll just narrow
I'm not meaning to belabor this point, but there's
Other times we do find out.
But it's not normal for someone to call you up and
But that's not the majority of time, right?
131
The vast majority of the time your agents and your
officers find out about the violations afterwards and have to
conduct an investigation to figure out who did what and who
violated the law, correct?
Yes.
The Recapture Canyon trail was closed on September 13,
2007, correct, closed to ATV and motorized vehicle traffic?
closed to ATVs, nothing else.
That's a better definition.
It was not -- it was only
10
And prior to September 13th, 2007 it was open to ATVs and
11
motorized traffic?
12
Yes.
13
And about that same time you were aware that San Juan
14
County had applied for a right-of-way, meaning they wanted
15
to -- they were asking the BLM to allow the county to have
16
access with ATVs and motorized vehicles, right?
17
Yes, somewhere in Recapture Canyon.
18
Okay.
19
received an application for this type of right-of-way, the BLM
20
has a duty to investigate and either deny or approve the
21
right-of-way application, right?
22
23
Act law.
24
25
do to get to that approval or denial process?
And when you have requests or when the BLM
Yes, following the law, the National Environmental Policy
That's right.
And there's certain things the BLM has to
132
Correct.
And one of those you were asked on cross-examination by
Mr. Stubbs was to conduct an environmental assessment of the
Canyon and try to determine what impact, if any, ATVs and
other motorized vehicles would have in the Canyon?
Correct.
And that process, BLM started that process in November of
2013, correct?
Yes.
10
And that was approximately six years after the county had
11
filed an application for the right-of-way, correct?
12
13
There was a whole history of changing the application.
14
just heard a few minutes ago, Mr. Lyman asked me to withdraw
15
the silly right-of-way.
16
on?
17
course there was the litigation for a number of years of the
18
two individuals that I mentioned earlier.
19
But that had --
20
-- contributed to the time.
21
But that litigation had nothing to do with the county's
22
application for the right-of-way?
23
24
us not able to process the application, so it had to do with
25
time.
The county had changed the request of the right-of-way.
Is it not on?
As we
So there was a whole time of is it
Is it changed?
Is it different?
And of
So that all --
Had to do when we could process the -- it had to do with
133
Okay.
But, in any event, the environmental assessment
was not ordered or began by the BLM until November of 2013?
There's assessments on wildlife, assessments on the
archaeology, assessments on the hydrology and other kinds of
factors, so there was many other things going on.
example, the National Historic Preservation Act, all of those
things have to be going on prior to doing the actual NEPA
document.
There was other requirements that were occurring.
Right.
For
10
11
assessments that you're talking about, occurred before the
12
closure on September -- in September of 2007?
13
14
they were occurring throughout that.
15
was signed just a year before 20 -- in 2013 with the various
16
parties, with the state and the county and us, the BLM.
17
18
in 2013, late 2013, that's when the BLM decided to start the
19
environmental assessment?
They were occurring throughout the process of NEPA, so
That's right.
20
21
24
25
In fact the agreement
So after NEPA was signed with the county
MR. BENNETT:
Objection, mischaracterizes
testimony.
22
23
But a lot of those assessments, the cultural
THE COURT:
Overruled.
Go ahead, if you know the
answer.
THE WITNESS:
correct your statement.
NEPA was not signed -- let me just

NEPA was not signed.
What was signed
134
was an agreement as to how we would deal with archaeology in
Recapture Canyon, subsequent we would then address NEPA.
the agreement that was signed in 2013?
Correct, but that was not NEPA.
Not NEPA.
for clearing that up.
agreement that was with the county.
signed -- just trying to do the time line here.
So that agreement that was signed with the county, that's
I apologize if I mischaracterized.
Thank you
I'm just trying to refer to the

After the agreement's
After the
10
agreement was signed, the environmental assessment then
11
begins, and that was November, December of 2013?
12
13
devote their time to processing this NEPA for the proposed
14
right-of-way.
15
16
closed to ATVs and motorized vehicles?
17
18
changes, and there was litigation, other things that we could
19
not process NEPA throughout that time.
20
21
is you do coordinate closely with local governments and local
22
counties with land -- with BLM land that is within that
23
county, right?
24
Yes.
25
And with San Juan County that was the case.
Right.
Okay.
And at that time I hired a contractor to solely
And that was six years after the Canyon had been
But remember, prior to that there was a lot of other
Sure.
Part of the BLM's mission, or part of what you do
San Juan
135
County and BLM had frequent coordination meetings; is that
right?
basis, yes.
County that worked for the BLM during your tenure?
be more specific, 2014.
You mean the name?
Yes.
10
Mr. Don Hoffheins is a local Field Manager in 2014.
11
Who else were local managers?
12
District Manager in Moab would be Lance Porter.
13
Okay.
14
regularly with San Juan County officials?
15
Yes.
16
And you're aware that Commissioner Lyman was one of three
17
county commissioners in San Juan County?
18
Yes.
19
And in fact his position as an elected county official is
20
what led him eventually to contact you in your capacity as the
21
BLM Director?
22
Yes.
23
And your contacts with Commissioner Lyman were in his
24
official capacity as a representative of San Juan County?
25
Local managers met with San Juan County on a regular
And who were some of the local managers in San Juan

Let's even
And so these are individuals that would have met
There was times that he would specify that -- that he was
136
and times that he would specify, if you read the e-mails,
Exhibit 22, 23, where sometimes he'd be just reflecting his
constituents' desires or concerns.
him, right?
representing San Juan County.
look at a couple of them.
Well, constituents meaning they're the ones who elected
Yeah.
Okay.
I would assume that all of that was -- he was
You mentioned some of those e-mails.
Let's take a
This is Government's Exhibit
10
Number 22.
Can you see that okay, Mr. Palma?
11
I can.
12
Okay.
13
e-mail address, and that's the e-mail address you recognize
14
for Mr. Lyman?
15
It is.
16
And that is in fact a San Juan County e-mail address,
17
correct?
18
Yes.
19
And all your e-mail correspondence with Mr. Lyman were
20
with him from his government e-mail address, correct?
21
Yes.
22
And then going down, paragraph -- here, do you see where
23
I'm pointing?
24
saying.
25
So at the top it says Lyman, Phil and then has an
It says -- it starts off you quote me as
Do you see that?
I do.
137
easier for everyone to see.
I and the county are now dealing with the reality again of a
broken mechanism.
defamation through misrepresentation of the intelligent people
who currently live and laugh in San Juan County.
I'll zoom in on that position, see if we can make it

In that paragraph he represents,
Your e-mail also demonstrates a willful
From those statements, is it your understanding that
Commissioner Lyman was communicating with you as a
representative and elected official of San Juan County?
10
Yes, I would -- he would be representing the county.
11
Okay.
12
zoom out here -- in that last paragraph before he signs it --
13
do you see the paragraph that says I feel compelled?
14
compelled to share this communication string with the people
15
of San Juan County.
16
sentence that he's communicating with you in his official
17
capacity as a commissioner of San Juan County?
18
Yes.
19
And in fact he signs the e-mail Commissioner Lyman,
20
correct?
21
Yes.
22
Not Phil Lyman, citizen.
23
Number 23, this was an e-mail from March 2nd, 2014, correct?
24
Yes.
25
And, again, it's from Mr. Lyman to you on Mr. Lyman's
On the second page of Government's Exhibit 22-1 --
I feel
Again, is it your understanding from this
Going to Government's Exhibit
138
Government issued e-mail address, right?
Yes.
And the first sentence there says, Dear Juan, I wanted to
inform you of our plans; is that right?
Yes.
And in fact he is indicating -- excuse me -- strike that.
In fact Commissioner Lyman was very open and honest about the
proposed protest rally that he wanted to have; is that
right?
10
Yeah, it was on his website.
11
Okay.
12
starting right here -- I'm not speaking for the County
13
Commission but for my constituents and my federally mandated
14
voting district.
15
this the statement you were referring to?
16
17
county commissioner just solely as himself or his constituents
18
but not necessarily the whole county.
19
understand it to be not for the whole county but just for a
20
subset of the constituents.
21
22
district that he's responsible for, right?
23
Yes.
24
So his constituents would be those that live there and
25
the land as part of his district, correct?
Yeah.
Okay.
It was pretty public.
And in that second sentence there it says --
You previously mentioned constituents.
Was
You have to discern whether he was speaking as a
In this case I
And Recapture Canyon actually falls within his
139
Yes.
Okay.
e-mail that he was actually going to send to all of his
constituents; isn't that right?
Please point me where you're referring to.
Sorry.
the e-mail and he writes Dear friends.
towards you but it was what he was directing towards his
constituents?
Yes.
In this e-mail at the bottom he references an
He signs it yours, Phil, and then he says here is

That was not directed
10
In this case he signs it Phil, Mr. Lyman, but using
11
the same government issue or county issue e-mail.
12
though he's sort of semi referring to in the role of county
13
commissioner, he's sort of at the bottom not really -- just
14
signing as Phil, not County Commissioner Lyman.
15
16
this sooner.
So even
Well, let me direct -- I apologize, I should have done

In that second paragraph --
17
Ms. McNamee, can I access the draw feature, please.
18
Okay.
So right here where I'm bracketing it says below
19
is a copy of an e-mail I just sent to one of my e-mail groups.
20
I had a town hall meeting last Thursday in Blanding and the
21
motion was made to ride Recapture.
22
follows is the e-mail that he sent out to his constituents,
23
correct?
24
I would assume that.
25
But that's -- you assume that from what he said --
So the e-mail that then
140
From what he said.
can assume that from the traffic.
constituents and that he sent to you -- this is for the record
23-2.
Okay.
I did not see all of that.
I just
And in that e-mail that he sent to his
THE COURT:
Is this in evidence, Mr. Crane?
MR. CRANE:
23?
THE COURT:
23-2?
MR. CRANE:
I thought all of 23 was admitted.
10
THE COURT:
Is that the one we received in its
11
entirety?
MR. BENNETT:
12
13
Is this one of the attachments?

No.
23-2 is simply the second page of
Exhibit 23.
14
THE COURT:
My apologies.
Go ahead, Mr. Crane.
15
MR. CRANE:
I'm okay to publish it?
16
THE COURT:
Please.
So, again, this is the second
17
page.
18
constituents, and I just want to highlight to the middle part
19
here.
20
there are some, including myself, that would love nothing more
21
than to ride a trail that the BLM has arbitrarily declared as
22
closed.
23
This is part of the e-mail that he sent to his
Anyway, just starting at the I know part.
Skipping down.
I know that
Either way I plan to work with the county
24
to see what trail work will need to be done in order for the
25
trail to be passable by May 8.
Between Thursday May 8 and
141
Monday June 9th I propose that we perform multiple service
projects in Recapture, including trail maintenance and
signage.
activities in relation to this grand opening.
We can work in committees to plan specific
Mr. Palma, did I read that correctly?
5
6
You read it correctly, yes.
So in fact in this e-mail on March 2nd Commissioner Lyman
informed you that they were planning to do service projects in
Recapture Canyon between May 8 and June 9; isn't that right?
10
Yes, and I responded not to do it.
11
Not to do service projects?
12
Not to ride Recapture Canyon.
13
the screen the rest of the e-mail, you only have a small
14
portion up there, but the rest of it clearly describes that I
15
appeal to his better judgment not to do that.
16
17
doesn't mention we're going to ride our ATVs down this canyon,
18
does he?
19
20
else, all the other websites, I think it clearly was that they
21
were going to ride ATVs.
22
23
beginning portion in a minute, but here he's telling his
24
constituents, he's telling you, and what he's proposing are
25
service projects in Recapture Canyon?
In fact if you put up on
Well, in the e-mail that he sent to his constituents he
Not on this portion of the e-mail, but clearly everything
Well, the portion of the e-mail -- we'll look at the
142
This was not service projects.
going to ride ATVs.
we perform multiple service projects in Recapture, you take
that to mean we're going to ride ATVs?
it in the context of the small line, it is not, but in the
context of all the conversation that was going on at that
time, phone conversations, lunch meetings, the websites, other
That's what it says?
It was clear they were
So when it says here I propose that
In the context of the whole conversation.
If you look at
10
e-mails, clearly that was the context is to ride Recapture
11
Canyon with ATVs.
12
13
other e-mails all happened after this e-mail.
14
2nd, right, the ones that you referred to and testified on
15
direct examination?
16
17
e-mail.
18
it.
19
20
You see the date, sir?
21
I do, March 2nd.
22
March 2nd, okay.
23
There's -- this is all still the same e-mail, correct?
24
Yes.
25
Okay.
But those phone conversations, those lunch meetings,
Yeah.
This was March
I didn't see the date on this portion of this
I'm not seeing the entire e-mail, only a portion of
This is the first page of the e-mail.
It's right here.
And at the bottom it says 23-1.
And you go to the second page where it says 23-2.
143
Just have to fold it in half to see it.
of the e-mail.
part of the March 2nd communication, correct, sir?
It is.
Okay.
6
7
That's the end part
So this e-mail on the second page, that's all
THE COURT:
Mr. Crane, we've gone past the break
time, if this is a convenient spot.
MR. CRANE:
Yes, it is, thank you.
THE COURT:
Members of the
10
jury, we'll break now for lunch for just a little bit longer
11
than a half an hour.
12
case.
13
THE CLERK:
14
15
16
17
THE COURT:
Mr. Palma, let me invite you to stay
there for just a moment, please.

Mr. Stubbs.
MR. STUBBS:
19
THE COURT:
Yes.
What is it you're trying to do in
cross-examination?
21
MR. STUBBS:
22
THE COURT:
23
MR. STUBBS:
24
THE COURT:
25

(JURY EXCUSED)
18
20
Remember, of course, not to discuss the
I'm finished.
Are you finished?
I'm finished.
All right.
Mr. Palma, thank you.
You're welcome to stand down, and I'll ask you not to -- in
144
fact I'll instruct you not to discuss your testimony with
anyone during the lunch break.
THE WITNESS:
THE COURT:
Okay.
Counsel, let's resume here at 12:45.
have hearings beginning at 2:30, and so we'll try to get an
hour and a half to an hour and forty-five minutes of testimony
in after the break.
take up before we leave?
Is there anything more that we need to
MR. CRANE:
Your Honor, I just want to -- I wasn't
10
going to plan to have any witnesses ready today given the time
11
and how many more witnesses I think the Government has.
12
just wanted to make sure that was okay, or if the court would
13
like me to have some witnesses available I can as well.
14
MR. BENNETT:
After Mr. Palma we have one very short
15
witness, at least we anticipate will be very short, not in
16
height but in length.
17
may be a little bit longer, so I would anticipate you not
18
being able to have witnesses on until tomorrow given
19
cross-examination.
20
21
22
THE COURT:
And then we also have one witness that
Do I think I understand you to say that
you anticipate the Government will close today.

MR. BENNETT:
I'm hopeful we can, if not, the last
23
witness may trail over into the next morning, but I'm hopeful
24
we can get it all done today.
25
THE COURT:
All right.
We'll see you all at quarter
145
to 12:00 then.
Thank you.
(RECESS FROM 12:07 PM UNTIL 12:50 PM)
2
3
THE COURT:
MS. PRESTON:
We'll be in recess.
Are we ready for the jury?

There's something I'd like to address,
if I may.
THE COURT:
MS. PRESTON:
Come on up, Ms. Preston.

Your Honor, I'd like to address the
phone call that Mr. Stubbs tried to get in but backed off of
his efforts because that phone call is very important to --
10
and relevant to a good faith defense for my client.
11
I would propose is that I just play a short clip.
12
THE COURT:
13
MS. PRESTON:
And what
Was your client a party to that call.

No, but it has to do with --
14
essentially I would proffer that in the conversation Mr. Palma
15
asserts to Mr. Lyman something that could be construed as an
16
endorsement or consent of the ride.
17
single thing that comes in from Mr. Lyman or anybody, my
18
client wasn't a party to those conversations.
19
20
21
THE COURT:
And in that sense every
Is there any evidence he was aware of it
at the time?
MS. PRESTON:
Your Honor, I don't know that there's
22
evidence that my client was aware of anything that was said in
23
any conversation in this trial, but they're all going to play
24
into the general knowledge about what went on with --
25
THE COURT:
Well, I assume you're raising an
146
argument on behalf of Mr. Holliday, and if he's unaware of the
conversation and didn't participate in it, I don't see the
relevance of it to his good faith defense.
MS. PRESTON:
was consent to ride on the trail.
THE COURT:
I think it's relevant to whether there
There was no consent.
There may be a
question about Mr. Holliday's belief about that, but if he
wasn't a party to that conversation, was unaware of it, then
it's not relevant to his state of mind or his knowledge or
10
intent, is it?
Am I missing a connection?
11
relevant to his good faith if he's unaware of something?

MS PRESTON:
12
How could it be
Your Honor, I mean in the same sense,
13
since these are co-conspirators, any of these e-mail chains,
14
any of these conversations that are being offered to show a
15
conspiracy are going to be -- my client wasn't a party to
16
those.
17
THE COURT:
18
MS. PRESTON:
You can argue that to the jury, right?

Right.
But if I have evidence that
19
there was not a conspiracy because in fact Mr. Palma indicated
20
something that could have been construed as consent, then
21
there was not a conspiracy that my client could have joined.
22
THE COURT:
23
MR. BENNETT:
Mr. Bennett.
To the extent she's relying on
24
801(d)(2)(e), which is what we do when we have James
25
statements and co-conspirator statements, these aren't even
147
close to meeting 801(d)(2)(e)'s hearsay exception.
setting that aside for a minute, more fundamentally this has
never been provided to the United States as an exhibit.
if it's going to be published to the jury, this is absolute
litigation by surprise and should be entirely excluded.
can't be published to the jury because this is the first time
I have ever seen hide or hair of this conversation.
8
9
THE COURT:
But
It
I mean there is a question in my mind.
This is what I was thinking -- part of what I was thinking at
10
the time that Mr. Stubbs started raising it.
11
question if it's impeachment --
12
MS. PRESTON:
13
THE COURT:
It's one
It's impeachment.
Well, Mr. Palma doesn't deny having had
14
the conversation.
15
discussions.
16
that.
17
to impeach someone who said I may well have said that?
18
And
He doesn't say he never had those
He said it's possible.
That's his best recollection.
MS. PRESTON:
He said things like

Are you going to use it
Well, Your Honor, this -- this
19
witness's testimony was offered in support of the charges
20
against my client.
21
his ambiguous statement that he may have said something like
22
that but with in fact proof that he did indeed say that.
Yes, I'd like to impeach him, and not with
23
THE COURT:
Well, this I don't know.
This is what I
24
wanted to ask Mr. Stubbs about.
25
for something you want to publish to the jury out of the clear
What foundation do we have
148
blue?
MS. PRESTON:
Your Honor, I don't want to publish it
to the jury.
I want to introduce it under Federal Rule
613(b), use of extrinsic evidence to impeach.
that he does -- he may have, but he doesn't have a
recollection of having said this.
extrinsic statement in cross-examination.
publish it to the jury.

THE COURT:
9
10
And he stated
I want to introduce this

I do not want to
MS. PRESTON:
What do you want to do then?

What I want to do is play a short
11
recording, ask him if he recognizes his voice solely in means
12
of -- in terms of foundation.
13
that I'm reading from by a certified court -- I won't
14
introduce it to the jury, but just in terms of foundation.
15
THE COURT:
I have a certified transcript
What are we doing walking into court
16
with certified transcripts of items that have never been
17
disclosed?
This I'm puzzled by.
18
MS. PRESTON:
19
THE COURT:
This is impeachment.
It was known to the parties in advance
20
of trial -- well, it's not -- if you want to ask him direct
21
questions from the transcript, if you want to ask did you have
22
a conversation with Mr. Lyman and then ask him did you say
23
this?
24
25
Then I think you can do that.

MS. PRESTON:
And if he says I may have, I may not
have, then I need to introduce the conversation to show that
149
he did indeed say that.

THE COURT:
Well, then we're going to play a clip
right now outside the presence of the jury and establish the
foundation for it.

MR. BENNETT:
Your Honor, before we go any further,
I still don't think we've addressed the issue of her client's
standing to be able to raise this argument.
of it, then letting him argue that somehow this is admissible
and is good impeachment really is completely outside of the
If he's not aware
10
evidentiary rules.
11
standing to do it has just said he's not going to raise it
12
anymore.
13
gets to have the benefit of this evidence when we have
14
absolutely nothing to show, in fact her own admission that he
15
didn't know about it.
16
The only person that would have the
So I'm not -- I'm not sure why Ms. Preston's client
THE COURT:
I haven't moved past that issue either
17
yet, but I thought that this was an issue we could take up
18
outside the presence of the jury.
19
Ms. Preston, I will tell you I don't think it's
20
impeachment of this witness concerning anything relating to
21
your client, and it's not impeachment of the witness that
22
would go to his credibility because he hasn't disclaimed
23
making the statement.
24
if he says I never said such a thing, then you want to impeach
25
him with his recording, some recording?
But I guess you're saying if he does,
150
MS. PRESTON:
Exactly, but I would also want to use
that if he says I may have.
anything.
recall.
I don't -- because he's essentially saying I don't
I may have.
THE COURT:
That doesn't really mean
That's a lack of recollection.

What is the recording?
What is this
that you want to play and where did it come from?
Mr. Stubbs?
MR. STUBBS:
THE COURT:
10
MR. STUBBS:
Are you asking me, Your Honor?

I am.
Your Honor, it was on Saturday my
11
client e-mailed me and said that he'd been going through his
12
documents and he found this telephone recording.
13
no intent here to enter it as evidence, merely to bring it up
14
as impeachment evidence for -- not evidence, but as
15
impeachment under 613(b).
16
So there was
The transcript I believe would be 612, and then the
17
extrinsic evidence would be the recording under 613(b).
18
there was no intent to hide it from the -- from the
19
prosecution.
20
we're not required to disclose it and we didn't get it until
21
Saturday.
So
We're not -- we're not -- as rebuttal evidence
22
THE COURT:
23
MR. STUBBS:
You still didn't tell me what it is.

It's a telephone conversation on May
24
1st.
Mr. -- my client, Mr. Phil Lyman, calls Mr. Palma at his
25
office at the BLM and they discuss -- they have a 22 minute
151
phone conversation and they discuss the issues that are
relevant here to the case.
is when Mr. Palma makes these statements that I tried to enter
in earlier, but -- as you said, but I'll move past that.
that's what it is.
telephone records from the county that this telephone
conversation took place.
the County Clerk.
And at the end of the conversation
But
If it's helpful, we have Mr. Lyman's
The COURT:
It's sealed.
It's under seal from
And have you provided a complete
10
transcript to the United States in case there's an interest in
11
completeness?
12
MR. STUBBS:
13
THE COURT:
14
15
16
17
I have an extra copy for them.

You still haven't given it to them even
after you raised the issue earlier?

MS. PRESTON:
Well, we've never gotten to whether it
would be permitted.
THE COURT:
I'm not going to permit it.
18
to overrule your request.
19
been any foundation for it.
20
known at least as early as Saturday.
21
with the witness's testimony thus far.
22
23
MS. PRESTON:
It's not appropriate.
I'm going
There's not
It wasn't disclosed.
It was
It's not inconsistent
I think this is really important
evidence, Your Honor.
24
THE COURT:
25
to assert the issue.
And I think your client lacks standing

If he was not a party to the
152
conversation and was unaware of it at the time, it can't bear
on his knowledge or intent or state of mind, which is part --
3
4
MS. PRESTON:
conversations then pertain to my client's case?

THE COURT:
5
6
Well, you're welcome to argue about
that.
7
8
Can any of these witnesses'
MS. PRESTON:
We're in a conspiracy case so I
assumed that it was so.

THE COURT:
Well, how could it be relevant to your
10
client's intent to enter into the conspiracy if he doesn't
11
know about it at the time?

MS. PRESTON:
12
Because if Mr. Palma gave consent to
13
Mr. Lyman to be on that trail, then they weren't in violation
14
of the law.
15
THE COURT:
16
MS. PRESTON:
I don't know that's true.

Well, that could be argued later, but
17
I can definitely lay the foundation.
18
offered against my client, I think I have the right to impeach
19
him.
And if this witness was
20
The COURT:
Play a short clip of the call.
21
MR. STUBBS:
Just here for technical support.
22
MR. BENNETT:
23
24
25
Your Honor, should we excuse Mr. Palma
from this or -THE COURT:
No.
I'm going to need to ask Mr. Palma
whether he recognizes his voice on the call, whether it's a
153
call he had with Mr. Lyman.

(LISTENING TO AUDIO Of THE TELEPHONE CONVERSATION)
2
3
4
The Court:
Mr. Palma, do you recognize your voice
on that recording?
THE WITNESS:
THE COURT:
I do, Your Honor.

And having heard that, do you now recall
having had a conversation with Mr. Lyman on or about May 1st?
THE WITNESS:
THE COURT:
On or about May 1st, yes.

All right.
Let's hear how the witness
10
answers your questions and we'll decide whether it's --
11
whether you can use it for impeachment.
12
he said anything that's inconsistent under 613(b) but let's
13
see.
14
MS. PRESTON:
15
THE COURT:
I still don't believe
Shall I ask him then?

Well, you can ask him the question in
16
cross-examination in the first instance whether he had such a
17
call and whether he made such a statement.
18
19
MS. PRESTON:
So did you -- you did recognize your
voice --
20
THE COURT:
21
MS. PRESTON:
22
I'm sorry.
I meant when we --
Get the jury in, okay.
I was very
confused.
23
THE COURT:
24
MS. PRESTON:
25
THE COURT:
I was unclear, my apologies.

Okay, thank you.
All right.
Mr. Bennett.
154
1
2
MR. BENNETT:
Can I have the transcript then for the
rule of completeness?
THE COURT:
MS. PRESTON:
MR. STUBBS:
I think that's essential.

Of course.
And, Your Honor, just for when
Ms. Preston gets up, I intend to stand up just to help her
with logistical support again, technology.
8
9
10
11
THE COURT:
Thank you.
Are we ready for the jury?
Ms. McNamee.
MR. CRANE:
I assume we're continuing with mine
before we get to Ms. Preston?
12
THE COURT:
We will, Mr. Crane.
13
THE CLERK:
14
THE COURT:
Mr. Crane, with apologies for the
15
16
17
interruption, it's your witness.

Mr. Palma, I'll just remind you, sir, that you remain
under oath.
18
THE WITNESS:
Thank you.
19
THE COURT:
Thank you.
20
MR. CRANE:
21
Q (BY MR. CRANE)
22
finished talking -- discussing an e-mail from March 2nd.
23
did want to direct your attention to one other e-mail that has
24
been raised during your direct exam -- or during your
25
examination.
Mr. Palma, when we left off we were just

I
155
This is the first page of Government Exhibit Number 24.
I believe that is in evidence.
Palma, this is an e-mail that you received from Commissioner
Lyman; is that right.
Yes.
And again it was an e-mail of Mr. -- excuse me.
on Commissioner Lyman's government issued e-mail address; is
that right?
Uh-huh, yes.
10
Yes?
11
Yes.
12
And in this e-mail Commissioner Lyman signed it at the
13
bottom as Phil Lyman, San Juan County Commissioner.
14
see that there?
15
I do.
16
And in this e-mail, second full paragraph first sentence,
17
he indicated to you, I do not plan to break any federal laws
18
on May 10th.
19
You did.
20
You mentioned that you had a -- a lunch meeting with
21
Commissioner Lyman.
22
Let me back up, I'm sorry.
23
with Commissioner Lyman on a couple of different occasions?
24
I have, more than once, yes.
25
Okay.
Okay.
Zoom in a little bit.
Mr.
It was
And this was sent on April 30th, 2014?
Do you
Do you recall when that lunch occurred?

You've had -- you've had lunches
And specifically I believe you referred to one in
156
the relevant time period here, and I believe the lunch took
place on March 27th, 2014; is that right?
right.
have with Commissioner Lyman?
yes.
So you did request the meeting?
10
I probably did.
11
Okay.
12
the meeting, on March 25th, asking if he was going to be in
13
Salt Lake and if he could meet with you; is that right?
14
15
Mr. Lyman, but all county commissioners, when they were in
16
town, often I met with many of them on various occasions from
17
various counties across the state.
18
19
Lyman lives in Blanding, Utah is several hours away from Salt
20
Lake City; is that right?
21
Yes.
22
And in fact on the morning of March 27th, Commissioner
23
Lyman had informed you that he had another appointment in Salt
24
Lake and that's why he was going to be in Salt Lake City; is
25
that right?
I do not recall the exact date but it was -- sounds about
Okay.
And in fact it was a meeting that you requested to
It is very possible that I -- I requested the meeting,
Yes.
Okay.
And actually you had texted him two days prior to
Often there were -- county commissioners, not just
And this is because where -- where commissioner
157
Yes.
And he informed you that he had a meeting at the Capitol
with the State Auditor for the State of Utah.
that?
I do not know that.
That was not discussed in your text messages with him?
It is very possible, but I cannot recall at this moment
in time who he had a meeting with on March 27th a year ago.
do not know.
Okay, that's fair enough.
Do you recall
10
And as far as you -- your
11
understanding the morning of March 27th is that the lunch was
12
going to be just you and Commissioner Lyman; isn't that
13
right?
14
15
yes.
16
17
Commissioner Lyman was accompanying Mr. Wells on Mr. Wells'
18
appointment at the State Capitol with the State Auditor?
19
That is very possible that there was a connection, yes.
20
And about 11:55 AM on March 27 Commissioner Lyman text
21
messaged you and indicated he had another individual he was --
22
that was going to tag along for the lunch; is that right?
23
Yes.
24
And that ended up being Mr. Wells; is that right?
25
When physically showed up, it was Mr. Wells.
I was under the impression it was just Mr. Lyman and I,
Okay.
And that in fact you found out later that
158
Okay.
And the conversation you had at lunch was mainly
with Commissioner Lyman regarding Recapture Canyon; isn't that
right?
Predominantly.
Okay.
Wells, had you?
I had not.
You had never had a phone conversation with Mr. Wells,
had you?
Prior to March 27, 2014 you had never met Monte
10
Not that I recall.
11
Or e-mails or text messages or any other kind of
12
communication?
13
Not that I recall.
14
And after March 27, 2014, again, you didn't have any
15
phone calls, other communications with Monte Wells?
16
Not that I recall, no.
17
MR. CRANE:
Okay.
18
THE COURT:
Thank you.
19
Nothing further.
Thank you.
Any other questions for this witness?
20
MS. PRESTON:
21
THE COURT:
22
I have some questions, Your Honor.

Ms. Preston.
CROSS-EXAMINATION
23
BY MS. PRESTON:
24
Good afternoon, Mr. Palma.
25
Good afternoon.
159
Mr. Stubbs was talking to you earlier about a possible
phone call that you might have had with Mr. Lyman on May 1st,
2014.
Yes.
Do you recall that?
That's correct.
Do you recall having that telephone conversation?
There was many conversations that I had during that time
with many people and, yes, it is very possible I had such a
10
conversation with Mr. Lyman.
11
12
to read a statement to you, and would you tell me if you
13
recollect having made that statement.
14
change the past, I just can't, Phil.
15
do, whatever happened in the late '80s or whenever all this
16
stuff happened, but I can make some change, you know.
17
is going to get arrested, and nobody is going to do all that
18
kind of stuff.
19
having said that?
20
Yes.
21
In a paragraph down in the transcript there's a different
22
sentence, and I'm going to read that, and would you tell me if
23
you recollect having said that.
24
say that regardless of what you all decide to do on the 10th,
25
and I hope it is -- and there's an inaudible section in the
Okay.
I have a transcript of a recording and I'm going
You know, I cannot

There's nothing I can
We're not going to do that.
Nobody
Do you recollect
And, Phil, I just wanted to
160
transcript -- you know, that you can have your celebration and
that you can, you know, ride or walk down into the Canyon.

MR. BENNETT:
Do you recall having said that?

I'm going to object to that question.
The inaudible is very significant in terms of the context and
meaning of this sentence, and if this transcript is
insufficient to generate a question like that, it's not
appropriate.
THE COURT:
9
10
11
It's prejudicial.
MS. PRESTON:
Sustained.
Your Honor, there's one complete
sentence after the inaudible part.
May I repeat that part?
12
THE COURT:
13
MS. PRESTON:
Yes.
14
MR. BENNETT:
Could we have a sidebar on this to
15
show you?
16
THE COURT:
17
20
Yes.
(BENCH CONFERENCE OFF THE Record)
18
19
In the same response from the witness?
MS. PRESTON:
Your Honor, was it after the inaudible
part?
THE COURT:
I'm sorry, if you'd just restate your
21
question, Ms. Preston.
22
Q (BY MS. PRESTON)
23
that you can have your celebration and that you can, you know,
24
ride or walk down into the Canyon.
25
Do you recall saying that?
Yes, after the inaudible part.
There's a section that says, you know,
161
Could you one more time repeat that, what you're reading
from that transcription.
ride or walk down into the canyon.
Do you recall saying that?
It is possible I said exactly that, yes.
Okay.
arrested and nobody is going to do all that kind of stuff,
what did you mean by that?
You can have your celebration and that you can, you know,
When you said to Mr. Lyman nobody is going to get
10
11
that occurred in other parts of the west, and my concern
12
obviously at this time, because this is May 1st, correct,
13
where this transcription occurred that I was unaware of?
14
Yes.
15
On May 1st the context of all of that conversation was
16
that up to that point in time there was still hope in me, even
17
though I was telling Mr. Lyman not to ride ATVs, but they
18
could certainly walk.
19
ride horses, not closed to that.
20
activities.
21
trail.
22
conversation was that given what had occurred in other parts
23
of the west, that, you know, we were not going to as the BLM
24
have all kinds of law enforcement there to arrest people.
25
The context of this conversation is after the incidents
It was not closed to that.
They could
They could do those kinds of
What they could not do is ride ATVs down the
That is the context.
MS. PRESTON:
Okay.
And the context of the
That's all I have.
Thank you.
162
Thank you.
THE COURT:
2
3
Were there any other questions from any
of the Defendants?
Mr. Bennett?
MR. BENNETT:
5
6
BY MR. BENNETT:
are open to ATV use?
Mr. Palma, there are other parts of Recapture Canyon that
10
There is a segment on the northern part that is open, and
11
then the -- without a map to show you, there's a segment of
12
the main canyon approximately two miles from Highway 191 is
13
open to ATVs.
14
south.
15
16
help you --
17
Yes.
18
-- explain that to the jury?
19
been received into evidence as Exhibit 2A, as soon as I can
20
work this easel.
21
I see it.
22
Would you mind just coming down off the stand and showing
23
the jury where the open parts to ATV use of the trail are.
24
25
There is a dam right close to the freeway, the highway.
Beyond that it is closed to ATVs to the
If I showed you a map of Recapture Canyon, would that
I'm showing you what has
Do you see that map okay?
So Highway 191 that comes from Moab is this line here.

A
163
portion here up to where my fingers are is open.
It's open
for all uses.
the highest concentration of archaeological sites and
buildings and things and structures are located along the more
narrow canyon.
That is the only part that is closed and only
closed to ATVs.
It is open for the public to walk, to ride
horses, to do any other activities.
in that area.
Beyond here where the Canyon narrows and where
It is only closed to ATVs
Could you please take the witness stand again.
10
Mr. Palma, Ms. Preston read to you this conversation, and the
11
part that she picked was no one is going to get arrested and
12
nobody is going to do that kind of stuff.
13
do that.
14
Yes, I do.
15
Did BLM arrest anybody on May 10th, 2014?
16
We did not.
17
In Recapture Canyon that is?
18
No.
19
What did you instruct your BLM law enforcement officers
20
to do that day?
21
22
our instruction was simply to observe and to watch, to
23
photograph any damage to archaeological sites.
24
instructions.
25
We're not going to
Do you remember that?
Given the intelligence that we had at that point in time,
That was our
Now, I'm going to refer you back to this telephone
164
conversation that was recorded, apparently, and I'm going to
go to the beginning of the conversation here.
if you remember this.
because we just got this.
And it says, all I -- all I know, Juan, is when Lance says in
a face-to-face meeting with the county this is the letter,
it's from me to you, and he hands it to me and I come.
time I get back I've got a phone call.
letter and I pull it up and it's that letter, I mean the exact
In this -- see
I'm just going to read this to you

And this is -- it's labeled Phil.
By the
It says I've seen the
10
letter with the date stamp on it.
11
Do you know what he's talking about, Lance's letter?
12
13
him not to go into the closed area.
14
fact I recommended many other options, other alternatives,
15
that he could still have the event that he was planning for
16
May 10th without going into -- so the letter was about not to
17
go into the closed area with ATVs.
18
19
page six.
20
Government Exhibit 24-6?
21
I do.
22
Have you seen this before?
23
I have.
24
Like to direct your attention to page -- the second page,
25
so 24-7.
Yes.
I mean it's Lance's letter.
There was a letter that we sent to Mr. Lyman asking

That he could have -- in
I'm going to pull up Government Exhibit 24.
Let's go to
Mr. Palma, do you recognize the letter on
Whose signature do you see there?
165
Mr. Lance Porter.
Do you recognize that as his signature?
Yes.
And who is Mr. Porter?
He is our District Manager for the Canyon Country
District.
letter that Mr. Lyman was talking to you about in the May 1st
conversation?
Do you recognize this letter in 24-6 and 24-7 to be the
10
Yes.
11
I'd like to direct your attention to a couple places in
12
this letter in 24-6.
13
paragraph.
14
there?
15
I am.
16
It says I strongly urge you to cancel the proposed ride
17
in the closed portion of the Canyon.
18
or anyone else uses a motorized vehicle within the closed
19
area, BLM will seek all appropriate civil, criminal -- civil
20
and criminal penalties.
21
Yes.
22
I'd like to direct your attention to the first sentence
23
of that paragraph.
24
vehicles, any motorized use within the area is pro -- is a
25
prohibited act and violators are subject to civil and criminal
I'd like to have you look at the second
And let's look at the last two sentences.
Are you
To the extent that you
Because the area is closed to motorized
166
penalties provided by the -- by the Federal Land Policy and
Management Act and it's implementing regulations.
that correctly?
Yes.
Did you review this letter before Mr. Porter signed it?
Yes.
Did you authorize him to sign it?
Yes.
And in this conversation on May 1st, directing your
Did I read
10
attention back to this telephone conversation that was
11
recorded, Mr. Lyman and you were having a discussion about
12
this very letter, weren't you?
13
Yes.
14
Now, do you recall during your May 1st telephone
15
conversation with Mr. Lyman, Mr. Lyman telling you that BLM
16
needed to pick a side?
17
18
specifics of such a conversation from a year ago, so it is
19
very possible that he asked me that question.
20
21
right-of-way, did you have -- do you recall having a
22
discussion with him on May 1st, 2014 about the right-of-way
23
application that San Juan County had submitted?
24
25
conversations about how close we were to completing our
It is very possible.
I mean I -- I do not recall all the
And in terms of your discussion about whether the
Yes.
Throughout this whole time Mr. Lyman and I had
167
environmental work to complete this right-of-way, which I had
mentioned to him on several occasions that it was in June,
which is only two months after.
imploring to him was we could not in a way damage that.
were so close to the end.
about the right-of-way.
refused to cancel the Title V right-of-way?
Yes.
10
What did you understand Mr. Lyman to mean by that?
11
At the time that we're talking about, the Chair of the
12
county commission was Mr. Adams, Bruce Adams, and so I
13
understood it to mean that as a collective county commission
14
had decided not to cancel the request of the right-of-way.
15
That we could not -- my

We
And so, yes, we had a conversation
And do you recall Mr. Lyman telling you that Bruce
MR. BENNETT:
Your Honor, out of fairness, just
16
given this has been gone -- this has gone into so much detail
17
so far today, I would request that we just submit it as an
18
exhibit that we can refer to in arguments.
19
THE COURT:
Let's reserve that question.
20
Q (BY MR. BENNETT)
21
Mr. Palma, my bad -- I'd like to refer you to Exhibit 22-2.
22
It's been received into evidence.
23
attention, 22-2, to the fifth paragraph beneath the heading on
24
Sunday April 13th at 7:43 PM.
25
Now, Mr. Lyman, I'd like to -- excuse me,
I'd like to direct your
Sorry, I'm not seeing that on the screen.
168
I don't think any of us are yet, so it will be right
there.
you seeing that -- that e-mail?
Yes.
What is this?
It is a response e-mail from myself to Mr. Lyman.
And I'd like you to look at the fifth paragraph in that
e-mail.
Mr. Lyman to do that day.
Looking at Exhibit 22-2 where it says Dear Phil, are
Would you please tell the jury what it is you invited
10
I had invited Mr. Lyman and others to walk, to hike down
11
Recapture Canyon, but I ask and appeal to your better self not
12
to take any ATVs or other construction equipment.
13
want to propose a number of other options, which are listed
14
below.
15
16
mean by don't take any ATVs?
17
18
what I was asking him, not to take any ATVs down on this
19
ride.
20
21
referenced in your e-mail?
22
23
Mr. Lyman, they were talking about doing some trail
24
construction, maintenance, other kinds of activities of that
25
nature that in my mind felt like there was some kind of a
Let's unpackage that for just a second.
However, I
What did you
Recapture Canyon was closed to ATVs, and the -- so that's
What about the construction equipment?
Why was that even
If you look at the rest of the e-mails in response from
169
construction equipment that would be taken down to -- the
trail is pretty narrow in many spots, the narrowest part of
the canyon, so in my view it was that the only way to get
through there was to actually either cut the vegetation, do
construction to get the ATVs through.
take that kind of construction equipment down this trail.
your attention to the first full paragraph on that page that
begins I know.
My response was don't
I'd like you to look at Exhibit 23-2.
I'd like to draw
Do you see that?
10
Yes, I do.
11
And just read it to give you some context before I get to
12
my question.
13
that would love -- and let me back up a second.
14
e-mail to you?
15
Mr. Lyman.
16
Okay.
17
Yes.
18
I know there are some, myself included, that would love
19
nothing more than to ride a trail that the BLM has arbitrarily
20
declared as closed.
21
the BLM which authorizes our activity.
22
work with the county to see that -- what trail work will need
23
to be done in order for the trail to be passable by May 8th.
24
What did you understand it to mean by trail work?
25
I know that there are some, myself included,

Who sent this
And this is to you then?
My hope is that we will have action from

Either way, I plan to
Well, I understood it to be that I, Mr. Lyman, knew that
170
there were some parts of this trail that were not passable,
that in order to make it passable by the dates described in
this e-mail, they would have to do some trail work, which
could be done by some kind of equipment.
understood it to be, that the county -- either way the county
was going to do some of that trail work.
either way of what?
And so that's what I
And what did you understand him to mean by either way,
Well, either way, whether we, the BLM, approved it or
10
not, they were going to do it either way.
11
12
you about this, I propose that we perform multiple service
13
projects in Recapture Canyon, including trail maintenance and
14
signage.
15
performs trail maintenance without BLM approval, does BLM
16
consider that a service project?
17
Not in this situation we would not.
18
Now, before the ride occurred, did BLM agree to show
19
Mr. Lyman where certain archaeological sites were before the
20
ride?
21
Yes.
22
Why did BLM do that?
23
We were very concerned about damage to archaeological
24
sites, and we really felt that, you know, either way they were
25
going to do it.
Then in the next sentence, and I believe Mr. Crane asked
From the BLM's perspective, if someone goes in and
Clearly the e-mail shows that.
Either way
171
they were going to do it, so we were trying to figure out how
can we minimize the impact to archaeological sites.
Now, I'm going to show you what's been marked as Exhibit
24.
It's been received into evidence.
conditions on Mr. Lyman being able to go out with the BLM and
observe the sites?
Those are some of the conditions that were placed on that.
Yes.
Did BLM place any
There was certainly a condition of confidentiality.
Now, did BLM ask Mr. Lyman -- did it ask him to
10
acknowledge that BLM did not consent to the ride before taking
11
him out to show him the sites?
12
13
a document that he signed not to ride.
14
question, I do not believe that there is such a document that
15
Mr. Lyman signed that said I will not ride on the closed
16
area.
17
18
Government Exhibit 24, and I'd like you to look at page 24-2.
19
Do you recognize that letter?
20
I do.
21
What is it?
22
It is a letter from San Juan County letterhead to
23
Mr. Lance Porter, our District Manager for Canyon Country.
24
25
24-5.
I do not know if there was a letter or an affirmation or

If that's the
Now, showing you what's been received into evidence as
I'd like you to look at page five of that letter, so

Do you recognize the signature on that letter?
172
Yes.
That's Mr. Lyman's.
Now I'd like to direct your attention to that paragraph
that begins finally.
Yes.
There it says, finally, you asked me to give a written
acknowledgment that BLM identifying sites will not be
construed in any way to be BLM's consent for the proposed ride
to take place.
bold and underlined.
Do you see that?
I hereby acknowledge that to be the case, in

Do you see that?
10
I do.
11
Now, prior to the May 10th ride, around May 9th of 2014,
12
did BLM issue a press release about the ride?
13
14
mean there's so much activity that is going on at this time
15
that I cannot recall every single document or e-mail or phone
16
call or event, but it is very possible that a press release
17
was sent out on or about that date.
18
19
anyone else involved in Recapture Canyon that it was okay to
20
ride ATVs into the closed area?
21
I do not recall, but it is very possible that we did.
At anytime, Mr. Palma, did you ever tell Mr. Lyman or
No.
22
MR. BENNETT:
23
MR. CRANE:
24
25

I do have some recross.
RECROSS-EXAMINATION
BY MR. CRANE:
173
You just mentioned it was an issue of confidentiality.
Is that referring to the location of archaeological artifacts
within Recapture Canyon?
are certain archaeological sites that are either right where
this trail ride was supposed to occur, so, yeah, not
necessarily just artifacts, but there's other things beyond
artifacts that are considered archaeological sites.
Yeah.
Okay.
There's some, not necessarily artifacts, but there
And those sites, did BLM consider those, the
10
location, to be secret?
11
Confidential.
12
They're not public knowledge?
13
They are not.
14
And you shared them with Commissioner Lyman in his
15
capacity as an elected county commissioner?
We didn't want to expose them.
16
MR. BENNETT:
17
THE COURT:
Objection, compound question.

Can you rephrase.
18
Q (BY MR. CRANE)
You indicated that you disclosed or you were
19
allowing BLM employees to disclose to Commissioner Lyman the
20
location of these confidential sites, correct?
21
Yes.
22
And you authorized that because Commissioner Lyman is the
23
county representative?
24
Yes.
25
So a citizen who went down on May 10 or any other day
174
might not know where these -- the location of these
confidential sites; is that accurate?
That could very well be, yes.
Meaning the BLM doesn't publish the location of these
sites on their website or what's down there in any forms or on
maps or whatever?
Lyman is that he was the person that was inviting people to
participate in this ride, and so we felt that he as the person
Correct.
And the reason we were discussing this with Mr.
10
who was responsible for this ride needed to know the
11
consequences of what could happen.
12
13
written by Mr. Porter on April 28th, 2014.
14
testimony is you authorized and reviewed this letter before it
15
was sent to Commissioner Lyman, right?
16
was addressed to Commissioner Phil Lyman, San Juan County
17
Commission, correct?
18
Yes.
19
Okay.
20
Commissioner Lyman sent to Mr. Porter in response to that
21
letter on April 28?
22
Yeah.
23
That's right.
24
And this is written -- this is from Commissioner Lyman,
25
correct?
Sure, okay.
I want to jump to the letter that was

I believe your
In fact that letter
And then you're aware of a written response that
I just saw it on the screen, yeah.

And that's Government's Exhibit Number 24.
175
Yes.
Written on San Juan County letterhead, correct?
Yes.
To Lance Porter, the BLM Canyon District -- excuse me --
BLM Canyon Country District Manager; is that correct?
Yes.
Okay.
states, you also refer to my efforts to organize an
all-terrain vehicle, ATV, ride along portions of Recapture
In this letter in paragraph two Commissioner Lyman
10
Canyon.
It has never been my intention to organize an ATV
11
ride.
12
You did.
13
And in fact Commissioner Lyman is telling you he
14
hadn't -- he hadn't planned or wasn't organizing an ATV ride;
15
isn't that right?
16
Say that again, please.
17
Commissioner Lyman informed you and the BLM that he was
18
only -- he was only organizing an excursion into the Canyon,
19
and that he specifically says he wasn't planning for it to be
20
an ATV ride?
21
I've never heard the word excursion until right now.
22
Okay.
23
opinion piece that was published in the Deseret News on April
24
11 in which I announced an excursion into Recapture.
25
this time we are inviting all who like to join us to come and
Well, it says -- it says ATV ride.
I wrote an
I wrote
176
see for yourself.
is the debris in the trails, the barricades blocking access,
and the warning signs placed at every turn.
correctly?
You did.
So it was Commissioner Lyman's term on April 29 that at
that point he was just planning an excursion into Recapture
Canyon?
Yeah.
I think you will agree that the real damage
Did I read that
Depends how you're -- excursion, it was okay to
10
walk, to hike.
An excursion was not okay to ride ATVs.
11
excursion would have not been appropriate, and that was our
12
message clear and loud from day one.
13
14
from Commissioner Lyman on April 21 -- 29 was that as of April
15
29th there was no plan -- he was not organizing an ATV ride,
16
correct?
17
18
everything else, the websites and everything else, was not the
19
case.
20
21
excuse me, strike that.
22
Lyman and the e-mail where he mentions doing service projects,
23
right?
24
proposed that Commissioner Lyman and those who wanted to go
25
with him actually perform service projects; isn't that
And I understand that.
And the message you received back
According to the letter.
Okay.
That
I mean the context of
And in your e-mails back and forth with -- well,

You were asked about Commissioner
And in fact the question I have for you, sir, is you
177
right?
Canyon.
Exhibit Number 22.
You were just -- you were just shown this
e-mail by counsel.
It's Exhibit 22 page two, an e-mail dated
Sunday, April 13 from you, Mr. Palma, to Commissioner Lyman.
Do you recognize that as being your e-mail?
It is.
10
So down at the bottom it says, however, I want to propose
11
a number of other options:
12
designated section of the Cedar Mesa ATV trail combined with
13
installing a kiosk along the route.
14
on the Cedar Mesa trail, correct?
15
Yes.
16
Cedar Mesa not being part of Recapture Canyon, but is
17
located within San Juan County, right?
18
Correct.
19
And at the top it continues, you -- additionally, we can
20
construct water bars on the new Cedar Mesa ATV trail.
21
could use some help in placing directional signs on designated
22
ATV trails.
23
and the ATV community can help us place the maps provided by
24
the BLM.
25
In different parts of San Juan County, not in Recapture
That's right.
But you -- but you -- let's look at
It's mine.
An ATV ride on the newly
That's a service project
We
We need to update the maps on our various kiosks,
So when back -- in your e-mails back and forth with
178
Commissioner Lyman, you are giving him potential service
projects that he and his constituents could perform?
these trails, the BLM had just approved for the county some of
these right-of-way trails.
Sure.
And so they were new, needed to be, you know, signed,
things that we could do.
subsequently we've approved many other rights-of-ways for the
Yes.
The context was that we had just approved some of
We had approved -- not only then but
10
county that could use a little help with water bars, other
11
things, so those were approved.
12
13
the county, and Commissioner Lyman is replying we want to do
14
service projects in Recapture Canyon, correct?
15
agree with -- that's too many questions.
16
17
construction equipment, down the closed area of Recapture
18
Canyon.
19
20
was going to use construction equipment, did he?
21
It was implied in other e-mails.
22
Okay.
23
Well, if you go back to some of the other exhibits, it
24
was clear they were going to have to get the trail ready.
25
back to Exhibit 23 where -- I don't recall it's 22 or 23 where
So you are proposing service projects in other parts of
And you didn't
It was clear that we could not take ATVs down, or
Sure.
But he never in any of these e-mails indicated he
So you're reading that into the e-mails?
Go
179
he's talking about -- Mr. Lyman is talking about he's got to
have the trail ready by May or June in order to get the trail
ready to have a celebration.
because the trail is so narrow in some parts, the only way you
could have that trail open and ready by June 9th of 2014 was
to construct on a closed area.
Commissioner Lyman was telling you?
to bring in construction equipment into Recapture Canyon,
Okay.
That to me implied clearly that
So that was what you were reading into what

You were afraid he wanted
10
right?
11
12
on the e-mails.
13
14
that we've been reviewing here for the last couple of hours,
15
Commissioner Lyman doesn't use the word construction
16
equipment, backhoe, dump truck, what have you?
17
those terminology in his e-mails with you, right?
18
He does not.
19
Okay.
20
service project, talk about placing signage, clearing debris,
21
which could be branches, rocks, whatever that's come onto the
22
trail, that's what he's recommending or indicating to you that
23
they would like to do in Recapture Canyon, correct?
24
25
going to ride with ATVs down into Recapture Canyon.
Well, more than reading into, that's what he was alluding
Well, isn't it true in -- in 22, 23, 24, these e-mails
He doesn't use
But he does, as part of his suggestions for a
That may be, but clearly what he was telling me, he was
180
That's not my question.
Is -- okay.
So you were
concerned they were going to ride ATVs to do their service
project?
All of those things, yes.
Okay.
project on another trail over at Cedar Mesa?
And your response was why don't you do a service
Where it was not closed.
MR. CRANE:
Right.
10
THE COURT:
Anything else from the Defendants?
11
MR. STUBBS:
12
THE COURT:
Thank you.
13
THE COURT:
Mr. Bennett.
14
MR. BENNETT:
Thank you.
I have nothing
further.
15
No.
Just a couple of quick questions.
FURTHER REDIRECT EXAMINATION
16
BY MR. BENNETT:
17
18
know what a Trail Cat is, Mr. Palma?
19
I do.
20
What is a Trail Cat?
21
It is a vehicle that can -- that can -- it's not a
22
Caterpillar, obviously, but it's an ATV vehicle that's large
23
enough that it can move rocks.
24
trail.
25
Mr. Palma, I'd like to refer you to Exhibit 22-3.
Do you
It can move debris from a
Is it something that can be used to reconfigure an
181
existing trail?
It could.
Okay.
where it begins Juan.
you see that?
I do.
Who is this from?
Mr. Lyman.
Let me just see just -- so we can get our context here.
Let's look at the first paragraph of Exhibit 22-3

It's beneath on April 2nd, 2014.
Do
10
I plan to make this an open e-mail and to copy it to my group.
11
It appears that your request on March 27th for one week was
12
not realistic.
13
reroute if you have that marked, otherwise, we are okay with
14
the existing trail.
15
communication.
16
I have the county's Trail Cat ready to do the
I would be glad to have some
What did you understand Mr. Lyman to mean when he said he
17
had the Trail Cat ready to go?
18
19
to go in and construct with a Trail Cat.
20
even the current small trail but almost seemed like a
21
different trail they were ready to construct.
22
23
someone takes an excursion on an ATV into the closed area,
24
does that still violate the closure order?
25
That sentence clearly was telling me that they intended

In this case not
Now, counsel talked to you about the word excursion.
If
Yes.
182
MR. STUBBS:
THE COURT:
Objection, speculation.
Overruled.
Q (BY MR. BENNETT)
is that a violation of the closure order?
Yes.
If they take an organized ride of ATVs into the closure
area, is that a violation of the closure order?
If they take a ride into the closed area,
Yes.
MR. BENNETT:
10
MR. CRANE:
11
THE COURT:
Mr. Palma, you're welcome to stand down.
12
You're free to leave if you'd like.
13
THE WITNESS:
14
THE COURT:
15
MR. DISHMAN:
16
17
18
Thank you.
Thank you.
Mr. Dishman.
Yes.
The United States calls
Mr. Lance Porter.

THE COURT:
please, and be sworn.
Hi, Mr. Porter.
If you'd come forward,
Right up here would be fine, thank you.
19
THE CLERK:
20
(LANCE PORTER, PLAINTIFF'S WITNESS, SWORN)
21
22
23
24
25
Thank you.
Please be seated.

THE WITNESS:
Lance C. Porter, L-A-N-C-E C.
P-O-R-T-E-R.
* * *
183
DIRECT EXAMINATION
BY MR. DISHMAN:
Mr. Porter, what is your current job?
I'm the Acting Associate State Director for BLM Utah.
And on May 10th, 2014 what was your position or place of
employment?
located in Moab, Utah for BLM.
And as District Manager, what area does that encompass?
10
It --
11
For the Canyon Country?
12
Country?
13
14
Field Office and the Monticello BLM Field Office, so
15
southeastern Utah.
16
17
lands in San Juan County?
18
Yes, it does.
19
Would that also include an area called Recapture
20
Canyon?
21
Yes.
22
How long have you been with the BLM?
23
22 years.
24
And what did you do before that?
25
I worked as the Field Manager in Rock Springs, Wyoming.
The District Manager in the Canyon Country District
Excuse me, for the Canyon
The Canyon Country District encompasses the Moab BLM
Can you tell me whether or not that would include the BLM
184
For who?
For BLM.
BLM.
I have a Bachelor's degree in Range Science from Utah
State University.
Do you know the Defendant, Mr. Phil Lyman?
Yes, I do.
He is a county commissioner with San Juan County, and we
And what's your education?
10
frequently meet with cooperating agencies and San Juan County
11
to coordinate on projects on BLM land.
12
How long have you known Mr. Lyman?
13
This coming July it will be two years.
14
As District Manager can you describe a little bit of what
15
the responsibilities of a BLM District Manager would be in the
16
Canyon Country District?
17
18
out on the BLM lands within the District, coordinating those
19
decisions, reviewing them, working on them with the staff.
20
Those decisions range from permitting oil and gas wells, the
21
roads to those wells, pipeline right-of-ways back out, issuing
22
livestock grazing permits, recreational decisions and permits,
23
issuing special recreation permits to outfitters and guides,
24
and several other multiple use activities that happen out on
25
the BLM lands.
Sure.
It's overseeing all of the decisions that happen
185
As District Manager do you have an opportunity to
interact with the -- can you tell me whether or not you have
an opportunity to interact with the county commissioners or
the counties?
commissioners.
And in what form does that occur?
We usually get together face-to-face on a regular basis
and sit down and talk about projects that are going on in BLM
Yes.
We frequently interact with San Juan County
10
land.
11
12
informal name?
13
14
coordination meeting.
15
between us and San Juan County Commissioners.
16
17
between BLM and San Juan County Commission?
18
19
schedule it the next month, so every three to four months.
20
21
occurring on April 28th, 2014?
22
Yes.
23
And why do you recall that?
24
I was in attendance at that meeting.
25
Who else was at that meeting?
Do those face-to-face interactions have a formal name or
You know, I just call it the San Juan County Commission

So it's just a coordination meeting
And how frequently do these coordination meetings occur
Roughly quarterly.
Sometimes we'll miss a month and then
Do you recall a San Juan County Commission meeting
186
also in attendance, and other county employees.
course of that specific meeting the conversation turned to
Recapture Canyon?
Yes, it did.
Can you tell me whether or not you handed Mr. Lyman a
letter from yourself at that meeting?
10
11
San Juan County Commissioners Phil Lyman, Bruce Adams was
Can you tell me whether or not you recall if during the
I did.
I hand delivered a letter to Mr. Lyman during
that meeting.
MR. DISHMAN:
I'd like to call up for the Court,
12
counsel and the witness Government's Exhibit 29.
There's
13
going to be an exhibit shortly that appears on the screen
14
before you.
15
pages, so if you need to see the second page, be happy to
16
provide that.
Would you take a moment to review that.
17
THE COURT:
18
THE WITNESS:
19
THE COURT:
20
THE WITNESS:
21
THE COURT:
It's two
Can you see it?

I cannot see it.
The screen is black.
Now can you see it?

No.
Now it popped up, yes.
Thank you.
22
Q (BY MR. DISHMAN)
Would you take a moment to review that.
23
And if you need to see the second page, please just indicate.
24
Can we have the second page, please.
25
Do you recognize this exhibit?
187
Yes, I do.
What is it?
It is the letter that I hand delivered to Mr. Lyman on my
visit to the San Juan County Commission meeting.
which you provided him?
Yes.
How do you know that this is the letter that you sent
him?
Okay.
And is it a fair and accurate copy of the letter
10
11
is my signature at the bottom of the page, and it's the letter
12
that I signed and took down to him.
13
14
15
It's on my Canyon Country District letterhead, and that
MR. DISHMAN:
Your Honor, at this time we ask
Government's Exhibit 29 be admitted.

MR. CRANE:
This exhibit is already in evidence as
16
Exhibit Number 24.
17
think we need it in twice.
18
This is a duplicative document.
MR. DISHMAN:
That's true.
I don't
That's true, Your Honor,
19
however, in the context of this the witness has not had the
20
opportunity -- he was not involved in that other e-mail string
21
so we just want to establish an independent --
22
THE COURT:
We'll receive it for now.
We can
23
talk -- let's not send duplicate copies back to the jury, but
24
go ahead for now.
25
We'll receive it.
MR. DISHMAN:
188
Q (BY MR. DISHMAN)
I'd like to draw your attention to -- what
was the purpose of this letter actually?
of this letter?
cancel the ride that he had planned in Recapture Canyon and to
strongly encourage him that if he didn't cancel the ride, that
he could be subject to civil and criminal penalties.
other purpose of the letter was that Mr. Lyman had asked if an
archeologist could accompany him down in --
The purpose of the letter is to ask Mr. Lyman to please
10
MR. STUBBS:
11
THE COURT:
12
What was the purpose
The
That is hearsay.
Overruled.
Go ahead.
Continue your
answer, Mr. Porter.

THE WITNESS:
13
The other piece of the letter was that
14
Mr. Lyman had asked for a field trip for an archaeologist to
15
accompany him down into Recapture Canyon.
16
also clarified that if he was going to go down into the canyon
17
on that field trip, that the field trip -- BLM was willing to
18
provide that archaeologist to go down with him but in no way
19
could that field trip or that visit be construed as BLM
20
concurring or agreeing with the ride.
21
closed, and that it was closed to any off-road or any vehicle
22
use, and it wouldn't be open for that.
23
agreeing with the proposed ride.
24
25
at the meeting?
And so the letter
That the canyon was
And so we weren't
Did you discuss the contents of the letter with Mr. Lyman
189
Yes.
Did Mr. Lyman have any questions about this letter?
He asked a little bit about the letter, especially
regarding the line that we would be pursuing civil and
criminal penalties, and he wanted to pursue that with us.
What did you tell him?
I mentioned that those are the prohibited acts of going
inside a closed area, and then subject to that prohibited act
that part of the consequences is that he could be subject to
10
those civil and criminal penalties.
11
12
Mr. Lyman based off of this letter?
13
14
15
Do you recall if you ever received a response from
Yes, I did receive a response.

MR. DISHMAN:
I'd Like to call up Government's
Exhibit 42 page two, which has been previously admitted.
16
MR. STUBBS:
17
MR. DISHMAN:
18
What was the exhibit?

I'm sorry, Exhibit 24.
Maybe I've
written that down wrong.
19
MR. STUBBS:
20
MR. DISHMAN:
21
THE COURT:
22
MR. DISHMAN:
23
Q (BY MR. DISHMAN)
24
Yes, I do.
25
And what is this?
24-2.
24-2?
That has been received.
It has, yes.
Thank you.
Okay.
190
It is the response that I received from Phil Lyman after
I met with him and hand delivered that letter to him.
When you received this letter, what did you do?
I wrote an e-mail back to Mr. Lyman acknowledging receipt
of his letter and again encouraging him to please cancel the
ride.
MR. DISHMAN:
Like to call up Government's Exhibit
26 to show to the witness, please.
Q (BY MR. DISHMAN)
Can you take a moment to review this.
10
This is two pages long.
Once you've had a chance to review
11
this, can you tell me whether or not you recognize it.
12
Yes, I recognize this.
13
What is this?
14
This is the e-mail that I sent to commissioner Lyman and
15
it also contains an e-mail thread from Commissioner Lyman back
16
to me.
17
What was the purpose --
18
If I might, Your Honor.
19
And how do you know -- excuse me.
How do you know that
20
this is that e-mail string?
21
22
It has my e-mail address in it from me being sent to him.
23
the e-mail address coming back from Mr. Lyman has the San Juan
24
County Commissioner e-mail address and was sent back to me
25
from Mr. Lyman.
It's the e-mail that I typed and sent down to Mr. Lyman.
And
191
And is this a true and accurate copy of the e-mail which
you received -- you sent to Mr. Lyman and received?
Yes, it is.
MR. DISHMAN:
4
5
Your Honor, at this time we'd ask that
Government's Exhibit 26 be admitted into evidence.
MR. CRANE:
MR. STUBBS:
MR. GARRETT:
THE COURT:
10
No objection.
No objection.
It's received.

MR. DISHMAN:
11
12
No objection.
If we could highlight halfway on the
page, please.
Permission to publish to the jury, Your Honor.
13
14
The COURT:
15
MR. DISHMAN:
You may.
If we could highlight halfway on the
16
page starting on May 2nd in that first paragraph, please.
17
Q (BY MR. DISHMAN)
18
e-mail to Mr. Lyman?
19
May 2nd.
20
Okay.
21
reemphasize that there would be -- BLM would seek all criminal
22
and civil remedies against the riders?
23
24
25
What is the date of your e-mail to -- your
And halfway down, did you ever in this e-mail
Yes, I did.
MR. DISHMAN:
Okay.
And if we could zoom out again
and highlight Mr. Lyman's response.
If we could include the
192
e-mail information above as well.
Q (BY MR. DISHMAN)
response?
May 2nd.
Okay.
Yes, he does.
7
8
Thank you.
What is the date of Mr. Lyman's
And does Mr. Lyman acquiesce to those terms?
MR. DISHMAN:
Thank you.
No further questions, Your
Honor.
CROSS-EXAMINATION
9
10
BY MR. STUBBS:
11
12
represent Phil Lyman.
13
Good afternoon, Mr. Porter.
How are you doing?
Good afternoon.
14
MR. STUBBS:
Good.
Could we put up Exhibit 24-6,
15
please.
16
Q (BY MR. STUBBS)
17
delivered to Mr. Lyman, correct?
18
Yes, it is.
19
And the date is April 28th?
20
Correct.
21
Okay.
22
I was responding to Mr. Lyman notifying us and the word
23
that we had understood that he was planning a ride down
24
through Recapture Canyon.
25
This is a letter that you wrote and hand
What were you responding to?
MR. STUBBS:
Okay.
Could you please go to 24-2.
193
Could you please highlight paragraph number two.
Q (BY MR. STUBBS)
organize an all-terrain vehicle ride along this portion.
has never been my intention to organize an ATV ride.
what that says?
MR. STUBBS:
Q (BY MR. STUBBS)
letter?
A
Okay.
Okay.
It
Is that
And could we Zoom back in.
And what's the date on that
April 29th, 2014.

MR. STUBBS:
11
It says you refer to my efforts to
That is what it says.
10
Okay.
Thank you.
CROSS-EXAMINATION
12
13
BY MR. CRANE:
14
15
coordination meeting you discussed.
16
mentioned a coordination meeting on April 28, 2014.
17
meeting was just BLM representatives and representatives from
18
San Juan County; is that correct?
19
That is correct.
20
Do you know Monte Wells?
21
I do know Monte Wells.
22
And it's true that Monte was not present at that April 28
23
meeting; is that correct?
24
That's my recollection, yes.
25
Looking at a couple of these letters, I'm showing you
Mr. Porter, I want to talk to you a little bit about the

Specifically you
At that
194
what's been marked and admitted as Government's Exhibit Number
26.
minutes ago?
Yes, I do.
I just want to highlight here the e-mail from
Commissioner Lyman on May 2nd, 2014, this portion here, was
sent to you, Mr. Porter; is that right?
Yes.
Mr. Hoffheins.
10
Yes.
11
He works for the BLM, correct?
12
Correct.
13
Rick Eldredge.
14
He is the San Juan County Sheriff.
15
Okay.
16
He works for BLM.
17
Okay.
18
San Juan County Commissioner.
19
Kenneth Maryboy?
20
San Juan County Commissioner.
21
Okay.
22
I do not know Mike Noel.
23
Okay.
24
that true?
25
Do you recall looking -- reviewing this just a couple
Am I saying that correctly?
Who is that?
Naylor Laird, who is that?
Bruce Adams, who is that?
And then Mike Noel?
But this e-mail was not sent to Monte Wells; is
That is true.
195
Okay.
And in fact you know Monte Wells as a news
reporter working for the Petroglyph; is that right?
Yes.
The Petroglyph is a news website that publishes articles
on issues of local importance; is that correct?
publishes.
meetings and I've seen him rarely but a few times.
I don't know that much about the news articles that he
Okay.
I met Monte at one of the county commission
And that time you met him, he was there in his
10
capacity as a news journalist?
11
12
visiting.
13
14
regarding this letter.
15
24.
16
right?
17
Yes.
18
Was Monte Wells cc'd on this letter?
19
I don't know.
20
The back page looks like it was cc'd to Commissioner
21
Bruce Adams, who you testified is a San Juan County elected
22
official, correct?
23
Yes.
24
Kenneth Maryboy, talked about him, Mr. Juan Palma, and
25
Senators Mike Lee and Orrin Hatch, and then Congressman
I don't remember if he was there in that capacity or just
Okay, fair enough.
Just ask you quickly.
You testified
This is Government's Exhibit Number
This was Commissioner Lyman's letter to you; is that
Do you recall?
196
Chaffetz and Bishop.
So it doesn't appear that this letter
was sent to Monte Wells; is that right?
His name isn't listed in the cc list.
And the letter you drafted on April 28th, you did not
send that letter to Mr. Monte Wells, did you?
No.
MR. CRANE:
THE COURT:
Mr. Garrett.
CROSS-EXAMINATION
9
10
BY MR. GARRETT:
11
Good afternoon.
12
I do not.
13
Do you know if you've ever sent him a letter or anything
14
like that?
15
Do you know who Shane Marian is?
I have not.
16
MR. GARRETT:
Okay.
17
MS. PRESTON:
No questions, Your Honor, thank you.
18
THE COURT:
19
20
Mr. Bennett -- or Mr. Dishman, my apologies, anything

more?
21
MR. DISHMAN:
22
THE COURT:
23
MR. DISHMAN:
24
THE COURT:
25
No, sir, Your Honor.

All right.
Can this witness be excused?
Yes, Your Honor.

Mr. Porter, you are welcome to stand
down and you're free to leave if you'd like.
197
THE WITNESS:
THE COURT:
MR. DISHMAN:
Thank you.
Thank you.
Your Honor, the United States only has
one more witness, however, we anticipate that that witness
will take well longer than 20 minutes or less than what we
apparently have budgeted.
witness?
8
9
THE COURT:
How much longer do you think on direct
examination?
10
11
Would you like to start that
MR. DISHMAN:
Probably a 45 minute direct
examination.
THE COURT:
12
All right.
Members of the jury, I have
13
hearings scheduled to begin at 2:30, so in light -- well,
14
let's not interrupt the witness's testimony.
15
with the witness in the morning.
16
early today.
We'll resume
So we'll retire a little bit
17
I'll remind you of my general admonition not to speak
18
about the case, not to conduct any investigation about the
19
case.
20
testimony and evidence, remember that you've only heard part
21
of the testimony and evidence.
22
the Defendants are presumed innocent of these charges.
23
have no obligation or burden to put on any evidence, but if
24
they do, you haven't yet received the benefit of that
25
testimony and evidence.
And, importantly, now that you've begun to hear
And as I've said repeatedly,

They
198
Make sure you keep an open mind until we've heard
everything there is to say.
see you in the morning.

THE CLERK:
Be safe, get some rest and we'll

(JURY EXCUSED)
5
6
THE COURT:
Have a seat.
housekeeping matters.
Exhibit Number 29 was offered.
It is an attachment to an e-mail.
So I think we have some
Maybe I'll go in reverse order.

This is Mr. Porter's letter.
I was thinking to myself
10
after our discussion that there may be some evidentiary
11
relevance to the fact that it was also sent individually
12
directly to those folks that are listed in the -- on the
13
letter, but I don't feel strongly about it.
14
record.
15
there any reason we need to have two copies of it?
16
17
18
It's in the
You can refer to it by its other exhibit number.
MR. DISHMAN:
Is
No, Your Honor, just for the purpose
of the witness.
THE COURT:
All right.
So we'll sustain Mr. Crane's
19
objection to Exhibit 29.
It won't be received.
We won't send
20
it back separately to the jury, but you may refer to it as the
21
Exhibit 24-2 or whatever it was.
22
There's a question about the Government's motion to
23
receive the transcript or what's purported to be a transcript
24
of a telephone conversation recorded between Mr. Palma and
25
Mr. Lyman on May 1st.
Mr. Bennett, is it still your intention
199
to move the admission of that transcript?

MR. BENNETT:
Given the circumstances in which it
was produced, yes, and we need to have the benefit of making
an argument before the jury about some of the things that
we're not able to cover in examination.
THE COURT:
What's the evidentiary basis for
receiving it as an exhibit?
think in cross-examination or for impeachment or to test a
witness.
10
11
I mean it's one thing to use it I
It's altogether another thing to receive it as an
exhibit to provide to the jury for deliberations.

MR. BENNETT:
I agree with that, and under normal
12
circumstances I don't think this motion would be made.
13
problem is is that I received this transcript literally as the
14
jury was coming into the room.
15
was finishing up his cross-examination, which is problematic
16
because I couldn't listen very well to what he was saying to
17
the witness.
18
chance to actually spend some time with this today, there's
19
going to be some things I look at and go, gee, I really wish I
20
would have asked Mr. Palma about those, because they're
21
contextual.
22
The
I was reading it as Mr. Crane
Thus, as I'm -- you know, I'm sure as I have a
For example, on page 12 Mr. Palma says we, the BLM, are
23
going to follow our process, and at the end of the day when we
24
make the decision, it will be based on all the facts and all
25
the information that we have.
200
THE COURT:
MR. BENNETT:
Was Mr. Palma subpoenaed to testify?

He was not.
I'm sure we can bring him back.
THE COURT:
He came voluntarily, but
And of course I released him.
Isn't the
better course of action to ask the witness questions about the
conversation rather than just admit a transcript for the jury
to read over?
8
9
MR. BENNETT:
Sure, absolutely, and if we -- if
Mr. Palma can be subject to recall despite the fact that he's
10
been released, given the circumstances under which we were
11
provided with this exhibit, I think --
12
THE COURT:
Well, I think fairness requires that and
13
Rule 613 requires that I provide you that opportunity I think,
14
and for that to be a meaningful opportunity, it has to be
15
after you've had a chance to review it fully.
16
Is there anyone over here that disagrees with that?
Of
17
course you'd be -- he'd be subject to some further cross as
18
well depending on what Mr. Bennett asks.
19
20
MR. STUBBS:
THE COURT:
22
MR. STUBBS:
24
25
Did you say we could have
further cross-examination?
21
23
That's fine.
Of course.
That's fine.
I think that's what the
rule dictates.
THE COURT:
I do too.
clear about this point.
But let's be -- let's be
He's a rebuttal witness or a recall
201
witness for that narrow purpose of exploring that telephone
conversation, not to reopen all of his testimony or mine new
territory.
the transcript and just inviting the jury to carry on.
And I think that's a better option than receiving
All right.
We need to take up the issue of jury
instructions.
meaningful discussion about the jury instructions unless or
until we know what evidence the Defendants intend to put on,
and then decide whether there is an evidentiary support for
10
some of the instructions that are proposed.

Does anyone see it differently?
11
12
I don't think we're in a position yet to have a
Seems to me we need to
defer that discussion at least for now.
13
MR. STUBBS:
Agree, Your Honor.
14
MR. CRANE:
I agree, Your Honor.
15
THE COURT:
Right, okay.
Along those lines, of
16
course you're all entitled to reserve this question until the
17
Government closes, but what guidance can I give the jury do
18
you think about when they may receive the case?
19
MR. CRANE:
Your Honor, I certainly want to confer
20
with counsel today to see what we need to do for our defense
21
case based upon what's been presented, but I think if the
22
Government just has Mr. Loftin tomorrow, I think there's a
23
very strong chance we could be done with our case tomorrow as
24
well.
25
THE COURT:
All right, with an eye towards possibly
202
arguing instructions, finalizing those tomorrow night,
charging Friday morning or maybe cleaning up a little bit of
evidence, charging and arguing and sending them out?
that's the schedule we should try to adhere to.
consult tonight and let's visit again in the morning.
6
7
I think
You all
Do any counsel need the benefit of the record for any

purpose?
MS. PRESTON:
MR. STUBBS:
No.
No, Your Honor.
10
MR. CRANE:
No, sir, thank you.
11
THE COURT:
Anything else we should take up while
12
we're here today?
13
MR. BENNETT:
14
MR. STUBBS:
15
MR. CRANE:
No, I'm sorry.
16
THE COURT:
All right, everyone, thanks.
17
some rest.
No, Your Honor.

No, Your Honor.
We'll see you in the morning.
18
(ADJOURNED AT 2:16 PM)
19
* * *
Let's get
We'll be in recess.
20
21
22
23
24
25
203
1
2
3
4
5
Certificate of Reporter
I, Raymond P. Fenlon, Official Court Reporter for the
United States District Court, District of Utah, do hereby
certify that I reported in my official capacity, the
proceedings had upon the jury trial in the case of
10
UNITED STATES OF AMERICA Vs. PHILLIP KAY LYMAN, ET AL., case
11
No. 2:14-CR-470, in said court, on the 29th day of April,
12
2015.
13
I further certify that the foregoing pages constitute
14
the official Transcript of said proceedings as taken from my
15
machine shorthand notes.
16
17
In witness whereof, I have hereto subscribed my name

this 18th day of June, 2015.
18
19
20
21
/s/ Raymond P. Fenlon
22
23
24
25
204
1
2
3
4
5
CENTRAL DIVISION
______________________________________________________________
9
10
11
12
PLAINTIFF,
VS.
HOLLIDAY,

APRIL 30, 2015
13
DEFENDANTS.
14
______________________________________________________________
15
16
JURY TRIAL
17
18
19
20
21
22
23
24
25
205
1
2
APPEARANCES:
3
FOR THE PLAINTIFF:
4

LAKE DISHMAN, ESQ.
(801) 524-5682
5
6
7
8

PROVO, UTAH 84604
(801) 426-8200
9
10
11

(801) 521-9000
12
13
14
15
GARRETT & GARRETT

(801) 581-1144
16
17
18

(801) 269-9541
19
20
21
22
23
COURT REPORTER:
RAYMOND P. FENLON
(801) 809-4634
24
25
206
I-N-D-E-X
2
3
WITNESS
EXAMINATION BY
BRIAN LOFTIN:
5
6
7
DIRECT BY MR. DISHMAN

CROSS BY MR. CRANE
CROSS BY MR. STUBBS
CROSS BY MS. PRESTON
REDIRECT BY MR. DISHMAN
RECROSS BY MR. STUBBS
REDIRECT BY MR. DISHMAN
PAGE NO.
218
282
303
314
317
321
324
326
8
DEFENDANT WELLS' OPENING STATEMENT......................340
9
FERD JOHNSON:
10
DIRECT BY MR. CRANE

CROSS BY MR. BENNETT
REDIRECT BY MR. CRANE
344
366
369
11
12
22
PLAINTIFF'S EXHIBITS RECEIVED IN EVIDENCE

EXHIBIT NO.
PAGE NO.
35C
230
35B
233
103A
235
18
238
35A
241
104C
243
104B
244
34C
246
19A
249
73
252
74
255
257
79
104A
259
105A
261
46A1,46A2
266
71A
271
70A
272
65A
275
64A
276
23
DEFENDANTS' EXHIBITS RECEIVED IN EVIDENCE
13
14
15
16
17
18
19
20
21
24
25
EXHIBIT NO.
1001
PAGE NO.
354
207
(8:35 AM)
THE COURT:
Good morning, everyone.
on the record.
before we bring in the jury?
We'll go back
Counsel, is there anything we need to take up
MR. DISHMAN:
Yes, Your Honor.
Last night reviewing
its evidence the United States noticed that on an exhibit
which the United States has provided, number 99, there is a
split between Mr. Lyman's -- Mr. Lyman was interviewed during
10
that news clip.
The clip is split into two portions, and the
11
United States realized that one portion had not been
12
captured.
13
THE COURT:
14
MR. DISHMAN:
I'm sorry?
I'm sorry, excuse me.
99 contains the
15
entire news clip, which was provided to defense.
16
addressing counsels' concerns, we isolated the clip, a portion
17
of the news clip that is just Mr. Lyman.
18
there is a second portion in that interview of another
19
statement Mr. Lyman makes.
20
permission to introduce what it is labeling 99B, which is just
21
that second clip.
22
23
24
25
THE COURT:
In
We realized that
So the United States would seek
A subset of the initial exhibit provided
to counsel?
MR. DISHMAN:
it right now.
Yes, it has -- well, we're providing
I mean the original was --
208
MR. STUBBS:
Your Honor, we have not seen the
redacted copy.
They did tell us about it before you came out
on the bench, so we're aware of what their motion is going to
be.
We have not seen it.

THE COURT:
I'm going to --
If it's a subset of the exhibit that was
provided to you in the first instance, you've seen the content
of the initial exhibit, yes?
8
9
MR. STUBBS:
Yes.
who asked the question.
But, Your Honor, we don't know
We don't know what the context of --
10
again, we haven't seen it, so we haven't been able to evaluate
11
it, but there's -- it goes to the doctrine of completeness
12
here.
13
THE COURT:
Would you want the whole clip in?
14
thought it was the Defendants that objected to non --
15
statements by nonparties in the interviews.
16
MR. STUBBS:
Well, I believe the whole thing would
17
be objectionable because there are hearsay statements from
18
newscasters.
19
THE COURT:
So which is it?
You want part of it or
20
you want the whole thing or you don't want any part of it?
21
But Mr. Lyman's statements are admissible to show his intent
22
and state of mind, which you've put at issue by asserting a
23
good faith defense, are they not?
24
25
MR. STUBBS:
Yeah, but, Your Honor, I would argue
prejudice here by timeliness.
209
THE COURT:
No.
If it was already produced to you
and this is only just a portion of what was produced earlier,
that is, if they've reduced from the set of what was provided
to a smaller set, that's different than introducing new
subject matter.
is?
Am I misunderstanding what the new exhibit
MR. DISHMAN:
THE COURT:
previously provided.
10
11
No, sir.
It's only a portion of a larger exhibit
How is that prejudicial?
MR. STUBBS:
haven't seen it.
It goes to the rule completeness.
I don't know what the three second clip is.
THE COURT:
12
The rule of completeness entitles you to
13
produce -- provide -- make them provide additional portions of
14
that exhibit.
15
Is that what you're asking?
MR. STUBBS:
Your Honor, I haven't seen the three
16
second clip in the context that they provided it.
17
untimely.
18
THE COURT:
19
MR. DISHMAN:
20
I was talking to my wife earlier.
21
MR. CRANE:
It's
Can we see it now?

Yes, ma'am -- sir.
Yes, sir.
I don't think we need to see it.
Sorry,
The
22
objection is this is an interview that Mr. Lyman gave with a
23
news reporter.
24
THE COURT:
Okay.
25
MR. CRANE:
There was many statements given to this
210
reporter, and what they put on the news was a edited portion
of that statement.
he was asked.
made.
to the entire interview unedited so that we can present
what -- we can present the question in context of the
statement.
exhibit.
that's what we have concerns about.
10
We do not know what the question is that
We do not know what other statements Mr. Lyman
So the rule of completeness says we should be entitled
So the rule of completeness is not the entire
We see that report.
THE COURT:
It's the edited portion, and
Does it matter?
Does it matter in this
11
context what question was posed to Mr. Lyman?
12
making a statement and it bears -- if it's relevant, if it
13
bears on his state of mind, his intent, his knowledge, his
14
motive, any of the issues that bear on either the good faith
15
defense or the conspiracy count, any portion of those
16
statements is admissible, is it not?
17
MR. CRANE:
Right.
If Mr. Lyman is
But I think this goes to what we
18
had yesterday with Mr. Palma and the statement he made on the
19
phone conversation where the Government was entitled to review
20
the entire transcript so that they could ask him and put it in
21
context what they were talking about.
22
THE COURT:
So in your view the Government was
23
required to subpoena from the news agency all of the footage
24
of the entire video, whatever it was, the interview, and then
25
do what, play the whole thing, produce the whole thing, or
211
just make it available to you in the first instance and then
make only a subset of -- marked as an exhibit?
MR. CRANE:
Right.
I don't think they get -- I
don't think they get to produce to the jury a highly edited
statement by a defendant when we know that he made other
statements at that time.
THE COURT:
Well, they don't have to produce all of
the statements that Mr. Lyman said.
made that bears on his state of mind or intent or knowledge is
10
admissible, is it not?
It doesn't have to be all of them.
MR. CRANE:
11
Any statement that he
No, I understand that, and I agree with
12
the Court on that.
I'm saying that the news agency for
13
whatever purposes for this news report chose this three second
14
segment, and they didn't -- and they chose not to include the
15
question that he was asked, and they chose not to include the
16
statement he made immediately thereafter and immediately
17
before.
18
statement.
That's where we don't have the context of the
19
THE COURT:
20
MR. DISHMAN:
Mr. Dishman?
Yes, sir.
I think we need to look in
21
the context of what this was, which was Mr. Lyman voluntarily
22
granted an interview to a news organization.
23
entire interview which he gave was not going to be put up on
24
the five minute or three minute blurb that was going on the
25
news that night.
He's a political figure.
He knew that the
He's familiar with
212
how the media occurs.
States to go subpoena for the entire transcript, it's a
statement.
to introduce evidence, including the Defendant himself
standing up, that what he said is not what he meant, then they
can produce that evidence.
And so to then require the United
Counsel has been aware of this, and if they wish
THE COURT:
right?
present a case.
Well, those are different questions,
Mr. Lyman has a constitutional right not to have to

But what about completeness?
I mean does it
10
raise the same issue we had with Mr. Palma yesterday where I
11
was concerned that introducing a portion of a statement out of
12
context to the rest of it is potentially misleading?
13
I think what we're -- undermining this is a policy
14
concern and the rules of evidence that we have confidence in
15
the truth and veracity of the evidence we're putting before
16
the jury.
17
MR. DISHMAN:
Yes, Your Honor.
And the rule of
18
completeness has been -- has been complied with because the
19
entire news clip was provided to counsel.
20
Government received it and it's gone on.
21
Government is aware of.
22
credibility, they're more than welcome to do that in front of
23
the jury as a weight of evidence.
24
25
THE COURT:
It's how the

And that is what the
And if they'd like to attack the
What we're talking about is a three
second clip?
213
MR. DISHMAN:
THE COURT:
MR. DISHMAN:
Yes, Your Honor.

What does Mr. Lyman say in that clip?
Mr. Lyman says -- he says it's only
breaking the law from a federal standpoint.

MR. BENNETT:
But it's complying with the county law
is what he says.
So if we were to review the news clip, it is
just that segment.
goes to Mr. Lyman and then it goes away from Mr. Lyman and
says something else.
10
THE COURT:
The reporter is talking before that.
It
But we can -That's extremely relevant.
And it's a
11
statement of a defendant that bears on a defense that I
12
understand him to be asserting, and it goes to the key issue
13
in the case, and it's a public statement that -- insofar as
14
it's made to the news media, and it bears a high indicia of
15
reliability in my view, and I think it seems appropriate.
16
It's not an issue of untimeliness if it was previously
17
provided and now just only a smaller portion.
18
If you wish, Mr. Stubbs, to introduce the rest of the
19
exhibit that was initially marked by the United States, then
20
that's fine, but the United States should be permitted to play
21
that.
22
23
Mr. Crane?
MR. CRANE:
No.
24
not an issue of relevance.
25
issues at trial today.
And I agree with the Court.
It's
I do believe it is relevant to the
We are going to get into this issue
214
with other news clips that they have, with the propaganda film
that I don't know if they're going to try to introduce or not
where again it's edited segments.
statements from these defendants, and this rule of
completeness will be an issue through much of the exhibits
that I believe are coming in today.
THE COURT:
We don't have the entire
What do you think is the -- I hate to
take our jury's time.
They're sitting waiting for us again.
Tell me where you think philosophically the law requires us to
10
draw a line.
11
this.
12
Mr. Lyman made a hundred statements to different media in
13
different contexts, the United States isn't required to cobble
14
together 100 statements made to six different news
15
organizations so that all of his comments are in context.
16
he makes -- if he makes a statement that I knew this was
17
against the law and I was going to do it anyway, they're not
18
required to bring in something he said five minutes later, are
19
they?
20
what you're --
21
Mr. Lyman -- just as example -- I don't know
I haven't seen any of the news articles or clips.
Where would you draw that line?
MR. CRANE:
If
If
I don't understand
I think in their case in chief they can
22
be selective in what they present to the jury, but knowing
23
that other statements were made, I think they do have a burden
24
to provide that to us so we have a chance to then on
25
cross-examination provide the jury with a complete story.
215
THE COURT:
I think they have an obligation to
provide you what they have.
has an obligation to work on your behalf, that is, to go
obtain -- obtain information and provide to you that the
United States doesn't think it needs as part of its case in
chief.
Am I misunderstanding what you're saying?
7
8
I don't think the United States
MR. CRANE:
No, you're not.
I think we just
disagree --
THE COURT:
Disagree on that point, all right.
10
MR. CRANE:
And that's fine.
My other thing, if the
11
court is going to allow it then, these were not part of the
12
James statements that the Government notified, and so these
13
statements would be only admissible as to Commissioner Lyman,
14
so I would ask the Court for a limiting instruction when these
15
exhibits are received.
16
MR. BENNETT:
That's true only as to Exhibit 99.
17
Fox 13 interview, which is Exhibit 46A and A1 and A2, both of
18
those were on the James statements and the declaration.
19
The COURT:
What I'm going to ask counsel to do is
20
just notify me if we get to a place where you're introducing
21
some piece of evidence that wasn't previously disclosed in the
22
James disclosure and I'll just give a limiting instruction to
23
the jury.
24
25
What I intend to tell them, let's see if we're on the

same page, is this piece of evidence -- ladies and gentlemen
216
of the jury, as you understand and know there's a conspiracy
count in this case and I'll give you instructions at the end
of the case about how certain kinds of evidence is
admissible -- certain statements and actions by defendants may
be relevant to all of the co-defendants with respect to one
count, the conspiracy count.
With respect to the piece of evidence you're about to
receive, this is admissible and you may only consider it for
purposes of determining Mr. Lyman's culpability individually.
10
Is that appropriate?
11
MR. BENNETT:
12
MR. CRANE:
That's fine.
I did draft a proposed limiting
13
instruction I gave to counsel yesterday.
14
the Court said.
15
Court wants something, but that was perfect.
16
17
I'm happy to provide it to the Court if the
THE COURT:
it, but we'll try.
18
It says exactly what
It never is as good when I actually do
All right.
MR. BENNETT:
What else shall we take up?
Just one other thing regard to
19
Mr. Palma.
20
after further review, I don't think -- we're not going to call
21
him back.
22
At risk of sounding like a football official,
THE COURT:
No harm, no foul.
And we're not going
23
to receive that transcript as an exhibit to send to the jury,
24
right?
25
MR. BENNETT:
That's correct.
217
1
2
The COURT:
Okay.
Counsel, anything more over
here?
Ms. McNamee.
THE CLERK:
THE COURT:
Good morning, members of the jury.
Welcome back.
Mr. Dishman.
8
9
MR. DISHMAN:
The United States calls Special Agent
Brian Loftin to the stand.
10
11
Nice to see all of you.
THE COURT:
Agent Loftin, hi, welcome.
Come on
forward and be sworn, if you would, please.
12
THE CLERK:
13
(BRIAN LOFTIN, PLAINTIFF'S WITNESS, SWORN)
14
15
Thank you.
Please be seated.
16
THE WITNESS:
17
Brian Loftin, B-R-I-A-N, L-O-F-T-I-N.

DIRECT EXAMINATION
18
BY MR. DISHMAN:
19
Mr. Loftin, where are you currently employed?
20
I'm employed as a special agent with the Bureau of Land
21
Management stationed in Las Vegas, Nevada.
22
23
Management?
24
25
that are suspected of violating the laws that govern the use
What's a special agent to the Bureau of Land
Yes.
I conduct criminal investigations of individuals
218
of public lands.
Land Management?
Since September of 2013.
And what are your responsibilities in this position?
So I conduct criminal investigations.
law enforcement -- I'm a law enforcement officer.
criminal investigations, and that includes -- that includes
effecting arrests, serving search warrants, arrest warrants,
How long have you been a special agent with the Bureau of
So basically I'm a
I conduct
10
gathering facts, and collecting and analyzing evidence, and
11
accumulating that in a report that I present to like a D.A.'s
12
office or a U.S. Attorney such as yourself.
13
14
officer with the BLM?
15
16
Training Center's Criminal Investigative Training Program.
17
It's approximately an 11 to 13 week program where they teach
18
you how to conduct an investigation.
19
other law enforcement related training, such as firearms,
20
emergency driving, arrest techniques.
21
22
that training?
23
24
Secret Service and I completed that training with the U.S.
25
Secret Service.
What sort of training have you had as a law enforcement
Yes.
So in 2004 I attended the Federal Law Enforcement
They also teach you
Were you working for the BLM in 2004 when you attended
So in 2004 I was a Special Agent with the United States
219
And following that training did you receive any
additional law enforcement training with the Secret Service?
Training Program, the Secret Service has an add-on training
called the Special Agent's Training Program and it's
approximately a four month training.
to investigate crimes that are related to the Secret Service,
such as counterfeit and financial crimes, and then they teach
you how to conduct protective operations.
Yes, I did.
So following the Criminal Investigative
They teach you also how
10
And have you received any subsequent training between
11
those two courses?
12
13
Secret Service, I also served as a Special Agent with the EPA
14
Criminal Investigations Division.
15
weeks of training in their environmental investigations.
16
17
investigations using internet sources?
18
19
course at the Federal Law Enforcement Training Center that
20
dealt specifically with conducting internet investigations.
21
22
hour course?
23
24
out online and find information and properly document the
25
information.
Yes, I have.
So after serving as an agent with the U.S.
Part of that I received six
Have you received any training specific to conducting
Yes, I have.
In 2012 I attended an approximately 40 hour
And what sorts of things did you learn during that 40
So that -- that teach -- taught me how to -- how to go
It also included finding historical documents
220
online.
Are you familiar with the term open source?
Yes, I am.
What does open source mean?
So if I conduct an open source investigation online,
basically I'm going out and finding anything that any member
of the public could find.
locked doors.
say you have a Facebook page, and it's a private page that's
I'm not going behind any like
So an example of this would be a Facebook --
10
only available to your friends.
11
see that information.
12
13
Facebook?
14
Yes, I am.
15
Are you comfortable discussing certain aspects of
16
Facebook and what occurs?
17
Yes, I am.
18
Would being able to illustrate some of these concepts be
19
helpful in your testimony today?
20
It would have to be a public page.
You mentioned Facebook.
MR. DISHMAN:
Your Honor, may I approach the
witness?
23
THE COURT:
24
MR. DISHMAN:
25
Are you familiar with
Yes.
21
22
Well, I would not be able to
You may.
Is it all right if the witness comes
down, Your Honor?
221
THE COURT:
Yes.
THE COURT:
Counsel, position yourselves wherever
you need to be so you can see the witness.
THE COURT:
THE WITNESS:
THE COURT:
Agent?
Yes.
I'm just going to ask you while you're
away from the stand and away from the microphone to keep your
voice up, please, especially when you're facing the other
direction so our court reporter can clearly hear you.
10
THE WITNESS:
11
THE COURT:
12
MR. DISHMAN:
13
Thank you.
Your Honor, Would you like to have the
microphone on him?
14
15
Yes.
THE COURT:
Oh, if you have the microphone, if this
is going to be a minute, that's not a bad idea.
16
MR. DISHMAN:
17
THE COURT:
It may take a couple of moments.

All right.
18
Q (BY MR. DISHMAN)
What is Facebook?
19
So Facebook is a social networking service.
20
And what do people use Facebook for?
21
They use Facebook to communicate and share information
22
online.
23
Okay.
24
So a Facebook page is -- is like a -- is like a website
25
on the Facebook social network.
And what is a Facebook page?
222
And what does a person do with their Facebook page?
So on your Facebook page you can -- you can share
information by -- by posting that information on your -- on
your page, which is like your -- your individual website.
common template for a Facebook page?
Yes, there is.
Would you describe that template, please.
Okay.
Can you tell me whether or not there's a standard or
So this is -- we'll just say this is your computer
10
screen.
And up top the standard deal would be like a profile
11
picture.
12
page, so there will be -- there will be a profile picture
13
here.
14
just say -- I'll just make it a picture of me.
15
will have my name.
16
name, but it can be a shortened version, but we'll just say
17
it's my name, Brian Loftin.
18
top of the page.
19
What's a post?
20
So the term that's kind of synonymous with a post is like
21
a -- like you could say instead of posting something you could
22
say I published, so like I published something online.
23
publishing something on my -- on my page.
24
And what type of things can people post?
25
So it could be -- so I could post a comment.
And we're just going to say this is my Facebook
And that can be anything I want it to be, but let's

And then I
So it can be -- doesn't have to be my true
And so that's going to be at the
And then below that will be posts.
So I'm
I could
223
post an article I was interested in.
photograph or a link, a web link.
Facebook always adds --
Yes.
-- options?
Yes, there is.
There's a like button, a comment button and a share button.
And what does the like button do?
10
Okay.
11
something, I want to draw a kitty cat here so I've got
12
something here.
13
I am -- let's say -- so this is my page.
14
another page over here.
15
call it Bob Jones, Bob Jones' page.
16
I could post a
And at the bottom of each post are there some things that
So there's --
So there's three buttons below each post.
So the like button -- so just so my post is
So say my post is a kitty cat.
Okay.
So
So let's say -- draw
This is the page of -- we'll just
So Bob Jones is visiting my page, and he sees that kitty
17
cat, and he's like that's a beautiful cat.
18
So he clicks like.
19
going to -- that's going -- that's going to say Bob Jones
20
likes, okay?
21
this -- let's say Bob Jones, it could list several names, and
22
then it would say, and 50 others like this.
23
I like that cat.
And so what that's going to do is that's
If Bob Jones and like 50 other people like
So the other thing it's going to do is when Bob Jones
24
likes this, it's going to send it -- it's going to send it to
25
Bob Jones -- if Bob Jones has friends online, it's going to
224
send it to Bob Jones' friend.
So let's say Bob Jones has a
friend over here, Nancy.
will send it to -- to Nancy's like.
and all his other friends.
if a person clicks the share button?
button, it's -- it's going to do a couple things.
to -- it's going to send it over to Bob Jones' Facebook page.
So that -- that -- that will -- that

It would send it to Nancy
There's another button there called share.
Okay.
What happens
So if Bob Jones -- if Bob Jones clicks the share

It's going
10
And so this kitty cat will now be on Bob Jones' Facebook page.
11
It will also send it to Bob Jones' friends.
12
it -- so it would go to Bob Jones, and then it would also send
13
it to Bob Jones' friends.
14
15
that need illustration.
16
Thank you.
So it would send
I don't think we have any further questions

If you'd take your seat, please.
May I approach the witness to obtain the microphone?
17
THE COURT:
Of course.
18
Q (BY MR. DISHMAN)
Special Agent Loftin, if somebody deletes
19
or suspends their Facebook page, what happens?
20
21
page off of -- off of facebook, and I went on Facebook, you
22
know, I would not -- I would not be able to access it.
23
24
is there -- are you aware of any ways that it's also possible
25
to see what that Facebook page looked like?
So if -- if you -- if you -- if you take your Facebook
If somebody has removed or suspended their Facebook page,
225
Yes.
There's still a possible way to -- to see the
Facebook page.
And if -- so if you search in Google, so let's say Bob Jones'
Facebook page, so I -- I search Bob Jones' Facebook page in
Google, if you're familiar with the Google browser, I search
Bob Jones Facebook page in Google.
search results, and probably the top one will be Bob Jones'
Facebook.
You could do that by doing a search in Google.
And it will cut down the
If I click on that, it will not take me to Bob Jones'
9
10
Facebook because he's taken it down.
It's gone.
But you can
11
still see it.
12
Facebook.
13
If I click that arrow, it will say cache, C-H-A-C-H-E.
14
C-H-A-C-E, What does that mean, cache?
15
So that's going to allow you to look at the Google cache
16
version of that -- of that -- of that facebook page.
17
basically that's a snapshot of that Facebook page the last
18
time the Google browser went to that page.
19
20
a closure order in Recapture Canyon in San Juan County,
21
Utah?
22
Yes.
23
How are you familiar with that?
24
So I -- I gathered all the online content related to --
25
to that -- that event, that ride.
So -- so my search result is Bob Jones'
Over in the corner there's going to be an arrow.
So
Are you familiar with an investigation into violations of
226
Can you tell the Court whether or not that was an open
source investigation?
Yes, it was an open source investigation.
When did you begin your investigation?
So I began my investigation just shortly after the event
took place.
Do you recall what date that would have been?
I'm not exact, but it would have been -- it would have
been in the months preceding -- after the months after the --
10
the event.
11
12
visit Facebook?
13
Yes, I did.
14
Okay.
15
Facebook?
16
Yes, I did.
17
Did you -- can you tell us whether or not you visited
18
various news websites?
19
Yes.
20
Can you tell us whether or not you visited the San Juan
21
County Commission -- or San Juan County website?
22
Yes, I visited the San Juan County website.
23
Can you tell us whether or not you visited the Deseret
24
News?
25
During the course of your internet investigation did you
Did you visit a Google cache version of
Yes.
227
MR. DISHMAN:
Government's Exhibit 35C, please.
3
4
THE COURT:
Your Honor, we'd like to call up
Which has not been received yet; is that
right?
MR. DISHMAN:
Yes, sir, that's correct.
doing a lot of -- a lot of exhibits today.
Q (BY MR. DISHMAN)
this exhibit?
10
We'll be
Special Agent Loftin, do you recognize
Yes.
MR. DISHMAN:
Show the witness the second as well,
11
please, so he can see the full exhibit.
12
Q (BY MR. DISHMAN)
13
So this is a posting on Phil Lyman's Facebook page.
14
How do you know this is Mr. Lyman's Facebook page?
15
So if you'll see there's a -- there's a profile picture.
16
That profile picture is a picture of Phil Lyman.
17
it says San Juan -- it says San Juan County.
18
sign, and then -- and then the title of the posting, Phil
19
Lyman, San Juan County Commissioner.
20
21
profile picture you just described, is that -- is this a very
22
clear picture?
23
24
on this picture.
25
the actual picture online and it's -- it -- it's the
What is this exhibit?
In the back
It's a street
Now, in this photo here that you're looking at about that
Well, the resolution -- the resolution is -- is not good

However, it -- it -- I've seen -- I've seen
228
picture.
this is from Mr. Lyman's Facebook page?
Juan County Commissioner, and it's the same as -- as I viewed
it as part of my -- as my online investigation.
during the course of your internet investigation?
Okay.
Yes.
Yes, it is.
MR. DISHMAN:
Your Honor, we ask that Government's
Exhibit 35C be admitted in evidence.

MR. CRANE:
12
13
So -- so the -- so the title, it's Phil Lyman, San
Is it a true and accurate recording of what you captured
10
11
Is there anything else in here that indicates that
Your Honor, may I ask a voir dire in aid
of an objection?
14
THE COURT:
Okay.
15
MR. CRANE:
Pages one and two of this exhibit have
16
some highlighting.
17
on the internet to the website on Facebook, saw this posting,
18
was the highlighting on the posting?
19
20
21
22
23
24
25
Was the highlighting on -- when you went
THE WITNESS:
The highlighting was not on the
posting.
MR. CRANE:
So this is not a true and accurate copy
of what you saw on the -- on the Facebook website, is it?

THE WITNESS:
Well, the content, the content is --
is the same, minus the highlighting.

MR. CRANE:
Where did the highlighting come from?
229
THE WITNESS:
THE COURT:
I do not know.
Are there objections to the receipt of
the exhibit?
MR. CRANE:
I would object, Your Honor, based upon
the highlighting was not -- it's not -- wasn't on the Facebook
page.
He doesn't even know where it came from.
THE COURT:
Overruled.
But, members of the jury, I
will just say when you review this exhibit in the jury room,
just disregard any significance associated with the
10
highlighting and consider the exhibit only for the purposes of
11
what's written on the Facebook post.

All right.
12
We can publish the exhibit.
MR. DISHMAN:
13
14
Your Honor, We'd ask to publish.
(PLAINTIFF'S EXHIBIT 35C RECEIVED)
15
Q (BY MR. DISHMAN)
What was the date of this post?
16
March 2nd.
17
What year?
18
2014.
19
And in this post does Mr. Lyman discuss events that
20
occurred at a town hall meeting he held?
21
Yes, he discusses -- yes.
22
Does he discuss what day that occurred?
23
Let me go to the -- the post.
24
MR. STUBBS:
25
THE COURT:
It speaks for itself.

Sorry, the question again?
230
1
2
MR. DISHMAN:
The question was in this post does
Mr. Lyman discuss when that town hall meeting occurred.
THE COURT:
Overruled.
It's foundational.
Go ahead, agent.
THE WITNESS:
Okay.
So in -- in this posting, I
can't -- I know from -- I know from other documents when the
town hall meeting occurred.
it mentions the date.
Q (BY MR. DISHMAN)
10
That's just fine.
Did Mr. Lyman ever
mention -- do you recall whether Mr. Lyman -If we could highlight or expand the second page, the
11
12
I can't recall if in this posting
bottom half, please, for the jury.

Do you recall whether or not this document discusses
13
14
Mr. Lyman's intent to ride down Recapture Canyon?
15
Yes, it does.
16
Does he ever mention that he hoped the BLM would
17
authorize his activity?
18
19
20
Yes, he does.
MR. DISHMAN:
Exhibit 35B be shown to the witness.
21
THE COURT:
22
MR. DISHMAN:
23
THE COURT:
24
MR. DISHMAN:
25
THE COURT:
35 -- have we just been -35B.

Have we just been looking at 35C?
35C, yes, sir, Your Honor.
Have we seen -- have we established
231
foundation for 35B?

MR. DISHMAN:
We're about to.
We're going to
just -- we're just calling up for him to establish that
foundation now.
THE COURT:
publish to the jury?
7
8
Oh, I'm sorry, all right, and not to
MR. DISHMAN:
No, we're not moving to admit 35B
yet.
THE COURT:
I misunderstood, my apologies.
Go
10
ahead.
11
Q (BY MR. DISHMAN)
12
this?
13
Yes.
14
What is this?
15
This is a Facebook posting from Phil Lyman, San Juan
16
County Commissioner's Facebook.
17
How do you know this?
18
So the -- so in this one the -- the profile picture
19
obviously is darkened out so I can't tell, but the title is
20
Phil Lyman, San Juan County Commissioner, just as it appears
21
on this Facebook page.
22
23
this document since you viewed it --
24
So there's --
25
-- and captured it?
And do you notice any alterations that have been made to
232
So there's highlighting that was not there when I viewed
it.
in this document that is different from when you viewed it?
This is the same as how I viewed it.
Is this a true and accurate -- is this a true and
accurate recording of what you captured during the course of
your internet investigation?
Okay.
Yes, it is.
10
11
MR. DISHMAN:
Exhibit 35B be admitted with that limiting instruction.

MR. CRANE:
12
13
Other than the highlighting is there anything else
We just ask for the same limiting
instruction.
14
THE COURT:
You'll see in a moment there's some
15
highlighting on this as well.
16
consideration.
17
We'll receive it.

18
19
Just disregard that in your
MR. DISHMAN:
We ask to publish it to the jury, Your
Honor.
20
THE COURT:
You may.
21
Q (By MR. DISHMAN)
22
23
the -- the Deseret News, some post in the Deseret News
24
article.
25
there was a thing that he wanted in the Deseret News article
What did Mr. Lyman discuss in this post?
So -- so in this post he talks about -- he talks about
He also mentions that they -- that they -- that
233
that wasn't published, which was an invitation to join on the
ride.
other than just text?
photograph, that's actually a link to the Deseret News
article.
investigation you clicked on that link?
By looking at this post, did Mr. Lyman include anything
Yes.
So there's a link in this post, that -- that
Can you tell us whether or not during the course of your
10
Yes, I did.
11
Okay.
12
I found the Deseret News article.
13
Did you review that Deseret News article?
14
Yes, I did.
15
And what did you find at that link?
MR. DISHMAN:
Your Honor, if we could call up for
16
the witness Government's Exhibit 103A.
17
Q (BY MR. DISHMAN)
18
well as there's a second page.
19
Okay, second page.
20
Do you recognize this document?
21
Okay, I do, because the resolution wasn't great, but this
22
is much better.
23
in the Deseret News website.
24
25
website?
If you'd take a moment and review this, as
Yes, I do.
This is the article that I viewed
How do you know this came from the Deseret News
234
So there's a -- there's a couple things.
title after My View:
Phil Lyman for the Deseret News.
on the second page there's -- it says Deseret News Publishing
Company.
bottom that says deseretnews.com.
captured in the course of your internet investigation?
Community Space Recaptured, it says By

Then at the bottom of the --
There's also a URL, which is the web address at the
And is this a true and accurate recording of what you
Yes, it is.
10
MR. DISHMAN:
Your Honor, we ask Governments Exhibit
11
103A be admitted into evidence.
12
MR. CRANE:
13
MR. STUBBS:
14
MR. DISHMAN:
15
Government's Exhibit 35B, please.
16
the jury.
17
No objection.
No objection.
If we could compare 103A with
THE COURT:
18
received.
19
received.
20
It's in the
We'd ask to publish it to
Give me just a moment.
I was waiting to hear from counsel.
Your exhibit is
The exhibit is
21
MS. PRESTON:
22
THE COURT:
23
MS. PRESTON:
Your Honor?
Hi.
I believe counsel already asked for
24
the limiting instruction on that exhibit, didn't he, because
25
that wasn't in the -- oh, it was in the James list?
Okay,
235
excuse me.
document.
I couldn't see the date very well on that
THE COURT:
MR. DISHMAN:
That's all right.
Thank you.
We ask to publish that with the jury
as well as compare the previously admitted Exhibit 35B.
Q (BY MR. DISHMAN)
right of your screen, Mr. Lyman said that there was a change
which the Deseret News issued.
Yes.
Now, you said in the 35B, which is on the
What was that change?
So -- so he wanted -- he said they took out the
10
invitation to join on the ride.
11
12
article?
13
Yes, I did.
14
Is there an invitation in there to join on foot or ATV on
15
May 8th?
16
There is not.
17
What was the date of this publication of the Deseret
18
News?
19
So it's April 11th.
20
And what was the date of the Facebook page, Mr. Loftin?
21
April 11.
22
And did you have a chance to review that Deseret News
MR. DISHMAN:
United States would ask that -- call
23
up for the witness Exhibit 18.
As a matter of fact, I'm going
24
to do this the old fashioned way, your Honor.
25
been previously marked as Government's Exhibit 18.
I have what's
May I
236
approach the witness?

THE COURT:
You may.
Q (BY MR. DISHMAN)
what I've handed you?
Yes, I do.
What is this?
So this is an optical disk containing the audio from the
San Juan County Commissioners meeting on April 21st, 2014.
And how do you know that that's what that audio disk
10
contains?
11
12
then after reviewing the audio, I signed and dated the disk.
13
And where did that audio come from?
14
It came from the San Juan County website.
15
All right.
16
of?
17
18
Commission meeting on April 21st, 2014.
19
20
listen to that audio recording?
21
Yes, I did.
22
And is this a true and accurate -- is the recording in
23
your hand a true and accurate recording of what you heard from
24
the San Juan County website?
25
Because I've reviewed the audio off of this disk, and
And what's that an audio of, audio recording
This is an audio recording of the San Juan County
During the course of your internet investigation did you
Yes, it is.
237
1
2
MR. DISHMAN:
All right.
Your Honor, we ask that
Government's Exhibit 18 be admitted in evidence.
MR. CRANE:
Could we have a brief sidebar on this?
THE COURT:
Yes.
5
6
MR. CRANE:
THE COURT:
All right.
It's
received, Mr. Dishman.

9
10
Q (BY MR. DISHMAN)
11
have received, is that a full -- is that the complete audio
12
file which is available on the San Juan County website?
13
No, it is not.
14
Okay.
15
Yes, it is.
16
And what is it selective of?
17
It's selective of just when -- just when they were
18
discussing the Recapture event.
19
20
event at that San Juan County Commission meeting?
21
22
commissioners present.
23
24
ever discuss what happened at that town hall meeting back in
25
February?
Okay.
Now, the audio file which you have and
Is it a partial audio file?
And who -- and who is discussing the Recapture
Commissioner Phil Lyman and then other -- the other
Okay.
During the course of that meeting did Mr. Lyman
238
Yes, he does.
MR. DISHMAN:
2
3
Your Honor, if we could play just a
portion of this clip which is starting at minute 142.

THE COURT:
Before we do, members of the jury, it's
often the case with evidence that -- for example, this is a
lengthy meeting.
identify just the most relevant portions of that meeting that
relate to the issues in this case.
about other things that may have been said by other people or
The parties have worked together jointly to
You should not speculate
10
anything else that happened at that meeting except just that
11
portion that's being presented for consideration here in this
12
trial.
13
been careful to extract from conversations only those parts
14
that comply with the Rules of Evidence and are relevant for
15
your consideration.
16
Go ahead.
And if it seems choppy, it's for the reason that we've
17
(LISTENING TO AUDIO RECORDING)
18
Q (BY MR. DISHMAN)
19
Commissioner Lyman ever mention what his role was in this
20
event?
21
22
23
24
25
During the course of the meeting did
Yes, he did.
MR. DISHMAN:
If we could play a small clip starting
at minute 143.
(LISTENING To AUDIO RECORDING)
Q (BY MR. DISHMAN)
Somebody mentioned the word the spokesman.
239
Whose voice was that?
That was Commissioner Phil Lyman's.
And how do you know that?
Because I've listened to hours of Phil Lyman speak during
the course of my online investigation.
words the ring leader.
leader?
And someone said that he was the ring leader, meaning the
Right.
Who said you could say I was the ring
So -- so there was -- you see the -- the part up
10
above the ring leader where they say the lone wolf, that was
11
not Phil Lyman, but the ring leader was Phil Lyman.
MR. DISHMAN:
12
If we could call up Government's
13
Exhibit 35A, please.
14
Q (BY MR. DISHMAN)
15
Yes, I do.
16
What is this?
17
This is a posting from Phil Lyman's San Juan County
18
Commissioner Facebook page.
19
How do you know it's from Mr. Lyman's Facebook page?
20
The profile picture with Phil Lyman.
21
resolution is bad but I recognize the photo.
22
and like I said, because of the resolution you can't read it,
23
but I've seen the better resolution and it says San Juan
24
County.
25
Phil Lyman dash San Juan County Commissioner is how it appears
It's a street sign behind him.
Like I said, the

And it says --
And then the title
240
on his Facebook page.
and downloaded during the course of your internet
investigation?
different.
the highlighting.
the Google cache version I looked at was a Google cache from
May 20th of 2014.
Is this a true and accurate recording of what you viewed
Okay.
So there's two things on this that are -- that are

The content is exactly the same, the -- obviously
And then up top it says 19 hours ago.
So
So in mine there's actually a date.
10
Instead of the 19 hours it says -- it says April 17th.
11
besides that part on the top, the content is exactly as I
12
viewed it.
13
MR. DISHMAN:
14
Exhibit 35A be admitted in evidence with a limiting
15
instruction on the highlighting.
16
MR. CRANE:
17
MS. PRESTON:
18
So
No objection.
Was this listed in the James?
It's
not on my list.
19
MR. CRANE:
20
MS. PRESTON:
21
THE COURT:
It is.
It is, okay.
We'll receive the exhibit.
Members of
22
the jury, again, just disregard any significance with the
23
highlighting.
24
25

Q (BY MR. DISHMAN)
Again, could you remind us what the date
241
of this post was?
Yes.
Does Mr. Lyman in this Facebook post talk about a date of
the protest ride?
Yes, he does.
What does he say about that?
He said --
8
9
It was April 17th.
MR. DISHMAN:
We ask permission to publish this to
the jury, Your Honor.
10
The COURT:
11
THE WITNESS:
Yes.
12
ride to May 10th.
13
Thursday.
14
more people could come.
He said he would -- wanted to move the
15
It was originally May 8th, which was a
He wanted to move it to May 10th, a Saturday, so
MR. DISHMAN:
Call up Government's Exhibit 104C,
16
please.
17
Q (BY MR. DISHMAN)
18
Special Agent Loftin.
19
this.
20
21
San Juan County Commissioner Facebook page.
22
23
The profile picture has Phil Lyman with the San Juan
24
County sign in the back.
25
so you can actually -- actually see it.
Yes.
And this appears on your screen, Mr. -Would you tell me if you recognize
This is a -- this is a posting from Phil Lyman's
A little better resolution this time

And then the title,
242
Phil Lyman dash San Juan County Commissioner is the same as it
appeared on his Facebook page when I viewed it.
page you captured during the course of your internet
investigation?
names on this one.
And is this a true and accurate recording of the Facebook
It is, with the exception of there's a couple of redacted
8
9
MR. DISHMAN:
Your Honor, we move Government's
Exhibit 104C into evidence at this time.
10
MS. PRESTON:
Your Honor, I would object on the
11
basis of relevance.
12
incident or anything about this incident.

THE COURT:
13
14
It doesn't refer to this particular
Overruled.
Any other objection?
It's
received.
15
16
MR. DISHMAN:
If we could high -- publish it to the
17
jury, Your Honor.
18
If we could zoom in on the bottom portion of this exhibit.
19
Q (BY MR. DISHMAN)
20
Are those the -- can you tell me whether or not those are the
21
buttons or the links that you described previously in your
22
testimony?
23
Yes, they are.
24
And below that I see an image.
25
there on the bottom left-hand corner?
We ask that 104C be published to the jury.
I see the words like, comment and share.
Do you see that image
243
Yes.
What is that image?
So that is -- that's a thumbs up, so that's a -- that's
the -- that's the symbol for like.
What is the name right next to that like symbol?
Trent Holliday.
MR. DISHMAN:
Your Honor, if we could call up
Exhibit 104B for the witness, please.
Q (BY MR. DISHMAN)
Do you recognize this, Special Agent
10
Loftin?
11
12
San Juan County commissioner Facebook page.
13
Yes.
How do you know that?
14
15
MS. PRESTON:
Could we have a quick sidebar on this
one?
16
THE COURT:
17
18
This is a -- this is a posting from Phil Lyman's
Okay.

Members of the jury, my apologies.
I told you in our
19
opening instructions from time to time that's just necessary.
20
We do our best to keep those sidebars as infrequent as
21
possible and as short as possible.
22
patience.
23
24
25
Mr. Dishman.
Oh, let's see.
We appreciate your
The objection is overruled.
The exhibit is received.

244
MR. DISHMAN:
We ask to publish this to the jury,
Your Honor.
If we could highlight the very top portion of
this.
Q (BY MR. DISHMAN)
whether or not this post is different from the other posts
we've talked about in the heading?
Yes, it is.
How is it different?
10
So in the other post we looked at it just had the profile
11
picture and then the title, Phil Lyman, San Juan County
12
Commissioner.
13
language, it says that Phil Lyman, San Juan County
14
Commissioner, shared Trent Holliday's photo.
15
And what does that mean in Facebook parlance?
16
Okay.
17
means Phil Lyman viewed the photograph and clicked -- and
18
clicked shared.
19
couple -- couple ways he could have done that.
20
have -- he could have actually went to Trent Holliday's page
21
and saw the photo and clicked shared or he could be friends on
22
Facebook with Trent Holliday and it came up in his news feed
23
and he read it in his news feed and then shared it.
24
25
there any other way Mr. Lyman could have received this
Special Agent Loftin, can you tell me
However, in this posting, other additional
So as I described in my -- in my diagram, so that
And so what that did -- so there's a

He could
Based on your experience and knowledge of Facebook, is
245
information and seen that, been provided to him by Facebook to
give him the option to share?
that information could be -- could be shared.
Are you aware of any other ways?
I am not.
If we could call up Government's Exhibit 34C, please.
you recognize this?
Those are the two most likely ways that I know of that
Yes.
Do
This is a posting from Phil Lyman's San Juan County
10
Commissioner Facebook page.
11
12
The profile picture shows Phil Lyman, with the street
13
sign San Juan County behind it, and then the title Phil Lyman
14
dash San Juan County Commissioner is the same as that that
15
appears on his -- his page.
16
17
captured during the course of your internet investigation?
18
19
page?
20
21
22
23
Is this a true and accurate recording of what you
I think is this -- is this the only -- is this the only

Yes, it is.
MR. DISHMAN:
Exhibit 34C be admitted in evidence.

THE COURT:
24
MR. DISHMAN:
25
THE COURT:
We ask to publish it to the jury.

You may.
246
MR. DISHMAN:
portion of this.
Q (BY MR. DISHMAN)
April 27th.
What year?
2014.
Okay.
post?
If we could highlight the very top
What was the date of this post?
And generally speaking what is the purpose of this
This post is -- is an invitation to -- to attend the
10
Recapture ride.
11
12
when this would occur?
13
Yes.
14
All right.
15
invited to this event?
16
Yes.
17
Did he declare when this was deemed necessary?
18
Yes, at the town hall meeting on February 27th of 2014.
19
Go to the next page, please.
20
he intended to discuss -- excuse me.
21
or not there was a discussion of what would occur before the
22
ride on May 10th?
23
24
25
Did Mr. Lyman inform individuals of dates and times of
And do you recall who he said -- who he
He welcomed all supporters.
Did he ever describe what

Can you tell me whether
Yes.
MR. DISHMAN:
Pull up page one, please.
If we can
pull up the middle section, that first real paragraph.
247
Q (BY MR. DISHMAN)
Did Mr. Lyman ever discuss open trails and
closed trails?
Yes, he did.
Can you tell me whether or not Mr. Lyman said he would be
the one who explained what the open and closed trails would
be?
Yes.
MR. DISHMAN:
If we could pull up the next
paragraph, please.
10
Q (BY MR. DISHMAN)
11
what he planned to ride or do that day?
12
Yes.
13
All right.
14
anything about the BLM and possible consequences?
15
Did Mr. Lyman ever express in this post
He said he planned to be riding an ATV.

Did Mr. Lyman as part of this post mention
Yes.
16
MR. DISHMAN:
If you could highlight that bottom
17
portion right there.
18
Q (BY MR. DISHMAN)
19
want to be on a closed trail, there were other options for you
20
to ride to participate in this event?
21
Yes.
22
Focus on the end of that trail.
23
posting if there was ever an invitation to contact him if
24
there were questions?
25
Did he ever discuss that if you didn't
Do you recall at this
Yes.
248
MR. DISHMAN:
Your Honor, we call up -- actually
we'll do this the old fashioned way again -- Government's
Exhibit 19A.
ask to approach the witness.
I have what's in my hand previously marked and
THE COURT:
You may.
Q (BY MR. DISHMAN)
Loftin?
Yes.
What is this?
10
This is an optical disk containing audio of the San Juan
11
County Commissioners meeting on April 28th, 2014.
12
How do you know that that's what that disk contains?
13
So I've -- I've reviewed the audio recordings on this
14
disk, and then after I reviewed it I signed and dated the
15
disk.
16
17
Commission or a partial recording?
18
This is a partial recording.
19
Is that partial recording still a true and accurate
20
reflection -- recording of what you heard when you visited the
21
San Juan County Commission website?
22
23
24
25
Is that a full recording of the San Juan County
Yes, it is.
MR. DISHMAN:
Exhibit 19A be admitted.

THE COURT:
249
Q (BY MR. DISHMAN)
San Juan County meeting if the discussion of the Recapture
protest was ever discussed?
Yes, it was.
Did Mr. Lyman, was he involved in that discussion?
Yes.
Do you recall whether or not he ever mentioned what date
they were going to ride that?
10
Yes.
MR. DISHMAN:
11
12
Do you recall during the course of that
please.
If we could play clip at minute 807,
Publish it for the jury.

13
14
Q (BY MR. DISHMAN)
15
people having an option to choose whether they rode on that?
16
Yes.
17
18
Do you recall if Mr. Lyman ever discussed
MR. DISHMAN:
If you could play clip at minute 1113,
please.
19
20
Q (BY MR. DISHMAN)
21
going to do at the meeting prior to the actual ride?
22
23
24
25
Did Mr. Lyman ever discuss what he was
Yes.
MR. DISHMAN:
Play minute 24 second 52, please.

Q (BY MR. DISHMAN)
Do you recall whether or not Mr. Lyman
250
ever mentioned giving people the option and discussing what
type of options they had in going down into the Canyon?
Yes.
MR. DISHMAN:
4
5
If we could play the clip at minute
2628, please.
Your Honor, we'd like to call up Government's Exhibit 73.
THE COURT:
MR. DISHMAN:
73?
Yes, sir.
If you could show the
10
second page to the witness.
11
Q (BY MR. DISHMAN)
12
Yes, I do.
13
What is this?
14
So this is a -- this is an article from thepetroglyph.com
15
website.
16
What is thepetroglyph.com?
17
So The Petroglyph is a -- is a -- is an online news
18
website.
19
Do you know who runs The Petroglyph?
20
Yes, I do.
21
22
So there's a -- on the San Juan Record there's a
23
biography on Monte Wells and there he describes starting The
24
Petroglyph website.
25
Do you recognize this, Mr. Loftin?
Is there anything on this -- on this exhibit before you
251
that identifies who may have posted or written this?
Yes.
Is this a true and accurate recording of what you viewed
This -- this is the printable version of the article.
you're viewing it online, it's not going to look exactly like
this, but if you click the print feature that's available on
the website, then it's going to give you this -- this
The author is posted up top, Monte.
Yes, it is.
10
printable version.
11
12
offer this?
13
14
15
16
I do want to make a distinction though.
Why does a printable version exist?
So when
Why would a website
It just provides better formatting for printing.

MR. DISHMAN:
Exhibit 73 be admitted into evidence.

THE COURT:
Agent, the difference in the format that
17
you're talking about doesn't affect the substance of the
18
article that's reprinted, is that true?
19
THE WITNESS:
20
THE COURT:
Counsel, objections to the exhibit?
21
MR. CRANE:
No objection.
22
MR. GARRETT:
23
THE COURT:
24
25
That is true.
No objection.
It's received.

MR. DISHMAN:
We ask that Government's Exhibit 73 be
252
published to the jury.

THE COURT:
Yes.
Q (BY MR. DISHMAN)
However, if you're on thepetroglyph.com website and you look
at the archived -- in the archives, the article archives, it
provides a date, and that date is April 29th of 2014.
Okay.
8
9
Now, Is there a date anywhere on this?
So on this printable version there is no date.
MR. DISHMAN:
All right.
If we could call up next
to this, go back and visit Government's Exhibit I believe it's
10
34C and compare the two.
11
Q (BY MR. DISHMAN)
12
notice any similarities?
13
Yes.
14
What were those similarities?
15
So the content after the -- the Uncle Sam We Need You is
16
the same.
17
like the date, time, place.
18
is one sentence on The Petroglyph version, but the content of
19
the text is -- is the same.
20
Are there any differences with this?
21
Yes.
22
Petroglyph that's not on the Phil Lyman, San Juan County
23
Commissioner Facebook.
24
with Uncle Sam, the title, come and join this Recapture event,
25
and then the -- the little subheading there which says show
In reviewing these two things, did you
You'll see there's some formatting differences,

There -- there -- like included
So there's information above the text in The
Those include the -- the We Need You
253
your support by clicking like and share.
post that's seen in 34C on the right?
Is the word Monte found anywhere on Mr. Lyman's Facebook
No.
MR. DISHMAN:
Government would call up Exhibit 74 to
show to the witness.
Q (BY MR. DISHMAN)
Loftin?
Yes.
10
And what is this?
11
Okay.
12
Petroglyph website.
13
the printable version.
14
the same, the text content will be the same, but this is --
15
this is in a format that just prints that's formatted for --
16
to print.
17
18
the -- is this printable version a true and accurate recording
19
of what you captured in the course of your internet
20
investigation?
21
22
internet investigation, but there -- there are -- there are
23
some differences between what this besides the -- and what's
24
on the -- what's on the website, like if you just went and
25
viewed the website.
This is a -- this is a -- yes.
This is a -- this is an article published on The

Again, like I said before, this is a -So on the website the content will be
And other than that formenting -- formatting, is this
Yes.
I actually captured this printable version on my
254
And What are some of those differences?
Okay.
version, it adds the author, which is Monte, which is not
visible just on the website.
to get the author.
there's some links that obviously are not available on a
printable version.
true and accurate recording of what you captured in the course
So one difference is when you do the printable
You have to go to the printable
The other thing is if you'll look down,
But other than those removed HDML links, is the content a
10
of your internet investigation?
11
Yes, it is.
MR. DISHMAN:
12
13
Your Honor, we ask Governments Exhibit
74 be admitted in evidence.
14
THE COURT:
15
16
MR. DISHMAN:
17
THE COURT:
18
MR. DISHMAN:
We ask to publish it to the jury.

You may.
If we could highlight that bold text
19
there at the bottom.
20
Q (BY MR. DISHMAN)
21
of this post is?
22
23
version and on the -- you have to go to -- you have to go to
24
the -- to the article archives, and on the article archives it
25
shows the date.
Okay.
First of all, do you recall what the date
So like the -- like the other one on the printable
So on the article archives the date of
255
this -- that this was published on The Petroglyph is May 6th
of 2014.
what is this referring to?
below that was a still image of a -- of a -- of a YouTube
video, and that still image actually has a link, so if you
link on it, it links to the video.
And where is that video contained or uploaded?
10
So that video has been uploaded on YouTube.
Okay.
Okay.
This highlighted portion here, this bold text,
This brief history of Recapture Canyon Part 1, so
MR. DISHMAN:
11
12
Highlight that bold text down there at the bottom as well.
13
Q (BY MR. DISHMAN)
14
15
link to a YouTube video.
16
three-part series.
What is this?
So this is -- this is -- so below this title is another
17
MR. DISHMAN:
This is actually a second in a
18
Highlight that bold text at the top.
19
Q (BY MR. DISHMAN)
20
21
Petroglyph website below it was a still image that's a link to
22
the -- to the youTube video that's the third part in the
23
series.
24
25
What is this?
Again, this is a title, and on the -- on the -- on The
And did the author of this post -If we could highlight that full paragraph just above the
256
image there.
Did Mr. -- did the author of this, Mr. Wells, did he ever
2
3
mention about the BLM in discussing opening the Canyon?
Yes, he did.
MR. DISHMAN:
Okay.
I have what's been previously
marked as Government's Exhibit 79, Your Honor.
the witness?
8
9
THE COURT:
Q (BY MR. DISHMAN)
May I approach
You may.
10
this?
11
12
video on the -- the third -- the third segment of the series
13
How the Protest Started.
14
15
disk contains?
16
17
and then after viewing I signed and dated the disk.
18
19
downloaded from YouTube?
20
21
22
Yes.
Okay.
This is an optical disk containing the YouTube
And how do you know that that's what that optical
So I -- I viewed the -- the video on the -- on the disk
Okay.
Is that a true and accurate capture of what you
Yes, it is.
MR. DISHMAN:
Exhibit 79 be admitted into evidence.
23
MR. CRANE:
24
MR. STUBBS:
25
MR. GARRETT:
No objection.
No objection.
No objection.
257
THE COURT:
It's received.
2
3
Q (BY MR. DISHMAN)
this is -- if I remember your testimony, this is the third of
the three-part series?
is a interview of Phil Lyman by Monte Wells.
Yes.
8
9
What is in this optical disk or this --
So -- so the YouTube video is a -- is a -- is a --
MR. DISHMAN:
If we could publish this to the
jury.
10
THE COURT:
11
MR. DISHMAN:
You may.
If we could go to minute 502 we'll
12
just set this up.
13
Q (BY MR. DISHMAN)
14
Mr. Wells ever discuss what options they had and reviewed at
15
San Juan County Town Hall held in February?
16
Yes.
17
18
19
20
21
22
23
24
25
During this discussion did Mr. Lyman and
MR. DISHMAN:
If we could play this small clip,
please.
Try to get the audio up.
Government would call up exhibit 104A, please.
Q (BY MR. DISHMAN)
MR. CRANE:
Your Honor, I'm sorry to interrupt.
Just to clarify on that list exhibit, was the entire video
258
introduced or just that portion?
MR. DISHMAN:
MR. CRANE:
The entire video was introduced.

Okay, thanks.
Q (BY MR. DISHMAN)
Loftin?
Yes.
What is this?
So this is a -- this is a posting on the Phil Lyman, San
Juan County Commissioner Facebook page.
10
And how do you know that?
11
The profile picture is of Phil Lyman and it has San Juan
12
County on the street sign behind it, also the title Phil
13
Lyman, San Juan County Commissioner.
14
15
16
Yes.
17
18
MR. DISHMAN:
Ask that Government's Exhibit 104A be
admitted.
19
MR. CRANE:
20
MR. STUBBS:
21
MS. PRESTON:
No objection.
22
MR. DISHMAN:
Ask to publish it to the jury, Your
23
24
25
No objection.
No objection.
Honor.
THE COURT:
It's received, and you may.
259
Q (BY MR. DISHMAN)
link take you?
Link takes you to The Petroglyph website.
Does it take you to the general website?
No.
article.
Which article?
The Truth About Recapture Protest.
And what is the date of this post?
10
May 7th.
11
And who does he thank for conducting the interview?
12
The Petroglyph.
13
Does he mention any person specifically?
14
Monte.
15
There's a link in this.
Where does this
It takes you specifically to the -- to the -- to the
MR. DISHMAN:
Your Honor, we call up Government's
16
Exhibit 105A.
This is two pages so we'll let the witness view
17
both of them.
18
Q (BY MR. DISHMAN)
19
this?
20
Yes.
21
What is this?
22
This is a posting on The Petroglyph Facebook page.
23
24
So the -- the profile picture, it's got the two
25
petroglyphs, and it says The Petroglyph, the title is The
260
Petroglyph, and this is how -- this is -- I recall this from
viewing The Petroglyph Facebook page as part of my
investigation.
page related to thepetroglyph.com website?
Yes.
The name.
and they use the same -- they use the same photo, like the
10
Okay.
They're both -- they're both The Petroglyph,
profile photo.
MR. DISHMAN:
11
12
Is this Facebook -- Is this Petroglyph Facebook
Your Honor, we ask that Goverment's
Exhibit 105A be admitted into evidence.
13
MR. CRANE:
14
MR. STUBBS:
15
MR. GARRETT:
16
THE COURT:
17
No objection.
No objection.
No objection.
It's received.
18
MR. DISHMAN:
19
THE COURT:
20
MR. DISHMAN:
21
thing.
22
above it, please.
23
Q (BY MR. DISHMAN)
24
post?
25
Ask to publish it to the jury.

Yes.
If we could highlight that second
Highlight that second line right there -- the one just

Yes.
All right.
Is Mr. Wells in this post?
Is this his
This is -- this is -- this is -- this is -- this is a
261
posting on The Petroglyph, and it -- but -- so it is -- it
is -- I don't know who posted this, but the information states
that it's from Phil Lyman.
And what is it updating folks about?
Information about the -- the May 10th Recapture event.
MR. DISHMAN:
If we could go to the second
paragraph, please.
Q (BY MR. DISHMAN)
what's going to occur on May 10th?
Does he discuss -- does this post discuss
10
Yes, it does.
11
Okay.
12
your understanding where did -- or where was it planned that
13
the preprotest rally would occur?
14
In Centennial Park in Blanding at 9:00 AM.
15
Did it discuss -- does this post alert folks to what will
16
be discussed at that preride rally meeting?
17
Yes, it does.
18
What does it say?
19
It says it's going to have information on the trails
20
which people can ride legally.
21
22
the May 10th?
23
24
call it the tail -- the tailgate social, and that's going to
25
be the evening prior, so on May 9th.
Where does it -- where -- based on this post, in
Does it inform anybody of an event that occurs prior to
Yes.
There's an event that they announce prior.
They
262
And does it announce the location of this -- these two
events?
Also -- also at Centennial Park.
Okay.
Centennial Park is at 900 South 300 East in Blanding,
Utah.
And where is Centennial Park?
MR. DISHMAN:
next paragraph.
Q (BY MR. DISHMAN)
All right.
If we could highlight the
And this post that's attributed to
10
Mr. Lyman, or at least an update to Mr. Lyman, does it say
11
what Mr. Lyman plans on doing?
12
13
make the ride.
14
the -- from the north end.
15
there's a closure sign, but the road continues, and from there
16
about a mile and a half, and he says he plans to -- to, you
17
know, to go --
Yes.
It says -- it tells about how he plans to -- to

And it says he plans to -- to enter from
And he says about two miles down
18
MR. DISHMAN:
If we could show the rest of the post.
19
THE WITNESS:
Right.
So he expects to turn around
20
at the end of that mile and a half past the closure.
21
22
when he turns back up and goes back to the road, does he
23
mention what else he'll pass again?
24
25
trail going west.
When he goes back past the closure sign, what does -- or
He just says he's going to head out of the canyon on a
263
Okay.
And will he drive past anything?
Can you repeat the question?
Will he drive back past anything?
Yes, drive back past the closure sign.
Okay.
He talks about how he's going to -- he's going to -- he's
going to -- he's going to exit, head out of the canyon on a
trail going west, and he talks about it -- it being steep and
that you need a four-wheel drive, but he says that trail is
And then how does he plan to exit the canyon?
10
legal and open.
11
12
ever inform folks through this post that there were options of
13
participating in this protest but doing so in a one hundred
14
percent legal way?
15
16
Okay.
If we could go to the next portion.
Yes.
MR. DISHMAN:
Your Honor, we'd like to call up
17
Governments Exhibit 46A.
18
my hands Government's Exhibit 46A, 46A1 and 46A2.
19
approach the witness, Your Honor?
20
Did Mr. Lyman
THE COURT:
As a matter of fact I have what's in
You may.
21
Q (BY MR. DISHMAN)
22
Agent Loftin, do you recognize this?
23
24
newscast that occurred on May 9th of 2014.
25
Yes, I do.
May I
First looking at Exhibit 46A, Special
This is an optical disk containing the Fox 13
How do you know that that's what that disk contains?
264
So I -- I viewed -- I viewed the newscast from this disk,
and then after reviewing the newscast I signed and dated the
disk.
Yes.
If you would review Exhibit 46A1.
exhibit?
Yes.
10
What is 46A1?
11
So this is -- this is a -- this is a portion of the --
12
it's the same Fox 13 video broadcast, but this is just a
13
portion of it where the -- where the newscast -- where the
14
reporter talks to -- to Phil Lyman.
15
16
captured on the internet during the course of your internet
17
investigation?
18
Yes, it is.
19
Would you review 46A2, please.
20
46A2 is?
21
22
this is just the section where the reporter interviewed Monte
23
Wells.
24
25
clip from?
Is that a true and accurate recording of what you
And is that a true and accurate recording of what you
Yes.
Do you recognize what
So this is the -- the same Fox 13 newscast, but
And where did you obtain this video clip -- this video
265
So I captured -- so I obtained this video clip from
the -- from the Fox News 13 website, and then I captured -- I
captured that video using the -- the program Snagit where it
actually -- so then I was able to save -- save that video.
How do you know that came from the Fox 13 News website?
So I -- I visited -- I visited the website, so the URL
is -- you know, is Fox 13 News.
it's identified as Fox 13 News Salt Lake.
And is exhibit 46A2 a true and accurate recording of what
10
you captured that day?
11
Yes, it is.
MR. DISHMAN:
12
13
And then it's -- you know,
Your Honor, the Government moves
Exhibits 46A1 and 46A2 into exhibit.
14
MR. CRANE:
No objection.
15
THE COURT:
16
(PLAINTIFF'S EXHIBITS 46A1 AND 46A2 RECEIVED)
17
MR. STUBBS:
18
THE COURT:
No objection.
All right.
19
Q (BY MR. DISHMAN)
What did you observe -- did you observe
20
any of the Defendants making a statement during the course of
21
this particular video clip?
22
Yes.
23
Who did you see?
24
statement?
25
Which defendants did you see make a
So in the video Phil Lyman makes a statement and Monte
266
Wells makes a statement to the reporter.
MR. DISHMAN:
the jury at this time.

THE COURT:
Your Honor, we ask to publish 46A1 to
You may.
(VIEWING VIDEO)
5
6
Q (BY MR. DISHMAN)
What was the date of the airing of this
newscast?
the -- it was the night -- the night, the evening or -- or the
So this -- this -- this newscast was aired on -- it was
10
late newscast on May 9th of 2014.
11
MR. DISHMAN:
12
If we could publish to the jury 46A2,
please.
THE COURT:
13
14
Yes.
(VIEWING VIDEO)
15
Q (BY MR. DISHMAN)
16
Yes.
17
Who is this?
18
This is Monte Wells.
19
Is this the same Monte Wells that's on the biography on
20
the San Juan Record that mentioned he was the founder of The
21
Petroglyph?
22
23
Monte's.
24
25
Yes.
Do you recognize this individual?
So the photograph on that -- on that matches this,
MR. DISHMAN:
Your Honor, I have what's been
previously marked as Government's Exhibit 99 and 99B.
May I
267
approach the witness?
THE COURT:
MR. DISHMAN:
THE COURT:
And, Your Honor, this is the
All right.
And we did not receive an
exhibit that's just labeled 46A, right?
7
8
Okay.
one we previously discussed.
5
6
Yes.
MR. DISHMAN:
That is correct.
It's just 46A1 and
A2, the subsets of the video.

THE COURT:
9
10
MR. DISHMAN:
11
THE COURT:
Okay.
May I approach, Your Honor?
You may.
12
Q (BY MR. DISHMAN)
13
you recognize this, Special Agent Loftin?
14
15
CBS Channel 2 newscast.
16
How do you know that's what that disk contains?
17
So I viewed the newscast on this disk and then I signed
18
and dated the disk.
19
20
21
Yes.
22
How did you know it came from the CBS News website?
23
So I -- so on the -- on just the CBS News website is --
24
is readily identifiable.
25
the website it says, you know, CBS, CBS Channel 2 News.
Yes.
Would you first look at Exhibit 99.
Do
This is an optical disk containing the video of the
Is that a true and accurate recording of what you
You know, when you -- when you go on
268
City?
And was that the Channel 2 located here in Salt Lake
Yes.
MR. DISHMAN:
All right.
Your Honor, we ask --
Q (BY MR. DISHMAN)
Would you please review Exhibit 99B in
front of you, the other disk.
Yes.
What is this?
So this is -- this is just a -- a small portion of the --
10
of the -- of the newscast clip from that.
11
newscast was -- was also on May 9th.
12
late news on May 9th of 2014.
13
14
newscast as you captured it during the course of your internet
15
investigation?
16
17
18
19
20
21
It's -- the
It was the late -- the
And is Exhibit 99B a true and accurate recording of that
Yes.
MR. DISHMAN:
Exhibit 99B be admitted into evidence at this time.

MR. CRANE:
No objection with the proper limiting
instruction.
The COURT:
All right.
So members of the jury, as
22
I instructed you at the beginning of the case there are two
23
counts, allegations, in the information against the
24
Defendants.
25
providing you some instructions at the close of evidence, the
One of them is a conspiracy count.
I'll be
269
close of the case, that advise you about what use you can make
of some of the evidence that's received here.
The evidence that is received, statements of Defendants,
may be considered by you often as evidence of a conspiracy and
may be attributed to all of the Defendants.
evidence can only be received for a very limited purpose, that
is, to consider the statement made by an individual Defendant
only with respect to that individual Defendant's culpability.

This exhibit is that kind of evidence.
Other kinds of
So the evidence
10
you're about to receive can only be considered by you when
11
evaluating and considering Mr. Lyman's culpability alone and
12
not with respect to any of the other Defendants.

Go ahead.
13
14
15
Thank you.
MR. DISHMAN:
Your Honor, we ask to publish this
clip to the jury, please.
16
THE COURT:
17
You may.
(VIEWING VIDEO)
18
MR. DISHMAN:
Call up Government's Exhibit 71A,
19
please.
20
Q (BY MR. DISHMAN)
21
Loftin?
22
23
Petroglyph Facebook page.
24
25
page?
Yes.
This is -- this is an image I captured from The
How do you know it comes from The Petroglyph Facebook
270
So the profile picture is -- is The Petroglyph's Facebook
page, its profile picture with the -- with the petroglyph and
it says The Petroglyph, and then the title The Petroglyph
is -- and this is how it appeared when I viewed it.
It's an accurate recording of what you captured?
Yes, it is.
7
8
MR. DISHMAN:
Your Honor, we ask Government's
Exhibit 71A be admitted.
MR. CRANE:
No objection.
10
THE COURT:
It's received, 71A.
11
MR. DISHMAN:
12
Publish it to the jury.
13
Q (BY MR. DISHMAN)
What event is this documenting?
14
15
social, which was the night before the event.
So this is what they -- what they call the tailgate
16
MR. DISHMAN:
If we could call up Government's
17
Exhibit 70A, 70A.
18
Q (BY MR. DISHMAN)
19
20
from The petroglyph Facebook page.
21
How do you know it's from The Petroglyph Facebook page?
22
And this is -- clarify, that I captured from The
23
24
in the profile picture, and it's got the two petroglyphs, and
25
then in the title The Petroglyph.
Yes.
This is a -- this is a photograph also captured
It says -- it says The Petroglyph
271
captured in the course of your internet investigation?
Yes.
MR. DISHMAN:
Your Honor, we ask to publish this to
the jury -- or we ask that 70 be admitted into evidence -- 70A
be admitted into evidence.
MR. CRANE:
No objection.
THE COURT:
It's received.
9
10
MR. DISHMAN:
We ask to publish it to the jury,
11
please.
12
Q (BY MR. DISHMAN)
13
May 9TH.
14
What is this documenting?
15
It's documenting the -- the tailgate -- from the tailgate
16
social the night before the event.
17
And who was speaking in the middle of that photo?
18
Commissioner Lyman.
19
Is the caption -- does the caption of this photo also
20
describe what's viewed in the picture?
21
Yes.
22
What does it say?
23
Says Commissioner Lyman Takes the Stand.
24
25
What is the date of this post?
MR. DISHMAN:
We ask that Government's Exhibit 69A
be presented to the witness, please.
272
MR. CRANE:
No objection.
Q (BY MR. DISHMAN)
How do you know it's from The Petroglyph Facebook page?
So the profile picture says The Petroglyph and it's got
the two -- the two petroglyphs on it, and then the title, The
Petroglyph, and I recognize it.
Yes.
This is a photograph that I captured from The
Is it a true and accurate recording of what you captured
10
11
12
little like section.

MR. DISHMAN:
13
14
It is, except that some names have been redacted in the
Your Honor, we ask that 69A be
admitted into evidence.
15
THE COURT:
16
17
Q (BY MR. DISHMAN)
18
19
May 9th, the night of May 9th, but it's still -- that is a --
20
a photograph of the -- of the pavilion at Centennial Park.
21
What is this a photo of?
So this is a -- this is obviously it's getting later on
MR. DISHMAN:
If we could highlight the text portion
22
as well as the Facebook thing there at the side.
23
Q (BY MR. DISHMAN)
24
who liked this post?
25
Do you recognize the name of an individual
So there's the redacted names and then there's the --
273
there's the like, which is the thumbs up symbol, and it says
and Trent Holliday liked this.
awaits us tomorrow.
referring to?
And it references hope and change and excitement for what
6
7
What's your understanding of what that's
MS. PRESTON:
Objection, irrelevant.
His
understanding of the web page is irrelevant.
THE COURT:
MR. DISHMAN:
What was the question again?

The post refers to hope and change and
10
excitement for what awaits us tomorrow.
What is your
11
understanding of what awaits us tomorrow means.
12
THE COURT:
13
THE WITNESS:
Yes.
MR. DISHMAN:
Your Honor, we call up Exhibit 65A to
14
The objection is overruled.
Go ahead.
It's the ride planned for the
next day.
15
16
show to the witness only.
17
Q (BY MR. DISHMAN)
18
19
20
21
Petroglyph Facebook page?
22
23
Petroglyph with the two petroglyph images, and then the title
24
Petroglyph.
25
Yes.
This is a photograph that I -- I captured from The
And how do you know it's from the Facebook -- The
Yes.
The -- the profile picture is -- states The
274
Yes, it is.
3
4
MR. DISHMAN:
Your Honor, we ask Exhibit 65A be
admitted into evidence.

THE COURT:
5
6
Q (BY MR. DISHMAN)
What is this an image of?
morning, the preride event.
So this is -- this is a photograph of the -- that
10
11
of the uploading of the photo?
12
May 10th.
13
And what do you view there in that photo?
14
So it's -- this is Commissioner Phil Lyman at the -- at
15
the microphone.
16
17
at this point?
18
19
20
21
22
What was the date of the published -- what was the date
Does the post refer to what Commissioner Lyman's role is
Yes.
Says he's the opening speaker.

MR. DISHMAN:
Your Honor, We'd call up Government's
Exhibit 64A.
THE COURT:
Mr. Dishman, let me ask you this.
We've
been going for about an hour and a half with the jury.
23
MR. DISHMAN:
One more exhibit.
24
THE COURT:
25
were probably anxious to know.
This is it.
I suspect some of them had coffee and

Okay.
Let's go ahead and
275
finish that.
What was the exhibit?
MR. DISHMAN:
THE COURT:
We call up 64A, please.

64A.
Q (BY MR. DISHMAN)
captured from The Petroglyph Facebook page.
page?
Yes.
So this is a -- this is a photograph that I
And how do you know it's from The Petroglyph Facebook
The profile of the picture is -- states The Petroglyph
10
and it's got the two petroglyph images, and then the title,
11
The Petroglyph.
12
13
14
15
16
Yes.
MR. DISHMAN:
Your Honor, we move and ask to publish
to the jury Exhibit 64A.
17
MR. CRANE:
18
MR. STUBBS:
19
MR. GARRETT:
20
THE COURT:
21
No objection.
No objection.
It's received.
22
Q (BY MR. DISHMAN)
What is this a photo of according to the
23
capture -- according to the comment?
24
The group listening to Commissioner Lyman.
25
What is the date of this Facebook --
276
May 10th.
MR. DISHMAN:
THE COURT:
MR. STUBBS:
THE COURT:
Hi.
THE COURT:
11
Yes, Your Honor.

More than just a minute or two, yes?
A JUROR:
10
No further, Your Honor.
Will there be some cross?
Thank you.
a moment, please.
It was not published to us.

Let's put that last exhibit up for just
Now do you see it?
a good time for our morning break.
All right.
So this is
Thank you, Mr. Dishman.
Members of the jury, I'll remind you, of course, not to
12
talk about the case amongst yourselves, and we'll come back in
13
about 10:30.
14
THE CLERK:
15
16
17
18
(JURY EXCUSED)
THE COURT:
Special Agent, you're welcome to stand
down if you like.

Have a seat, counsel, for just a moment.
I just want to
19
make a brief record about an evidentiary objection in a
20
sidebar we had and then invite all of you to make any
21
statement you wish.
22
There was an exhibit offered by the United States.
23
lost track of the exhibit number.
24
image of a closed road.
25
Was it 74?
73.
I've
It's an
Hi, Mr. Garrett.
277
MR. GARRETT:
THE COURT:
104, your Honor, I believe.

Thank you.
It's not a Recapture Canyon
road but I think a Forest Service closure road, and the
objection that was asserted by Ms. Preston on behalf of
Mr. Holliday is relevance.
fact that I think it is evidence -- the evidence was relevant
in view of the Defendants' good faith defense.
further articulate that and then explain the United States'
response and my ruling.
And at sidebar we discussed the
And let me
10
I understand that -- Mr. Crane pointed out that it's
11
not -- the nature of the good faith defense is not that there
12
was a dispute with the United States, but I think the evidence
13
is relevant as an alternative explanation in view of what I
14
think the defense may present today, and that's relevant for
15
the jury's consideration, and I don't find it to be
16
prejudicial.
17
substantially outweigh its probative value under Rule 403.
18
At least the prejudice of the evidence does not
Moreover, Mr. Dishman argued on behalf of the United
19
States that it was relevant to the conspiracy count and to
20
establish that at least with respect to Mr. Holliday and
21
Mr. Lyman that they were following each other on Facebook and
22
were aware of each other and their posts with relation to some
23
of these related events.
24
it better than I just did.
25
Defendants I received the exhibit.
And I think Mr. Dishman articulated

And over the objection of the
And I just wanted a record
278
1
2
3
4
of that.
Is there anything you'd like to add, Ms. Preston, about
our sidebar?
MS. PRESTON:
Not about the sidebar, Your Honor, but
is there some way we can get some type of instruction to the
jury or information to the jury that this is not the BLM road
at issue here because I think it could be quite misleading?
8
9
10
THE COURT:
I think the Defendants have someone on
the stand who may be able to tell you that.
You can try.
If
not, the Government stipulates to that fact.
11
MS. PRESTON:
Okay
12
MR. DISHMAN:
We'll be happy to stipulate to that.
13
I just want to make sure.
14
entered and we're discussing 104B, so that was the specific --
15
16
THE COURT:
There were several 104 exhibits
Thank you.
Any further record any of
you wish to make before we break?
17
MR. STUBBS:
18
THE COURT:
No, Your Honor.

We're going to have a little bit of a
19
logistical problem I think with the jury.
20
our schedule for just a moment.
21
cross-examination from the Defendants that won't be terribly
22
long, maybe half an hour or so by the time we have redirect
23
and the like, and then I believe the Government intends to
24
rest; is that right?
25
MR. BENNETT:
Let's talk about
I anticipate some
That's correct, Your Honor.
279
THE COURT:
And then I think, Mr. Crane, you have
some items you'd like to take up without -- outside the
presence of the jury.

MR. CRANE:
That's right.
I think we need to
resolve the Government's motion to exclude some of my
exhibits -- some of our exhibits, but I think we can -- I'll
talk to counsel on the break.
resolve a lot of that.

THE COURT:
I think we may be able to
Is that something that you think we must
10
take up before any of the Defendants who reserve their
11
openings wish to make those openings?

MR. CRANE:
12
There are a couple of exhibits I
13
would -- I don't want to show during opening statements.
14
will refer as to what I think the evidence will show during my
15
opening statement, so it will be relevant for opening
16
statement.
17
THE COURT:
All right.
Then I think we're not going
18
to have any choice except to bring the jury in for a short
19
piece of testimony and then send them back out.
20
my anticipation is that we'll start again late and we'll break
21
late for lunch and I'll have lunch come in for them maybe
22
around 12:30, but let's see how it unwinds this morning.
23
And then what
There will be openings, will there, from the Defendants
24
that reserved once we come back and resolve the evidentiary
25
issues?
280
1
2
MR. CRANE:
I think just for me my opening is about
eight minutes long is all.
THE COURT:
MS. PRESTON:
All right.
I don't anticipate an opening but I do
anticipate making a motion for judgment of acquittal.
THE COURT:
So just to streamline things here, is
there an agreement and stipulation among the parties out of
respect for the time for the jury that we could reserve those
29 -- Rule 29 motions and continue into the defense opening
10
and any case and then take them up during the lunch break this
11
afternoon?
Any objection to that?
12
MS. PRESTON:
13
MR. CRANE:
14
MR. STUBBS:
15
THE COURT:
16
then.
17
15 minutes or so.
18
Thank you.
No objection.
No.
No, Your Honor.
All right.
So that's how we'll proceed
Let's take a break.
We'll see you back in
(RECESS FROM 10:17 AM UNTIL 10:43 AM)
19
THE COURT:
20
MR. DISHMAN:
21
THE COURT:
We're ready for the jury?

Yes, Your Honor.
Is there agreement about the resolution
22
in the motion in limine on the Defendants' exhibits or is it
23
something we'll need to recess and take up briefly?
24
25
MR. BENNETT:
It will be very brief I think.
As I
understand, there are only a couple of exhibits that they plan
281
on bringing in and I would say (inaudible).
THE COURT:
MR. BENNETT:
Sorry.
I trailed off there.
They're
irrelevant still.
THE COURT:
5
6
You would say -- I missed the last part.
We'll take that up outside the presence
of the jury.
THE CLERK:
THE COURT:
Agent, I'll just remind you that you're
still under oath, sir.
10
Cross-examination.
MR. CRANE:
11

CROSS-EXAMINATION
12
13
BY MR. CRANE:
14
15
you ever had your name in the paper, newspaper before?
16
Yes.
17
And what did you do when you saw it?
18
article with anybody?
19
20
shared it with everybody but I've not readily shared.
21
22
family or friends or whoever, just say, hey, I was in this
23
article today?
24
25
it at some point but I did not readily share it.
Mr. Loftin -- I'm sorry.
Agent Loftin, apologize, have
Did you share that
I can't say that I -- that I -- that I -- that I -- I
Okay.
You don't know if you shared it with coworkers or
Like I said, I'm sure that -- I'm sure that I've shared
282
Okay.
You said you're from Las Vegas -- or you're
working out of the field office in Las Vegas, Nevada; is that
right?
Yes.
How long have you been working in Nevada?
Since September of 2013.
Okay.
several different jobs in the Federal Government with the
Secret Service and the EPA.
And I know you've bounced around a little bit, had
Were those jobs located in Nevada
10
as well?
11
No, they were not.
12
Where were they -- where were they located?
13
So with the Secret Service I worked as an agent in the
14
Dallas Field Office in Dallas, Texas, and then in the
15
Technical Security Division located in Washington D.C.
16
17
District of Utah; is that right?
18
I have not.
19
You talked a lot about Facebook and I just want to ask
20
you a few -- few more questions about Facebook.
21
your investigation in looking at Facebook pages you actually
22
need a Facebook page yourself; isn't that right?
23
That is not correct.
24
Well, you can -- to get more detail on an individual's
25
Facebook account you have to be a user of Facebook, correct?
Okay.
So you've never had a duty station inside the
As part of
283
That is not entirely correct, no, sir.
But you can -- you can see some information without being
a Facebook user?
That is correct.
But if you want more detail and more information, you
need to be a Facebook member?
That's not entirely correct.
Why is that not correct?
So if I -- if I -- if I wanted to get to your
10
nonpublic -- to your nonpublic part, then I would have to be,
11
you know, your friend to get -- to see more -- more details.
12
But like I said, for example, in the -- in the -- in the --
13
like the -- like if you search for a Facebook page via Google,
14
and then like I said when I looked at the Google cache version
15
I did not -- I did not have to be a Facebook -- I did not have
16
to have a Facebook user account at all to look at that Google
17
cache version, and I could select read more and read the
18
entire posting without having a Facebook account.
19
Okay.
20
I do not have a personal Facebook account.
21
You have one that you use for investigative purposes,
22
correct?
23
That is correct.
24
And does it identify you as a BLM Special Agent?
25
It does not.
Do you have a Facebook account?
284
It's -- you've set it up under a fake name, correct?
It's an undercover.
Undercover name?
Yes.
So if someone were to go into your web -- into your
Facebook page, they wouldn't be able to recognize it was you
or law enforcement as the individuals who are running that
Facebook page, correct?
That is correct.
10
On Facebook you can set up different profiles for your
11
12
Yes.
13
And isn't it true that Commissioner Lyman's Facebook
14
page, his profile, is one of an elected official, a county
15
commissioner, correct?
16
That Facebook page is.
17
And the Facebook page for The Petroglyph is set up as a
18
news media profile, correct?
19
That is correct.
20
And then also on Facebook you -- people can like photos,
21
as you talked about, people can follow the Facebook or
22
different articles; isn't that right?
23
Yes.
24
And in fact Commissioner Lyman has over 600 followers --
25
or excuse me -- 900 followers on his Facebook account,
285
correct?
followers he has.
you were looking at his Facebook account?
That's correct.
And The Petroglyph has over 600 followers on its Facebook
page; isn't that right?
I'm not sure of the number, but that sounds --
10
Okay.
11
Petroglyph's website receive sometimes thousands of likes, and
12
in one instance over 57,000 likes; isn't that right?
13
14
not -- that would not surprise me.
15
16
these Facebook pages, correct?
17
That is correct.
18
And a like signifies that that person probably read that
19
article or read the story, whatever was posted on The
20
Petroglyph's website, right?
21
That is correct.
22
As part of your investigation you learned that San Juan
23
County had an agreement with the Bureau of Land Management;
24
isn't that right?
25
agreement for the maintenance of trails within San Juan
You know, I'm not -- I'm not -- I don't know how many
Okay.
But that's something you would have looked at when
And some of the news articles that appear on The
I don't know the numbers, but like I said, that would
But that's something you looked at as you were looking at
Let me go a little further to help you.
An
286
County?
online content, there's discussion from different parties
about -- about -- about that, but that's all it would have is
the -- so I just did a review of online media, of open source
online media what's out there.
of the articles or news reports individuals talk about -- talk
about maintenance.
So in some of the -- in some of the -- the articles and
Okay.
So, yes, in some of -- in some
And specifically Commissioner Lyman talks about
10
the agreement that the county commission had with the BLM to
11
maintain trails within San Juan County?
12
13
article, and if you --
14
15
use the document camera, please.
16
going to go to the second page.
17
to direct you to the portion here that's right between the
18
highlighted portions.
19
And, again, this is the Facebook page of Commissioner Lyman;
20
is that right?
21
22
so I can verify that?
23
but if you'll -- if you'll zoom out.
24
I can show you page one of that.
25
Okay, yes, sir.
I would need you to just provide me with a specific
Let's look at Government Exhibit Number 35C.
Yes.
I'll just
You can see that there.
I'm
And it's actually -- I want
It says here are some of my thoughts.
So if you -- can you zoom -- can you zoom out just

It appears to be off his Facebook page,
Okay, yes.
287
In there it talks about --
Ms. McNamee, can I get the draw feature, please.
2
3
Okay.
Thank
you.
In there it talks about the programmatic agreement.
That's the agreement that San Juan County had with the BLM to
maintain trails even if they were on BLM property.
is -- I can speak to what this is.
So I can speak for that this is from the -- that this
Okay.
And that's what I'm asking.
I'm not -- if you
10
don't know, I'm not asking you to go outside your knowledge
11
here.
12
agreement that was signed by the BLM and by San Juan County
13
charges the county with trail maintenance in Recapture.
14
you understand Recapture to mean Recapture Canyon?
15
Yes.
16
According to the agreement, we are to provide information
17
and guidance and we are to help to educate users of the trail
18
as to what is proper.
19
arise, including raking out ATV tracks that are out of bounds
20
and placing signs or barriers where needed to discourage
21
unauthorized use.
22
agreement was with -- between San Juan County and the BLM?
23
24
was on Phil Lyman's Facebook, and that these are the contents
25
that are seen on Phil Lyman's Facebook page.
But let's read it here.
It says the programmatic
Do
We are also to fix problems as they
Is that your understanding of what the
All I can speak for is that this -- this is -- this is --
288
Okay.
But you don't have any reason to believe this is
not accurate information?
MR. DISHMAN:
THE COURT:
Objection, asked and answered.

Sustained.
Q (BY MR. CRANE)
You were asked about Government's Exhibit
34C.
Commissioner Lyman's Facebook page; is that right?
Yes.
And then you were also asked about Government's Exhibit
Let me show you that.
This was a posting on
10
Number 73.
11
Yes.
12
And that in fact is an article that was published in The
13
Petroglyph news media website; is that right?
14
That is correct.
15
Have you done a side-by-side comparison of Government
16
Exhibit 34C and this exhibit here, Government Exhibit Number
17
73?
18
That's the -- that's the Facebook page and the --
19
Yes.
20
Yes.
21
And in fact the article -- the article that was published
22
in The Petroglyph is a word for word copy of what Commissioner
23
Lyman posted on his Facebook page, correct?
24
25
for some formatting as I previously discussed --
I believe on the content below the We Need You, except
289
Right.
-- that it is -- that it is a word for word.
same.
Commissioner Lyman wrote the editorial that appeared in The
Petroglyph news media website?
from -- is from the -- is from the -- his -- Lyman's Facebook
page.
Okay.
It is the
And so from that would it be your opinion that
So that -- it would be my opinion that that text is
However, any online article I've ever read, the author
10
is placed up top, and the name up top is the author.
11
they -- he may be including information from someone else, but
12
the individual that actually published the article is the
13
author's name that's up top in my experience reading articles
14
online.
15
16
Petroglyph website is where it says Monte, come and join this
17
Recapture event, and then the graphic.
18
that is what was included in Commissioner Lyman's Facebook
19
page?
20
21
recollection that is correct.
22
23
and then it appeared later in the Petroglyph website,
24
correct?
25
Sure.
Yes.
Now,
And the only thing that's different on the
But everything after
Everything after the graphic, yes, that is -- to my
And as far as time line, the Facebook posting came first
You're correct.
The Facebook posting was on the 27th and
290
this Petroglyph was on the 29th of April, 2014.
that was picked up by The Petroglyph, right?
Yes, for that -- just like we discussed for the text.
Right.
editorial by Commissioner Lyman that was picked up by the
Deseret News, correct?
That is correct.
And it's not your opinion that Deseret News is a
Okay.
And so this was an editorial by Commissioner Lyman
And Government's Exhibit 103A, this was another
10
co-conspirator in this case because of this editorial that was
11
published in their magazine -- in their newspaper?
12
MR. DISHMAN:
13
THE COURT:
Objection, legal conclusion.

One more time, Mr. Crane.
14
Q (BY MR. CRANE)
15
editorial by Commissioner Lyman.
16
co-conspirator in this case?
17
My question is the Deseret News published an
THE COURT:
Does that make them a
That objection is sustained.
18
Q (BY MR. CRANE)
But this is an editorial that was
19
published -- the author of this editorial was Commissioner
20
Lyman, correct?
21
That is correct.
22
You discussed the county meeting of April 21st, 2014.
23
believe we heard an audio portion from that meeting.
24
isn't it true this was a meeting, this was a regular county
25
commission meeting that they have once or twice a week in San
And
291
Juan County, correct?
That is correct.
And was attended by Commissioner Bruce Adams,
Commissioner Phil Lyman and Commissioner Kenneth Maryboy; is
that right?
familiar with the name Adams from the -- from the audio, but
the other commissioners -- and Lyman, but the other
commissioners I'm not certain of.
I don't know all the other commissioners present.
I am
10
Well, Commissioner Adams you can hear in the audio
11
portion of the -- of what was played, correct?
12
That's correct.
13
And isn't it true that you -- you testified that you
14
listened to the entire meeting; isn't that right?
15
16
conducted the initial investigation --
17
Right.
18
-- so immediately after.
19
just -- I don't -- I don't really listen -- when I review it,
20
I don't really listen to the parts that don't relate.
21
listen to the part that talks about Recapture Canyon.
22
23
tells the other commissioners that Recapture Canyon is within
24
his district, meaning his voting district?
25
So I would have listened to the entire meeting when I
So recently, you know, I
I just
And isn't it true that at that meeting Commissioner Lyman
That is within his district, that is correct.
292
Okay.
And that's where his constituents live and that's
where Recapture Canyon is located, just to be clear, right?
Yes.
Okay.
28, 2014.
Commissioners meeting; is that Right?
That is correct.
And it would have been attended by Commissioner Lyman,
Commissioner Adams and Commissioner Maryboy, correct?
You also testified regarding a meeting on April

And, again, this was a San Juan County
10
Like I said, Adams -- Adams and Lyman, and the other
11
commissioners I'm not -- I'm not a hundred percent certain
12
of.
13
14
the Recapture May 10 protest, the main thing I want to do is
15
on Saturday morning at 9:00 we plan to have a big gathering
16
and I'm going to basically give them some rules and where they
17
can go and what the lay of the land is.
18
statement that Commissioner Lyman said at that meeting?
19
I do recall that statement.
20
Okay.
21
to those who show up for the protest, right?
22
That is correct.
23
Rules being where they can and cannot ride ATVs,
24
correct?
25
And at that meeting Commissioner Lyman said, referring to
Do you recall that
And he's indicated that he's going to give rules
I believe that is the language that's in the document.
293
Okay.
a lot of ATV trails that are open to ATVs and motorized
vehicles, correct?
and everything I've got from my online investigation, and in
statements from Phil Lyman, there are trails that are open and
then there's a section of trail that's closed.
indicated -- excuse me -- you know, if they want to bring a
Yes.
And in fact in the Recapture Canyon area there are
There's -- it's -- in the articles that I've read
Again, later in that meeting Commissioner Lyman
10
horse, bring a horse.
If they want to come and walk, they can
11
walk.
12
we'll explain what the rules are and they can make their
13
choice on that day.
14
that statement at the public county commission meeting?
15
Yes.
16
And again he's referring to if they bring ATVs, then
17
we'll explain what the rules are, the rules being where you
18
can and cannot ride in Recapture Canyon; is that right?
19
20
heard.
21
22
remember this article?
23
24
article from The Petroglyph.
25
If they want to bring an ATV, then we'll again -- then
Do you remember Commissioner Lyman making
That -- that sounds like the language that I -- that I
Showing you Government's Exhibit Number 74.
Yes.
Okay.
Do you
This is the printable version of the -- of the
And this was a news article that appeared in The
294
Petroglyph; is that right?
That is correct.
And this article talks about the fact that Monte Wells,
the news journalist, interviewed County Commissioner Phil
Lyman, correct?
interview of Monte Wells interviewing Phil Lyman, that's
correct.
This is -- this -- this -- this contains links to the
And in fact on this paragraph here it says, to set the
10
record straight, I sat down with San Juan County Commissioner
11
Lyman, and they had their interview which we played an audio
12
portion of, correct?
13
That's correct.
14
Okay.
15
the interview, it was Monte Wells as a news journalist
16
interviewing a county commissioner; is that right?
17
18
interviewing Phil Lyman.
19
20
County; isn't that right?
21
22
articles and media and attention, that it was -- I'm sure it
23
was a big deal.
24
25
posting on Commissioner Lyman's Facebook page; isn't that
And in your review of the case and your review of
So from my watching the video, Monte Wells was
Okay.
And this -- this was a big story in the San Juan
I can tell you that based upon the amount of -- of
Okay.
Exhibit 104-A, I believe you testified this was a
295
right?
That is correct.
He'd been interviewed by a journalist, it got published,
and he was sending out the link to his followers and
constituents; isn't that right?
included the link to those -- those videos.
Yeah.
Yes, sir.
10
This is -- this is Government's Exhibit 105-A.
11
again is a posting in The Petroglyph; isn't that right?
12
Yes, The Petroglyph Facebook page.
13
Okay.
14
Commissioner Lyman and then published on The Petroglyph's
15
16
17
posted it, but it says update from Phil Lyman.
18
And you're referring to right here?
19
That's correct.
20
Okay.
21
was the other name on there.
22
that appeared in the Face -- in The Petroglyph that was
23
authored by Commissioner Lyman, right?
24
Would you repeat the question.
25
This is a second editorial authored by Commissioner Lyman
So -- so -- so Phil Lyman is -- is -- is -- in this has
This
And this is an editorial that was authored by
I would agree with you that obviously we don't know who
Of course, we don't think Mark Twain drafted this

So this is a second editorial
296
that was published by The Petroglyph?
That's correct.
Okay.
article that was an editorial authored by Commissioner Lyman.
There in fact were other editorial articles that were
published by the Deseret News that were authored by
Commissioner Lyman; isn't that right?
the specific editorials that were -- were published in the --
And in fact we -- we showed one Deseret News
You would -- you would have to give me the specific --
10
in the Deseret News.
I know I captured -- I know I captured
11
multiple articles from the Deseret News.
12
Okay.
13
So you would have to show me the exact one, but if you
14
have it I can --
15
That's fine.
16
Yes, I am.
17
Can you just give us a brief explanation of what
18
Instagram is?
19
simple because I don't think it's -- Instagram is pretty
20
popular, but it's a way that you can post photographs and
21
brief commentary online; isn't that right?
22
That is correct.
23
And often -- and you can sync your Instagram page, your
24
Instagram account, with your Facebook account; isn't that
25
right?
Agent, are you familiar with Instagram?
Well, let me help you.
It will make it more
297
I believe that's correct.
So when you post something to Instagram, it automatically
shows up in your Facebook page; isn't that right?
I believe that it has that capability.
Are you familiar with the term live blogging?
Live blogging?
Yes.
Yes.
And that's when a news reporter is at an event witnessing
10
the event and sending out electronic messages about the event
11
as it happens; isn't that right?
12
That is correct.
13
Okay.
14
media, but it can be done with Instagram and Facebook,
15
correct?
16
That is correct.
17
Okay.
18
Government Exhibit 71A, this is an Instagram posting that was
19
picked up by The Petroglyph's Facebook page; isn't that
20
right?
21
22
Petroglyph's Facebook page.
23
24
occurred on May 9th, correct?
25
And that can be done over a variety of different
I want to show you a couple of paragraphs.
I just know that all I can tell you is that it was on The
Okay.
And this tailgating event that you talked about
That is correct.
298
And the date of this photograph, of this posting, is May
9th, correct?
Yes.
And so this was being posted as the event was happening,
correct?
I would agree with that.
Okay.
posting as the event was happening, correct?
Correct.
10
69A, another posting as the event was happening,
11
correct?
12
Yes.
13
65A, this is now May 10, this was another posting as the
14
event was happening, correct?
15
Yes.
16
And 64A, another posting as the event was happening,
17
correct?
18
Yes.
19
These five or six photographs here, these postings, these
20
weren't the only ones that showed up on The Petroglyph's
21
website from May 9 and May 10, correct?
22
Yes.
23
This is just a sample of several photographs and
24
comments, part of the live blogging of the protest on the
25
morning of May 10, correct?
And, again, Government Exhibit 70A, another
299
That is correct.
MR. CRANE:
2
3
Your Honor, if I may approach the
witness with a proposed exhibit?

THE COURT:
You may.
Q (BY MR. CRANE)
Defendants' Exhibit 1013.
7
8
I'm handing you what's been marked as
It actually, Your Honor, shows up in the Government's

Exhibits as number 97.
Would you just take a minute and look at that.
9
10
recognize that exhibit?
11
12
scrolling image of The Petroglyph Facebook page.
13
14
Petroglyph's website -- excuse me -- Facebook page?
15
Yes.
Do you
This is a -- this is a -- this is a captured
Does it fairly and accurately depict the news media
Yes.
16
MR. CRANE:
Your Honor, I'd move Defendants'
17
proposed 10 -- I don't remember how to mark this -- 1013 into
18
evidence.
19
MR. DISHMAN:
20
THE COURT:
Sure.
21
MR. CRANE:
If I can grab the exhibit.
22
THE COURT:
Would you, please.
23
24
25
May we have a sidebar, Your Honor?
I can't find it
here.
I can't remember if there was a -- there was a motion,
300
wasn't there?
MR. CRANE:
2
3
It is.
I'll withdraw it.
I just want
to ask a couple of questions.
THE COURT:
Does the witness have the exhibit?
MR. CRANE:
I actually have it myself.
The COURT:
MR. CRANE:
it back to him.
Q (BY MR. CRANE)
Thank you.
Go ahead.
If I can approach the witness and give
Agent, you testified that this accurately
10
depicts a lot of the news articles that appear on The
11
Petroglyph website; isn't that right?
12
Yes.
13
And in fact looking through that, you can see that The
14
Petroglyph reports on a wide variety of subjects on their
15
website; is that right?
16
17
interest in
18
19
And in fact it reports on politics; is that right?
20
Yes.
21
It reports on commission meetings?
22
Yes.
23
Hospital Board meetings?
24
I don't know about every specific meeting.
25
Okay.
They -- they -- they do.
Okay.
It seems like they have an
-- in southern Utah and Monticello, you know.

So it's news that's important in southern Utah.
But as you flip through it, there's articles about
301
the high school girls' basketball team?
Yes.
There's articles about the local Easter egg hunt?
I'd have to find the article, but, yeah, there's a lot on
the basketball team.
there's more articles that are published than just about local
politics or the federal government, right?
And I guess my point is, to sum it up in one question, is
I would say -- I would say it -- it discusses -- it
10
discusses a variety.
11
topics with an emphasis on, you know, southern Utah issues.

MR. CRANE:
12
13
you.
14
Q (BY MR. CRANE)
15
examination.
16
17
I would agree, it discusses a variety of
Okay.
If we could go to 46A2.
Thank
This is a clip you were shown on direct
I just want to --
If you could play that and just pause it at the end when
the name pops up.
18
(VIEWING VIDEO)
19
Thank you.
So this interview clip is just a small
20
portion of a larger news report; isn't that right?
21
That is correct.
22
Did you ever undertake any efforts to obtain the entire
23
interview that was conducted with Mr. Wells?
24
25
not do that.
I -- that was not -- as part of my investigation I did

I was looking at open source online content, so
302
that would have -- you know, so that was not within my
scope.
question Mr. Wells was asked, do we?
That is what is in the news clip is what is portrayed.
And we don't know what he said before or what he said
after this clip, do we?
What is in the news clip is what is in the news clip.
Okay.
Sure.
But from this news clip, we don't know what
And Mr. Wells there is listed as a Monticello
10
resident; isn't that right?
11
That is correct.
12
He's not listed as an organizer of the protest, is he?
13
In the news clip it lists him as a Monticello resident.
14
MR. CRANE:
15

CROSS-EXAMINATION
16
BY MR. STUBBS:
17
18
internet investigation of this case, correct?
19
Open --
20
Open -- I'm sorry.
21
That is correct.
22
Okay.
23
I Googled -- so the -- primarily the source of -- of the
24
information, so the key words I primarily used were Recapture
25
Canyon and Blanding, Utah.
Mr. Loftin, Agent Loftin, you conducted an open source
And did you Google my client, Mr. Phil Lyman?
That's -- that's kind of how I
303
initiated and started my investigation.
were names that came out in the course of the investigation I
would further look into other specific names.
said, the primary key words I used were Recapture Canyon and
Blanding, Utah.
In Google?
I used multiple search engines.
Okay.
Facebook page, Mr. Crane talked about this a little bit, but
So you Googled it.
Okay.
And then once there
But like I
Now, Mr. Lyman's
10
are you aware that there are different templates for
11
Facebook?
12
Yes.
13
So there could be a template for business?
14
A Facebook page, you know, it can be -- it can be an
15
individual, an event, a business.
16
it's just a page that's set up on their -- you know, on their
17
network.
18
There can be a Facebook template for a political issue?
19
That is correct.
20
For a politician?
21
It could be for a variety of --
22
For a politician as well, correct?
23
That is correct.
24
Thank you.
25
that you investigated was a template for a politician?
So it's -- it's just a --
Were you aware that Mr. Lyman's Facebook page
304
That was -- I was aware that that was his Facebook page
and his role as the San Juan County Commissioner.
real quick.
Yes.
Does it say there Phil Lyman, San Juan County
Commissioner?
Okay.
All right.
THE COURT:
A JUROR:
10
11
Exhibit 104A, can you look at that
Do you have that on your screens?

No.
THE COURT:
This exhibit has been received I think,
has it?
MR. STUBBS:
12
THE COURT:
13
Yes, it has.
We can publish that, Ms. McNamee.
14
Q (BY MR. STUBBS)
Does it say Phil Lyman, San Juan County
15
Commissioner?
16
That is correct.
17
104C, same question, does it say San Juan County
18
Commissioner?
19
I can't see the top.
20
Oh, I'm sorry.
21
Yes.
22
Okay.
23
Commissioner?
24
Yes.
25
34C, San Juan County Commissioner?
This is 35A.
Is it San Juan County
305
Yes.
35C, San Juan County Commissioner?
Yes.
I think you get my point.
you pulled off were from Phil Lyman's political Facebook page
as a politician for a San Juan County Commissioner?
Facebook page.
All of the Facebook posts that
That was Phil Lyman's San Juan County Commissioner
MR. STUBBS:
Okay.
Can we put exhibit 35C up on the
10
board, please.
11
moment.
12
Q (BY MR. STUBBS)
13
14
share if you agree.
15
wish it had preceded the Bundy range war but I'm glad to see
16
it now.
17
take out the invitation the join us on foot or on ATV on May
18
8th.
19
warrant a concession on our part, but I guess they have had
20
their hands full confiscating Mr. Bundy's cows.
21
22
ATV or using ATV on --
23
Go to 35B.
One
Thank you.
Could you read that, please.
Deseret News published my article.
Please read it and
I sent it to them a couple weeks ago.
One edit that the -- that the Deseret News did was to
We are hoping for a concession from the BLM that would
Thanks.
Now, did you take this to mean an -- to ride an
Can you leave it up?
24
25
I'm sorry, that's not the right one.
MR. STUBBS:
Sure.
Could you put 35B back up.
Thanks.
306
Q (BY MR. STUBBS)
Did you take this -- did you understand
this to be by using ATVs in Recapture Canyon?
Yes.
Okay.
long?
online.
mile portion is closed to ATVs?
Did you know that Recapture Canyon is 40 miles
I know that's approximately correct from what I've read
Okay.
And did you know that only approximately a five
10
I know that there are a lot of -- there was a lot of open
11
trails and there was a section of closed trails.
12
13
to ride on closed trails?
14
15
or on ATV.
Okay.
So it's possible here that he's not asking people
It says what it says it is.
16
MR. STUBBS:
Okay.
It just says join us on foot
Can we put up 104B.
17
Q (BY MR. STUBBS)
18
Yes.
19
Okay.
20
depict Recapture Canyon?
21
22
gate as depicted on this.
23
the Forest Service has once again locked the county road.
24
So this is probably a Forest Service road?
25
That's what I would assume.
Can you see it, Agent?
Isn't it true that this picture here does not
So I've never -- I just know that this is an image of a

It says in the caption looks like
307
Not Recapture Canyon?
That's what I would assume.
Let's go to 104A.
Could you please read 104A.
interview.
government and the principles of free agency.
devoted to responsible government.
10
Could you please read that, sir.
My sincere thanks to The Petroglyph for doing this

Monte is a citizen devoted to responsible
Monte is a citizen devoted to responsible -- is a citizen

Is that what that says?
That is correct.
MR. STUBBS:
11
Thank you.
Could we go to 105A.
All
12
right.
Could you please highlight the second -- or the
13
paragraph that says I apologize.
14
Q (BY MR. STUBBS)
15
16
defined.
That is kind of the nature of protest -- of a
17
protest.
The main thing is the 9:00 AM assembly at Centennial
18
Park in Blanding, Utah on May 10th.
19
300 East.
20
many trails which people may ride legally.
21
the tailgate social Friday night starting at 6:30 PM also at
22
Centennial Park.
23
Is Centennial Park to your understanding a public park?
24
Yes.
25
And -- okay.
Could you please read that agent.
I apologize that the protest on May 10th is not perfectly
The park is at 900 South
At that meeting we will have information on the

Also remember that
It says here that Phil Lyman also talks
308
about providing information about how people can ride legally;
isn't that correct?
That is correct.
MR. STUBBS:
4
5
Okay.
Could you please put up clip
46A1.
(VIEWING VIDEO)
Q (BY MR. STUBBS) This was a reporter speaking to Phil Lyman,
was it not?
That is correct.
10
Did you hear the reporter's question on that clip?
11
Well, that's just a clip, so I would need to -- we'd need
12
to review it in its entirety.
13
14
reporter's question?
15
16
newscast.
17
18
questions for Mr. Lyman on this newscast on this clip?
19
20
Wells in this news clip but, like I said, this is -- this
21
is just -- this is just a clip so I can't -- I can't speak for
22
the -- I know they're interviewed and they discussed, you
23
know, the Recapture event.
24
25
asked before this clip to Mr. Lyman?
Okay.
But on this clip right here did you hear the
Not on this clip, which is a segment of a larger
Did you hear any previous -- are there any previous
I know there's questions asked of Phil Lyman and Monte
So you just said that there were questions that were
309
I would need to review the whole --
Okay.
And were there questions asked after this clip?

MR. DISHMAN:
Your honor, I object.
The United
States conformed with this specific counsel's request to
redact these statements.
6
7
THE COURT:
If
you know the answer, go ahead, Agent.
8
9
Well, the objection is overruled.
THE WITNESS:
Q (BY MR. STUBBS)
Okay.
I need -- I would need to review it.

Did you pull this entire report off
10
of the internet?
11
12
newscast off of the internet, that is correct.
13
So you have reviewed this entire newscast?
14
I have -- I have reviewed it.
15
recall which questions were asked before and after.
16
17
asked, just were there questions asked before this and were
18
there questions asked after this?
19
20
one question.
21
22
there, they had their cameras, they had their cameramen, and
23
they likely took possibly hours worth of footage, correct?
24
25
Yes.
I pulled the entire -- I captured the entire
I just right now I cannot
I'm not asking you for the specific questions that were
I can tell you that I've never seen a reporter just ask
Good point.
Good point.
I don't know.
And when the reporters were
All I can tell you --
MR. DISHMAN:
310
THE COURT:
Sustained.
Q (BY MR. STUBBS)
entire news broadcaster, this clip that you have, the entire
one that you found on the -- on the internet, that was a
redacted portion from a larger broadcast, correct?
captured all the information I could find related to Recapture
Canyon.
the internet, and I captured the entirety of what was posted
Okay.
This is a redacted -- this is -- this
So what I did was I went on the internet and I
This was a Channel 13 broadcast that was posted on
10
on the internet.
So I didn't -- you know, I wasn't watching
11
Channel 13 that night to see the whole broadcast.
12
tell you what I found on the internet.
13
Okay.
14
Yes.
15
Okay.
16
film to put Channel 13's newscast on the internet?
I can just
So Channel 13 chose what to put on the internet?
So they redacted from their broad -- from their
17
MR. DISHMAN:
18
speculation as well, Your Honor.
19
THE COURT:
20
MR. STUBBS:
21
Objection, asked and answered,
Sustained.
Okay.
Can we please go to 99B.
(VIEWING VIDEO)
22
Q (BY MR. STUBBS)
Okay.
In this clip do you hear the
23
reporter asking a question?
24
25
larger capture.
Not in this -- this clip has been narrowed down from the
311
MR. STUBBS:
Okay.
Could you play the clip again.
Q (BY MR. STUBBS)
in that clip?
this is a shortened clip of a -- of an entire -- an entire
broadcast, so it stops where it stops.
like Phil Lyman completed his sentence in that clip?
play it again if you want.
10
Did Phil Lyman get to complete his sentence
You know, I'm just looking at this.
This is a very --
But my question is from your point of view does it sound

We can
Play it again, please.
11
(VIEWING VIDEO)
12
I mean that's a natural break, but I don't -- I don't
13
know what he -- like I said, I'm not just seeing this.
14
not seeing the whole -- I captured the whole online.
15
MR. STUBBS:
Okay, thank you.
I'm
Could you please put
16
up 71A.
This has been admitted into evidence.
17
Q (BY MR. STUBBS)
18
website.
19
20
on -- on May 9th.
21
Can you tell who is in the picture?
22
So who is at the microphone at that moment?
23
Yeah.
24
No, I don't know who that is.
25
Okay.
It's the, as you said, The Petroglyph
And what's that a picture of?
Yeah.
So that is -- that's a picture of Centennial Park
Can you tell?
That's at a public park, isn't it?
312
Yes.
That's a public park.

MR. STUBBS:
Okay.
Okay.
Could you please put up Exhibit
70A.
This has been previously admitted into evidence.
Q (BY MR. STUBBS)
Yes.
Okay.
park?
Yes, that's at the same park.
Okay.
10
So it looks likes he's standing next to a guy at that
11
moment that's talking.
12
his arms on his hips.
13
MR. STUBBS:
And who is there -- who is -- is this at the same
And is that Phil Lyman up at the front talking?
It looks like he's standing there with
Okay.
Could you go back to the full
14
exhibit, please.
15
Q (BY MR. STUBBS)
16
stand.
17
saying.
18
It says -- it says what it says.
19
Okay.
20
talking?
21
22
then the caption is Commissioner Lyman takes the stand.
23
24
picture of Mr. Lyman in a public park?
25
It just says Commissioner Lyman takes the
Does it say -- it doesn't state what Phil Lyman is
So it's a picture of Phil Lyman in a public park
There's no audio with this.
Okay, thank you.
It's just a photograph, and
Can you go to 65A.
And is this another
Yes.
313
Is it the same public park?
The same public park, different date.
Does this Facebook post say what he was saying?
Says opening speaker Commissioner Phil Lyman.
photograph he's holding a microphone.
Okay.
I would say from this photo you can ascertain that he is
speaking because he's holding a microphone and based on the
caption.
So it's Phil Lyman speaking at a public park?
10
Okay, thank you.
11
this, sir?
12
13
Park on May 10th.
14
15
Commissioner Lyman.
16
listening to Commissioner Lyman?
17
Yes.
18
Okay, thank you.
19
Yes.
20
Phil Lyman is speaking?
21
Yes.
22
And it doesn't say what he's saying?
23
Does not.
24
25
Can you go to 64A.
This is Centennial Park.
Okay.
In this
And, again, what's
It's a photograph of Centennial
And it says overview of the group listening to

Is that what it says, overview of a group
MR. STUBBS:
So they're in a public park?
Okay.
I don't have any further
questions.
314
CROSS-EXAMINATION
BY MS. PRESTON:
spend looking at Facebook posts for this case?
of hours.
A very large amount of hours?
I couldn't -- I couldn't -- I couldn't speak for the
number of hours that I spent.
Good afternoon, Agent Loftin.
How many hours did you
I -- I couldn't -- I couldn't give you the exact number
10
Did you look at Franklin Holliday's page in particular?
11
I've never viewed Franklin Holliday's Facebook page.
12
Never looked at his page at all?
13
Never.
14
So the likes that you introduced here, and there were
15
three of them, you only got those off Phil Lyman's page?
16
That is correct.
17
So it's entirely possible that he could have been liking
18
environmental groups, cat videos and anything else on his page
19
as well?
20
MR. DISHMAN:
21
THE COURT:
Sustained.
22
Q (BY MS. PRESTON)
Do you personally use Facebook?
23
No, I do not.
24
Isn't it true that any given Facebook page on the news
25
feed could have thousands of posts coming through in a given
315
week?
Facebook.
If somebody had hundreds of friends?
That's possible.
So it's very likely that somebody doesn't read every news
feed that comes through on their Facebook; isn't that
correct?
I would agree with that.
10
On this photo that we talked about earlier, it's
11
Government Exhibit 104B, the Forest Service road --
12
Yes.
13
-- you don't know what that photo is of at all?
14
I don't.
It would depend on the user, how active they are on
15
16
MS. PRESTON:
into the record at this time?
17
18
Your Honor, can we enter a stipulation
THE COURT:
I think we have a stipulation, don't we,
counsel?
19
MR. DISHMAN:
20
THE COURT:
Yes.
The stipulation, as I understand it, is
21
that the photograph is not a photograph of Recapture Canyon
22
but instead a different road involving the U.S. Forest
23
Service?
24
MS. PRESTON:
25
THE COURT:
Yes.
All right.
That's the stipulation of
316
the parties.
you'll hear again in my final instructions, the evidence in
the case consists of the evidence and testimony of the
witnesses and the exhibits we receive and also any
stipulations of fact to which the parties agree, so this is a
fact in evidence you should consider in your deliberations.
Go ahead.
8
9
As I said in my preliminary instructions, and
MS. PRESTON:
Your Honor, could I just clarify?
don't know if it's a Forest Service road or what the Forest
10
Service is involved here.
11
caption and -- and reach whatever conclusion they may, but it
12
says county road.

THE COURT:
13
I think the jury can read the
It's not a Recapture Canyon road, and
14
beyond that you may make whatever -- draw whatever deductions
15
you will from it.
16
MS. PRESTON:
17
Thank you.
That's all I have.
CROSS-EXAMINATION
18
BY MR. GARRETT:
19
20
didn't say how many hours you spent on this case, but do you
21
know how many months you spent investigating this case?
22
23
going to say, I started and concluded my investigation within
24
about a month's -- the initial, before going back and
25
reviewing it, within about a month's time frame or so.
Good morning, Agent.
I think it's still morning.
You
I would -- I would say -- if I was going to -- if I was
317
Okay.
Would you say this has been an extensive
investigation for you or just a minimal investigation?
was tasked with accomplishing, which is gathering all the, you
know, the mention of Recapture Canyon online open source, you
know, I would -- I would say that I -- I was fairly
comprehensive, although you're not -- the internet is a very
large place.
the internet.
I would feel -- I feel that the -- for what I was -- I
You know, you're not going to get everything off

But I would -- I would say I did my due
10
diligence in obtaining as much information as I could.
11
12
you used the words Recapture Canyon and I think San Juan
13
County?
14
No, Blanding.
15
How many hits did you get in that original --
16
I could not -- I could not tell you that.
17
Over a hundred?
18
Typing in -- well typing in -- it was -- so there's
19
different ways when you do a search.
20
put anytime within the last week, within the last month, so
21
that's going to limit down -- down your search criteria.
22
Other things you can do, there's ways you can search Google
23
that will limit your results, like you can parentheses around
24
certain words.
25
search.
Okay.
In your initial investigation you testified that
I used like Blanding, Utah.
Over a thousand?
A lot?
You can also -- you can
So I would use items like that to limit my
318
So about how many items did you come up with?
idea?
I --
Like I say, was it over a thousand?
I don't know because so what will happen is, you know, it
will give you multiple pages, you know, page after page after
page.
said, you -- if you -- if you limit it down and you do a
proper search, you will not get a ton of irrelevant --
I didn't go, you know, 20 pages deep.
Any
And then, like I
10
Okay.
After that initial search, what did you do?
11
So I documented my findings in a report.
12
Okay.
13
after just your initial search?
14
15
what I would do is I would compile, and then at the end of my
16
investigation I generated a report.
17
18
did and how much your findings were and what you found and
19
where you went?
20
you generate just an overall report at the very end?
21
I just generated an overall report at the very end.
22
Okay.
23
the search?
24
25
Lyman's.
What type of report did you generate at that time
Oh, No, no, no.
So I generated a report at the end.
So
In each -- in your report did you hit each category you
Did you generate a report like that or did
How many Facebooks do you think you visited during
You know, the main Facebooks were The Petroglyph and Phil
I didn't -- I wouldn't say -- because so basically I
319
was searching those key deals that led me to pages, so I
wasn't -- I wasn't out on Facebook, you know, conducting a big
Facebook search.
words, and that led me to -- you know, that led me to those
two Facebook pages.
are the only two, but -- but that is -- you know, that was --
there was not a lot outside of that.
8
9
So I was -- I was conducting with those key
So I can't tell you definitively those
MR. GARRETT:
Would you bring up Exhibit 38 -- 35B
for me.
10
Q (BY MR. GARRETT) Down at the very bottom here it says 38
11
people liked that post.
12
Facebooks that liked that post?
13
I did not.
14
Okay.
15
investigate -- throughout your investigation, can you
16
summarize your investigation for me and what that summary of
17
that report would have been at the very end?
18
19
collect information.
20
so basically what I was doing was I was just, you know,
21
collecting all the content.
22
23
report.
24
That's correct.
25
During that whole period of time did you ever find or
Did you investigate those 38
Did you invest -- how many -- well, did you ever
So -- so my -- my job with the investigation was just to
Okay.
It was not to draw a conclusion.
So --
And so you've described that content in your
320
find the name Shane Marian?
No, I did not.
He was nowhere to be found in any of your Facebook
findings?
Well, like I said, my Facebook was --
Or any of your internet research?
That Shane Marian did not come up during the course of my
investigation.
MR. GARRETT:
9
10
THE COURT:
11
MR. DISHMAN:
Thank you very much, officer.

Mr. Dishman.
Yes, Your Honor, quick redirect.
12
13
BY MR. DISHMAN:
14
15
police investigation or law enforcement investigations with
16
respect to an undercover Facebook profile.
17
those questions?
18
Yes.
19
In this investigation did you use your undercover
20
Facebook profile?
21
22
you will use like that undercover profile as a login.
23
remember what instances I did or did not use that profile.
24
But I think it's important to note that that just -- that gets
25
you into the -- so that just gets you into -- Facebook asks
You were just posed some questions about your use in
Do you recall
So when I go on Facebook, like you said, you will use -I can't
321
for it.
When you go to Facebook, they want you to put in a
person, you know, a -- you have to be a Face -- it's a
network, it's a social network, so you need to be a Facebook
user.
Although it's not required to get all information off of
Facebook because there's other sources to get it, when you're
on Facebook, there's a -- you know, Facebook is a group of
users.
user, you know, you use -- you have a -- same with Instagram
It's a social network.
So just like any Facebook
10
or, you know, some of the -- Twitter.
11
12
settings?
13
Yes, I am.
14
Briefly describe to us what a Facebook privacy setting is
15
and does.
16
17
your Facebook, if you want it viewable to others or not, and
18
how far you want to restrict that down.
19
you post on Facebook and who can view your Facebook page.
20
21
profile or page?
22
The user.
23
The user.
24
in on either the Facebook -- if I understand your testimony,
25
you only visited The Petroglyph Facebook profile; is that
Are you familiar with what are known as Facebook privacy
Okay.
So basically that tells how restrictive you want
And that goes to what
And who sets the privacy setting for a specific Facebook
So in accessing Facebook when you then logged
322
correct?
Google cached version of Phil Lyman's.
there a -- because you were able to access that, what was the
privacy setting of that particular Facebook page?
That Facebook page is open to the public.
Okay.
political Facebook profile?
Yes.
Okay.
Yes.
I visited The Petroglyph Facebook.
The other was a
So when visiting The Petroglyph Facebook page, was
Did you attempt to access Commissioner Lyman's
10
I would have -- I would have done it via Google,
11
and then I would have found out that it was -- that the
12
Facebook, when I entered Facebook, I would have found out that
13
that page was -- was down, that that page had been taken
14
off.
15
16
you conducted your internet investigation, is your testimony
17
that Mr. Lyman's Facebook profile had been removed or deleted
18
or suspended?
19
20
network at the time.
21
22
with BLM regulations governing land use generally?
23
Generally.
24
Are you familiar with BLM closure orders generally?
25
Yes.
So when you conducted your Facebook profile -- or when
It was not currently active on the Facebook social
Thank you.
Just one other follow-up.
Are you familiar
323
Are you aware that a -- can you tell -- are you aware if
there's any BLM regulation or law that permits political
figures to have a different level of access to a closed area
or a closure order than the public?

MR. CRANE:
5
6
Your Honor, I'd object as outside the
scope of recross.
THE COURT:
I think -- I think it relates to the
examination from I forget which of the Defendants, I think Mr.
Stubbs.
10
11
If you know the answer from personal experience and

knowledge, agent.
THE WITNESS:
12
If you'll repeat the question.
13
Q (BY MR. DISHMAN)
14
that permits a political figure to have a different level of
15
access to a closed area?
16
17
that -- that question is no, unless -- but any -- any member
18
of the public or organization could get a special use permit,
19
but outside of a -- of an issued special use permit, one
20
person doesn't get special access just because of their
21
position.
22
23
use permit from the BLM?
24
25
Are you aware of any BLM regulation or law
The -- the -- generally -- generally the answer to
Are you aware if any of the Defendants received a special
I'm not aware of that.

MR. DISHMAN:
No further questions, Your Honor.
324
THE COURT:
Mr. Stubbs.
RECROSS-EXAMINATION
2
3
BY MR. STUBBS:
Lyman's cache Facebook page?
That is correct.
Because it had been taken down?
That is correct.
Were you aware that it was taken down after May 10th?
10
So the -- the cache -- the cache version that I looked at
11
was dated May 20th, so that was -- that was the -- I don't
12
know the exact date that he took it down.
13
time that I first tried to access it, it was down.
14
It was down when you tried to access it on May 20th?
15
Well, so that was the last Google cached version, so it
16
would have been after May 20th.
17
I'm sorry, after May 20th that you accessed it?
18
Okay.
19
because the Google cache version was May 20th.
20
snapshot that Google took of it was on May, 20th, so I would
21
have -- I would have accessed it after that.
22
Okay.
23
Yeah, I would assume that it was open.
24
that's probably a good indicator, the May 20th that -- you
25
know, sometime around that time is when it was -- when it was
You testified that you were only able to access Phil
I just know at the
So that I viewed the Google cached version,

So that
So it was probably open before that?

And in fact
325
closed.
I don't know that information.
MR. STUBBS:
MR. DISHMAN:
THE COURT:
Thank you.
One other follow-up, Your Honor.
Unless there was anything more from the
other Defendants.
MR. CRANE:
MR. GARRETT:
MS. PRESTON:
No.
THE COURT:
10
Nothing further from Mr. Wells.
Mr. Dishman.
11
BY MR. DISHMAN:
12
13
or suspended Facebook page.
14
and creates the cache version of Facebook, are you aware if
15
Google also faces the same restrictions of privacy settings
16
that the user on Facebook implements?
17
18
19
20
21
22
Referring back to that Google cache capture of a removed

When Google takes that snapshot
So the -- so it's going to be -- I'm not aware.

MR. DISHMAN:
Okay.
That's fine, Your Honor.

THE COURT:
Okay.
Would the -- all right.
Thank you.
All right.
Thank you, Agent.
You're
welcome to stand down if you'd like.

This witness can be excused, can he?
23
MR. DISHMAN:
24
THE COURT:
25
MR. BENNETT:
Yes, Your Honor.

You're also free to leave if you'd like.
United States rests.
326
1
2
THE COURT:
All right.
Are there some matters we
need to take up then, are there?
MR. CRANE:
I believe so, yes, Your Honor.
THE COURT:
Members of the jury, I guessed wrong a
little bit for your lunch.
It's coming at noon, but we'll
recess now.
lunch breaks ordinarily have been, about an hour or so.
still on track I think with the schedule that I suggested to
you when we spoke on Tuesday.
This break will be a little bit longer than our

We're
We may go a little bit late
10
this afternoon, but I think it's unlikely we'll go all day.
11
We'll see.
12
little bit.
13
course, and don't conduct any investigation.
14
your patience.
15
We'll take it as it comes.
In the meantime, don't discuss the case, of
THE CLERK:
16
We appreciate

(JURY EXCUSED)
17
18
I'll know more in a
THE COURT:
Mr. Crane.
Go ahead and be seated.
I guess it's the United States' motion.
This
19
is the motion we reserved, the motion in limine, docket number
20
121, relating to seven of the Defendants' proposed trial
21
exhibits.
22
MR. CRANE:
That's correct.
And I know the
23
Government's objected on relevance grounds.
I'm prepared to
24
present relevance for some of the exhibits.
And the exhibits
25
we're talking about, Your Honor, are Defense proposed Exhibits
327
1002, 1003 and 1004, so just those three exhibits.

THE COURT:
2
3
All right.
These are the rights-of-way
for San Juan Water Conservancy District?

MR. CRANE:
That's right.
They all are related.
They all deal with the same application and really, Your
Honor, they're the backbone of our good faith defense.
these exhibits show in 1002 is that in 1981 the Bureau of Land
Management granted the San Juan County Water Conservancy a
right-of-way to construct the reservoir and dam and some other
10
11
What
improvements that are in Recapture Canyon.

In 1003 the right-of-way is extended for a period of 40
12
years, instead of 30, so 40 years, so it goes up to 2021,
13
encompasses the relevant dates applicable in this case.
14
In 1986 the San Juan County Water Conservancy District
15
filed an amendment to the original application for a
16
right-of-way asking for the construction of a pipeline, and
17
that was granted, and the document granting that right-of-way
18
is 1004.
19
THE COURT:
Right.
20
MR. CRANE:
So that's why those are in order.
21
That's what's important.
22
present that we have a witness ready today to testify about is
23
the fact that the individual responsible at the San Juan
24
County Water Conservancy District granted these Defendants
25
access to use this right-of-way on May 10 for the protest
Our defense that we are going to
328
ride, and that they could ride their ATVs just on this day.
THE COURT:
MR. BENNETT:
Mr. Bennett.
Yes, Your Honor.
These are irrelevant
for a few reasons.
irrelevant for purposes of the defense.
good faith instruction which they're seeking, it's for them to
say that they subjectively had a good faith belief that this
road was open to them.
that that's what they said doesn't really provide the
10
11
Mr. Crane has indicated something that is

For purposes of the
Having somebody come up and testify
subjective good faith belief.

Moreover, these documents are -- they precede the closure
12
by, oh, 30 years, 36 years at least in a couple of cases.
13
have already test -- we have already had testimony up there
14
saying that, yes, the San Juan County Water Conservancy
15
District, which is a completely separate entity from San Juan
16
County, has a right-of-way to be able to go up there and
17
engage in the kinds of -- to go up and maintain the pipe.
18
We
Now, I'm certainly looking forward to cross-examining,
19
you know, if the Defendants take the stand about what kind of
20
water maintenance they were engaged in at the time.
21
purposes of the evidence and in order to avoid confusion to
22
the jury as to what is allowed, it's already clear in the
23
record that San Juan County Water Conservancy District has a
24
right-of-way to main -- operate and maintain a pipeline.
25
But for
The reservoir that Mr. Crane alluded to is completely
329
irrelevant because it's entirely outside the closure area by
over a mile.
construction, irrelevant, nothing to do at all with anything
in this case.
solely with the reservoir that has nothing to do with this
case, is in fact outside the closure area.
Exhibit 1002 talks about the reservoir
The exhibit 1003, the extension, again deals
The only thing that may deal with this is the January
24th, 1986 right-of-way application for a pipeline, but,
again, that's already established on the record, and providing
10
these documents to the jury confuses the issues, it confuses
11
the jury.
12
THE COURT:
Mr. Crane.
13
MR. CRANE:
Your Honor, under the Federal Rules of
14
Evidence 401, relevance is a broad standard.
These exhibits
15
are not being offered to show that the Defendants actually had
16
a legal right.
17
Juan County Water Conservancy has the right-of-way, and the
18
individual that was operating in his capacity with the water
19
conservancy was operating under these permits --
They're being offered to show that the San
20
THE COURT:
Is there --
21
MR. CRANE:
-- these easements.
22
The Court:
Is there evidence that the defense will
23
produce that the right-of-way granted to the water conservancy
24
district is coextensive with the area in which the DEFENDANTS
25
rode the ATVs?
330
MR. CRANE:
Yes.
The Court:
Is there evidence that you'll produce
that the Defendants were aware of the water conservancy
right-of-way in advance of the ride?
MR. CRANE:
Yes.
THE COURT:
What is that evidence?
MR. CRANE:
The evidence of our witness who works
8
9
10
11
12
with the water conservancy district.

THE COURT:
That witness will be in a position to
testify about the knowledge of the Defendants?

MR. CRANE:
He'll be able to testify to
conversations he had with the Defendant.
13
THE COURT:
With who?
14
MR. CRANE:
With Commissioner Lyman, the organizer
15
16
of this event.
THE COURT:
Mr. Bennett, the instruction that I
17
think governs this discussion is our good faith instruction.
18
It's a legal question I think in which the relevance,
19
potential relevance, of this evidence turns.
20
last night, it was late I know, but we circulated a copy of
21
the draft instructions that we're proposing to give the jury,
22
and on the Defendants' request, if there was a factual basis
23
for it, I'm prepared to give a good faith defense instruction.
24
25
We circulated
We haven't yet argued the instructions, but this is

similar to one that I think was proposed.
I think the legal
331
instruction is that it's a defense if the defendant had a good
faith belief that his conduct was lawful, even if it was an
unreasonable belief, if it was genuinely held, then it's not
consistent with the requirement under the statute that the
Defendants acted knowingly and willfully.
Given that, is the testimony that the Defendants intend
to solicit -- let's set aside the exhibits for a moment -- you
agree it's relevant to the Defendants' good faith defense?

MR. BENNETT:
9
10
THE COURT:
Yes, it seems that it would be.

Is the objection then that the
11
introduction of the documents as exhibits, in addition to the
12
testimony or in connection with the testimony, could mislead
13
the jury and confuse the issues?
14
MR. BENNETT:
Correct.
Is that the argument?

The witness is free to stand
15
up there and say I work for San Juan County Water Conservancy
16
District.
17
and I said go ahead.
18
closing.
We have a right-of-way to use the pipeline road,

Like I say, we can deal with that in
19
THE COURT:
Mr. Crane, that seems sufficient.
20
MR. CRANE:
Well, the defense has -- should have the
21
ability to put on their case in chief and present the
22
evidence.
23
to say San Juan County has a right-of-way.
24
don't have to take the witness' word for it because we have
25
the documents.
The Government is saying it's okay for our witness
They're authentic documents.
Well, we just
They've been
332
reviewed by the BLM and we'll stipulate that they're authentic
documents that were held in their custody and control.
it's lending support and credibility to what our witness says
and that's why we think it's necessary.
this defense.
THE COURT:
And so
It's the backbone to
And if there's a stipulation from the
United States that there is such a right-of-way and that issue
is not in dispute, then the only relevance, it seems to me, is
the state of mind of the Defendants, and that comes from the
10
conversations, not from the documents themselves, unless you
11
tell me that the Defendants are going to say they saw and
12
reviewed these and it was part of their rationale, part of
13
their good faith belief that what they were being told by the
14
representative from the water conservancy district was
15
correct.
16
existence of the right-of-way and the scope of the
17
right-of-way are -- it sounds to me like they're not in
18
dispute.
19
Otherwise, the fact of the right-of-way, the
MR. CRANE:
If the Government is willing to
20
stipulate that San Juan County has a right-of-way for the
21
reservoir, for the pipeline, the location of the pipeline and
22
when it was put in, we wouldn't need the documents and that
23
would be fine.
24
25
THE COURT:
You're willing to stipulate to that,
Mr. Bennett?
333
1
2
MR. BENNETT:
But the problem is the
reservoir has nothing to do with this closure.
3
4
Sure.
THE COURT:
My question is the scope, the geographic
scope, of the right-of-way.

MR. BENNETT:
I think we would stipulate that they
had a right-of-way to construct a reservoir, to operate and
maintain the dam, again, which is outside -- I mean this is
what I'm saying.
relevant.
I don't understand why that would be even
What we can stipulate to, and I think is the only
10
thing that is relevant here, is that San Juan -- the BLM has
11
granted San Juan County Water Conservancy District a
12
right-of-way to maintain a water pipeline in the closed
13
area.
14
MR. CRANE:
And I don't understand why the reservoir
15
is a huge problem.
16
because the pipeline hooks into the reservoir.
17
irrigation water.
18
reservoir and then runs down the canyon.
19
just trying to tie it into the reservoir just to have
20
completeness of what the right-of-way entails.
21
It's part of what we need to present
It's not drinking water.
It's
It starts at the
So that's why we're
Because when you start down the trail at Recapture
22
Canyon, there's actually a large building that's a pump house
23
that's for the reservoir.
24
further there's a spillway that connects into the reservoir
25
and goes into Recapture Canyon.
And you go gown a little bit
The pipeline is running along
334
under the ground where those two man-made facilities are
located just south of the reservoir.
We're certainly not spending a lot of time on the
reservoir.
we're presenting.
We're just trying to be complete here in what
THE COURT:
So here is what I'm going to propose,
and then let's hear from both of you.
I don't mind, I think,
if you show the exhibits to the witness, ask if the witness
identifies it, ask what the witness -- ask the witness what it
10
is, if the witness has personal knowledge, and then ask
11
questions about what the witness -- you know, the existence of
12
the right-of-way, what it is, discussions the witness had with
13
the -- with Mr. Lyman, that's fine.
14
I don't see that it aids the jury to send these exhibits
15
into the -- I've read portions of all of them.
16
technical.
17
resolution of the issues in view of the stipulation that we'll
18
have, it seems, from the Government.
19
should make that stipulation and present it to the jury or
20
just if we agree that the witness will be permitted to talk
21
about those facts, if the witness has personal knowledge.
22
They're complex.
MR. CRANE:
They're
They won't aid the jury in the
And I don't know if we
Well, I think we would like the
23
stipulation.
We don't need to certainly admit those exhibits,
24
the stipulation being that in 2014 the water conservancy had a
25
right-of-way that it was -- and that's part of one of the
335
exhibits.
That was 40 -- that the right-of-way existed, it
was in the control of the San Juan County Water Conservancy,
and it was granted to them by the Bureau of Land Management.

THE COURT:
I got partway through.
In 2014 the
water conservancy district had a right-of-way in Recapture
Canyon.
It's a limited right-of-way in --
MR. CRANE:
It goes from the reservoir is where it
starts, and it goes three miles down the Canyon, 3.09 miles
exactly.
10
THE COURT:
The water conservancy district was in
11
control of the right-of-way, is that what you said?
12
legal question I think.

MR. CRANE:
13
That's a
The BLM granted an easement or
14
right-of-way to the San Juan County Water Conservancy
15
District.
16
17
18
19
20
THE COURT:
Well, so what if we say this.
In 2014
the -- is it San Juan County Water Conservancy District?

MR. CRANE:
That is the name, yes.
wasn't granted in 2014.

THE COURT:
And actually it
It was -- it existed in 2014.
Held -- let me try this.
Let's see if
21
we can get agreement on the language for the jury.
22
San Juan County Water Conservancy District held a limited
23
right-of-way in Recapture Canyon flowing from a grant from the
24
BLM in 1986.
25
In 2014
Is that right?
MR. CRANE:
Yes.
336
THE COURT:
MR. BENNETT:
THE COURT:
I'll provide to the jury when?
You tell me when you'd like me to give the stipulation.
give the stipulation.
exhibits.
show them to the witness at some point, even ask some
questions, but we won't receive them into evidence.
10
Mr. Bennett, any objection to that?

No.
All right.
With that stipulation, which
When you call the witness?

We'll
We'll preclude -- we won't receive the
I don't have any objection again if you want to
MR. BENNETT:
I was thinking through this.
For the
11
purpose of the stipulation it needs to say for the purpose of
12
operating and maintaining a pipeline because that's precisely
13
what that was for.
14
THE COURT:
Mr. Crane, you agree with that?
15
MR. CRANE:
I agree with that.
I think we need to
16
add one other thing as well that's in those documents.
17
right-of-way itself is 50 feet wide.
18
center line where the pipe is buried to each side on that
19
Canyon.
It's 25 feet from the
20
THE COURT:
Ask the witness that question.
21
MR. CRANE:
Okay.
22
THE COURT:
All right.
23
have about 45 minutes left.
24
12:00.
25
issue right now while we're going?
The
Enjoy your lunch break.
We
We'll see you at quarter to
Is there some -- Well, shall we take up the Rule 29

Let's do that.
337
1
2
MS. PRESTON:
Could we do that after our break?
could use a few minutes.
MR. GARRETT:
I have one question, Your Honor.
The
evidence goes back to the jury on Exhibits -- Government's
Exhibits 17B and 17C.
identified in those overexposed photographs.
that to go back because it was never produced who those
individuals were in those photographs, so I want to make sure
that that's out.
10
11
THE COURT:
They have put a note of who is
Mr. Garrett.
I don't understand what you just said,
Will you come up to the podium, please.
MR. GARRETT:
12
I don't want
You bet.
In United States Exhibit 17B
13
and 17C they identified it as ATV overexposed photographs,
14
Marian for my client, and 17B is overexposed photographs of
15
Holliday.
16
The COURT:
17
on the exhibit list?
18
19
20
MR. GARRETT:
Are you just talking about the summary
Yeah.
I just don't want that to go
back.
THE COURT:
The exhibit list doesn't go back, just
21
only the exhibits, and I don't see the names on the photos
22
themselves.
23
24
25
MR. GARRETT:
Okay, perfect.
That's perfect.
That's all I want to make sure because I wasn't sure of that.

THE COURT:
We're square.
It's not going back.
338
MR. GARRETT:
THE COURT:
All right.
Ms. Preston, you'd like to
present the Rule 29 motion -MS. PRESTON:
4
5
Thank you.
After the break, if we come back 15
minutes before the jury.
THE COURT:
Let's do this.
In view of how this day
is going, let's take up the Rule 29 motion after we close the
evidence and send the jury home today.
I don't see any.
10
before we begin?
Anything else we need to take up
I think when we resume, Mr. Crane, I'm going to invite
11
12
Okay.
Any objection to that?
you to make an opening statement.
13
MR. CRANE:
Thank you.
14
THE COURT:
And then the Defendants will start
15
calling -- someone will call someone.
16
MR. CRANE:
I will be calling the first witness.
17
THE COURT:
That makes perfect sense.
18
Thank you.
19
to.
20
21
22
We'll take a recess.
All right,
Let's be back about quarter

THE COURT:
that as a yes.
Are we ready for our jury?
I'll take
No?
23
MR. CRANE:
Could I just ask for a quick sidebar?
24
THE COURT:
Yes, of course.
25
339
THE CLERK:
Please rise for the jury.
THE COURT:
All right.
Before we recessed, the
United States rested.
openings who wish to give them now?
5
6
MR. CRANE:
Are there any Defendants who reserved
Yes, Your Honor, Mr. Wells did.
like to present that.
THE COURT:
You have the floor, Mr. Crane.
MR. CRANE:
Thank you.
DEFENDANT WELLS' OPENING STATEMENT
9
10
I'd
BY MR. CRANE:
11
The door was open, the gate was open to Recapture Canyon,
12
and Commissioner Lyman, Mr. Wells, Mr. Marian and Mr. Holliday
13
had a good faith reasonable belief that on May 10, the morning
14
of May 10, that they had a right to drive their ATVs down
15
Recapture Canyon.
16
Now, the reason for this dates back a little bit, and we
17
have to go back in time.
18
map that's been admitted, and the evidence will further show
19
what I'm about to tell you, that this pipeline, that back in
20
1986 the San Juan Water Conservancy had an existing
21
right-of-way, and the right-of-way was for a reservoir, and
22
they applied for and obtained a permit for a pipeline to run
23
down Recapture Canyon.
24
25
On your screens there you'll see the
The top part of your screen here you'll see the water
from the reservoir.
The pipeline extends from that reservoir
340
and goes down the Canyon.
is an irrigation pipeline.
You will learn that this pipeline
As part of the reservoir and pipeline system, there are
some man-made features along Recapture Canyon trail, including
a pump house seen here.
Recapture Canyon.
the trail on the left side of the photograph there is the
Recapture Canyon trail.
berm which is behind the pump house.
On the left is -- this is actually in
It's on the north part of the canyon.
The reservoir itself is behind the

There is also a man-made
10
spillway in Recapture Canyon.
11
the Recapture Canyon trail is on the left-hand side.
12
And
Here in this photograph, again,
Looking at the entire canyon I want to focus on where
13
this pipeline is at, and it's found on the northern part of
14
this trail.
15
we're going to hear some more today.
16
of the trail, the top portion of the trail you can see the
17
yellow line coming down.
18
starts there and follows that gray line down to that first
19
yellow arrow.
20
And we have heard some testimony about it and

Focusing in on this part
That's the highway.
The pipeline
You will hear testimony that up to that first yellow
21
arrow where the red flag is is open to ATV and motorized
22
vehicle use, but the -- but underneath the ground is this
23
pipeline.
24
County Water Conservancy was granted a right-of-way or an
25
easement that was 50 feet wide.
You'll learn that with this pipeline the San Juan
So from the center line where
341
that pipeline was located, 25 feet on either side.
what later became this pipeline road.
This is
At that first arrow that you're looking at where that red
flag is, that's where the closure sign was located.
proceed down the trail to that second arrow, the one at the
bottom, that's where the pipeline then diverts out of
Recapture Canyon.
yellow arrow it's commonly referred to as the turnaround
point.
10
As you
You will hear testimony that at that second
This photograph here is an aerial view of that turnaround
11
point.
12
there that -- as it goes up to the right, the pipeline
13
actually follows up that hill and then goes into Blanding
14
City.
15
At the bottom you can see the road.
And then the hill
So that's the end of the pipeline trail.

From the ground this is what the turnaround point looks
16
like.
17
turnaround, and then the pipeline extends up the hill.
18
actually if you go to the left, the trail continues down into
19
Recapture Canyon.
20
behind the sagebrush there.
21
If you were to go straight, you hit the end of the

And
It's just in this photograph it's hidden
You will learn that prior to the May 10 protest ride the
22
Defendants were given permission to have access to this
23
right-of-way.
24
He has been living in Blanding for over 55 years.
25
working for the San Juan Water Conservancy District since
You will hear the testimony of Ferd Johnson.

He has been
342
1993.
Juan Water Conservancy District that is responsible for this
pipeline in Recapture Canyon.
approached by the protestors and that he gave them permission
to use the right-of-way that the county had just for this
protest May 10th.
it whatever time they felt like it.
8
9
Since 2002 he has been the sole employee of the San
He will tell you that he was
It wasn't unlimited use.
It wasn't using
It was solely for May 10.
Because he gave them access, these Defendants sitting

before you thought they had a reasonable belief that they
10
lawfully could be on that trail.
11
I will stand before you and ask that you find them not guilty.
12
Thank you.
THE COURT:
13
14
15
this time?
No?
And at the end of this trial
Thank you, Mr. Crane.
Anyone else at
All right.
Do any of the Defendants wish to call any witnesses?
16
MR. CRANE:
Your Honor, we would call Ferd Johnson.
17
THE COURT:
Will you say that name again.
18
MR. CRANE:
Ferd, F-E-R-D, Johnson.
19
THE COURT:
Thank you.
20
The Court:
Mr. Johnson, hi, welcome.
21
forward and be sworn, if you would, please.
22
be fine.
Come on
Right here would
Thank you.
23
THE CLERK:
24
(FERD JOHNSON, DEFENDANTS' WITNESS, SWORN)
25
Thank you.
Please be seated.
343

THE WITNESS:
2
3
Ferd, F-E-R-D, Johnson, J-O-H-N-S-O-N.

DIRECT EXAMINATION
BY MR. CRANE:
Thank you.
I live in Blanding, Utah.
How long have you lived in Blanding, Utah?
57 years.
Are you originally from Utah?
10
Yes.
11
Are you married and have kids that live down in that
12
area?
13
Yes, I do.
14
I want to -- I want to talk a little bit about your
15
employment history.
16
in about 1956.
17
18
1956 in Salt Lake City.
19
20
part of your employment with the Utah Department of
21
Transportation?
22
23
Blanding.
24
25
Department of transportation?
Mr. Johnson, where do you live?
Tell me where you started out your career
I started out on the Utah Department of Transportation in
Okay.
Yes.
At some point did you move to Blanding, Utah as
In 1958 they transferred the crew I was on to
What were your duties, what did you do, for the Utah
344
I was a surveyor, a field engineer and a inspector.
Okay.
Transportation?
31 years.
So did that go up to about 1987?
Yes.
And then you retired from the Utah Department of
Transportation?
Yes.
10
What did you do after 1987?
11
I worked for local contractors in helping them with their
12
estimates and road building and surveying.
13
14
the State of Utah; is that right?
15
Yes.
16
Did you ever go to work for the San Juan -- San Juan
17
County?
18
Yes, I did.
19
When was that?
20
I done some inspection and surveying for them in about
21
1992, and then in 1993 I was appointed to the San Juan Water
22
Conservancy District Board.
23
24
Conservancy District?
25
Okay.
How long did you work for the Utah Department of
Which were some of the duties you were doing with
How long did you serve on the San Juan County Water
Eleven years.
345
That takes us to about 2002?
Yes.
Actually, yeah, 2003, 2004.
did your job duties change with the San Juan County Water
Conservancy District?
water in the dam and also the pipeline.
where are they located?
Yes.
Okay.
After you were on the board,
I went to their water master and controlled the
And this dam and pipeline you're talking about,
10
Just north of Blanding, three miles in Recapture
11
Canyon.
12
13
want to show what's been marked and admitted as Defense
14
Exhibit 1000.
15
Yes.
16
What are we looking at here?
17
The Recapture Canyon from the Recapture dam down the
18
canyon toward the pipe trail.
19
20
mentioned that -- the reservoir and dam.
21
this map?
22
Yes.
23
Where is it at?
24
On the top of the map.
25
And will you just -- you can actually touch your screen
Recapture, all right.
Okay.
On your screen in front of you I
Can you see that on your screen?
I want to zoom in on it a little bit.
Okay.
You
Can you see that on
346
and just draw an X or something on it.

Can we get the draw feature, please.
2
3
Thank you.
Perfect.
And then you -- so you see a red X.
4
5
reservoir is.
pipeline at on this map.
Okay.
is.
That's where the
Where does the pipeline -- where is the
It followed -- so does it follow the trail?
Yes, it follows the bottom of the Canyon where the trail
10
When was the pipeline put into the Canyon?
11
1986.
12
Did you work on the pipeline?
13
No, I did not.
14
Did you work on the reservoir?
15
I was working on the dam at the reservoir, yes.
16
And that was with your job duties with the Utah
17
Department of Transportation?
18
Yes, it was.
19
Are you aware that San -- the San Juan County Water
20
Conservancy District has a right-of-way to access this
21
pipeline in Recapture Canyon?
22
Yes.
23
How wide, how big, is the easement for the trail?
24
It's 50 feet wide.
25
Okay.
25 feet on each side of the pipe.
Do you know approximately how long the pipe goes
347
into the Canyon?
It goes approximately three miles in the canyon.
Okay.
working for the San Juan County Water Conservancy District?
Yes, I am.
And this is in that same capacity as a water master?
Yes.
What are some of your job duties in relation to Recapture
Canyon?
What are -- so your -- and are you currently
10
At the bottom of the dam we have a pump house and the
11
water runs down through that pump house down in the 27 inch
12
pipeline and down the Canyon for that three miles before it
13
leaves the canyon.
14
wind a clock, an eight day clock, and we have to wind it every
15
seven days, and periodically once -- once a week or twice a
16
month I go down the canyon and inspect for leaks on the
17
pipeline.
18
Once a week you do that?
19
Yes.
20
irrigators, I check it once a week.
21
22
2002, 2003?
23
Yes, I have.
24
How many times have you been to Recapture Canyon?
25
Hundreds of times.
Okay.
And once a week I go to the pump house and
I did -- when the water is running down for the
And you've been doing that since approximately
348
Okay.
As far as the San Juan Water Conservancy District
is concerned, is there anyone employed by them that has these
same job duties that you have?
No.
You're the only one that's responsible for the pipeline
and this pump house?
Yes, I am.
This pipeline, what kind of water is it?
for?
What's it made
What's it used for?
10
It's for irrigation for the farmers.
11
Does the pipeline always have water in it?
12
Yes.
13
I want to move down here a little bit.
14
draw where the pipeline is on this map from here?
15
Okay.
You've got an X there.
Can you again
Is that where it leaves
16
the Canyon?
17
18
canyon and goes up on the ledge.
19
20
where it diverts out of the canyon?
21
of this drawing?
22
Yes.
23
And that's where it goes from the canyon, and where does
24
it go from there?
25
That's where it, yes, goes out of the bottom of the
Okay.
Can you pinpoint the precise place on this map

Do you want me to get rid
Right there, yes.
It goes up -- up a steep grade on top of the ledge and
349
then goes over to irrigated land southwest of there.
Conservancy District, have you ever been in Recapture Canyon?
Had you been in Recapture Canyon prior to your employment?
Yes, I have.
When?
My first time was in 1960.
And I'm guessing that's when you were a young man?
Yes.
10
And what did you do in the canyon?
11
At that particular time we was hunting deer.
12
Okay.
13
canyon or the entire canyon or where exactly?
14
15
there's side canyons come in.
16
the canyons, side canyons.
17
And how did you access the canyon?
18
We started in up by the dam before the -- there's
19
existing trail up at the dam, existing road going down the
20
canyon.
21
22
horse?
23
In Jeep.
24
Okay.
25
Water Conservancy District, how do you access Recapture in the
Prior to your employment with the San Juan County Water
Would you hunt deer in a certain portion of the
Just down the bottom of the canyon the whole way down
We just watch -- looked at all
Would you access it with motorized vehicles or on foot or
Now, as part of your employment with the San Juan
350
pipeline trail?
four-wheel drive.
water conservancy District has allows you to use a motorized
vehicle to access the pipeline trail?
Oh, yes.
As part of your duties, if you have a problem or a leak
in the canyon, do you fix those by yourself?
Sometimes in my pickup and most of the time in an ATV,
Is it your understanding that the right-of-way that the
10
Sometimes, but most of the time I get a plumber work guy
11
in town that works on them.
12
13
leaks?
14
And what kind of equipment do you use to fix these
If it's a major --
15
MR. BENNETT:
We're starting to get pretty far
16
afield from what's going on.
The pipeline really is
17
irrelevant other than there's a right-of-way.
18
THE COURT:
I think we are, Mr. Crane.
19
MR. CRANE:
Okay.
20
Q (BY MR. CRANE)
21
Mr. Johnson, will you open that to tab number 1001, be the
22
second tab in.
23
Okay.
24
Will you just take a look at those.
25
through them there.
In the book to your right there,
Just kind of flip
351
Okay.
Look at all of them?
Yeah.
Just flip through them all.
All right.
Do you recognize those?
Yes, I do.
And just generally what are they?
The first picture of the pump house just below the dam --
Well, and I don't want you to go through every single
one.
In general do they have the same -- a certain
10
characteristic for all of those photographs?
11
12
is right on top of the pipeline all the way, just about all
13
the way.
14
Okay.
15
Yes, they are.
16
Do they fairly and accurately depict Recapture Canyon
17
where the pipeline is located?
18
19
20
Yes.
It shows where the pipeline goes, and also the road
Are all those photographs in Recapture Canyon?
Yes.
MR. CRANE:
Your Honor, I'd move Defense Exhibit
1001 in evidence.
21
MR. BENNETT:
22
THE COURT:
23
MR. BENNETT:
24
Exhibit 1001 picture number one.
25
THE WITNESS:
May I voir dire, Your Honor?

Yes.
Mr. Johnson, just ask you to look at
Do you see that there?
Yes.
352
MR. BENNETT:
That's the pump house, right?
THE WITNESS:
Yes, it is.
MR. BENNETT:
And that's outside of the closed area
of Recapture Canyon; is that correct.
THE WITNESS:
Yes, it is.
MR. BENNETT:
Looking at picture two, that's also
outside the closed area of Recapture Canyon; is that right?
THE WITNESS:
Yes.
MR. BENNETT:
Looking at picture number three,
10
that's also outside the closed area of Recapture Canyon,
11
right?
12
THE WITNESS:
What do you mean closed?
13
MR. BENNETT:
Okay, fair enough.
14
15
16
17
18
You understand BLM
closed part of Recapture Canyon to ATV -THE COURT:
Mr. Bennett, is this cross-examination
or voir dire relating to foundation?

MR. BENNETT:
Well, he's asking what I mean by
closed area of Recapture Canyon so --
19
THE COURT:
20
MR. BENNETT:
I mean generally.
No.
It doesn't appear --
I just want to know if these
21
photos are in or outside the closed area because it pertains
22
to relevance.
23
MR. CRANE:
24
MR. BENNETT:
25
THE COURT:
I think that's cross-examination.

Well, relevance objection.
I think the -- all right.
That's
353
overruled.
For now that's overruled.
established generally I think foundation for the photographs
that are currently marked Defense 1001.
those for the time being.

MR. CRANE:
5
6
I think the witness has
So we'll receive
Thank you.
Q (BY MR. CRANE)
Just want to show you a couple of these.
I'm not going to go through all of them.
your screen, okay, Mr. Johnson?
I'll put them up on
10
us what that shows, what that is?
11
12
pipeline.
13
14
Recapture Canyon?
15
you can draw on the screen.
16
looking at here?
17
18
to build the dam on.
19
20
vehicles and ATVs; is that right?
21
Yes.
22
And is this a cattle gate?
23
Yeah.
24
dam, yes.
25
1001 page two, can you tell
That's the pump house from the beginning of the
All right.
And where is the trail that goes down

You can just draw on the map itself.
Okay, perfect.
If
What are we
That's the -- outside the limits of the dam right-of-way
And this is within the area that's open to motorized
That's to keep the cows from getting up on the
Page five, can you tell us what this is?
354
That's the road going down -- down the canyon below
the -- below the pump house, and the pipeline is right
underneath the road.
Page eight, what are we looking at here?
Part of the road, and there's a pile of rocks that was
hauled from the gold mining operation back up after their
sluicing operations, and they dump the rock back in the canyon
where they got the ore out in the first place to mine the
gold.
10
Okay.
And is this in the part of the canyon that's open
11
or closed to motorized vehicles?
12
It's open.
13
Page 12, can you tell us what we're looking at here?
14
Okay.
15
What is this?
16
It's a trail that goes off to the west from the pipeline
17
and -- pipeline trail.
18
Okay.
19
Yes.
20
And that marker we see there, do you recall or do you
21
know what that marker is?
22
Yes.
23
What is it?
24
I think it's a -- it doesn't say closed.
25
Okay.
Where is this at in the canyon?
Is this an ATV trail that goes off to the right?
Does that mark the ATV trail that --
355
Yes, that's what it's marked for.
And is this photograph from where the trail is closed, is
this the boundary line for the closure area?
Right at the closed area, adjoining, yes.
So looking at our map, can you just put an X where that
last photograph is located, where the boundary line is
located.
8
9
So all the photographs we've seen up to this point are

north of the X you've marked?
10
Yes.
11
This is page 15 of Defense Exhibit 1001.
12
looking at here?
13
14
is, and that's --
15
Can you circle that?
16
And that's probably a drain so we can drain the line.
17
And that gives you access to the pipeline itself?
18
Yes.
19
Are these -- are there more than just this one access
20
point to the pipeline?
21
There's quite a few of them.
22
And are they -- where are they generally located in
23
relation to the pipeline trail?
24
Right to this side of it.
25
Looking at page 20, can you tell the jury what is
What are we
That's a concrete -- concrete vault where the pipeline
I'm sorry.
356
depicted in this photograph?
of the trail underneath the road.
Yes.
I'm going to show you the map -- well, let me first ask
you.
photograph?
Yes, there is.
10
Can you just circle that.
11
the map.
12
dwelling is located on Recapture Canyon trail.
That's the trail, and the pipeline is right in the middle
Is there an ancient dwelling depicted in this
Okay.
I'm going to show you
I'd like you to show me on the map where this
And is that dwelling located just off the pipeline trail?
13
14
Yes, it is.
15
I'm going to page now 22.
16
This is the end of the -- the trail where the pipeline
17
goes, and that's where the -- that's where I turn around when
18
I do my inspection.
19
20
point?
21
Yes.
22
Are there any signs depicting this is the end of the
23
pipeline?
24
No.
25
Will you draw on here where the pipeline goes, where it's
Okay.
What are we looking at here?
Is this often referred to as the turnaround
357
located.
And as you -- so you depict the drawing from the center
2
3
up to the right, and is that where the pipeline goes back into
Blanding, Utah?
Yes.
And then photograph 23, what are we looking at here?
That's the close-up of the end of the -- the trail where
the turnaround spot is.

MR. CRANE:
I want to -- Your Honor, if I can
10
approach with a couple of exhibits.
11
Q (BY MR. CRANE)
12
couple of photographs.
13
proposed Exhibits 1005 numbers -- pages one, two and three.
14
Having looked at those photographs, do you recognize them?
15
Yes.
16
What are they generally?
17
The one is a view of the pipeline trail from up on the
18
ledge.
19
Okay.
20
And the other one just the same -- another view down in
21
the bottom where the pipeline trail ends and the pipeline goes
22
up the hill.
23
24
depict what is shown in them?
25
Mr. Johnson, I just want to show you a

They've been marked as Defense
And the other one?
Do all three of these photographs fairly and accurately
Yes.
358
1
2
MR. CRANE:
I move to admit Defense Exhibits 1005
pages one, two and three.
MR. BENNETT:
THE COURT:
No objection.
They're received.
5
6
MR. CRANE:
If I may publish, Your Honor.
THE COURT:
You may.
Q (BY MR. CRANE)
I'm going to first show page one.
just tell the jury what we're looking at here.
Can you
10
That's the view of the trail going down the canyon, and
11
also the pipeline is right underneath the trail on that
12
photograph.
MR. CRANE:
13
14
down?
15
talking about.
Your Honor, may I have the witness come
It might be helpful if he just points out what he's
16
THE COURT:
Yes, of course.
17
MR. CRANE:
Thank you.
18
Q (BY MR. CRANE)
Just, yeah, point out where the trail is and
19
where the pipeline is at.
20
21
mile, and the pipeline goes down and makes a turn, and then
22
goes down the canyon farther.
23
the place there they dump the gravel after the gold mining
24
operation just down about a mile there.
25
This is just below the -- below the dam probably a half a
And this little white spot is
I'm going to have you stand on this side so you can speak
359
loudly so they can hear you over here.
Showing you Defense
Exhibit 1005 page two.
turnaround spot at the end of the -- end of the trail, and
then the pipeline goes up this hill to the southwest.
And then lastly 1005 page three, what is this?
This is a -- this is a view looking west from Recapture
Canyon.
along here and over and then down into the canyon.
Pipeline is going here, and the roads -- this is the
This is a business here, and the pipeline runs right
10
And these buildings that we see up on top, what city is
11
that?
12
That is the east side of Blanding.
13
Okay.
14
out that's the east side of Blanding.
15
closest canyon to Blanding city?
16
Yes.
17
I want to show you what's been admitted and marked as
18
Government Exhibit Number 5.
19
photograph was taken on the Recapture Canyon trail?
20
21
of where this road closed -- where the closed sign is.
22
23
trail?
24
Yes, but not the pipeline.
25
Okay, explain that.
Yes.
Thank you, sir.
You can sit down.
You pointed
Is Recapture Canyon the
Do you recognize where this
It looks like it's about almost half a mile south
Is where this ATV is located, is it on the pipeline
360
The pipeline is 300 feet off into the canyon, Recapture
Canyon, the draw, the low spot.
built probably in the 1950s to get down into the canyon.
there a road on top of the pipeline?
No, there's not.
Is this the access road that you use to access the
pipeline in this portion of the canyon?
Yes.
10
And is it this part of the road where the San Juan Water
11
Conservancy has a right-of-way to use?
12
I think so, yes.
13
Looking at Government Exhibit Number 7, do you recognize
14
where this is located in Recapture Canyon?
15
It's almost in the same area as the first photo.
16
Looking at Government Exhibit Number 15, do you recognize
17
where this is located in Recapture Canyon?
18
Okay.
At this point where the pipeline is located, is
It's almost the same place.
19
MR. CRANE:
Okay.
20
Exhibit Number 88.
21
Q (BY MR. CRANE)
22
screen, if you'd watch that.
23
24
25
This is the road that was
If you could pull up Government
Mr. Johnson, there will be a video on your
(VIEWING VIDEO)
Do you recognize where this is located in Recapture
Canyon?
361
Yes.
It's almost to the end to the trail where the
turnaround is.
pipeline trial?
Are where those ATVs were driving, was that on the
On top of the pipeline, yes.
MR. CRANE:
Government Exhibit Number 89, please.
And we don't need to play this one.
Q (BY MR. CRANE)
played, sir.
10
Just from looking at it, unless you need it
It's the same area.

MR. CRANE:
11
12
Just push pause.
Okay.
Exhibit Number 90.
Let this one
play for a second.
13
THE WITNESS:
14
MR. CRANE:
It looks like the same area.

All right.
You can stop it there.
15
Q (BY MR. CRANE)
16
Canyon?
17
Almost to the end of the trail, the pipeline.
18
But this is on the pipeline?
19
Yes.
20
Did you recognize one of those drivers, not Mr. Wells,
21
the one right before he said Mr. Shumway?
22
23
24
25
Where is this located at, sir, in Recapture
I didn't.
MR. CRANE:
Can you go back.
I think it's a
different -- we're on a different one now.

THE WITNESS:
No.
362
MR. CRANE:
THE WITNESS:
Pause it right there, please.

I recognize that picture, yes.
Q (BY MR. CRANE)
Shane Shumway and his wife.
And where does -- does he work with you at the San Juan
County Water Conservancy District?
He's on the Board of Directors of the --
And if you go to number --
-- San Juan County Water Conservancy District.
10
I'm sorry, say that again.
11
He's on Board of Directors of the San Juan Water
12
Conservancy District.
13
14
I'll ask you a question after we watch this video, sir.
Thank you.
Who is the driver there?
And if you just put play on this one, and
15
(VIEWING VIDEO)
16
Do you recognize where this is located in Recapture
17
Canyon?
18
Yes.
19
So the people you see there in the vehicles, are they on
20
the pipeline trail?
21
Very close, yes, if not on it.
22
Okay.
23
drive forward, they would then hit the end of the pipeline
24
trail; is that right?
25
That's the end of the trail, the turnaround spot.
And it's after -- if they were to continue to
Yes, to the left in that picture, yeah, at the end.
363
To the left or to the right?
The right, excuse me.
Are you aware of a protest that occurred in Recapture
Canyon in early 2014?
Yes.
When did you first become aware that a protest was being
planned and organized?
right if they rode down our right-of-way to the pipeline
Mr. Phil Lyman approached me and asked if it was all
10
trail.
11
12
Do you remember the month, sir?
13
I think it was in March.
14
All right.
15
I told him yes.
16
Did he ask if just himself -- if just he could use the
17
water pipeline or if the protestors for the event could use
18
the right-of-way?
19
20
it.
21
22
it the one conversation or was there a couple of
23
conversations?
24
I think there was two.
25
And both times you confirmed for Mr. Lyman that the
And approximately when did this conversation take place?
And what did you tell him?
He asked if they could ride it down the trail, yes, use
And how many -- how many conversations did you have?
Was
364
protestors could use the right-of-way on the pipeline trail?
Yes.
Did you participate in the ride on May 10?
No, I did not.
Did you go down to the Recapture Canyon trail the week
before May 10?
they had access that they could go on through.
Yes.
There's that gate down at the bottom to make sure
And what do you mean make -- you went to make sure they
10
had access?
11
12
locked to keep the cows out, and so we made sure it was
13
available, open.
14
15
gate was open for the protest riders?
16
On Monday prior to the ride.
17
Prior to the ride on Saturday May 10th?
18
Right.
19
And you opened that gate or was it already open?
20
recall?
21
22
could -- they could unlock -- open it and go through there.
23
24
Mr. Marian and Mr. Holliday are all accused of riding on the
25
pipeline trail.
Well, the gate is usually locked -- had been shut and
When did you go down to the canyon to make sure that that
No, I did not.
Okay.
Do you
I just made sure it wasn't -- that they
Mr. Johnson, Commissioner Lyman, Mr. Wells,
Did they have your permission, sir, to use
365
San Juan County's right-of-way to access that trail on their
ATVs on May 10?
Yes.
MR. CRANE:
Pass the witness.

CROSS-EXAMINATION
5
6
BY MR. BENNETT:
that pipeline, is that right, sir?
Mr. Johnson, the BLM has to give you permission to access
They gave us the right-of-way to install the pipe and
10
access on it.
11
12
surface of the ground, isn't it?
13
The top of the pipe is about three feet, yes.
14
And that's a 27 inch pipe?
15
Yes.
16
And on each side of that pipe BLM granted you a -- so 25
17
feet on each side of the pipe; is that correct?
18
Yes.
19
You have to have permission from BLM to access that pipe;
20
is that right?
21
No.
22
Exactly.
23
permission to be able to build the pipeline in the first
24
place?
25
And that pipe is buried about three feet beneath the
They gave us permission with the right-of-way.

So BLM had to provide you that kind of
Yes.
366
And to be able to access the pipeline thereafter?
Right.
MR. BENNETT:
Your Honor, I think it would be the
time for the parties' stipulation as to the purpose of that
right-of-way.
THE COURT:
Members of the jury, we spoke a little
bit earlier today about stipulations that the parties
sometimes reach.
they're provided to you for your consideration in your
10
These are facts that have been decided and
deliberations.
In 2014 the San Juan County Water Conservancy District
11
12
held a limited right-of-way in a portion of Recapture Canyon.
13
This right-of-way flowed from a grant from the BLM in 1986 for
14
the purpose of operating and maintaining a pipeline.
15
a stipulated fact for your consideration.
16
That is
Mr. Bennett.
17
MR. BENNETT:
18
19
Q (BY MR. BENNETT)
20
moment ago; is that right?
21
you just watched?
22
That's in Recapture Canyon, yes.
23
Yes, sir.
24
turnaround area is for the road; is that right?
25
Thank you.
Would you please pull up
Now, Mr. Crane showed you this just a

Do you recognize this as the video
In fact this is at the top where the
Yes.
367
1
2
MR. BENNETT:
Q (BY MR. BENNETT)
Would you mind playing Exhibit 91.
Just watch this just for a second with me.
(VIEWING VIDEO).
Now, do you see a bunch of people standing around?
Yes, I do.
Talking, is that right?
Doing what?
They're talking?
Oh, yes.
10
Socializing?
11
Yes.
12
Do you see anybody digging?
13
Any what?
14
Digging.
15
Digging?
16
Yes, sir.
17
No.
18
Do you see them looking at the pipeline?
19
Probably didn't know they was on top of it.
20
And this right-of-way is for the operation and
21
maintenance of a pipeline; is that right?
22
Yes.
23
Do you see Mr. Lyman in the middle of that last frame?
24
That looks like him.
25
He's not digging, is he?
368
Not digging?
Correct.
Why would he be digging?

MR. BENNETT:
5
6
BY MR. CRANE:
Canyon about once a week.
Yes.
10
Do you dig every time -- do you dig in the canyon every
11
time you go down there?
12
No, I do not, unless there's a break or a leak.
13
How do you detect a leak?
14
By the water flowing up out of the ground and a wet
15
spot.
16
So you're looking for mud?
17
Yes.
18
You see mud you know you have a leak?
19
No.
20
If you see mud on the ground near the pipeline, that's a
21
sign to you that there may be a leak?
22
Possibly, yes.
23
In 2014, March, April and May, were you aware of any
24
limitations on the right-of-way that San Juan County Water
25
Conservancy District had --
Mr. Johnson, you testified you go down into Recapture

Do you --
Pardon?
369
1
2
MR. BENNETT:
Objection.
We stipulated to the
fact --
THE COURT:
Sustained.
MR. CRANE:
It goes to --
THE COURT:
It's a legal conclusion.
MR. CRANE:
May we have a sidebar on this one?
THE COURT:
Or maybe I misheard your question, but,
8
9
10
yes, why don't we talk about it.

The objection is sustained.
Go ahead, Mr. Crane.
11
MR. CRANE:
Thank you.
12
THE COURT:
Anything further?
13
MR. BENNETT:
14
THE COURT:
15
MR. GARRETT:
16
MS. PRESTON:
Nothing, Your Honor, thank you.
17
THE COURT:
18
MR. STUBBS:
19
I pass the witness.
No further questions, Your Honor.

Anyone else?
All right.
May this witness be excused?
It's Mr. Crane's witness, but,
Mr. Crane, can he be excused?
20
MR. CRANE:
Oh, yes, sir, thank you.
21
THE COURT:
Mr. Johnson, you're welcome to stand
22
down, and you're free to leave if you'd like.
23
watch your step.
24
25
MR. CRANE:
Your Honor, I'm sorry.
Please just
If I could just
have one minute.
370
THE COURT:
Please.
(BRIEF PAUSE)
2
3
MR. CRANE:
Your Honor, the defense rests.
THE COURT:
All right.
5
6
7
8
9
10
11
12
13
Any rebuttal from the United
States?
MR. BENNETT:
Yes.
And if we could just have just a
moment to -- to get that prepared.

THE COURT:
stretch our legs.
Yes, of course.
Why don't we stand and
By just a moment, do you mean like a minute
or do you -MR. BENNETT:
If we could have 10 minutes.
We just
have to get some video ready.

The COURT:
Well, let's do this.
Let me invite you
14
to retire to the jury room for a few minutes where you'll be
15
comfortable, stretch your legs.
16
find you in a few minutes.
17
Ms. McNamee will come back to
Let me just say this before you leave.
Even though
18
you've just heard the prosecution and the defense say that
19
they rest, the United States intends to put on a little bit of
20
evidence that's called rebuttal evidence.
21
heard all of the testimony and evidence you're going to hear
22
in the case, and even then it's important that you continue to
23
keep an open mind until you've had the benefit of the Court's
24
legal instructions and the benefit of the closing arguments
25
from the lawyers.
You haven't yet
So don't yet begin to deliberate about the
371
case, even in your own minds, certainly not together, and
we'll be back to get you in a few minutes.
THE CLERK:
Thank You.

(JURY EXCUSED)
4
THE COURT:
Have a seat for a moment.
that this is a brief rebuttal and maybe with some
cross-examination.
I'm guessing
Just one witness?
MR. BENNETT:
THE COURT:
That's my intention, Your Honor.

I want to make the best use of our
10
jurors' time as we can.
11
proposed jury instructions.
12
instructions?
13
argument on the instructions or shall we begin to prepare
14
copies, and can we charge the jury tonight and send them home,
15
bring them back tomorrow fresh and rested for closing
16
arguments?
17
You've all received the Court's

Are there objections to the jury
Do we have to -- do we need to have some
MR. BENNETT:
I think we can.
The only -- the only
18
change I had is that there was a -- I misspelled in my initial
19
revision overt acts.
20
to add a T.
21
22
25
Other than that I think they're fine.
THE COURT:
Have we missed it ourselves?
It's not
changed in the new copy?
23
24
It says over acts, and so I just wanted
MR. BENNETT:
I'm the origin of that problem, so I
take it.
THE COURT:
Do you remember which instruction that
372
is?
MR. BENNETT:
2
3
Yes.
It's the overt act instruction,
which I believe is 27 or 28.

THE COURT:
We'll find it, thank you.
Mr. Crane.
5
6
MR. CRANE:
Your Honor, I do have a couple of points
I would like to make on the record regarding the jury
instructions.
Do you want me to go through them now or whenever?
10
11
I don't -- I don't think it will be lengthy.
The COURT:
Why don't we take them up, should we,
while the United States is pulling witnesses together?

On second thought, Mr. Crane, as I think about it, I mean
12
13
it ordinarily takes us, even after we finalize those
14
instructions, and if there is argument pertaining to -- if you
15
have authorities that you want to direct me to concerning the
16
instructions, we need to consult those before we finalize
17
them.
18
Even if we had agreement now, just as a practical matter,
19
because we're not a Kinko's, it takes us probably an hour and
20
a half or so to print as many copies of the instructions as we
21
need for everyone, get them distributed to everyone and the
22
like.
23
get the jury the case in the morning anyway, and so my view is
24
we might as well just argue -- release the jury after we've
25
heard all the testimony and evidence.
And I suppose if we're this close, we're on track to
We'll have our
373
conference on the instructions and then take them up first
thing in the morning.
proceed that way.
4
5
6
7
8
9
We'll make copies tonight.
So let's
Is the United States --
Hi, Ms. Preston.

MS. PRESTON:
Could we have one more minute before
we call the jury back in?

THE COURT:
Yes, that's fine.
Yes, of course -- not
you, Mr. Garrett.

Let me ask.
Ordinarily counsel will stipulate, it's a
10
courtesy to our court reporter.
11
instructions from which I stray sometimes, I don't on our
12
closing instructions.
13
stipulation from counsel that Mr. Fenlon need not transcribe
14
all the closing instructions but can instead incorporate those
15
instructions into the transcript?
I read them verbatim.
16
MR. CRANE:
17
MR. STUBBS:
18
MR. BENNETT:
Yes.
19
MS. PRESTON:
YES.
20
MR. GARRETT:
Yes.
21
THE COURT:
22
Unlike the opening
Do I have a
Oh, absolutely.
I so stipulate.
Okay, thank you.
Ms. McNamee, let's
retrieve the jury.
23
THE CLERK:
24
THE COURT:
As it turns out, members of the jury, we
25
have reached the close of evidence in the case.
Both the
374
United States and the Defendants have now rested.
Making the
best use of your time, I think what we're going to do, we need
to finalize our instructions that we'll be giving you in the
morning.
and make copies and give you instructions, we'll start at the
same time tomorrow morning.
instructions prepared for you.
when you get here in the morning.
me.
And rather than have you wait here while we do that
We'll have copies of the jury

We'll have them on your seat
You can follow along with
10
I'll provide the final instructions, then we'll hear
11
closing arguments from the parties, and then I have a few more
12
instructions I'll give to you, and then you're off and running
13
in your deliberations.
14
the midmorning break.
15
begin your deliberations.
16
My best guess is that that may be by

It will for sure be before lunch you'll
I've said it to you a dozen times now, but forgive me as
17
I repeat it one more time.
18
you've heard more about the case and learned more about the
19
case.
20
are based only on the evidence and testimony presented during
21
the course of this trial here in these four walls.
Do not
22
conduct any independent investigation or research.
Don't look
23
up news reports or accounts of this trial or anything that's
24
happened in the trial.
25
images or pictures, Google Earth, or anything else relating to
It becomes especially important as
It's essential that you ensure that your deliberations
Don't consult Google Maps or look at
375
anything touching on this case.
any -- anything you would consider beyond the evidence and
testimony presented here.
Keep your mind clear of
Please don't begin deliberations in your own minds about
how you think the case should be resolved until you've heard
the Court's instructions and you've heard the arguments from
the attorneys, and then you'll begin your deliberations
together collectively.
direction that you might find helpful in how you might go
10
11
And I have in my instructions some
about considering the case and deliberating.

This is essential because you don't yet have the legal
12
instruction about the elements for these claims and the things
13
that are relevant to your determination of guilt or innocence.
14
So keep an open mind.
15
investigate or research the case.
16
a little early today, get some rest, come back tomorrow ready
17
to do some important work.
18
service.
19
Instead, enjoy getting out
Thank you very much for your
Have a good evening.

THE CLERK:
20
21
Don't talk about the case, don't

(JURY EXCUSED)
THE COURT:
Go ahead and have a seat.
Counsel, my
22
practice with respect to jury instructions is to have an
23
informal conference with the attorneys off the record.
24
work through it but, you know, this is often sausage making.
25
So we'll give Ms. McNamee a little bit of time to clear the
We'll
376
jury room of all the jurors' notes.
We have a conference room
on this floor but I'm afraid it's not large enough to
accommodate all of us.
So take a few minutes to collect your thoughts about the
jury instructions, even consult with each other if that would
be helpful.
minutes or so and we'll retire to the jury room.
our discussions there.
after that to make a record, and then we'll finalize the
10
We'll come back and retrieve you in 15 or 20

We'll have
We'll come back into the courtroom
instructions.
Mr. Bennett.
11
MR. BENNETT:
12
My understanding there's still a
13
pending Rule 29 motion, so do we want to take up that now or
14
after jury --
15
16
THE COURT:
we?
Why don't we just hear that now, should
Are the Defendants prepared to make that record?
17
MS. PRESTON:
18
THE COURT:
Yes, I'm ready, Your Honor.

Thank you, Mr. Bennett.
That makes
19
sense.
20
said this earlier, but in view of the stipulation between the
21
parties on the Government's motion that was docket number 121,
22
and in view of the resolution that we hammered out here in
23
court, that motion is granted.
24
a minute entry to that effect.
25
And just so there aren't any loose ends, I think I
So the record is -- we'll make
Ms. Preston, Rule 29.
377
MS. PRESTON:
Yes, Your Honor.
I am making a motion
for judgment of acquittal on the conspiracy count only on
behalf of my client.
this agreement, especially on Mr. Lyman's part, his plan, it
varied.
The evidence kind of demonstrated that
It started to -- it morphed.
Back in March, Government's Exhibit 23 -- excuse me.
In
Government's Exhibit 23 Mr. Lyman was talking -- at that point
he was still trying to get Government consent for the ATV --
for the ride on the trail.
That's been referred to as an ATV
10
ride, but the ride.
11
prayer, is that the BLM will recognize the sincerity of our
12
people and actually do something to wrap this up and make this
13
a legal rather than an illegal movement.
14
In fact he said my hope, indeed my
Down at the bottom of 23-1 it says the programmatic
15
agreement that was signed by the BLM and by San Juan County
16
charges the county with trail maintenance.
17
agreement, we are to provide information and guidance and we
18
are to help to educate users of the trail as to what is
19
proper.
According to the
20
He goes on to say, skipping -- well, the maintenance
21
includes raking out ATV tracks that are out of bounds, placing
22
signs or barriers where needed to discourage unauthorized use.
23
He said I know that there are some, myself included, that
24
would love nothing more than to ride a trail that the BLM has
25
arbitrarily declared as closed.
My hope is that we will have
378
1
2
action from the BLM which will authorize our activity.

So back in March at least Mr. Lyman had a plan to kind of
force the BLM, put a little pressure, it appears to me.
not my client and I haven't spoken to him, but from the
correspondence it appears to me that that was his original
plan was to use this as a way to pressure the BLM to go ahead
and grant the right-of-way, or some type of special use permit
to do this activity.
He's
So that's where he started out.
Then you have the testimony of Mr. Palma that they met in
10
March, and again Mr. Lyman tried to get his blessings, his
11
permission, for this ride.
12
trying to push a little bit to make this a legal ride.
13
that's how his plan started out.
14
the lines isn't really very clear.
15
So at that point he was still

So
Exactly how it morphed along
We've got April 30th is Exhibit 24 by the Government, and
16
that is the letter to Lance Porter.
17
he's saying that the BLM sending an archaeologist down the
18
trail to identify the sites that are to be protected shouldn't
19
be construed as consent.
20
This is the letter where
But in that letter he also kind of lays out a little bit
21
of history.
22
March 27th to see if the BLM was able to give even a small
23
token of sincerity in relation to this process which began
24
seven years earlier.
25
that if he could just have local BLM mark the proposed
And he says I met previously with Juan Palma on
He said give me a week.
I told him then
379
reroute, I would attempt to call off the excursion.
I ask him
and you to make this a positive event by allowing the group of
citizen volunteers to reroute the trail.

So at that point it looks like he's trying to get these
4
5
sites marked, reroute the trail to avoid those, and have
consent at least March 27th from Juan Palma to do this ride.
So that looks like what his intent was at the time.
there's no -- there was no evidence that my client knew of
this, these letters, but the point is is whatever Mr. Lyman's
Of course
10
intent was, it itself was morphing, so how could my client
11
have shared that intent.

After that we've got I guess it's 24 -- oh, it's 24.2.
12
13
What exhibit is it where he says I do not intend to break any
14
laws?
15
MR. STUBBS:
That was 24.
16
MS. PRESTON:
24?
17
MR. STUBBS:
Yeah.
18
MS. PRESTON:
24 is divided into two separate
19
e-mails.
20
30th.
21
get the consent of the BLM.
22
days prior to this ride, he's kind of come to understand that
23
that's absolutely not going to happen.
24
says I do not plan to break any federal laws on May 10th.
25
But 24-1, this is where he says -- and this is April
So this is a sense he's been trying since March 2nd to

And it appears by April 30th, 10
And in this letter he
So by April 30th, 10 days before the ride, he's formed
380
some other intent.
Palma.
in this e-mail, I don't -- I don't plan to break any federal
laws.
5
6
He was trying to get the consent of Juan
He didn't get the consent of Juan Palma.
And he says
So that was his statement on April 30th.

Then we've got Government's exhibit -THE COURT:
Ms. Preston, I'll hear any argument that
you want to make on this point, but isn't this all irrelevant
to your Rule 29 motion for Mr. Holliday?
is there's no evidence in your view that Mr. Holliday
I think your point
10
knowingly participated or joined a conspiracy to make an
11
illegal ride.
12
premise is, that there's no evidence Mr. Holliday was aware of
13
these communications Mr. Lyman was having, so what those
14
communications are I don't think is pertinent to your argument
15
or am I missing the point?
16
I'll assume the truth of what your opening
MS. PRESTON:
Well, the point I'm trying to make,
17
and I do think it's very important, is that Mr. Lyman -- my
18
client's accused of sharing an agreement -- what's the
19
conspiracy statute say?
20
of having a mutual understanding with Mr. Lyman.
21
THE COURT:
A mutual understanding.
He's accused
But he can enter at anytime.
There are
22
dates in the indictment.
I think we're going to hear from
23
Mr. Bennett in just a moment that the evidence that the United
24
States has introduced, at least in his view, is evidence
25
beginning on May 9th with Mr. Holliday when he appears and
381
attends the rally the night before and then rides the
following day.
is this is evidence that Mr. Holliday was aware of the
objectives of his co-defendants, the nature of the conspiracy
was to conduct an illegal ride the following day.
the rally, was aware of the intent, and then followed through
the following day as an overt act.
I think it's that narrow.
And I think what Mr. Bennett is going to say
He attended
And that can be joining --
All of this argument you're making just with respect to
10
Mr. Holliday about Mr. Lyman's intent and knowledge and what
11
changed over time isn't material, is it, to the conspiracy
12
count for your client?
13
MS. PRESTON:
14
15
Well, I think it is, and very
briefly -THE COURT:
No, no.
Make your record.
16
trying to cut you off.
17
then by all means do so, please.
18
MS. PRESTON:
I'm not
If there's a record you need to make,
Just another moment.
The Government's
19
Exhibit 105 Mr. Lyman says that he intends to go 1.5 miles
20
down the water conservancy easement and then turn around.
21
client's definitely shown on that easement, but nothing else
22
is shown about my client knowing Mr. Lyman's intentions, his
23
morphing plan or when that plan changed.
24
25
The COURT:
My
Do you agree with me that conspiracy
law doesn't require Mr. Holliday to know Mr. Lyman's
382
1
2
3
intentions?
MS. PRESTON:
Well, they have to have a mutual
understanding.
THE COURT:
MS. PRESTON:
Correct.
So the mutual understanding -- if they
had the same idea but it wasn't reached jointly -- if two
people are in a store shoplifting and they didn't plan that
together, then they didn't conspire together, even though
they're doing the same act.
So the mutual understanding is
10
what I think is really blatantly lacking here.
11
three Facebook posts, likes, and those three Facebook likes
12
are the end of the tailgate party, Exhibit 69, an article
13
about Wasatch Front antiquities, 104C and 104B, which is a --
14
my client's post about an entirely different road that somehow
15
Phil Lyman got on to his page.
16
client shared with him, the expert didn't know.
17
the entire record of my client conversing, participating,
18
endorsing or even understanding what their intention was.
19
THE COURT:
We've got
Whether he liked that or my

But that's
Do you agree that this is a correct
20
statement of law for conspiracy as we'll charge the jury?
21
That the Government need not show that the members of a
22
conspiracy entered into a formal or express agreement.
23
Instead, a conspiracy may be inferred by the jury from
24
evidence of concerted actions, by persons working together
25
with a common design, purpose and understanding.
In your view
383
would it be sufficient for the jury to infer that Mr. Holliday
shared Mr. Lyman's design, purpose and understanding by
attending a rally the night before the ride that is related to
the ride and then riding the next day?
reasonable jury could not infer from those facts that
Mr. Holliday shared a common design, purpose and
understanding?
8
9
MS. PRESTON:
Can a jury -- a
The parameters were not defined.
What
was the common purpose?
10
THE COURT:
Do you agree that this is a correct
11
statement of law?
Nor does the law require proof that the
12
members agreed on all the details, but the evidence must show
13
that the members of the alleged conspiracy came to a mutual
14
understanding to try to accomplish a common and unlawful plan,
15
in this instance the unlawful ride?
16
MS. PRESTON:
17
THE COURT:
I believe that's correct, yes.

And so where is the evidence
18
insufficient to support such an inference that no reasonable
19
jury could make?
20
21
MS. PRESTON:
that it's not weighing heavily upon Your Honor --
22
23
24
25
Well, my argument is, and I'm seeing
THE COURT:
I'm just testing the parameters of it
with you.
MS. PRESTON:
Of course.
I mean my argument is that
the conspiracy -- the parameters, switching from getting
384
permission, legal ride to illegal ride, morphed constantly,
and that at that point of that preride rally there's no
evidence that people didn't act entirely on their own, because
Mr. Lyman had -- began to instruct people to turn around at
the turnaround point.
further down the trail.
didn't hear, but Mr. Lyman himself changed his whole
intentions that morning, and so that -- that's my -- I hear
him saying that's not evidence --
10
11
THE COURT:
He had abandoned earlier intents to go

I don't know what my client heard or
I didn't hear what he said.
something, Mr. Bennett.
12
MS. PRESTON I mean --
13
THE COURT:
14
15
He said
We'll hear from you in a moment,
Mr. Bennett.
MS. PRESTON:
He certainly decided to turn around,
16
and I guess it must have been a little bit earlier that he
17
decided to turn around.
18
linking my client to Mr. Lyman's plan or intention or design
19
except for that he was there.
20
THE COURT:
But it's not -- there's no evidence
Okay.
Why don't we hear from any
21
Defendants that want to make these motions before we have a
22
response from the United States.
23
24
25
Mr. Garrett, you were up first, but, Mr. Stubbs, you

can -- you're closer, if you want to beat him.
MR. STUBBS:
I'll let Mr. Garrett go.
385
MR. GARRETT:
Your Honor, the standard for a Rule 29
motion is taking the evidence that the Government has provided
in the light most favorable to the Government and determining
whether or not the jury could find proof there that my client
committed conspiracy in this case.
The charging -- the only part of the indictment that
charges --
8
9
THE COURT:
That would be count one.
That's mostly right.
There's one more
important element to the Rule 29 standard, right?
I mean this
10
is key, that is, that it's the jury's role as the fact finder
11
to resolve conflicting testimony, to weigh the evidence, and
12
to draw inferences from the facts.
13
from the Tenth Circuit.
14
15
MR. GARRETT:
And on that line, Your Honor, we
have --
16
17
Yes.
That's the instruction
THE COURT:
I think they have to be reasonable and
justifiable inferences from the evidence.
18
MR. GARRETT:
Right.
So the only evidence of
19
Mr. Marian participating in a conspiracy is a picture of him
20
at the rally the day of, and then a picture of him on the
21
pipeline trail above the turnaround, two pictures.
22
Those are the only pictures of him with conspiracy.
23
also 150 other people who have been admitted to that ride who
24
have not been charged with conspiracy.
25
act --
That's it.
There are
And the only overt
386
1
2
THE COURT:
That's completely irrelevant to the
question before the Court.
MR. GARRETT:
You agree with that?
Yes.
But the -- those are the only
acts that my client has for conspiracy.
they charged nothing more, that he knew nothing else.
other information before the jury on my client is simply that,
and I don't believe that they can draw an inference that he
entered into the conspiracy from just that evidence, Your
Honor.
10
11
THE COURT:
Thank you, Mr. Garrett.
The
Are you moving
on the conspiracy count alone then?
12
MR. GARRETT:
13
THE COURT:
14
In the indictment
Yes, Your Honor.

Mr. Stubbs.
15
MR. STUBBS:
Your Honor, I'm also moving on the
16
conspiracy count alone.
17
to this Court in the form of e-mails of Commissioner Lyman
18
working with the BLM to resolve a protest.
19
that the -- the communication was between Mr. Palma, at one
20
time I believe Mr. Porter, but primarily between BLM officials
21
and Mr. Lyman himself as a -- as a -- as a county
22
commissioner, elected person, representing his constituents'
23
views.
24
25
The Government has provided evidence
The e-mails show
And, again, I think Ms. Preston did a good job of saying

that in his e-mails it's demonstrated that -- that Phil has
387
kind of a changing purpose and a changing plan, so there's not
one set design here.
again, there is the -- the argument that the -- the conspiracy
could have started right at the park and then they say all
together, all right, let's go.
let's cross the line.
It's negotiations back and forth.
And,
Let's go break the law and
That could be a conspiracy.
However, the Government, and this an important part,
hasn't provided any evidence of that.
The only evidence
they've provided in regards to what was said at the park is
10
they've showed Facebook pictures of Mr. Lyman speaking without
11
any text of what was said, and they've also showed news
12
reports about what Mr. Lyman said to a reporter without
13
showing any evidence that he made these same statements to the
14
crowd.
15
THE COURT:
So Facebook posts and an editorial in
16
the Deseret News encouraging people to come and attend the
17
ride and the protest and the -- and his own characterizations
18
of it as a protest, indicating I think some intent to advance
19
a common objective and purpose, to protest the BLM's action or
20
in this instance inaction for an extended period of time.
21
22
23
MR. STUBBS:
Well, one important thing about that,
Your Honor, is he is acting alone.

THE COURT:
How can that be if he's -- if he's
24
posting on Facebook and publishing editorials and encouraging
25
others to come join him, and giving interviews to Mr. Wells
388
and others, and talking about this and trying to drum up
support for it, and then people come?
room here for lawyers to argue to the jury about Mr. Lyman's
intent about whether he intended to ride through the closed
portion of the canyon or whether he intended others to do
that, but certainly there's a basis from which a reasonable
jury could consider those questions here.
that way?
MR. STUBBS:
9
10
THE COURT:
11
MR. STUBBS:
12
THE COURT:
13
argument.
And I think there's
You don't see it
Well, that's an argument.

Okay.
Your Honor, I just -Well, I'm not trying to make an
I'm testing yours.
14
MR. STUBBS:
No, no.
15
they've shown any proof of that.
16
not trying to make an argument to the jury, but he made -- and
17
I'm sorry if this is -- comes across that way, but he wrote a
18
newspaper article.
19
and of itself is not --
I mean -- and, again, I'm
You know, writing a newspaper article in
20
THE COURT:
21
and made Facebook posts and --
22
I just -- I just don't think
MR. STUBBS:
And spoke at county commission meetings
There's no evidence that there was a
23
conspiracy to commit a crime when he's speaking in a public
24
forum.
25
THE COURT:
Say that again.
389
MR. STUBBS:
He was speaking in a public forum.
There was a discussion amongst people to hold a protest.
Government's said that.
there was evidence to promote a protest but not evidence to
promote an illegal protest, which would then mean --
THE COURT:
I mean they've provided evidence that
I don't think the protest is alleged to
be illegal.
of the trail that's alleged to be illegal.
The
I think it's the ride through the closed portion
MR. STUBBS:
It is what's alleged to be illegal, but
10
what the Government is arguing with the evidence they've
11
presented is that they're saying that Mr. Lyman had a plan
12
beforehand to have an illegal ride to go into the canyon.
13
their evidence of that are e-mails with government officials
14
and newspaper articles.
15
working in concert with somebody else, other than some
16
Facebook posts where people are saying, hey, we're going to
17
have a ride.
18
every right to do.
19
showing that these people were working in concert to promote
20
an illegal ride.
21
And
There's no showing that he was
We're going to have a protest, which they have

They haven't made a basis or a strong
THE COURT:
You don't think the United States
22
introduced evidence from which a reasonable juror could draw
23
that inference when Mr. Lyman himself is describing it as
24
violating federal law, recognizing that he's been told by BLM
25
officials that if he does this he may face civil and criminal
390
prosecution, and then he continues to advance?

I'm not deciding the case, you understand, but you
2
3
don't -- the question is whether a reasonable juror could find
that he was engaged in advancing a common purpose and
understanding, and then publishing and publicizing the ride
and the rally.
your argument I think.
8
9
No reasonable jury could conclude otherwise is
MR. STUBBS:
that's the question.
Well, if it's presented that -- if

But the question here is who did he act
10
with?
He was acting on his own, and the evidence has only
11
shown that he's acted on his own.
12
own, there's no conspiracy.
And if he's acting on his
13
THE COURT:
Okay.
14
MR. CRANE:
Your Honor, I'd just join in the motion.
15
I'll submit it.
16
THE COURT:
17
MR. BENNETT:
18
(inaudible).
Okay.
Mr. Bennett.
I apologize to Ms. Preston
I did not mean for that to happen.
19
The COURT:
20
MR. BENNETT:
I didn't think it was intentional.

No.
And I apologize for that.
21
think the evidence the United States has presented presents --
22
any reasonable juror could find that there's a conspiracy
23
here.
24
be -- it has to be -- there has to be an agreement, a common
25
design or purpose.
As the Court pointed out, a conspiracy doesn't have to
391
The evidence has shown that on February 27th Mr. Lyman
had a town hall meeting.
town hall meeting we saw from his own Facebook posts he says
we decided, and he uses the word we, we decided to ride
Recapture Canyon.
an agreement between one or more people.
otherwise use we.
8
9
10
11
Nothing wrong that.
However, that
The use of the subject we is indicative of

You wouldn't
You'd use the first person singular I.
THE COURT:
Of course he might respond and say,
well, that tells us nothing about whether we intended to ride

the closed portion or open portions of Recapture Canyon.
MR. BENNETT:
And that's what's so important about
12
his next few posts is that after -- as he's discussing the
13
meeting he says we decided to ride Recapture Canyon as a
14
protest ride.
15
from his -- his other posts.
16
He knew it was closed.
That's abundantly clear
The other important thing is what he says subsequently,
17
for example, Exhibit 105.
18
why people should show up and why they don't even have to ride
19
closed roads.
20
can make -- they can ride open roads or they can join on a
21
closed road.
22
he wants people there for a protest.
23
legally, some can join in illegally, but the design was to
24
ride Recapture Canyon in the closed area.
25
He goes through great detail as to
He provides them with information about they
Again, he understands that there are people -Some can protest
And I think that has been abundantly clear throughout the
392
Facebook posts, his own acknowledgement that, yeah, this is a
violation of federal law.
drive on open roads that BLM had opened to ATV use, there's
absolutely no reason for that.
and say, Mr. Palma, would you please make this a legal
movement.
hall meeting.
8
9
If they were only intending to
There's no reason to go to BLM
He did that five days after the February 27th town
And he says in that e-mail, and it's Exhibit 23, he says

after discussing -- this is his constituent e-mail.
He says
10
we hope BLM is going to approve this.
11
were already open, there was really nothing to approve if that
12
was the object and design of the conspiracy.
13
object and design of the conspiracy was to ride closed trails,
14
well, clearly BLM had to do something to make that legal.
15
then he uses these key words.
16
the second page of 23, we're going to go do this.
17
indicative of an illegal -- of an agreement to go do something
18
the law precludes.
19
THE COURT:
Well, if the trails
But if the
But
Either way, is what he says in

That is
Let's assume that at least there's an
20
adequate factual basis from which a reasonable jury could
21
infer that Mr. Lyman entered into a conspiracy to violate the
22
law.
23
Mr. Marian?
What about Mr. Holliday and even more remotely
24
MR. BENNETT:
25
THE COURT:
Certainly.
Let's also not leave Mr. Wells out, but
393
let's talk about -MR. BENNETT:
I'm sure he appreciates that.
start with Mr. Wells and then I'll hit Mr. Holliday and
Mr. Marian.
THE COURT:
MR. BENNETT:
Okay.
We'll
I think that makes sense.
So Mr. Wells, there comes a point, and
I believe it's around April 27th, April 29th, we understand
that, you know, Mr. Wells accompanied Mr. Lyman to have lunch
with Mr. Palma to discuss Recapture Canyon.
Mr. Wells is well
10
aware the canyon was closed.
Now, that lunch meeting by
11
itself doesn't necessarily show a conspiracy but it shows that
12
he's starting to get more involved.

What I think is a telltale sign of his involvement in the
13
14
conspiracy is Exhibit 73.
He republishes an -- a Facebook
15
post from Mr. Lyman but he makes some pretty important
16
additions.
17
on The Petroglyph at all.
18
is Monte.
19
you.
20
deal.
He doesn't mention Mr. Lyman's name in that post

In fact the only name that's found
He then adds this giant graphic that says we need
Further on down the post the word we is used a great
21
In subsequent posts, and including that three-part
22
e-mail, Exhibit 77, 78 and 79, they go through a painstaking
23
discussion, and specifically in 79, about the ride itself.
24
Mr. Lyman communicates with Mr. Wells that it's illegal, the
25
BLM is going to take action, and they continue to have this
394
1
2
discussion.
Monte Wells continues to publish information about this,
and then ultimately it's very difficult to dispute for him,
performed the overt act of going across the closure area.
That by itself would be indicative of his agreement to commit
a -- to break the law.
THE COURT:
MR. BENNETT:
And Mr. Holliday.

Mr. Holliday.
Mr. Holliday comes on
the scene following some Facebook posts.
Now, most Facebook
10
posts by itself are not definitive evidence of his involvement
11
in the conspiracy.
12
certainly following what Mr. Lyman is doing.
13
But what it does is it shows that he is
Mr. Lyman's chief means of communication of his designs
14
is via social media.
That's how he communicates, both on his
15
own Facebook page as well as on The Petroglyph.
16
sending these messages out, we see that Mr. Holliday is
17
starting to get more involved.
18
May 9th, which is the -- the tailgate party that was before
19
the preride rally.
20
of May 9th saying, you know, we're all excited about tomorrow.
21
We have him there on the morning of May 10th at the park,
And as he's
We see he's really involved on
He likes The Petroglyph post on the night
22
at the preride rally.
He then drives seven miles was the
23
testimony, the distance between the park and the closure sign.
24
This was not like he showed up at a family barbecue and got
25
swept away in some sort of a protest ride.
He was there for a
395
reason, and he drove and then crossed the line, which again
was the design of the conspiracy.
Now, finally Mr. Marian.
Unfortunately there is not a
great wealth of internet information about him.
say that there's zero.
There is no internet information on Mr. Marian.
up as a late arriving conspirator at the rally in Exhibit 87A,
drives the seven miles next to Mr. Holliday and then crosses
the line, again, the object of the conspiracy.
10
In fact, I'd
Let's not even call it a great wealth.

But he shows
One of the instructions in the conspiracy instructions
11
the Court is going to give is exhibit -- is instruction number
12
26.
13
does not have to be for very long, and of course the
14
conspiracy is open until the crime is completed.
15
that he showed up at the last minute does not make him any
16
less of a conspirator.
17
It says there that the participation of the Defendants
The fact
The fact that he didn't post things on the internet
18
doesn't make him any less of a conspirator.
19
that he showed up at the rally, drove the seven miles and
20
crossed the line knowing that it was illegal.
21
evidence with all the signage that was around, plus, what
22
he -- what he -- what the preride rally, at least Mr. Lyman
23
said he was going to say there, all are indicative that he was
24
a full participant in the conspiracy.
25
THE COURT:
It's the fact
We have ample
The photo that was received by the Court
396
that has the two folks holding signs in the front and the two
individuals identified as Mr. Marian and Mr. Holliday standing
in the background, that was from the night before or the
morning of the ride?
MR. BENNETT:
THE COURT:
MR. BENNETT:
Okay.
The Petroglyph like for Mr. Holliday
was the night before.
That was the tailgate party.
THE COURT:
9
10
The morning of the ride.
I think the law on conspiracy is that
the co-conspirators not -- need not know each other.
11
MR. BENNETT:
12
The COURT:
Correct.
They need not have spoken to each
13
other.
They need to have demonstrated through their deeds or
14
acts, if not their words, an intention to join in a common
15
purpose or understanding, and that can be inferred by the jury
16
if there are facts to support it.
17
Mr. Marian especially?
18
before a ride standing next to Mr. --
Is it enough here with
19
MR. BENNETT:
20
THE COURT:
The only evidence is that photograph
Holliday.
-- Holliday, and then video of him
21
driving through the canyon.
22
draw is it's not a conspiracy if you were there with your
23
family and you were riding illegally through the canyon and
24
you just happened to cross these folks.
25
you're standing with another alleged co-conspirator
I guess the distinction you would
But the fact that
397
beforehand, you're obviously aware of what's happening, what's
going on, and then you join when you ride.
Government's position, is it?
MR. BENNETT:
Exactly.
That's the
Mere association the Court's
alluding to isn't enough.
rally, that's just merely associating.
was there, drove the seven miles and crossed the line shows an
active participation in conspiracy.
THE COURT:
I mean had he simply been at the

But the fact that he
The videos that you showed, each of the
10
videos showed in the -- I'm required at this stage to view the
11
evidence in the light most favorable to the United States.
12
That evidence shows a ride in the closed part of the canyon
13
for all four of the Defendants; is that right?
14
MR. BENNETT:
15
THE COURT:
Correct.
Is there any significance to Mr. Ewing's
16
testimony with respect to the Rule 29 motion?
17
heard Mr. Ewing say is if you lived in San Juan County and you
18
didn't know about this, there was something wrong with you.
19
Is that a reasonable basis to further impute some knowledge,
20
common knowledge, among the co-defendants?
21
MR. BENNETT:
What I think I
At this stage it certainly weighs in
22
the United States' favor simply because it was such a highly
23
publicized ride.
24
this was not a conspiracy shrouded in secrecy.
25
the open daylight, which doesn't make it anymore honorable,
This was not -- as Mr. Dishman pointed out,

This was in
398
but it just makes it easier -- it just makes it more brazen,
and that's precisely what the evidence shows.
THE COURT:
I'm concerned neither with the
honorability or the brazenness of it but the legality of it is
my focus.
States?
All right.
MR. BENNETT:
THE COURT:
Was there anything more from the United
No, Your Honor.

So the standard
is a familiar one at least to the lawyers in the courtroom.
10
Under Rule 29 of the Federal Rules of Criminal procedure I'm
11
instructed by that Rule and by the Tenth Circuit cases
12
construing it that I'm to explore whether the evidence is
13
insufficient to sustain a conviction of such offense or
14
offenses, here the conspiracy count.
15
it's the role of the court to decide whether the evidence,
16
number one, viewed in the light most favorable to the United
17
States, number two, was sufficient for any rational trier of
18
fact to find guilt beyond a reasonable doubt, and number
19
three, I am instructed and reminded that it is the jury's
20
role, as I explored with Mr. Garrett, to decide what the facts
21
are, to resolve conflicting testimony, to weigh the evidence,
22
and to draw inferences, importantly, from the facts presented.
23
And I also will just add, Rule 29 is an extraordinary
And I'm instructed that
24
remedy.
It is extraordinary in our form of government, at
25
least in my view, because it implicates an important function
399
of independence among our three branches.
doesn't decide who to charge or what to charge them with.
don't exercise the prosecutorial discretion.
the Executive Branch.
judicial officer should substitute his or her judgment for
that of the Executive and the prosecuting authority, and it is
a very narrowly construed authority for that reason.
only when no reasonable jury, viewing all the facts in the
light most favorable to the prosecuting authority could ever
10
11
The judiciary
We
That belongs to
And it's a rare day in fact that a
It's
conclude that there was guilt beyond a reasonable doubt.

There is sufficient evidence in my view here to support a
12
conviction if the jury returns such a verdict, and for that
13
reason the Rule 29 motion is denied.
14
With respect to all of the Defendants though, it's very
15
clear to me that the evidence is much stronger with respect to
16
some than others.
17
remote, and Mr. Holliday not far behind, I think there is
18
sufficient evidence here from which to conclude that
19
Mr. Marian and Mr. Holliday were aware of the objective and
20
common purpose of this meeting and the illegal ride.
21
I think a jury could infer from the facts before them that
22
Mr. Holliday and Marian had an understanding of it,
23
participated, advanced it by participating in the rally before
24
the ride, and then engaging in the unlawful ride itself, which
25
is a sufficient basis to find potential culpability.
But even Mr. Marian, who is in my view most
They --
So the
400
1
2
motion is denied.
Are there other legal issues we should take up before we
retire to the jury room to argue the instructions?
that as a no.
about the instructions.
10 or 15 minutes here in the court and then we'll return to
the court to make a record at the end.
(RECESS TAKEN)
Take a few minutes to stretch your legs.
THE COURT:
10
in our Lyman matter.
11
12
13
I'll take
Think
Ms. Mc Namee will come and get you in
Thank you.
We'll go ahead and go back on the record
Mr. Crane, you wish to make a record.
We've just
completed a conference on jury instructions.

MR. CRANE:
Yes, thank you.
Your Honor, just so the
14
record is clear, I believe it's still going to be Court's
15
instruction number 23, I don't think the numbers have changed,
16
regarding the conspiracy instruction.
17
point one in that instruction where it indicates at sometime
18
between February 27, 2014 and about May 10, 2014, and then
19
goes on from there.
20
to is at sometime between.
21
My objection is to
The specific language that I am objecting
The superceding misdemeanor information, which is docket
22
number 41, charges the Defendants with conspiracy, and the
23
language used in the superceding misdemeanor information
24
charges on page one, number one, from on or about February
25
10 -- 27, 2014 and continuing until on or about May 10, 2014.
401
The Court's instruction number 23 is language that is
different from the misdemeanor information.
request that the -- that this instruction should mirror the
language in the charging document.
what was given to the Defendants and putting them on notice of
the conspiracy and the conspiracy time period.
Government who chose what language, who to charge, and what
the facts were that supported why and when they notified the
Defendants in the charging document of the conspiracy period.
10
It is the defense
The charging document is
It is the
That is our request, Your Honor.

THE COURT:
11
All right.
And I overruled that request
12
in chambers on the basis that my view was that the information
13
is designed to provide notice, fair notice, to Defendants of
14
the crime with which they're charged and the basis for that,
15
and that the purpose of the jury instructions is to articulate
16
for the jury the correct legal standards to apply.
17
But, Mr. Bennett, I will tell you as I'm just thinking
18
about it again a second time, the last thing any of us want to
19
do here is create any error.
20
case --
21
I haven't looked at a single
Well, let me ask you, Mr. Crane.
Is there any authority
22
that you can point me to for the proposition that it's the
23
language of the information or indictment that has to directly
24
be implicated in the instruction about the legal standard for
25
conspiracy or any other count?
402
MR. CRANE:
Your Honor, I do not have authority with
me at this point.
Our position is the Defendants were put on
notice by the information, and it's the information that is
the charging document.
essentially what was charged, what the Defendants thought they
were responsible for as far as the counts against them.
Here this instruction is changing
THE COURT:
Mr. Bennett, any further response?
MR. STUBBS:
Your Honor, I'm sorry, if I may.
just want to join in Mr. Crane's objection as well.
10
MS. PRESTON:
As well, Your Honor.
11
MR. GARRETT:
Same.
12
THE COURT:
13
MR. BENNETT:
Mr. Bennett.
To the extent
14
that this objection goes to the notice component of the
15
information, the standard that the defense counsel is
16
proposing is really incorrect.
17
information is reading it as a whole.
18
whole, the different components of the information,
19
specifically the overt act as well as the means and manner of
20
the conspiracy, read as a whole with the initial charging
21
statement in the first paragraph of the information, all
22
indicate that that is -- the language now in the jury
23
instruction is precisely what was intended, that the
24
conspiracy began on February 27th and between that and the end
25
thereof on May 10th each individual made an agreement.
The standard for evaluating an

And reading it as a
That's
403
simply the statement.
It would be charging a conspiracy where
everyone had to have made an agreement between February 27th
and May 10th all on February -- that's not conspiracy law
generally.
conspiracy.
construction of the superseding information.
It's just not -- that's not the law ever with

So it just seems a bit strained given the full
MR. CRANE:
Your Honor, if I may just add one point?
THE COURT:
Of course.
MR. CRANE:
My rule book has disappeared.
It's been
10
taken back to my office.
11
Criminal Procedure Rule 7 that allows the Government to amend
12
the information prior to resting their case, and they had the
13
ability to do that as the evidence evolved in the case and as
14
they -- as the testimony came and they did not do that.
15
THE COURT:
But I believe it's Federal Rule of
Well, what is the nature of your -- what
16
is the harm that you're -- are you saying -- I don't think
17
you're saying that the Court's proposed instruction is legally
18
incorrect.
19
prejudice to the Defendants on instructing the jury correctly
20
because the information was deficient in -- insofar as the
21
Government assumed a higher burden or a higher standard than
22
it had under the law by the language it employed in the
23
charging document which was the basis for the Defendants'
24
notice about what they needed to defend here at trial; is that
25
right?
I think what you're arguing is that there's
404
MR. CRANE:
correct, Your Honor.
conspiracy period was February 27 to Mayt 10.
were put on notice.
saying, well, maybe one individual started February 27 but
others may not have come along, or maybe it wasn't even formed
on February 27.
8
9
The Government's theory -- and that's

The Government's theory is that the
That's what we
Now that theory has changed where they're
I don't know what they're --
THE COURT:
But, Mr. Crane, isn't it -- isn't it the
case -- and you're a skilled and experienced defense attorney.
10
You've done this a long time.
11
conspiracies are the most common in which we see this.
12
regularly see this language in a multidefendant multicount
13
drug distribution conspiracy for example, and it's known and
14
understood by everybody from the beginning of every one of
15
those cases that using this language doesn't mean that the
16
Government intends to prove at trial that every one of the
17
named Defendants are co-conspirators, participated through the
18
duration of the conspiracy.
19
certainly the Government doesn't -- doesn't take on a greater
20
burden.
21
isn't the remedy for the Defendant to seek additional
22
information in a pleading document?
23
I'm thinking about drug

We
The law doesn't require it, and
And if there's any question of fair notice, then
MR. CRANE:
I agree with the court that on or about
24
is very flexible language.
Quite honestly, I was expecting
25
testimony from some witness that would put Mr. Wells at that
405
February 27 town hall meeting, and that just didn't happen,
and so I was surprised by that given what was in that charging
document, what we were preparing for.
THE COURT:
MR. BENNETT:
All right.
Go ahead, Mr. Bennett.
It's important, as I recall from the
superseding information, that it's -- they entered a
conspiracy between themselves and others.
be made with people who aren't charged.
initial paragraph of the superseding information mentions
The conspiracy can

The language in the
10
others that are not part of these four Defendants.
11
that along with all the other paragraphs in that information
12
again shows that this is a typical conspiracy, as the Court
13
indicated, like in a drug conspiracy, where conspirators can
14
come in at anytime between the beginning and the end of the
15
conspiracy, including those that were not even -- that are not
16
here at defense table.
17
THE COURT:
18
MR. BENNETT:
19
THE COURT:
20
And exit.
Absolutely.
And that's not required to be charged in
the -- or articulated in the charging documents.
21
MR. BENNETT:
22
THE COURT:
23
MR. BENNETT:
24
THE COURT:
25
Adding
Not at all.
Right.
Thus it's sufficient as it is.
All right.
Well, I'll be interested if
the Tenth Circuit has a different view of it than I do, but I
406
think my obligation today is to ensure that I'm giving a
legally correct statement to the jury about what they're
required to find in order to find guilt or innocence on count
one.
instruction is a legally correct statement of the law, and
that's the -- that's the instruction that we'll give, but your
objection is noted and reserved.
8
9
And so -- and I think that my construction of that
Okay.
Anything more we should take up while we're on the
record?
10
MR. BENNETT:
No, Your Honor.
11
MR. CRANE:
No, sir.
12
THE COURT:
Thanks to all of you.
Thank you.
We don't have
13
anything further here tonight so you're welcome to leave your
14
materials if you'd like.
15
them.
16
don't think there's any reason for us to meet early tomorrow
17
so we can just meet here at 8:30.
18
instructions and go right into closing arguments.
19
We'll lock the courtroom -- or take
Do whatever you like.
Thank you, everyone.
The courtroom will be locked.
We'll begin with the
We'll be in recess.
20
(ADJOURNED AT 3:35 PM)
21
* * *
22
23
24
25
407
1
2
3
4
5
10
11
No. 2:14-CR-470, in said court, on the 30th day of April,
12
2015.
13
14
the official Transcript of said proceedings as taken from my
15
16
17

this 23rd day of June, 2015.
18
19
20
21
22
23
24
25
408
1
2
3
4
CENTRAL DIVISION
______________________________________________________________
8
9
10
11
PLAINTIFF,
VS.
HOLLIDAY,

MAY 1, 2015
12
DEFENDANTS.
13
______________________________________________________________
14
15
JURY TRIAL
16
17
18
19
20
21
22
23
24
25
409
1
2
APPEARANCES:
3
FOR THE PLAINTIFF:
4

LAKE DISHMAN, ESQ.
(801) 524-5682
5
6
7
8

PROVO, UTAH 84604
(801) 426-8200
9
10
11

(801) 521-9000
12
13
14
15
GARRETT & GARRETT

(801) 581-1144
16
17
18

(801) 269-9541
19
20
21
22
23
COURT REPORTER:
RAYMOND P. FENLON
(801) 809-4634
24
25
410
1
2
3
4
5
I-N-D-E-X
6
7
8
9
10
PLAINTIFF'S CLOSING ARGUMENT.....................PAGE NO. 414
11
DEFENDANT WELLS' CLOSING ARGUMENT................PAGE NO. 435
12
DEFENDANT HOLLIDAY'S CLOSING ARGUMENT............PAGE NO. 452
13
DEFENDANT MARIAN'S CLOSING ARGUMENT..............PAGE NO. 460
14
DEFENDANT LYMAN'S CLOSING ARGUMENT...............PAGE NO. 463
15
PLAINTIFF'S CLOSING ARGUMENT IN REBUTTAL.........PAGE NO. 474
16
17
18
19
20
21
22
23
24
25
411
(9:48 AM)
THE COURT:
Good morning.
We'll go on the record in
our Lyman matter.
For the benefit of those of you who are in
the courtroom who don't know this, and just as a comment to
the attorneys, this has not been a long trial and we haven't
had any particularly long or rigorous days with this jury, but
this, as it turns out, has been a difficult service I think
for a number of these jurors.
We have one who is here under
10
the weather today, one who is diverted because of the accident
11
that closed I-80 this morning and was delayed for over an hour
12
getting here.
13
this week.
14
especially thankful for their service.
We have another who has had a handful of issues
Your jury has been tough, but we should all be
15
So it doesn't often happen that we have long delays like
16
this on some mornings, at least not when we have snow storms.
17
But we're all here and the jury is ready to go.
18
to those of you who have been waiting this morning.
19
ready for the jury, are we, counsel?
20
MR. BENNETT:
21
MR. STUBBS:
22
THE COURT:
My apologies
We're
Yes.
Yes, Your Honor.
I'll give instructions.
We'll see if
23
any of them look awake when I finish.
If they are, I think we
24
may go straight into closings and just try to get through
25
this, and get the case to them as quickly as we can today.
412
If we need a break at some point, especially the
Defendants, let me say if you feel at some point that the jury
appears to be losing focus or, you know, you don't have all
the attention you want, just signal to me.
short break with the jury and freshen them up a little bit.
We can take a
Ms. McNamee.
THE CLERK:
THE COURT:
Hi.
adventures this morning.
We made it.
We've had some
Let's call them adventures, seems
10
like several.
We appreciate your sense of humor and your
11
patience about it.
12
morning already.
13
to time.
14
their best, and sometimes things are just beyond our control.
15
Let me ask you now to put out of your minds whatever
For some of you this has been a stressful
Let me just tell you this happens from time
We accommodate this when it happens.
Everybody does
16
stress or concerns you have about anything that's happened
17
this morning and just focus on what's left before us.
18
not much, but it's important.
19
There's
So I'll provide you now the legal instructions that will
20
guide you in your deliberations, then we'll go directly into
21
closings arguments.
22
you'll have this case before the lunch break and then can
23
begin your deliberations while you're having lunch, and then,
24
of course, the case is yours.
25
of the Court's instructions.
I still think it's entirely possible
You have on your chairs copies

Most of these instructions will
413
be provided to you now, and then there's a point you'll see as
we're going through where we'll break and the lawyers will
provide their closing arguments, and then I have just a few
instructions for you at the end.
along if you'd like.
You're welcome to follow
(JURY INSTRUCTIONS READ TO THE JURY)
THE COURT:
I'll provide the last few instructions
after we've had the benefit of argument from counsel.
I know those instructions are dense and they're a little bit
10
long.
11
breath and get ready for closing arguments.
Why don't we just stand for a minute, take a deep
(BRIEF PAUSE)
12
13
Thank you.
14
15
16
In fact
Mr. Bennett.
PLAINTIFF'S CLOSING ARGUMENT
MR. BENNETT:
As Mr. Dishman pointed out when this trial started, we
17
are all here because these four Defendants crossed the line.
18
Our story begins on February 27th, 2014 when Mr. Lyman
19
attended a town hall meeting at which there were some
20
constituents that were very concerned about some of the public
21
lands issues that were going on with BLM, specifically
22
Recapture Canyon.
23
We learn from Mr. Lyman that at that point in that
24
meeting it was determined that we will ride Recapture Canyon.
25
That's in Exhibit 79 around the fifth minute.
From there
414
publication began.
e-mailed Mr. Palma of the -- the State Director of the BLM,
from whom you heard testimony.
Five days after this meeting Mr. Lyman
In that e-mail, which is Exhibit 23, Mr. Lyman asks
Mr. Palma, he says he prays and pleads with Mr. Palma, to make
the May 8th, 2008 protest ride a legal movement.
that Mr. Lyman knew right off the bat that the agreement that
he and his constituents had entered into in this town hall
meeting was illegal.
10
But it doesn't stop there.
This shows
A couple of weeks later, on
11
March 27th, we heard testimony from Mr. Palma that both
12
Mr. Wells and Mr. Lyman jump in a car headed up to Salt Lake
13
City, Utah to have lunch with Mr. Palma.
14
Mr. Palma discussed what was talked about at that lunch
15
meeting, and it was again BLM being asked to make this May
16
8th, 2014 protest ride a legal act, again, showing that both
17
knew this was illegal.
18
And you recall that
Next we start to see some momentum with the publication.
19
This is a protest ride.
It had to be publicized.
The
20
evidence shows that Mr. Lyman had an agenda, and The
21
Petroglyph was his podium, and Facebook his muse.
22
began publishing things on Facebook to get the word out about
23
the ride.
24
ride from Thursday May 8th to Saturday May 10th.
25
more people could come.
Mr. Lyman
In fact on April 17th he changed the date of the

Why?
So
415
Around the same time we start to have the involvement of
Mr. Holliday.
likes it.
Mr. Holliday's Facebook page on his own.
weren't about Recapture Canyon, that's true, but we're
starting to see some more momentum.
He starts to see Mr. Lyman's Facebook page,
And in fact Mr. Lyman shares a post from

Now, these things
Around the same time The Petroglyph publishes its own
announcement that it was borrowing from Mr. Lyman's previous
announcement on April 27th talking about the May 10th ride,
10
why it was being called, who should be there, what the BLM
11
might do, and that the BLM specifically prohibited motorized
12
use in the Canyon.
13
Mr. Lyman's Facebook page.
14
That was on The Petroglyph as well as
But it didn't stop there.
The Petroglyph then engaged in
15
an interview with Mr. Lyman talking about the purposes for the
16
ride.
This is Exhibit 79, which you can review in the jury
17
room.
They went into it for over 20 minutes talking about the
18
ride, specifically talking about BLM's noticing that it's
19
illegal, and opposition to the ride, but yet it proceeded
20
anyway.
21
On May 7th we see a post again on The Petroglyph from
22
Mr. Lyman talking about open and closed trails, talking about
23
the preride rally, and the tailgate party the day before.
24
With all this publication it's no wonder that Josh Ewing said
25
that if you didn't hear about this ride, there was something
416
wrong with you.
Mr. Lyman also spoke in county commission meetings.
in those county commission meetings he designated himself as
the ring leader, it's Exhibit 18, or the spokesman.
there Mr. Lyman continued building support for this protest
ride.
From
On the tailgate party, which was May 9th in the evening,
we know that both Mr. Wells and Mr. Lyman were present.
Because Fox 13 News interviewed both of them there.
10
11
And
Why?
That's
Exhibits 46A1 and 46A2.

Later that evening The Petroglyph posted something -- a
12
comment about the end of that -- of that tailgate party.
13
liked it?
14
is the protest preride rally, 9:00 AM Centennial Park.
15
who shows up?
16
who knows both Mr. Marian and Mr. Holliday well, identified
17
them as being at the preride rally.
18
Mr. Trent Holliday.
Who
Sure enough the next morning

And
Exhibit 87A you heard Scott Watson, an officer
We also know Mr. Lyman was there.
Why?
19
speaking, and who was taking his picture?
20
posting it on The Petroglyph.
Because he was
Monte Wells, and
21
After that each Defendant got on their ATVs, traveled, as
22
Mr. Ewing said, seven miles between the park and this familiar
23
closure sign that you see.
24
had a choice, to take the open ATV trail near it or to cross
25
the line.
And here at this closure sign they
We're here because these Defendants crossed the
417
1
2
line.
Now, when they crossed the line, they did so figuratively
and literally.
of the line is what we call Count II of the information, in
that they operated a motorized vehicle in an area closed to
such use.
it's faster.
such use?
operating off-road vehicles in there?
10
11
The crime associated with the literal crossing
We're going to take up Count II because I think

Because what we do know, was the area closed to
Absolutely.
undisputed.
That's undisputed.
You've seen photos.
Were they
Two is virtually
You've seen videos.
In fact the defense witness Mr. Johnson identified those
12
same photos and videos of the Defendants operating ATVs in the
13
closed area.
14
That's not in dispute.
Really the only issue in dispute on Count II is whether
15
these folks acted knowingly and willfully.
16
acted knowingly and willfully the United States has to prove
17
that they acted with intent, that this wasn't an accident, and
18
that they acted knowing that it was a violation of the law.
19
The evidence proves this beyond a reasonable doubt.
20
Let's pull up Exhibit 23.
To prove they
In Exhibit 23 I direct your
21
attention to some of the highlighted portions hopefully that
22
are appearing on your monitor.
23
tells Mr. Palma about the town hall meeting.
24
in the second paragraph, my hope, indeed my prayer, is that
25
the BLM will recognize the sincerity of our people and
So in Exhibit 23 Mr. Lyman

And then he says
418
actually do something to wrap this up and make this a legal
rather than an illegal movement.
illegal.
something legal if it were not illegal?
Right there he concedes it's
Why in the world would you need to ask BLM to make

He knows.
In fact the second page illustrates it even further.
know there are some, including myself, that would love nothing
more than to ride a trail that BLM has arbitrarily declared as
closed.
which authorizes activity.
My hope is that we will have action from the BLM

Either way, whether BLM authorizes
10
it or it doesn't, I plan to work with the county to see what
11
trail work will need to be done in order for the trail to be
12
passable by May 8th.
13
to take action to make sure that trail is ready to go for May
14
8th.
15
operate ATVs in the closed area of Recapture Canyon.
16
No matter what BLM decides, he's going
Again, right off the bat he knows that it is illegal to
But it gets worse.
They have that lunch meeting where
17
again this same topic is discussed.
18
little bit later on April 28th, 2014 the field officer of --
19
the field manager of the BLM in that region of the state near
20
San Juan County physically face-to-face hands Mr. Lyman a
21
letter.
22
dash six and seven.
23
That's more knowledge.
That letter is in Exhibit 24 dash 5 and 6.
Sorry,
I hate it when I'm one number off.
So looking at 24-6 and 24-7, let's look at the
24
highlighted portions because they're significant in terms of
25
showing Mr. Lyman's knowledge.
As you can see, this letter is
419
directed to him, and it says, as you know, the area is closed
to motorized vehicles to protect what?
archaeological resources.
closure.
The area's
That was the purpose for the
The next paragraph we have two pretty stern warnings.
Because the area is closed to motorized vehicle use, violators
are subject to civil and criminal penalties.
warning is echoed at the end of that sentence.
of the page, if it weren't clear enough, BLM says again, to be
That same
At the bottom
10
clear, the BLM is not authorized and will not authorize the
11
proposed ride.
12
penalties against anyone who participates in the proposed
13
ride.
14
15
16
Again, BLM will seek all civil and criminal
If he hadn't gotten the point by then, it wasn't going to

happen.
It was illegal and he knew it.
But what of Mr. Wells?
Let's go to Exhibit 73.
You'll
17
recall some testimony from several witnesses about Exhibit 73
18
because -- and specifically Special Agent Loftin, who was the
19
last Government witness.
20
portion We Need You is a copy of a Facebook post that
21
Mr. Lyman had posted on April 27th.
22
Recapture -- this Recapture article appears in The Petroglyph.
23
That's significant.
24
Well, the testimony has been Monte Wells.
25
at the top of his page what name is there?
Why?
He testified that beneath the
But this appears on
Because who runs The Petroglyph?

And true to form,
Monte.
420
As you look through this document, Mr. Lyman's name
doesn't appear anywhere.
you something.
that.
Mr. Lyman says.
a couple of flourishes to Mr. Lyman's April 27th Facebook
post, specifically Uncle Sam We Need You, three exclamation
marks.
conspiracy.
10
This is not Phil Lyman wants to tell
And, believe me, Mr. Wells knows how to do
If you look at Exhibit 105A, he specifically says

He doesn't here.
Monte added
We is significant, as we'll talk about in the
Next it talks about, down here on the third -- looks like
11
the third paragraph.
12
third sentence.
13
etcetera.
14
by the BLM for these trails.
15
This is Monte.
Look what it says about ATVs.
It's the
It is also open to horses, cows, mules, dogs,
It is only motorized machines that are deemed unfit
Here we have Monte Wells recognizing that ATVs can't go
16
on these trails.
17
paragraph acknowledges there is a likelihood that BLM will
18
have some type of enforcement action planned.
19
didn't know by now, he surely concedes it in this exhibit.
20
knew it was unlawful to operate an ATV in the closed area.
21
Fair enough.
And in fact the next sentence of the last
If Mr. Wells
He
Let's go to Holliday -- Mr. Holliday and
22
Mr. Marian.
What we know of them is that on April 20th and
23
April 24th Mr. Holliday likes a post on Phil Lyman's page,
24
again, not related to Recapture Canyon.
25
adopts a picture from -- or shares a photo on his website
Phil Lyman then
421
from -- or his Facebook page from Mr. Holliday's Facebook
page, again, not about Recapture, but it's starting to show a
little bit of a connection.
Trent Holliday's like of the May 9th post The Petroglyph put
out on the tailgate party that occurred the night before the
ride.
Well, what is significant is
The next day, we look at 87A, the morning of the preride
rally, we see on the left-hand side Mr. Wells -- or excuse
me -- Mr. Holliday and Mr. Marian.
Let's compare that next to
10
Exhibit 15, which was taken later that day after the ride,
11
after they rode seven miles, saw the signs, crossed into the
12
closed area, there they are riding together.
13
Mr. Lyman said during the county commission meetings, he
14
also said in Exhibit 105A, that he -- at the preride rally
15
that morning he was going to talk about the lay of the land,
16
the rules, the open trails and the closed trails.
17
obviously know that even with those warnings, even with these
18
signs, Mr. Holliday and Mr. Marian chose to ride the Canyon.
19
We've proven beyond a reasonable doubt willfulness.
20
But the defense will say just a second.
We
Yesterday we put
21
up a defense -- a defense witness named Ferd Johnson.
22
Ferd Johnson, according to what he testified to, told
23
Mr. Lyman in March of 2014 that it was okay with him if
24
Mr. Lyman and his protest riders used the right-of-way that
25
the Water Conservancy District has up Recapture Canyon.
And
I'm
422
going to -- we're going to debunk this theory in just a
second.
Let's look at Exhibit 81.
I believe it was Mr. Crane
that talked about Exhibit 81 in cross-examination, and he
highlighted the -- looks like the -- the part that says number
two on the column on the far right-hand side for 81-1.
there it says that this closure order doesn't apply to anybody
that's expressly authorized by the BLM.
Right
Well, the stipulation that you received yesterday from
10
Judge Shelby said that the right-of-way that the Water
11
Conservancy District has was solely to operate and maintain a
12
pipeline.
13
my questions on cross-examination, he acknowledged that they
14
didn't even know where the pipeline was.
15
could they be operating and maintaining a pipeline?
16
weren't.
17
standing around, kids, families.
18
maintaining a pipeline.
19
When Mr. Johnson was on the stand and was answering
They were protesting.
How in the world

They
And Exhibit 91 shows them all

They're not operating and
So that's out.
But more importantly for purposes of this case I want you
20
to look at jury instruction 33, which talks about the good
21
faith exception -- or the good faith defense.
22
the Government to prove willfulness, the United States has to
23
show that the Defendants did not have a good faith belief that
24
they were entitled to be or had a lawful right to be where
25
they shouldn't have been.
In order for
We have to show that, and we
423
welcome it.
Let's discuss briefly what Mr. Johnson said and what he
2
3
did not say.
The only testimony from Mr. Johnson was that he
spoke with Mr. Lyman in March of 2014 and said it was okay.
There was no testimony from Mr. Johnson ever that he spoke
with Mr. Wells, Mr. Holliday or Mr. Marian giving them
permission to use the right-of-way, and no evidence has been
produced from Mr. Johnson, from the Government's witnesses or
from any of the exhibits admitted into evidence suggesting
10
that Mr. Lyman ever communicated that to any of the other
11
Defendants.
12
permission that they never heard about.
Thus, they can't avail themselves of some
But let's focus on Mr. Lyman for a moment to see if he
13
14
really did have a good faith belief that he could be on that
15
road the day of the protest.
16
What we could expect from a reasonable individual is
17
somebody has permission to be somewhere.
18
we're going to see something about that in both
19
correspondence, e-mails and any oral statements they give,
20
especially when the Government's threatening to come after
21
you.
22
After March 2014
But what you're going to see is something that we see
23
periodically in life, and I'm sure none of you have ever done
24
this, but if you're speeding down the road because you're in a
25
hurry and a cop pulls you over, instead of saying, well,
424
officer, I was in a hurry, all of a sudden you're speeding
because one of your children needs to use the bathroom.
sure none of you have ever done that.
you're under pressure.
And the fact -- and I'm going to show
you in just a second.
Permission never comes up even when the
BLM is pressing hard on Mr. Lyman indicates that if that
conversation with Mr. Johnson ever occurred at all, Mr. Lyman
didn't believe it and therefore it's not a good faith belief.
The reason changes when
Let's take a look at some evidence.
I'm
Let's take a look at
10
Exhibit I believe it's 34B.
It's the April 27th post on
11
Facebook -- no, it's not -- 36C -- 34C, sorry about that.
12
look at this post.
13
supposedly Mr. Johnson told Mr. Lyman that he had permission
14
to use that right-of-way.
15
What do we see here?
This is after March.
So
This is after
We see an acknowledgment down here
16
in the second paragraph that it is only motorized machines
17
that are deemed unfit by the BLM on these trails.
18
again in that highlighted portion there's a likelihood that
19
BLM will take enforcement action.
20
in this post is, hey, everybody, it's okay to come ride.
21
Because we have permission.
And then
What we don't see anywhere

Why?
Not there.
22
Let's go to the next one.
23
Mr. Lyman to the BLM's letter.
24
and four.
25
room.
Let's go to the response from

I believe that's 26-2, three
And I urge you to take a look at this in the jury
Sorry, three, four and five, again, one number off.
Is
425
it 24?
off this time.
24 -- yeah, it is.
24-2, three and four.
Two numbers
Mr. Lyman responded with three pages of single spaced
text to BLM's letter that said three times if you do this, if
you do this, there's civil and criminal penalties coming.
you are faced with the Government coming at you like that,
would you not say, oh, by the way, I have permission?
letter doesn't say that at all.
that's not one of them.
10
This
It says a lot of things, but
And in fact in the last page in 24-5 Mr. Lyman
11
acknowledges that the BLM again does not endorse what he's
12
doing.
13
If
No mention of permission.
If we look back at Exhibit 22, which is an e-mail
14
exchange over the course of two days between Juan Palma, the
15
State Director, and Mr. Lyman, Mr. Palma on page two of
16
Exhibit 22 says basically I urge you to reach into your better
17
self, not take any ATVs or construction equipment into that
18
Canyon.
19
reference to permission.
20
Mr. Lyman's response is entirely bereft of any

It's not there.
Let's go to Exhibit 105A.
In Exhibit 105A Mr. Lyman is
21
using The Petroglyph to announce some more things about the
22
upcoming ride and the tailgate party that precedes it.
23
Mr. Lyman in the -- the highlighted portions of both pages
24
talks about a closed canyon.
25
road you'll come to the BLM closure sign.
He says about two miles down the

The road continues
426
on from there in the closed area about a mile or 1.5 miles
until you come to a water pipeline that leaves the canyon.
That would be a good time to say we have permission to ride.
Doesn't say it.
At that point the trail starts to wind through the thick
willows.
I expect to turn around at that point and drive back
to the closure sign and head out of the canyon on a trail
going west.
open -- legal and open, whereas, the one he was on before was
That trail, the trail going west, is legal and
10
illegal and closed.
11
technically, according to Mr. Johnson, has permission.
12
And this is all being said when he
The next paragraph then talks about the trails heading
13
south, and there are many -- there are a lot of options at the
14
bottom of that paragraph.
15
to be 100 percent part of this very needed protest without
16
riding on any closed trails.
17
on a closed trail, why in the world would you insert that?
18
There's no reason for it.
19
is Exhibit 99B.
21
by CBS News.
23
24
25
If you have permission to ride
But finally for me, the one that really just hits home,
20
22
There are a lot of options for you
In Exhibit 99B Mr. Lyman is being interviewed
This aired on May 9th.
Play the clip, please, of 99B.

(VIEWING VIDEO)
That seems completely bizarre.
If you have permission to
use a BLM approved right-of-way from the Water Conservancy
427
District, why in the world would you tell the news that you're
breaking the law from a federal standpoint?
absolutely no sense.
That makes
So whatever Mr. Johnson testified to about a good faith
belief about permission, to the extent that conversation ever
happened, which I don't think it did, but that doesn't matter,
Mr. Lyman didn't believe it.
belief that he did not -- should not be operating his ATV in
the closed area.
He did not have a good faith
Therefore, Mr. Lyman, Mr. Wells,
10
Mr. Holliday and Mr. Marian all operated their ATVs in an area
11
closed to such use, willfully and knowingly, and you should
12
find them guilty for it.
13
Now let's talk about some conspiracy.
As the Judge
14
instructed, a conspiracy is an unlawful agreement.
15
crime.
16
itself is the agreement, whether the crime -- the crime, the
17
object of the conspiracy is ever completed, doesn't matter.
18
It's the agreement that matters.
19
That's the
As long as the other elements are proven, the crime
For purposes of our discussion of conspiracy, I think we
20
can get rid of one of the elements fairly quickly.
21
to take you to element number two, the overt act.
22
act is the fact that all four defendants rode their ATVs in an
23
area that was closed to such use.
24
25
I'm going
The overt
That's the overt act.
As the instructions indicate, we only need to prove one

overt act.
We've got four in this case.
You need to be
428
unanimous as to which ones you pick in the jury room, but
there are four to pick from.
We can cancel that off.
So what we're left with is an agreement that these
Defendants knew about, knew about its essential objective, and
knowingly and will -- knowingly and voluntarily participated
in that agreement, and that there was some interdependence
between the members of the conspiracy.
8
9
Let's go to the agreement.

Exhibit 23.
I'll refer you back to
In Exhibit 23 again it references Mr. Lyman's
10
town hall meeting.
11
decided?
12
79, where he and Mr. Wells are having a conversation about
13
this meeting, it talks about we decided to ride Recapture.
14
the subject pronoun we indicates, it's more than one person.
15
Mr. Lyman entered an agreement to do what he knew violated the
16
law.
17
And at the town hall meeting what was
Ride Recapture Canyon on May 8th, 2014.
In Exhibit
The conspiracy started to ripple out from there.
As
18
couple of weeks later, as you know, Mr. Wells attended a
19
luncheon with Mr. Palma here in Salt Lake City.
20
Mr. Lyman and Mr. Palma all ate together and they talked about
21
what BLM could do to make that legal.
Does that necessarily
22
show that he's made an agreement yet?
Maybe not, but it
23
certainly shows he's getting there.
24
25
He and
What does show that he's entered this agreement, we'll

pull up Exhibit 73 again, is the fact that Mr. Wells has
429
reposted one of Mr. Lyman's Facebook page announcements about
the ride adding his own flourishes to them.
Mr. Lyman's Facebook page -- is that seventy -- no, it's 34C,
is it?
See if I'm right.
I believe that
Sometimes we get lucky.
Can we show those side-by-side, please.
Again, the text beneath the sign is the same, but absent
from Exhibit 73 is any reference to Mr. Lyman at all.
it's We Need You.
use it unless there's more than one person, if you're a native
Again, notice that pronoun we.
We need you.
Instead
You don't
10
English speaker.
A little bit further down in
11
Exhibit 73 it says again at the bottom of that first line in
12
bold beneath 9:00 AM, we invite all supporters.

If you read a little bit further down there's more we's,
13
14
in fact there's several we's on the first page.
15
more we's on this document than the nursery rhyme about the
16
pigs going to market.
17
agreement to do something the law forbids.
18
both Mr. Lyman and Mr. Wells showed up and rode the Canyon.
19
They were at the preride rally.
20
There are
That's indicative of a conspiracy, an

We also know that
What about Mr. Holliday and Mr. Marian?
Let's talk about
21
them.
22
refer you specifically to number 26, you learn that a
23
conspirator does not necessarily have to participate
24
throughout the entire agreement.
25
can play a minor role.
In the jury instructions you've received, I'm going to
They can come in late.
They
They don't all have to be Mr. Lymans
430
to be conspirators.
conspiracy.
Mr. Wells provided here.
They can have a smaller role in the
And that's precisely what Mr. Holliday and
As you recall Exhibit 87A, Mr. Lyman -- excuse me --
Mr. Marian and Mr. Holliday appeared at the preride rally.
They heard what Mr. Lyman talked about, among others.
did Mr. Lyman talk about?
105A again.
What
Well, briefly let's pull up Exhibit
In Exhibit 105A Mr. Lyman again talks openly about the
10
trails that are open and the trails that are closed.
11
county commission meetings he talks in Exhibits 18 and 19
12
about providing these very -- this very information to people
13
at the preride rally.
14
In the
We know that Mr. Holliday and Mr. Marian got on their
15
ATVs and drove seven miles.
16
barbecue looking for a family barbecue and then get whisked
17
away by some protest ride.
18
about it.
19
Mr. Holliday liked the excitement from The Petroglyph post
20
about the tailgate party the night before.
21
They didn't show up at a family
They had seven miles to think
They knew why they were there.
In fact
Despite knowing all that, despite having seven miles to
22
change your mind, they crossed the line.
23
Because this was a protest ride.
24
voluntarily participate?
25
mistake.
Why did they?
Did they knowingly and
You bet they did.
This was not a
It wasn't an accident.
431
Finally, is there interdependence?
Well, interdependence
it means that we have to show that they worked together for
some common good, that there is -- they some -- they for some
mutual benefit within the scope of the conspiracy charged.
Well, the object of the conspiracy charge was to ride
Recapture Canyon illegally.
How did they mutually benefit one another?
Well, simply
this.
Mr. Lyman wanted to make a statement to BLM.
He
purposely changed the date to get more people to come.
It's
10
not much of a statement if you've only got one or two riders.
11
You need more people.
12
Wells helped him do that.
13
Mr. Marian and Mr. Holliday showed up and rode the trail and
14
added numbers to the other people that were there in support
15
of this protest ride.
16
You need to publicize this, and Monte

And then you have to have riders.
They formed a conspiracy.
You say, well, wait a minute.
17
They showed up at the end.
18
can infer based on jury instruction I believe it's 24, 25,
19
about an agreement -- 24 -- that an agreement you can infer
20
from conduct, mutual conduct in concert, as to whether there
21
was an agreement between the parties.
That's true, they did.
But you
22
We've certainly established beyond a reasonable doubt
23
that there was an agreement here between all of them, even
24
though some entered late, doesn't matter.
25
agreement.
They committed an overt act.
There was an
The Defendant
432
knowingly and voluntarily participated, and there was
interdependence.
together to pull off this protest ride.
proven that beyond a reasonable doubt and you should find them
guilty under Count I.
There was the reason for them to be working

United States has
But I want to address one matter regarding Mr. Wells and
the assertion about being a neutral journalist because that's
important.
Can we please do a compare -- side-by-side comparison of
10
Exhibit 73 and Exhibit 103A.
11
as part of the publicity that Mr. Lyman wanted for the
12
Recapture ride, he published an art -- he published an
13
editorial in the Deseret News.
14
documents where Mr. Lyman has been the significant contributor
15
to both.
16
statement compared to how Mr. Wells did, and you can judge for
17
yourself as to whether this is journalism or more behavior
18
akin to co-conspirator.
19
You'll recall that on April 11th
So we're comparing two
Let's see how the Deseret News treated Mr. Lyman's
If we look at the top of the Deseret News article, we see
20
a name, Phil Lyman.
21
we likewise see a name at the very bottom of the text.
22
Lyman is a San Juan County Commissioner.
23
Exhibit 73.
24
Lyman, even though he's responsible for the text We Need You,
25
it's Monte.
We go to the second page of Exhibit 103A

Phil
Conversely look at
The only name that appears there is not Phil
433
Moreover, if you look at the Deseret News, there's no We
Need You, triple exclamation mark, but there sure is on
Exhibit 73.
Is that neutral journalist or co-conspirator?
Finally, in his Facebook post, and I believe this is 32C,
34C, in 34C Mr. Lyman mentions -- he says, look, I've
published this -- Deseret News published my article.
find it here in a second.
page he says the Deseret News removed my invitation to the May
8th ride, and they did.
10
11
We'll get there.
We'll
On the Facebook
But if you look at Exhibit 73, that's
the invitation to come to the ride.

There is a huge difference between Deseret News and Monte
12
Wells.
13
journalist -- and certainly you're going to see The Petroglyph
14
has a lot of news on it, absolutely right, no dispute.
15
this instance, in this case, is Mr. Wells' behavior more akin
16
to a journalist reporting the news or a co-conspirator?
17
ability to report the news does not give you the right to
18
violate -- to commit crime, so judge accordingly.
19
So you can judge for yourselves, is that akin to
But in
The
If you believe that based on all the evidence you've seen
20
during this trial, both the exhibits and the testimony, we
21
have proven beyond a reasonable doubt that the Defendants
22
knowingly and willfully rode their ATVs in an area closed to
23
such use, and committed a conspiracy to do the same by making
24
an unlawful agreement and working together to bring about this
25
protest ride, then we respectfully request that you find them
434
all guilty.
THE COURT:
2
3
Thank you.
Counsel.
MR. CRANE:
Your Honor, I'm up.
I just need one
minute to set up, might be appropriate time just to stand up
and shake it out a little bit.
THE COURT:
Of course.
Members of the jury, you're
all okay to keep going for a bit before we break, yes?
right.
10
(BRIEF PAUSE)
11
12
When you're ready, Mr. Crane.
13
14
15
16
All
MR. CRANE:
okay on the mike?
Can you hear me
Thank you.
DEFENDANT WELLS' CLOSING ARGUMENT

MR. CRANE:
Mr. Wells pled guilty -- pled not guilty
17
because he has not committed any violations of the law.
18
Government has charged him with two counts, one count being
19
conspiring to drive an ATV down Recapture Canyon, as you've
20
heard, and the second count actually operating an ATV down
21
Recapture Canyon.
22
turn, first starting with the conspiracy.
23
The
I want to address each of those counts in
What is important in this case is to take the case in
24
chronological order.
During the Government's presentation in
25
the last couple of days they jumped all around.
Their
435
witnesses jumped around.
Juan Palma during his testimony, he
was all over the place talking about different events and
different times.
again the exhibits and the timing of those exhibits jump
around.
you see the entire story of what happened and who knew what
when.
And today in the Government's presentation
But as you look at this case in chronological order,
First off we start with Recapture Canyon.
I think it is
undisputed from the Government's witnesses and from
10
Commissioner Lyman's own mouth during a county commission
11
meeting that Commissioner Lyman's district falls -- or
12
Recapture Canyon falls within his district.
13
constituents, those who voted and elected him into office,
14
live right next door to Recapture Canyon.
15
So his
We know from the testimony that was presented that
16
Recapture Canyon is the closest canyon to Blanding City, a
17
place where the citizens like to go and recreate.
18
this -- it makes sense that Commissioner Lyman would take this
19
issue up.
20
And so
Starting in time, March 2nd, County Commissioner Lyman
21
e-mails Juan Palma, the Director for the BLM for the State of
22
Utah, and informs him about their plan.
23
hall meeting, which elected officials often do, where their
24
constituents can come and meet with the elected official, and
25
one of the things they discussed was doing something about
He says we had a town
436
1
2
Recapture Canyon.
There was frustration with the BLM.
The BLM had closed
the trail in 2007.
application asking them to reopen it, and then they hadn't
heard anything from the BLM.
to and including 2014, seven years of inaction by the BLM.
There was frustration in San Juan County.
8
9
San Juan County had immediately filed an
The BLM had taken no action up
But this -- this was -- this was no secret what

Commissioner Lyman was doing.
Every federal agent who
10
testified on the witness stand testified they knew well in
11
advance about this protest.
12
break the law, you don't tell the feds, but they did because
13
there was no decision to break the law.
14
Normally if you're conspiring to
On March 2nd, 2014 Commissioner Lyman wrote a letter to
15
his constituents.
16
agreement that BLM had with San Juan County where the county
17
agreed to maintain trails and roads that were in BLM's
18
jurisdiction.
19
In this correspondence he talks about the
And so part of his letter -- and he discusses we had a
20
meeting on February 27th.
21
propose, you know, looking at the programmatic agreement that
22
we have with the BLM we have the ability to do service
23
projects.
24
25
We discussed protesting.
I'm working with the county to see what we can do.
April 11 we have the editorial that's published in the

Deseret News.
In this editorial he says in 2012 I invited the
437
BLM and the community to walk the Recapture trail.
paragraph.
to come and walk the trail.
planning another excursion into Recapture.
Next
In August of 2012 I invited the BLM State Director

Next paragraph.
On May 8 we are
So as of April 11, there still wasn't a definitive plan
to ride ATVs into the canyon.
He's talking about we had a
prior walk on two different occasions.
another excursion.
BLM Canyon here.
We're going to do
There's no mention of driving an ATV into
Later in the Facebook page Commissioner
10
Lyman does mention ATVs in regards to this article, but the
11
article published by the Deseret News makes no mention of it.
12
Next day, April 12, Commissioner Lyman e-mails Juan Palma
13
and says I have the county's Trail Cat ready to do the reroute
14
if you have that marked, otherwise we're okay with the
15
existing trail.
16
elected official, negotiating with the BLM's Director saying,
17
okay, great.
18
this trail in the canyon.
19
there.
20
can have access to the canyon on their ATVs and the BLM can be
21
happy because it will protect any potential areas that could
22
be damaged.
He's now as the County Commissioner, the
I recognize that the BLM has some concerns with

We don't want to cause any damage
Let's reroute the trail.
That way his constituents
He's negotiating with the Director.
23
Who is on this e-mail?
Just Commissioner Lyman and the
24
State Director for the BLM.
25
San Juan County County Commissioner.
And he signs it as Phil Lyman,

He is doing all of this
438
correspondence.
He is acting in his capacity as the elected
official working on a San Juan County issue.
involve anyone else.
This doesn't
He's taking this on by himself.
The next day Mr. Palma responds, recognizing this is a
county issue, and says because this topic involves San Juan
County Commission, I have taken the liberty to include
Commissioners Adams and Maryboy.
communication.
They are then cc'd on the
Mr. Palma then counters to the idea to reroute the trail
10
with, well, you mentioned service projects earlier.
Why don't
11
you go take your constituents and perform some service in
12
other parts of San Juan County, including signage, trail
13
maintenance, some of the same service projects that
14
Commissioner Lyman had suggested.
15
suggesting, well, just do this someplace else.
16
time to determine what we're going to do, what we as the BLM
17
are going to do with Recapture Canyon.
But Mr. Palma is

We need more
18
Commissioner Lyman responds that same day and says I and
19
the county are now dealing with the reality again of a broken
20
mechanism.
21
the BLM's Director and he's saying that this process is
22
broken.
He again has received a delay notification from
23
This communication again is just involving the State
24
Director for the BLM and the three elected county officials in
25
San Juan County.
Mr. Wells, Mr. Marian, Mr. Holliday are not
439
included on this correspondence, and in fact those three
individuals are not included on any of the e-mails or letters
that were admitted as exhibits because this is San Juan
County.
When I asked Mr. Palma when he was on the witness stand
why he was dealing with Commissioner Lyman, it's because he
was the elected official.
working with a federal government employee trying to work out
this issue.
It's a state government employee
10
Later in this letter Commissioner Lyman states if you
11
believe there's a site on the north end of Recapture which the
12
current trail impacts negatively and would like an alternate
13
route, please identify it and have people there on the 8th to
14
help with the work in moving the trail.
15
reroute this trail.
16
seemed like the reasonable alternative to just a -- to just a
17
flat closure order of the canyon.
18
Commissioner Lyman.
19
He again asks let's
From San Juan County's perspective that
Again, signing it
On April 21st at a San Juan County commissioners meeting
20
attended by Commissioner Lyman, Commissioner Adams and
21
Commissioner Maryboy, Commissioner Lyman indicates that for
22
the commission, out of the three individuals in the room at
23
the county commissioners meeting, he is the ringleader on this
24
issue.
25
district.
But that makes sense because it falls within his

It's his constituents that are most impacted by the
440
proximity of this canyon to their homes.
the lead.
So, yes, he did take
Those we terms, it's a county commission meeting in a
county building, in a county room where the three elected
officials are discussing a county problem.
County problem is the problem that they're having with the
BLM.
8
9
And the San Juan
At the next week's county commission meeting on April 28

Commissioner Lyman says the main thing I want to do is on
10
Saturday morning at 9:00 I'm going to basically give them some
11
rules and where they can go and what the lay of the land is.
12
Government likes to throw out the we.
13
I's in this county commission meeting, Commissioner Lyman
14
recognizing this is his issue that he's working on.
15
There's surely a lot of
The other interesting part is that second part of that
16
quote where he says people that show up I'm going to give them
17
the rules.
18
the testimony of Ferd Johnson that he had already had a couple
19
of conversations with Commissioner Lyman at this point.
20
Commissioner Lyman knew that he had permission to use the
21
right-of-way.
22
his constituents is stay on the pipeline trail.
23
the turnaround point.
24
25
Well, what are the rules?
April 28 we know from
And
And so the rules that he wants to pass on to

Don't go past
Commissioner Lyman is not trying to set up his

constituents to violate the law.
He needs their votes come
441
November, and if all his constituents get arrested because of
something he does, that's bad politics.
protecting them by getting permission for that right-of-way so
that they would not be in violation of the law.
rule that he wants to pass on.
And so he was
That's the
Josh Ewing, the Government's second witness, testified
that Commissioner Lyman was consistent in telling people that
he was only going to the turnaround point and going back --
and then going back out north out the canyon.
And in fact he
10
said Commissioner Lyman was good to his word.
He didn't
11
proceed past the turnaround point, because he knew if he were
12
to go past that point, he no longer was on the right-of-way.
13
He no longer had a lawful reason -- or lawful expectation for
14
that trail.
15
Taking it in order again we have the letter of April
16
29th.
17
Lance Porter on April 28th and that letter was sent only to
18
Commissioner Lyman.
19
letter, it wasn't sent to Mr. Wells, wasn't sent to
20
Mr. Holliday or Mr. Marian.
21
The Government highlighted the letter that was from
When you go and look at the April 28
Commissioner Lyman responds on San Juan County letterhead
22
listing the three elected county commissioners and signing it
23
as Phil Lyman, San Juan County Commissioner, again, acting in
24
his official capacity dealing with the San Juan County issue.
25
The only people cc'd on this are all elected officials, both
442
commissioners from San Juan County, the United States senators
for Utah and the Unites States Congressmen for Utah.
In this letter Commissioner Lyman says a lot of
interesting things that I want to highlight briefly.
I had met previously with Juan Palma.
make this a positive event by allowing our group of citizen
volunteers to reroute the trail.
8
9
He says
I asked him and you to
The Government mentioned the lunch meeting that occurred

on March 27th.
Juan Palma testified that he had several
10
lunches with the elected official, County commissioner Lyman,
11
regarding this issue and other county issues.
12
you that on March 27 that he learned about five minutes before
13
the meeting that Commissioner Lyman had another individual
14
with him, and he learned that Mr. Wells was at the State
15
Capitol with a meeting with the State Auditor, and that he
16
then went to this luncheon.
17
it was Commissioner Lyman and Mr. Juan Palma that had the
18
conversation regarding Recapture Canyon.
19
Juan Palma told
He also told you at the luncheon
In instruction number 26 you were instructed that proof
20
regarding conspiracy, proof is not sufficient if it merely
21
shows a Defendant knew about the existence of the conspiracy
22
or is associated with members of the conspiracy.
23
evidence must show each defendant knowingly joined the
24
conspiracy with the intent to advance its purposes.
25
Rather the
There's no dispute that Commissioner Lyman and Mr. Wells
443
know each other.
One is an elected official, one is a news
journalist.
because that's what the readers want to read about.
it's a relationship that makes sense in a very small
community.
official and he wasn't a news journalist, they'd probably
still know each other in a small town.
Journalists love to talk to elected officials

And so
Even if one -- even if there wasn't an elected
But just knowing Commissioner Lyman and knowing that he
was advocating on behalf of the county with the BLM does not
10
make Wells a co-conspirator.
11
And this -- again, going back to this letter, he says
12
that the May 10 event itself came about at a town hall meeting
13
I held on February 27.
14
no evidence that Mr. Wells was present, Mr. Marian or
15
Mr. Holliday were at that meeting.
16
That town hall meeting there has been
Within a few days of the town hall meeting, I called Don
17
Hoffheins.
18
meeting, hey, listen, my constituents are concerned about this
19
and we're going to do something.
20
commissioner in San Juan County, I claim the authority and I
21
accept the responsibility.
22
rally as my protest.
23
He informed the feds immediately after that
He stated as an elected
And he continually refers to this
April 30th, again going to the next correspondence,
24
e-mail from Commissioner Lyman to Juan Palma.
He states I do
25
not plan to break any federal laws on May 10.
Because at this
444
point on April 30th he had already had two conversations with
Ferd Johnson and had already received his permission to use
the right-of-way on May 10.
So that's an accurate statement.
Counsel made a little bit of to-do with the fact that
there's no e-mail, we don't have any record, of Commissioner
Lyman proclaiming, hey, everybody, we've got permission of the
right-of-way.
that that you can infer from the facts.
has zero trust with the BLM.
And I think there's a simple explanation of

Commissioner Lyman
And I think it's reasonable from
10
his perspective that if he announced that he had permission to
11
use the right-of-way, the BLM would have taken action and
12
tried to do something to change the right-of-way or change
13
that access.
14
But the fact of the matter is that right-of-way existed
15
in 2014.
16
years into the future.
17
the Defendants permission to use that right-of-way.
18
get me wrong, we're not arguing he had a legal right, as we'll
19
get to in a minute, it's just a good faith belief that their
20
actions were lawful, and that good faith belief can be
21
reasonable or unreasonable.
22
It dated clear back to 1986.
It goes on for several
And Mr. Johnson testified that he gave

And don't
Going forward, let me talk about Mr. Wells as a news
23
journalist.
Both Lance Porter and Brian Loftin testified they
24
know that Mr. Wells is a news journalist in southern Utah.
25
And in fact Brian Loftin gave the most lengthy testimony about
445
Mr. Wells' reporting.
reports on locals who receive awards, county commission
meetings, the local high school graduation, the local Easter
egg hunt, matters that are important to the western states,
and local high school sports.
He indicated that The Petroglyph
So this was not -- The Petroglyph was not set up as part
of a conspiracy to drop people into the May 10 protest.
It
existed prior, it still exists, it's reporting on the news on
a wide variety of subjects.
10
You were instructed that the Defendants enjoy First
11
Amendment rights to exercise their freedom of expression and
12
to peaceably assemble.
13
these rights and they are charged with no crimes relating to
14
the exercise of these rights.
15
They are not on trial for exercising
The term was used this morning neutral journalist.
I'm
16
not sure what that means.
17
where an individual is charged with being neutral and that's
18
being a judge.
19
think of doesn't require you to be neutral in what you're
20
doing.
21
Amendment right they have, they can offer opinions in their
22
articles.
23
being a news journalist.
24
25
I'm aware of only one profession
Every other -- every other profession I can
Especially with the news journalist, given the First
That's the power of the pen.
That's the beauty of
You get to write whatever you want.
So the fact that Mr. Wells was sympathetic to San Juan

County's position doesn't make him a criminal.
He has a First
446
1
2
Amendment right to express whatever beliefs he wants to.

On April 27 Mr. Lyman posted this editorial on his
Facebook page.
May 10 ride.
some introductions and we're going to have some instructions.
If this was just a conspiracy to ride down Recapture Canyon
and go wherever you wanted in the canyon, why would you need
instructions?
In the editorial he informs people about the
He again states in there we're going to have
Again, the instructions are don't go past the turnaround
10
point for the pipeline.
He's telling people that there are
11
going to be rules with this protest ride, and, again, not
12
wanting to specifically state what those rules are in these
13
postings lest the BLM get in there and try to change something
14
with that right-of-way.
15
As newspapers do, The Petroglyph picked up on his
16
editorial two days later on April 29 and posted it on their
17
website word for word, including the introductions and some
18
instructions language.
19
they added some graphics.
20
disputed that Mr. Wells and The Petroglyph were sympathetic to
21
this position.
22
As a newspaper has the ability to do,

Certainly I don't think it's
But this is really no different than what the Deseret
23
News did.
They added their own graphics.
24
own photo.
25
which way the Deseret News comes down with this editorial, but
They didn't add any editorial.
They added their

You can't tell
447
they still published an article.

Brian Loftin testified that the version that was
2
3
presented, this version here, has a different formatting than
what actually you see on The Petroglyph's website.
you look on The Petroglyph's website, it actually does not
have the name Monte on the article.
format it to print it, the template pops up where it pops up
the name Monte.
That when
But then when you go to
The Defendants in this matter have a First Amendment
9
10
right to peaceably assemble, and assemble is what they did.
11
May 9 there was a gathering in the park to hear from speakers,
12
to talk about the issues San Juan County was having with the
13
BLM.
14
On May 10 in the morning they assembled again.
15
Mr. Wells present?
16
come to this stand and say that Mr. Wells was a presenter or a
17
speaker at these?
18
testimony that on May 9 or May 10 Mr. Wells was there in his
19
capacity as a co-conspirator, as an organizer, leader of the
20
event.
21
You bet he was.
Was
Did we hear any witness
No, because he wasn't.
We didn't hear any
He was there, as Brian Loftin testified, reporting the
22
news.
He was live blogging, taking photographs, posting
23
comments, documenting the event so that those of his readers
24
who were not able to be present on May 10 and May 9 had the
25
ability to know exactly what was going on.
448
As you can see from this posting, there's other news
reporters there.
and he was there to capture it and report it to his readers.
Reporting the news does not make one a co-conspirator.
Government has failed to show how Mr. Wells as a news
journalist was a conspirator in this case.
This was a big story in southeastern Utah,
The
Now, regarding the second charge, the Court has
instructed you that there are three elements that you must
find exist by proof beyond a reasonable doubt.
I just want to
10
focus on two words which are the most important and really the
11
focal point of the case, and that's the words knowingly and
12
willfully.
13
You have to find by proof beyond a reasonable doubt that
14
Mr. Wells and the other co-defendants knowingly and willfully
15
violated the law.
16
find that the Defendants acted knowingly, you must be
17
convinced that each Defendant acted voluntarily and
18
intentionally and not because of mistake or accident.
19
Knowledge cannot be established merely by demonstrating that
20
the Defendants were negligent, careless or foolish.
21
instruction number 31.
22
Willfully.
You were instructed by the Court today to
That's
The word willfully means that the act was
23
committed voluntarily and purposely.
A defendant's act is not
24
willful if the defendant had a good faith belief that his
25
conduct was lawful, even if that belief was unreasonable.
449
And that's really the key, which we'll discuss with good
faith.
had a good faith belief that his conduct was lawful, even if
that belief was not reasonable.
or an unreasonable belief.
A defendant's actions are not willful if the defendant
It can be a reasonable belief
The Government said the conversation with Ferd Johnson
never happened.
That's going with the liar liar pants on fire
theory of this case.
Johnson came up here from Blanding, Utah six hours away to
They want you to believe that Ferd
10
make up some story?
11
chronological order about what Commissioner Lyman was saying
12
and doing, and with the fact that he was telling people I'm
13
just going to the turnaround and then I'm going back out, and
14
that's what you should do as well, it's because he knew he had
15
permission to be on that trail.
16
But when you put everything in
Going to our map of Recapture Canyon, the upward northern
17
part, Ferd Johnson testified there is a pipeline that runs
18
right down the middle of Recapture Canyon, goes up to this
19
point, this yellow arrow is where the closure sign is located,
20
this one, and then continues down to this bottom arrow where
21
it then leaves the canyon as a turnaround point.
22
The Government had their witnesses come down and show
23
exactly where they were located and where they took their
24
photographs.
25
T.O., and every -- Josh -- Josh Ewing, his photographs and
Jason Moore marked the turnaround point with
450
video, north of the turnaround spot.
of the turnaround spot.
Jason Moore, J.M., north
Jason Moore testified that these cameras located here and
here were overexposed.
so the evidence that we have from Jason Moore, Josh Ewing and
Ferd Johnson is that the Defendants who were photographed were
in those two locations, both within the pipeline.
photographs were north of the turnaround spot, including this
one of Monte Wells.
10
You can't see anything on them.
Monte Wells is driving down the trail.
And
All
He sees two BLM
11
federal agents with cameras.
12
sign.
13
illegally, I'd cover my face.
14
even show them an obscene gesture with my hand, but he
15
doesn't.
16
are only there to document who was on that trail.
17
and waves because he believes, whether reasonable or
18
unreasonable, he has a good faith belief that his being there
19
was lawful.
20
Moore, Josh Ewing and Ferd Johnson testified.
21
He knows he's just past this
And as he comes up to them, if I was riding that trail

I'd pull my hat down.
I might
He smiles and waves at these two federal agents who

He smiles
He is on the pipeline trail as Jason -- Jason
Ferd Johnson literally opened the gate to Recapture
22
Canyon for these protestors on May 10.
He also verbally
23
opened it by informing them that they had a right to be there.
24
The last question that I asked Mr. Johnson on my direct
25
examination, I named Commissioner Lyman, Mr. Wells,
451
Mr. Holliday and Mr. Marian and I asked him did they have
permission to use the Water Conservancy right-of-way on May 10
for this limited purpose, and he said yes.
That's good faith belief.
burden.
both counts.
7
8
9
10
I'd ask that you find the Defendants not guilty of

Thank you.
THE COURT:
Ms. Preston.
Thank you, Mr. Crane.
Would you like Mr. Crane to move that
screen back or do other counsel intend to use it?

MS. PRESTON:
I don't need to use it.
DEFENDANT HOLLIDAY'S CLOSING ARGUMENT
11
12
Government can't meet their
MS. PRESTON:
I don't have as good of a memory as
13
these other guys do so I have some notes.
14
acknowledgment that we have from my client about this whole
15
scenario was Exhibit 69A.
16
it was a picture of the end of the tailgate party, and it was
17
posted on The Petroglyph page, and he posted like.
18
the like button on that.
19
of the tailgate party, and he didn't like anything else about
20
this event on Commissioner Lyman's page.
21
these postings and these Facebook shares, he didn't post
22
anything about -- he didn't like anything.
23
like things.
24
like something on Facebook, the kitty cat.
25
The very first
That is when he posted a like on --
He pushed
He didn't push like at the beginning
Even through all of
He proved he could
And the agent told us how very easy it is to

You push like.
So if he had been following Commissioner Lyman, all these
452
articles, all these posts, some of them were long, some of
them were short, he would have liked something along the way.
That's what the three -- the Government's three exhibits show
is that when he reads something, he easily pushes the like
button, like most people do.
else up until the night before May 10th, May 9th at night, not
May 9th in the morning and not any date before May 9th.
And yet he hadn't liked anything
There's of course also no evidence that he was ever at a
county commission meeting, that he ever knew of or engaged in
10
any of this communication between Juan Palma and Commissioner
11
Lyman.
12
everybody in San Juan County knew about this event.
13
some point, through word of mouth or somehow, he knew enough
14
about the event to show up Saturday morning.
15
But at some point, just like Josh Ewing said,

So at
As you'll recall, Josh Ewing also testified a lot of
16
people believed it was a legal ride.
17
client putting like on the end of the tailgate party.
18
was no evidence that he was at the tailgate party.
19
lot of citizens in San Juan County, people had been talking
20
about this, they heard about it, and by all appearances he
21
jumped on board at the very last second.
22
What we have then is my

There
But like a
The two other articles that he liked on Commissioner --
23
well, one he liked on Commissioner Lyman's page was 104C, and
24
it talked about antiquities on the Wasatch Front.
25
read the headline.
He may have liked that.
He may have
We don't know if
453
he read the whole article, but he put like on that.
was in April.
safe to say that he had the news feed, being friends with
Commissioner Lyman, about this event, and he never liked one
single thing.
And that
So all through April and up to May 10th it's
Some of these posts actually said at the bottom of them
like and share.
73, the one with the We Need You, The
Petroglyph, it said like and share.
tailgate -- end of the tailgate posting from The Petroglyph,
He had liked the
10
so we have to assume that he was also getting postings from
11
The Petroglyph.
12
evidence of that, anything that was going on.
13
He never liked or shared, there was no
There's a lot of people that hear things through word of
14
mouth, but they don't pay careful attention to the details.
15
They may not be into politics.
16
feeling that you kind of agree with things or disagree, but
17
you couldn't really tell the whole story, and you weren't
18
reading everything about the story.
19
You kind of get a general
Commissioner Lyman was involved in a very complicated
20
political process.
21
have known about that.
22
follow that.
23
citizens are more politically active than others, but
24
generally when there's an elected official dealing with the
25
Director of the BLM in meetings, trying to negotiate, trying
There's no evidence that my client would

And most common citizens, we don't
I don't follow that kind of thing.
Some
454
to get consent, maybe receiving warning that there will be
penalties, that's between them.
no assumption that a common citizen knew anything about that.
And there was no evidence that my client knew anything about
that.
There's no -- there should be
The evidence we have, as I said, starts on May 9th.

Oh, I didn't mention the other, 104B.
My client posted
something about a totally different road.
road that -- I don't really know what it was, but it says on
there county road closed by Forest Service.
10
It was a county
And he didn't
share that on Phil Lyman's page.

I think a lot of times that's the way it works.
11
The
12
common person, the information kind of drifts downward.
13
doesn't go upward.
14
found it interesting and posted it on his own page.
15
client didn't interact with Mr. Lyman on that.
16
picked it up and put it on his Facebook page because he liked
17
it.
18
It
Mr. Lyman took that off his news feed,

So my
Mr. Lyman
He was interested in it.

So all we really have is my client liking the article
19
about antiquities in the Wasatch Front and then come
20
straightforward to May 9th.
21
tailgate party.
22
was already nighttime.
23
signal that my client knows something about this.
24
everybody had been talking about it all through San Juan
25
County, but there's no evidence that my client, what he knew
My client liked the end of the
The end of the tailgate party, that photo, it

That's when my -- that's the first
Sure,
455
or when he knew it until that May 9th like.
He liked a
picture in the dark that said end of tailgate party, or
tailgate party ending.
That's what he liked.
The next thing we have is my client at the park on
4
5
Saturday morning.
He came upon a big crowd.
speaking.
enforcement and a big crowd, the public, standing around
participating in a rally or an event.
10
11
What did my client come upon in the park?

He came upon elected officials
He came upon local law enforcement and federal law
That's what he came
upon.
He also came upon Mr. Lyman speaking in the park.
He
12
spoke.
Mr. Bennett asked you to kind of deduce what Mr. --
13
what my client and Mr. Marian might have been talking about as
14
they kind of stood off to the side, but he didn't want you to
15
deduce that Mr. Lyman relayed the consent that Mr. Johnson
16
gave to use the water conservancy right-of-way.
17
MR. BENNETT:
18
THE COURT:
19
MS. PRESTON:
Objection, that's not in evidence.

Go ahead, Ms. Preston.
Mr. Johnson's right-of-way -- the
20
right-of-way to the water conservancy, Mr. Johnson relayed
21
permission to Mr. Lyman to use that right-of-way for the
22
protest.
23
Mr. Lyman gave that he likely relayed that.
24
know it precisely, but he likely relayed that.
25
we don't know what my client heard and what my client didn't
We can infer from the talk that Mr. Lyman -- that

Maybe we don't
The truth is
456
hear.
had at least heard about the night before, probably a little
bit earlier, and that he arrived and he participated in this
situation.
We only know that he came upon this situation that he
I remember one time a couple years ago I was going to the
state courthouse and I walked out the front door and I saw a
big rally across the street, and our Mayor Rocky Anderson was
speaking at that rally.
closed down for the purpose of foot traffic or something.
And a couple of the side streets were
10
Now, I know that you can't close down traffic ways, and I know
11
that I can't jaywalk either.
12
citizen elected officials speaking, law enforcement officers
13
standing around in attendance, I presume that this is
14
permissible.
15
what I presumed when I saw the rally across the street.
16
But when I walk out and see as a
Permits are granted for such things.
That's
I also know that you have to have consent to have a rally
17
at the county building.
I'm assuming they had that consent,
18
so I walked over there.
Looked interesting to me.
19
go ask somebody where is the consent coming from?
20
isn't normally permitted, but as a common citizen I derived --
21
I deduced that there must have been some consent.
22
I didn't
I know this
Just like when the Salt Lake City Marathon passes right
23
by my front door, the streets are closed down.
24
someone got the consent.
25
don't go and ask to see that consent.
I assume
There's police officers around.
This is safe to assume
457
as a common citizen when you see your elected officials
speaking and you see local law enforcement standing around,
and you arrive.
didn't know.
And we don't know what my client knew or
We can kind of assume that there was an issue here he was
interested in.
I don't remember what the protest -- or the
meeting was about with Rocky Anderson, but let's just say it
was something I was interested in and I knew that by the
signs.
Let's say it was Mothers Against Drunk Driving and
10
they were over there having a rally, and I decided I like that
11
content.
12
the street and I'm going to participate in this, even though
13
it's on public roads that are normally closed to that foot
14
traffic because I'm going to kind of assume that people have
15
permits just by that situation.
16
I'm in agreement with it.
I'm going to walk across
So no matter what was relayed that morning, we have a
17
common citizen who walked into that situation, and there's no
18
real evidence of what he knew, besides inferring that he kind
19
of liked or was interested in what was going on that day, and
20
that he like everyone else in San Juan County knew about it,
21
and like many people in San Juan County, as Ewing said, he
22
could have very well believed it was legal.
23
And the Government has the burden of proof to prove
24
beyond a reasonable doubt that my client knew it was illegal,
25
that he knew that.
And they have the reasonable -- they have
458
to prove beyond a reasonable doubt that he didn't act
carelessly, he didn't make a mistake.
careful enough, but that he knew that this was all against the
law, in spite of the public officials that were involved, the
local law enforcement officers that were there, the federal
agents that were there.
Not that he wasn't
In my client's case in particular there is no evidence
showing that my client -- if you look at instruction number 24
when you're back in the jury room, it says -- it's about
10
agreement.
It says the Government need not show that members
11
of a conspiracy entered into a formal or express agreement.
12
Instead, a conspiracy may be inferred from evidence of a
13
concerted action by persons working together with a common
14
design, purpose and understanding.
15
Walking out the front door of the state courthouse seeing
16
a rally that I like and joining it, even if I saw it posted on
17
Facebook last night and liked it, doesn't mean that I
18
understand all the intricacies of these people who sought
19
authorization and didn't get it, or got a particular
20
permission that may not have been within that person's
21
authority to grant.
22
because I liked the closing of an event and showed up the next
23
day to a rally and an event that I liked the subject matter
24
of.
25
It doesn't mean I understand all of that
I think the Government has absolutely failed to prove
459
that my client conspired with Mr. Lyman or any of these other
people or anyone, worked together with a common design,
purpose and understanding.
that.
The Government's failed to show
The photos of my client that were identified, the videos,
5
6
they were above -- they were on the pipeline trail where
apparently Mr. Lyman believed there was consent, my client
followed the elected official's understanding, which is a
reasonable thing for a common citizen to do.
10
So I'd ask you
to find my client not guilty.

THE COURT:
11
Mr. Garrett.
DEFENDANT MARIAN'S CLOSING ARGUMENT
12
MR. GARRETT:
13
Ladies and gentlemen of the jury,
14
because I'm going to try and save time, I'm not going to
15
figure out how to put this on.
16
Government to put up Exhibits 87A and 15 side-by-side, please.
17
And just in case I forget something, I might want a note here.
18
But let me talk about -- my remarks today will be, I
But if I could ask the
19
hope, very brief.
20
5th, then I'm going to talk about May 5th, then I'm going to
21
talk about May 9th, and then the ride on May 10th.
22
First off I want to talk about before May
Let's start with prior to May 5th.
What do we obviously
23
know?
Well, in San Juan County there was a lot going on.
24
Everyone knew about that ride.
25
there was something wrong with you if you didn't know about
Josh Ewing testified that
460
that ride.
Well, everybody knew about it, right?
The BLM
knew about it.
BLM knew months in advance that there was a ride that was
going to happen, and they worked with Mr. Lyman for a period
of time, the elected official, my client's county
commissioner.
there's no evidence that my client ever knew what was going on
or ever knew what was going on with any of that part.
Let's go to the main focus now of May 5th.
The BLM knew what was going to happen.
They worked with him.
The
That all being said,
Mr. Johnson opened the gate.
What happened
10
on May 5th?
Figuratively,
11
metaphorically he opened the gate literally on May 5th.
12
May 9th the BLM officer went through that gate, went down
13
Recapture Canyon, came back, did not shut that gate.
14
We know from Juan Palma's testimony that he had
On
15
conversations with Phil Lyman, and during that Mr. Palma on
16
cross-examination said he might have inferred, but he couldn't
17
remember whether or not he talked about giving permission.
18
Then on May -- on May -- let's get to the actual date
19
now, which is where we'll parade the Government's evidence
20
against my client.
21
in the picture.
22
We have him here identified at a prerally
We have him then going down the trail.
What can we infer from those pictures?
23
his presence.
We can't infer knowledge.
24
he knew.
25
there at a public rally.
We can only infer
We can't infer what
What you can infer is you can infer that he was
461
Can we put up Government's Exhibit -- one moment, please,
sorry.
64.
We can infer there were a lot of people at that
rally, a lot of people hearing speeches.
my client showed up.
that he went up to Recapture Canyon.
knew what the speeches were about.
being there that he's -- there's no evidence in there that
he's not a law abiding citizen within the record.
evidence of that.
We don't know when
We don't know when he left.
We know
We can infer possibly he

We can infer from him
There's no
We can infer there are a lot of people
10
there.
From other Government's exhibits we can infer a lot of
11
people rode down that canyon.

What you can't confirm, and what you just don't know, you
12
13
just don't know whether he joined a conspiracy.
Does his
14
presence in picture 87A show he's part of a conspiracy?
By
15
standing next to someone are you part of a conspiracy?
What
16
you do know what was in his mind is when he went there he was
17
there and he attended a rally.
18
What you do know when he drove up the canyon, the gate --
19
or he went up the road, he drove down the canyon, the gate was
20
open.
21
broke the gate.
22
but the gate was open.
23
client knew a gate was open, he attended a rally, and he went
24
down a canyon.
25
evidence.
You know the gate was open.
There's no testimony they
There's no testimony they unlocked the gate,

You can infer that.
You can infer my
That's all you can really infer from the
That's it.
462
You don't even have to get to whether he had a good faith
intent or not, which he did.
He followed a political
official.
client did.
Government is going to ask you to infer things.
to ask you this.
client was, he would have heard about the rally, he would have
heard about a legal ride, and he got on his ATV and he went up
and the gate was open.
He followed the ATV in front of him.
That's all my
You just don't know anything else.
The
They're going
But you can base the facts on where my
Everything else you just don't know.
10
You do know that on May 5th the gate was open.
On May 9th the
11
BLM did not close that gate and it was still open.
It's my encouragement to you and my firm belief that my
12
13
client has not committed a crime here, and I hope you find
14
that.
Thank you.
15
DEFENDANT LYMAN'S CLOSING ARGUMENT
16
MR. STUBBS:
I'm going to start today by talking
17
about the Government's burden in this case.
18
burden is proof beyond a reasonable doubt.
19
with the presumption of innocence.
20
there.
The Government's
So we start off
The Defendants are all
As I said, they are innocent of any crimes charged.
21
So then if you think, well, if I believe they're guilty
22
or maybe they're guilty, probably they're guilty, it's clear
23
that they're guilty, okay, well, that's not enough.
24
means not guilty.
25
reasonable doubt, and they haven't done it.
That
The Government has to prove guilt beyond a
463
It's not Phil Lyman's job to prove his innocence.
Again,
he's innocent as he sits there.
It's the Government's job to
prove beyond a reasonable doubt that Mr. Lyman and the others
committed a crime.
of conspiracy beyond a reasonable doubt.
beyond a reasonable doubt that there was an agreement.
have to prove beyond a reasonable doubt that there was an
overt act.
there was knowledge and voluntary participation in a
So they have to prove each of the elements

They have to prove
They
They have to prove beyond a reasonable doubt that
10
conspiracy.
They have to prove beyond a reasonable doubt
11
interdependence.
12
operation of an off-road vehicle on a closed land to such use.
13
They have to prove beyond a reasonable doubt that my client
14
knowingly defied the law and that he willingly broke the law.
15
This is the Government's burden and they haven't met it.
16
What happened that day and leading up to it is that
They have to prove beyond a reasonable doubt
17
Mr. Lyman planned a lawful political protest.
18
the Government's hasn't met their burden, Mr. Lyman's presumed
19
at this point to have conducted a lawful political protest.
20
And so because
Now, there are many reasons why the Government hasn't
21
proven their case.
22
arguments to show why they haven't proven their case, and I'm
23
going to show you a couple more holes in their case, and these
24
holes are proof that they didn't make their burden.
25
We've had three very good closing
Hole number one, Commissioner Lyman acted alone.
He is
464
an elected government official -- an elected government
official who is advocating on behalf of his constituents.
is conducting negotiations as an elected official to appointed
officials.
Recapture Canyon.
your constituents.
He
Negotiations are strictly about the reopening of

There's no conspiracy in advocating for
Now, his constituents like Phil Lyman.
They respect him
and they're willing to follow him, and they're willing to
follow him on a political protest, a lawful political protest.
10
There is no conspiracy in leadership.
11
wants you to think that a good leader is a conspirator to a
12
crime.
13
Hole number two.
But the Government
They have failed to commit -- the
14
Government has failed to prove any intent to commit a crime.
15
The Government wants you to infer intent from the following:
16
The Deseret News editorial written by Commissioner Lyman.
17
They want you to infer intent from Commissioner Lyman's
18
political Facebook page.
19
intent from town hall meetings.
20
criminal intent between official government e-mails, an
21
elected county official's e-mails to appointed government
22
officials.
23
on those e-mails and on those letters?
24
commissioners, and the U.S. delegation to the United States
25
Congress, Senator Hatch, Senator Lee, Jason Chaffetz.
They want you to infer criminal

They want you to infer
And, again, as has been pointed out, who is cc'd

Other county
They
465
1
2
were all on those.
Are they co-conspirators?
Also they want you to believe that the political rally at
a public park is evidence of criminal intent.
Back to the
Deseret News editorial.
a politician.
to skip down the trail.
remember what Josh Ewing said, Recapture Canyon is about 40
miles long, and there's a five mile portion that's closed.
There was nothing in that article that said come ride your ATV
All right.
This was an opinion piece written by

He invites people to run, to ride,
He also says bring your ATV.
But
10
down the small five mile narrow portion of the canyon that's
11
closed.
12
those -- his opinions in that Deseret News editorial, they're
13
free speech, freedom of speech and freedom of the press.
14
It's like come to Recapture Canyon.
Facebook.
And those --
Facebook is probably the largest online forum
15
of free speech and public speech in the world.
16
smart phone and you look at the app, it will say it's been
17
downloaded over a billion times.
18
at least have access to Facebook.
19
You go to your
So we know a billion people
Facebook -- and, again, Phil Lyman had a political
20
Facebook page.
21
Government's official said, yes, it was a political template
22
used for politicians for political purposes.
23
He used a political template.
The
So essentially he set up, Commissioner Lyman set up a
24
virtual online town hall meeting.
25
can go to discuss political ideas.
It's a place where people

They can go to complain
466
about the Government's inactions.
complaining about the Government's inactions.
these town hall meetings are for.
press is for.
complain about the government, that's okay.
about the government without fear of redress or fear of
prosecution.
8
9
Nothing wrong with

That's what
That's what freedom of he
That's what freedom of speech is for.
To
You can complain
The Government wants you to infer criminal intent because

someone liked a post or because someone hit a share button or
10
because someone copied a link and put it on their own website.
11
That's their proof of criminal intent.
12
Official government e-mails, talked about that.
13
political correspondence, elected official, advocating on
14
behalf of his constituents.
15
the e-mails, and it's been shown to you so I won't bring it
16
back up, Commissioner Lyman says in that e-mail I do not plan
17
to violate any laws.
18
telling the BLM I'm not going to violate any laws.
19
the criminal intent there?
20
No crime in that.
E-mails,
In fact one of
It's telling the government -- he's
Political rally in the park.
Where is
This one was interesting to
21
me.
22
actually said at the rally.
23
pictures of a public rally where Phil Lyman was speaking.
24
There's no dispute he was at a public rally.
25
dispute that he was a speaker and that he was leading the
The Government didn't show you any evidence about what he

What they showed you were
There's no
467
event.
he said.
saying break the law.
But the Government didn't give you any proof of what

They want you to infer from a picture that he was
What they did show you what he said at the rally, they
showed you a short clip from a news report from a nightly
newscaster.
Lyman responds and then it's cut off.
what the question was, they didn't show you what the previous
questions were, and they didn't show you what the previous
The newscaster asked Phil Lyman a question.
They didn't show you
10
answers were.
11
questions were or the subsequent answers were.
12
completely out of context.
13
purposes.
14
people at the rally.
15
Nor did they show you what the subsequent

It's
It's cut and edited for their own
And it was addressed to a reporter and not to
Another hole in the Government's case.
The Government
16
failed to show that Commissioner Lyman acted willfully in
17
violating the temporary closure order.
18
Phil
Josh Ewing.
Josh Ewing is friends -- he runs the Board
19
of Directors of Friends of Cedar Mesa.
It's an
20
environmentalist group.
21
political spectrum from Commissioner Lyman.
22
friends, and they are friends because Phil Lyman respects
23
everyone's point of view.
24
Lyman, appointed Josh Ewing to the Public Lands Advisory
25
Council because he wanted everyone's opinion about what to do
It's the opposite end of the

However, they are
In fact Phil Lyman, Commissioner
468
with the public lands.
Josh Ewing said that Commissioner Lyman -- Commissioner
Lyman is a person who respects and upholds the law, and that
only some people thought that he broke the law.
told you that Commissioner Lyman said I am going to stay on
the pipeline road and I will turn around at the end of the
pipeline road and I will come back.
exactly what he did.
never left it.
Josh Ewing
And you know what, that's
He stayed on the pipeline road.
He
And afterwards he left the canyon.
10
Can we please put up Government's Exhibit Number 83.
11
Could you highlight the last paragraph, the one that says
12
routes depicted.
Thank you.
All right.
What Government's Exhibit 83 is, it's this right here.
13
14
It's the letter that was posted on the closure sign.
15
this zoomed-out portion I want you to read -- I'll read this
16
to you.
17
adjacent map are now officially closed to motorized
18
recreational use, except for permitted or authorized use.
19
These areas and routes are open to closure areas that remain
20
open.
21
permitted use.
22
And in
The routes depicted in the closed section of the
So go back, the except, except for authorized or
Ferd Johnson.
Love Ferd Johnson, salt of the earth,
23
honest, hard working man.
Ferd told you he's been with the --
24
been down in Blanding since about 1957.
25
Recapture Canyon since the 1960's.
He's been hiking
He's been working down
469
there his entire life.
was one of the directors of the board of the Water Conservancy
District.
Conservancy District until the present day where he is their
only employee.
In the 1980s he was put on the -- he
And since the 1980's he's worked on the Water
He goes down there on a weekly basis to check the pipes
to make sure there's no leak.
truck or he rides an ATV.
He rides a truck -- drives a
Phil Lyman went to him and said -- Commissioner Lyman
10
went to him and said, Ferd, we're having a political protest.
11
Can we use the pipeline road?
12
been pointed out to you by other counsel, Ferd not only said
13
yes, but he opened up the gate and he left it open.
14
made an attempt to close it.
15
them permission.
16
ran the Water Conservancy District and got permission to be on
17
the land.
18
And Ferd said yes.
So Phil Lyman went to the only person that
Now, Mr. Crane did an excellent job on the time line so

I'm not going to rehash that too much.
20
The permission was gained at the end of April.
21
to May 1st.
22
MR. BENNETT:
23
THE COURT:
25
Never
And he said, yes, I did give
19
24
And as has
Go ahead.
Objection.
I will point out this.

Fast forward
That's not in evidence.
Well, you can argue it, counsel.
Go ahead, Mr. Stubbs.
MR. STUBBS:
Thank you.
Fast forward to May 1st.
470
May 1st is when Phil Lyman had a telephone conversation with
Juan Palma.
entitled Prior Inconsistent Statements By A Witness.
Palma is a witness.
that.
I refer you to jury instruction number 13.
You heard his testimony.
It's
Juan
Let's review
First, it says in the prior inconsistent state -- jury
instruction you may consider earlier statements by witnesses
only to determine whether they are consistent or inconsistent
with the trial testimony of the witness and therefore whether
10
11
they affect the credibility of the witness.

What did Juan Palma say on direct examination?
I told
12
Phil Lyman he couldn't go on the road.
13
if he went on the road he'd be subject to criminal and civil
14
penalties.
15
he had a telephone conversation with Phil Lyman where he said
16
you can go ahead and have the ride.
17
No one is going to get arrested or anything like that.
18
a prior inconsistent statement.
19
Juan Palma.
20
On cross-examination he admitted that on May 1st

That's
It affects the credibility of
So when Juan Palma tells you I did not give him
21
authority, well, can you believe him?
22
told Phil Lyman just the opposite.
23
I told Phil Lyman that
He admitted that he
Now, the Government has failed to prove the willfulness,
24
but as I just explained to you, that was the good faith
25
defense.
Phil Lyman, relying on the permission from Ferd
471
Johnson, and the vague inconsistencies, or in this point the
telephone conversation where Juan Palma told him he could go
on the road, he used those in a good faith belief that he had
permission to go on the land, the Director of the BLM.
So you have to ask yourself is it reasonable for Phil
Lyman to believe that he had permission from the water
conservancy to be on the -- from Ferd Johnson to be on the
pipeline road, and was it reasonable for him to believe that
the Director of the BLM authorized him to be there?
If the
10
answer to that question is yes it is definitely reasonable for
11
him to be there, he's not guilty.
12
pretty clear, I think the evidence is clear that, you know, he
13
had -- he believed, he had a reasonable good faith belief that
14
he was on the trail permissibly, he's not guilty.
15
hearing the evidence he probably believed that, not guilty.
16
It's highly unlikely that he believed it, but there's a
17
possibility he believed it, not guilty.
18
If you said, well, it's
You know,
Ladies and gentlemen, Phil Lyman -- excuse me -- Phil
19
Lyman -- the Government has not met their burden.
The content
20
of Phil Lyman's, Commissioner Lyman's, speech, his expression,
21
are protected under the Constitution.
22
press, political rallies, those are all institutions that were
23
created and protected under our Constitution so that people
24
could go there and voice -- and voice their opinions, say what
25
they want, complain about the Government.
Town hall meetings, the
That's why these
472
institutions exist.
well, what they said at those sacred protected institutions
was criminal intent.
And the Government wants you to say,
And then, again, he had a good faith belief to believe
that he was on the pipe -- that he had permission to be on the
pipeline road, and he only stayed on the pipeline road.
7
8
Commissioner Lyman is not guilty of the crimes that he

has been charged with.
THE COURT:
9
10
now if you'd like.
11
close.
12
Thank you.
Mr. Bennett, I'll allow you to do this
We have been going for some time and we're
We're very close.
Because the United States has the burden in this case,
13
they argue first and Mr. Bennett has a chance to make -- give
14
the last word because it's their burden.
15
a handful of instructions.
16
but it just seems to me out of an abundance of caution in case
17
folks over there need a break, our court reporter could use
18
one, let's take a very short break.
19
to ten minutes or less.
20
We'll come back.
21
your deliberations.
22
25
I don't think this will take long,
Let's keep it literally
Go ahead and stretch your legs.
We'll finish this up and then you'll begin
THE CLERK:
23
24
And then I have just

(JURY EXCUSED)
THE COURT:
Let's try to keep this short so we can
get them back and get going.
473
MR. CRANE:
Can I just request a quick sidebar?
THE COURT:
Yes.
MR. CRANE:
Thank you.
(RECESS TAKEN)
THE CLERK:
MR. BENNETT:
8
9

Your Honor, could I request a brief
sidebar?
THE COURT:
10
Okay.
11
THE COURT:
12
MR. BENNETT:
13
14
Mr. Bennett.
PLAINTIFF'S CLOSING ARGUMENT IN REBUTTAL

MR. BENNETT:
Ladies and gentlemen of the jury,
15
listening to the closing arguments of defense counsel reminds
16
me about the story between a scientist and a frog.
17
scientist went out and bought a frog and wanted to see how far
18
it would jump.
19
frog, jump, and the frog jumped eight feet.
20
recorded in his book a frog with four legs jumps eight feet.
21
He set the frog on the ground and said jump,

The scientist
The scientist then removed one of the frog's legs, set
22
the frog on the ground and said jump, frog, jump.
23
then jumped six feet.
24
frog with three legs jumped six feet.
25
The
The frog
And the scientist wrote in his book a
The scientist then removed another leg and said jump,
474
frog, jump, and this time the frog jumped four feet.
scientist recorded in his book a frog with two legs jumps four
feet.
The scientist then removed another leg, set the frog on
4
5
the ground and said jump, frog, jump.
feet.
feet.
8
9
The frog jumped two
And the scientist recorded a one-legged frog jumps two
Finally the scientist removed the last leg from the frog,
set the frog on the ground and said jump, frog, jump.
10
Obviously the frog did nothing.
11
his book a frog with no legs is deaf.
12
And the
And the scientist recorded in
It's amazing to me how we can all hear the same evidence,
13
hear the same testimony, see the same photos and yet come to
14
completely erroneous conclusions.
15
of those for you right now.
16
I'd like to clear up some
Now, you heard Mr. Crane during his closing talk about
17
how the reason that Mr. Lyman didn't mention Ferd and the
18
permission that he had was because he was fearful the BLM
19
might take some sort of action.
20
You never heard any evidence about that, but in fact the
21
evidence we do have shows the contrary.
22
That was pure speculation.
I'd like to refer you to Exhibit 24-6.
You'll recall
23
that in Exhibit 24-6 this is a letter from the -- from
24
Lance Porter that was hand delivered to Mr. Lyman.
25
read through this letter, and I would recommend you do so at
As you
475
the -- in the jury room, you're going to see that BLM offered
the opportunity to Mr. Lyman to walk down Recapture Canyon and
to look at the archaeological sites so that Mr. Lyman could
avoid them.
Lance Porter, I believe also Juan Palma, testified that
the reason the BLM did this is because they knew the ride was
inevitable.
willing to work with him on that, don't you think he would
have disclosed that he had permission.
10
Therefore, they showed him the sites.
We look at what Mr. Stubbs said earlier.
If BLM is
Mr. Stubbs made
11
much ado about a May 1st telephone conversation.
12
said that according to what Mr. Palma said in this
13
conversation Mr. Palma said it was wonderful.
14
your ride.
15
that no one would be arrested, and he was true to his word.
16
But that doesn't -- but if that's the assertion, that's the
17
good faith belief, let's look at the evidence.
18
Now, Mr. Palma never said that.
Let's look at Exhibit 74.
Mr. Stubbs
Go ahead.
Do
Mr. Palma said
This is a Petroglyph post
19
called the truth about Recapture Canyon.
This is an interview
20
series that Mr. Wells conducted with Mr. Lyman about the
21
purposes for Recapture Canyon.
22
this is again purportedly the truth about Recapture Canyon,
23
you won't find a single word mentioned about Ferd Johnson and
24
permission.
25
about Mr. Palma, the State Director giving you permission.
In that interview series, and
This is dated May 6.
You won't see a single word
476
Now, ladies and gentlemen, if you had the State Director
of BLM's permission to go up that road, don't you think you
would say that, and don't you think you would know that BLM
isn't going to do anything to you?
and reference to Juan Palma are absent.
Let's do another one.
But yet both Ferd Johnson
Let's go to Exhibit 105A.
Here
again Mr. Lyman talking to people about open roads and closed
roads.
Johnson and the BLM State Director's permission to be there?
Why would he bother doing that if he had both Ferd
10
It doesn't make any sense.
11
Let's go to 99B.
Now, we heard some discussion about
12
this, saying that it was edited to meet the Government's
13
purposes.
14
opportunity to make larger the clip.
15
the whole thing, but yet this is what is there in evidence.
16
Can't punish the Government for the defense.
17
more, they could have got it.
18
19
I will let you know that the defense had every

They declined.
They didn't.
They had
If they wanted
Can we play it?

So let's get this straight.
Purportedly you have the
20
State Director's permission to do this and Ferd Johnson's
21
permission to do this and yet you go on television and admit
22
you're violating federal law.
23
That's not even -- and they talked about, well, it can be a
24
reasonable or unreasonable belief.
25
of a belief at all.
That doesn't make any sense.
That's not even evidence
That's evidence that I knew it was wrong,
477
1
2
I didn't have permission, and I did it anyway.

That is the problem with the argument the defense has
made about both Ferd Johnson and Juan Palma.
permission, and BLM was willing to work with you, not going to
hunt you down, not going to arrest you, takes you out and
shows you the sites, it makes no sense to disclose you have
permission to avoid the consequences of what followed, no
sense at all.
argument because it's not supported by the evidence.
10
If you had that
I'd invite you to completely discard that
Next let's look at Exhibit 24.
Exhibit 24 was
11
highlighted to show that Mr. Lyman said I -- I never -- I --
12
let's get the -- I want to be exact.
13
any federal laws on May 10th.
14
on May 9th, fairly different.
15
I do not plan to break
You just heard 99B, which was
But this statement, it doesn't reduce his culpability.
16
It's basically like saying if you look outside, yep, it's --
17
it's -- the sun's out and it's 12:30, but I will never admit
18
it's daytime.
19
that the first day of the town hall meeting.
20
He knew he was violating federal law.
He knew
Well, the Defendants have said, look, the United States
21
cannot prosecute people for what they say in a town hall
22
meeting.
23
said in a town hall meeting.
24
jury instruction seven, are not hitting anybody for free
25
speech, not getting after anybody for what they put on the
It's protected.
No one is prosecuting for what they

The charges, as you'll see in
478
internet.
What that instruction also says is that you as the jurors
2
3
may consider what people say in perfect free speech to
determine what their intent is.
determine intent for what they wanted to do.
You can look at it to
We also heard Ms. Preston talk about her client and how
she went to a rally, was there, and wasn't part of any
conspiracy.
show up to that ride -- or show up to that preride rally, and
And I would agree.
If all Mr. Holliday did was
10
if all he did was like the thing -- the tailgate party the day
11
before, I would agree there's no conspiracy there.
12
him.
Acquit
But he did a heck of a lot more than that.

He showed up to the May 10th morning rally with what?
13
14
His ATV.
15
right next to Recapture Canyon.
16
He and Mr. Marian, who appeared together at the park, and
17
appeared together in Exhibit 15, rode together and crossed the
18
line.
19
And it wasn't like the Centennial Park was just

It was a seven mile drive.
What was the object of the conspiracy?
A protest ride.
Now, you've heard saying over and over again how can this
20
be -- how can this be a conspiracy?
21
Yeah, exactly, it's a protest.
22
have a conspiracy in some sort of a protest where you're
23
trying to send a message to another government agency, it's
24
not going to be a conspiracy shrouded in secrecy.
25
conspiracy to make a point, a very public point.
It's out in the open.
Typically if you're going to
This is a
479
So the fact that it was out in the open doesn't mean
anything to whether there's is or isn't a conspiracy.
It
simply in this type of conspiracy they were trying to prove a
point to another government agency and it was out in the open.
It's irrelevant to determining the intent of the conspirators.
You also heard a lot about somebody opening the gate.
During the presentation of the evidence the gate is outside
the closure area.
It's a red herring.
The presumption of innocence.
That's very important.
10
That's something we take very seriously.
11
trial, and your jury instruction says so, when we began this
12
trial there is a presumption of innocence for every single one
13
of those Defendants, and the Government welcomes the burden to
14
prove beyond a reasonable doubt.
15
to do under the Constitution.
16
When we began this
That's what we are supposed
But now that we're here, there's no longer a presumption.
17
We've played the game.
18
decide based on the evidence, not based on speculation, not
19
based on, for example, the speculation -- I think Ms. Preston
20
said that, well, it's reasonable to infer that Mr. Lyman told
21
my client that he could ride on the -- what evidence is there
22
of that?
23
Zero.
We've played the ball.
Now you get to
Decide on the evidence, not on speculation.
Finally, I just want to pull up Exhibit 105A.
And I'd
24
like you to compare this with the audio recordings in Exhibit
25
18 and 19, which are the county commission meetings.
There
480
was a comment made during the -- during the defense close
about how ring leader didn't refer to this ride.
something to more of these issues countywide.
recording.
assessment, and we believe that you're going to see that when
they were talking about ring leader and the spokesperson, it
was not about general land issues in that part of the county.
It was about the ride of Recapture Canyon.
county commissioners that's also heard on that audio, you'll
It referred
Listen to the
Listen to the recording and make your own
10
hear it says lone wolf.
11
it says ring leader.
In fact one of the
Mr. Lyman corrects him and says, no,
There's a big difference.
So if you listen to the recordings and see what Mr. Lyman
12
13
said he was going to say at the preride rally, he again
14
publishes it on The Petroglyph, you'll understand that he was
15
going to lay down the rules for open and closed trails.
Now,
16
why is that significant?
Some
17
people felt uncomfortable riding closed trails.
18
and said, look, the second paragraph on the second page of
19
this exhibit, come anyway.
20
ride.
21
Mr. Wells did, Mr. Holliday did, and Mr. Marian did.
22
Because he wanted to protest.
So he invited
There's plenty of open trails to
You don't have to ride closed trails.
He did,
That shows, based on all the evidence that you're going
23
to review, that you've seen here at trial, they knew what they
24
were doing was wrong.
25
agreement to do something wrong, knowing it was a protest,
They did it anyway.
They entered into
481
knowing they were sending a message, and they did it anyway.
The Government has proven its burden, and we ask you to
return a guilty verdict on all counts against all Defendants.
Thank you.
THE COURT:
5
6
All right.
Members of the jury, I'm returning now, if
you wish to follow along with me, to your instruction number
35, the first one that says post-closing instructions.

(READING OF JURY INSTRUCTIONS CONTINUED)
9
10
All right.
Let me take a moment and walk you through the
11
verdict form that will go back with you in the jury room.
12
We'll have the Court Security Officer sworn and you're on your
13
way.
14
a copy of the instructions, but there is only one copy of
15
verdict form that goes back into the jury room for the obvious
16
reasons that we don't want to have multiple copies in case
17
there are any differences.
18
the jury.
19
This is the verdict that will go back.
Each of you has
One verdict form, one verdict from
The verdict form reads we the jury, duly impaneled in the
20
above-entitled case, unanimously find the following:
21
count I.
22
listed, and there's a space to check a box -- check either
23
that you find each guilty or not guilty as you so find with
24
respect to each Defendant.
25
each Defendant as to count I, and then again as to count II
As to
Then you'll see that each of the four Defendants is
You will fill out an answer for
482
below that, each of the four Defendants listed, a place to
check guilty or not guilty.
Once you have completed this with respect to both counts,
all four Defendants for both counts, the foreperson will date
and sign the verdict form, place it in the envelope and notify
the Court Security Officer that you are -- you have a verdict.
Officer Brown, would you kindly come forward and take the
oath, please.
(COURT SECURITY OFFICER SWORN)
9
10
Members of the jury, Ms. McNamee will be meeting shortly
11
with the attorneys to ensure that we have the correct set of
12
exhibits, and then they'll be delivered into your room.
13
is here.
14
forthcoming.
15
service and for your attention.
16
deliberations.
17
You have the instructions.
18
The verdict form will be
You'll have that as well.
THE CLERK:
Lunch
We thank you for your
Please begin your
(JURY EXCUSED TO DELIBERATE)
19
The Court:
Counsel, have a seat.
As soon as
20
Ms. McNamee returns, please come to the table and confirm with
21
her that we have the correct set of exhibits to send back to
22
the jury.
23
of a representative for each of the parties here.
24
within five minutes of the courthouse.
25
from the jury, ordinarily I will call you and notify you, not
And leave with her, please, the cell phone number

Remain
If there's a question
483
require you to come in person, but I don't want to keep the
jury waiting once they're ready with a verdict.
ready and make sure you have your phone with you.
Is there anything more we should take up?
need the benefit of the record for any reason?
as a no.
All right.
verdict.
We'll be in recess.
I so stipulate on behalf of
Mr. Marian.
MS. PRESTON:
I stipulate on behalf of
Mr. Holliday.
13
MR. STUBBS:
14
MR. CRANE:
15
MR. DISHMAN:
16
have a verdict.
20
don't we, counsel?
21
25
I stipulate on behalf of the United
THE COURT:
19
24
Agreed as well.
18
23
I stipulate on behalf of Mr. Lyman.
States.
17
22
I'll take that
We'll let you know once we have a
MR. GARRETT:
11
12
Does anybody
(STIPULATION BELOW BY COUNSEL ON EXHIBITS GOING TO THE JURY)
9
10
So stand
Good evening.
We're informed that we
We have everyone here that we need I think,
MR. BENNETT:
Yes, Your Honor, no need for a
sidebar.
THE COURT:
That's refreshing.
All right.
Why
don't we retrieve the jury, please, if you would, officer.

THE CLERK:
484
1
2
THE COURT:
Good evening, members of the jury.
Have
you selected a foreperson?
JUROR NO. 5:
THE COURT:
Yes, Your Honor.

Juror number 5, Mr. Webster.
Mr. Webster, has the jury reached a unanimous verdict in all
respects?
JUROR NO. 5:
THE COURT:
Yes, Your Honor.

And is that reflected on the verdict
form?
10
JUROR NO. 5:
11
THE COURT:
12
Yes, Your Honor.

Would you please provide that to Officer
Brown.
13
Thank you, sir.
14
In a moment I'm going to ask Ms. McNamee to publish the
15
jury's verdict.
16
very carefully as she does.
17
individually be asked if this jury -- if this verdict, rather,
18
represents the individual judgment of each of you.
19
Let me ask each of you, please, to listen

It's possible that you may
Ms. McNamee, would you publish the verdict, please.
20
THE CLERK:
We the jury, duly impaneled in the
21
above-entitled case, unanimously find the following:
22
count I:
23
guilty; Shane Morris Marian, not guilty; Franklin Trent
24
Holliday, not guilty.
25
As to
Phillip K. Lyman, guilty; Monte Jerome Wells,
As to Count II:
Phillip K. Lyman, guilty; Monte Jerome
485
Wells, guilty; Shane Morris Marian, not guilty; Franklin Trent
Holliday, not guilty.
3
4
Dated this 1st day of May 2015, signed by the foreperson

of the jury.
THE COURT:
Is there any reason to poll the jury?
MR. CRANE:
We would request the polling, yes.
THE COURT:
Ms. McNamee, if you would, please.
THE CLERK:
Juror number 1 was this and is this your
true and correct verdict?
10
JUROR NO. 1:
Yes.
11
THE CLERK:
12
your true and correct verdict?
Juror number 2, was this and is this
13
JUROR NO. 2:
Yes.
14
THE CLERK:
15
16
JUROR NO. 3:
Yes.
17
THE CLERK:
18
19
JUROR NO. 4:
Yes.
20
THE CLERK:
21
22
JUROR NO. 5:
23
THE CLERK:
24
25
Yes.
JUROR NO. 6:
Yes.
486
THE CLERK:
JUROR NO. 7:
Yes.
THE CLERK:
JUROR NO. 8:
Yes.
THE CLERK:
JUROR NO. 9:
Yes.
10
THE CLERK:
11
12
JUROR NO. 10:
Yes.
13
THE CLERK:
14
15
JUROR NO. 11:
Yes.
16
THE CLERK:
17
18
JUROR NO. 12:
Yes.
19
THE CLERK:
Thank you.
20
THE COURT:
Mr. Marian, Mr. Holliday, you have been
21
judged innocent by a jury of your peers.
22
entering a judgment of acquittal.
23
courtroom if you'd like.
24
25
I will shortly be
You are free to leave the
Counsel, is there any reason this jury may not now be

excused?
487
MR. BENNETT:
MR. STUBBS:
THE COURT:
No, your honor.

No, Your Honor.
Members of the jury, it's always
inconvenient we know, as we've said, for you to take time out
of your lives, out of your work schedules and away from your
family to be here.
heard me thank you many times before.
parties, on behalf of the court staff and on behalf of me
personally, thank you so much for your service.
10
I won't take anymore of your time.
You've
But on behalf of the
We're deeply
grateful.
You're free to leave if you'd like.
11
Ms. McNamee has your
12
jury certificates -- maybe she doesn't.
13
does.
14
you and answer any other questions you may have.
15
very much.
She has your jury certificates.
She does.
She always
She'll hand those to

Thank you
16
THE CLERK:
17
THE COURT:
I said this to you earlier in the case.
18
Your deliberations are confidential.
19
your -- or discuss your -- this case with anyone.
20
you that you're free to do so if you like.
21
lawyers may contact you.
22
about what you all think about what they did and how they can
23
improve.
24
if you like.
25
You need not explain

I will tell
Sometimes the
They like to learn from the jurors
You're welcome to speak with them if you like or not

It's entirely up to you.
Thank you.
(JURORS EXCUSED)
488
Have a seat, please.
All right.
I've been informed by
probation that I think we didn't need the full time that we
ordinarily need to prepare presentence reports and prepare for
sentencing.
working on this case and he'll be in touch with counsel for
Mr. Wells and Mr. Lyman.
So Glen Manross will be the probation officer
The next thing that will happen is you'll have a
presentence interview with the probation office.
Let me take
just a moment now and explain that it's important that you be
10
honest and truthful and forthcoming with the probation
11
officer.
12
them to prepare a presentence report, and I will be relying in
13
large measure on that presentence report in determining the
14
appropriate sentence to impose in this case.
15
They'll be relying in large measure on what you tell
You are welcome to have your attorneys present during
16
that interview, and I will tell you that many defendants find
17
that to be very helpful.
18
Counsel, I'm proposing sentencing dates for Mr. Wells
19
July 15th at 3:00 P.M., Mr. Lyman July 15 at 3:30 PM.
20
available, counsel?
21
MR. CRANE:
22
MR. STUBBS:
23
THE COURT:
24
MR. BENNETT:
25
THE COURT:
Are you
Yes, Your Honor.

Yes, Your Honor.
Mr. Bennett?
Yes, Your Honor.
So those will be the dates and times for
489
sentencing.
evening?
Is there anything more we should take up this
MR. CRANE:
Your Honor, I anticipate that part of
the sentencing hearing will be restitution.
been given a solid figure for what the Government is seeking
in restitution.
talking six figures plus.
extremely helpful to us if we knew what the figure is and what
they're basing that figure on.
10
We have not ever
We do know that this number is large and I'm

We would request -- it would be
It's our understanding the Government has sent experts
11
into the Canyon, archaeologists, to try to make a
12
determination as to what the damages are.
13
we'll need to call several witnesses ourselves, and if we
14
could be directed to what reports and what their experts are
15
relying upon, we may need to hire our own expert to the review
16
that and help us understand that and maybe present other
17
testimony to the Court.
We anticipate that
18
MR. BENNETT:
19
provided in discovery.
20
certainly is wanting to discuss this matter with both
21
Mr. Lyman's counsel and with Mr. Wells' counsel.
22
hopefully before that we might be able to reach an agreement,
23
but that's certainly something to which we're amenable.
24
25
THE COURT:
Your Honor, those reports have been

Nevertheless, the United States
And
We'll take this up in the normal course.
Let's exchange information and have conversations.
This will
490
be a subject of discussion with the probation officer in
preparation of the presentence report.
know, Mr. Crane, counsel are able to reach some agreement.
the event that we're unable to reach any agreement here and we
need presentation of evidence, we can do that.
bifurcate the sentencing proceeding or do it all at once.
Let's see how things come along.
on the July date for sentencing and work in that direction,
counsel.
Ordinarily, as you
We can
But why don't we keep an eye
10
MR. CRANE:
Thank you.
11
THE COURT:
12
everyone, thank you very much.
13
professionalism, and I wish all of you a good evening and a
14
good weekend.
15
16
All right,
Counsel, I thank you for your
Mr. Bennett, there's no reason for us to take up any

custodial issues today?
17
MR. BENNETT:
18
THE COURT:
19
In
No, sir.
We'll be in
recess.
20
(TRIAL CONCLUDED AT 8:34 PM)
21
* * *
22
23
24
25
491
1
2
3
4
5
6
10
11
No. 2:14-CR-470, in said court, on the 1st day of May, 2015.
12
13
the official transcript of said proceedings as taken from my
14
15
16

this 24th day of June, 2015.
17
18
19
20
21
22
23
24
25
492

Full Lyman & Other Vs Federal Government Trial 2015

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Full Lyman & Other Vs Federal Government Trial 2015

Uploaded by

Copyright:

Available Formats

1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

UNITED STATES OF AMERICA,

CASE NO. 2:14-CR-470

SALT LAKE CITY, UTAH

UNITED STATES ATTORNEY'S OFFICE

FILLMORE SPENCER, LLC

FOR DEFENDANT WELLS:

GARRETT & GARRETT

FOR DEFENDANT HOLLIDAY:

PLAINTIFF'S OPENING STATEMENT.........................PAGE 18

DEFENDANT LYMAN'S OPENING STATEMENT...................PAGE 26

DIRECT BY MR. BENNETT

DIRECT BY MR. BENNETT

DIRECT BY MR. BENNETT

DIRECT BY MR. BENNETT

DIRECT BY MR. DISHMAN

EXHIBITS RECEIVED IN EVIDENCE

DEFENDANTS' EXHIBITS RECEIVED IN EVIDENCE

Good morning everyone.

We'll call case

This is our Lyman matter.

Counsel, it's the first day of trial and ordinarily we

like to come and start turning to the substance of our trial

So I told you yesterday we discussed, counsel, some late

filed motions that I indicated were denied and explained that

we'd be providing a ruling this morning.

Your Honor, I'm sorry to interrupt.

We're just missing one counsel.

Well, we should have everyone here.

me take a moment also just outside the presence of the jury to

address any media that might be in the courtroom.

Ms. McNamee, did you already speak to the media about

(OFF THE RECORD DISCUSSION WITH THE COURTRO0M DEPUTY)

I'm going to provide a ruling on the

outstanding motions and, counsel, you can share with

And he said that that was fine.

So we had two late filed

motions from Mr. Lyman, docket number 133, a motion to exclude

and preclude certain argument and evidence, docket 134, a

motion to exclude trial exhibits.

evening at about 5:00 o'clock at the close of business.

These were filed Friday

Mr. Marian through his counsel filed an exhibit list in

this case Monday morning, the day before trial.

And Mr. Wells

through his counsel filed a seven page brief yesterday morning

at 7:00 or 7:30, minutes before we met in the courtroom,

styled a trial brief concerning certain evidentiary issues.

There are motions to join filed by some of the Defendants in

some of those motions.

Those motions to join are granted.

The Court's trial order specifically required that

counsel file motions in limine, if any, by April 10th, and

there were deadlines for filing objections to exhibits as well

in every single case, both in civil cases and in criminal

cases, and there are really four reasons for this.

We do this in every single trial order

The reasons from my perspective managing these

proceedings are fourfold.

counsel when they are at the key period in which they're

preparing for trial.

timely raise issues that are known to everyone so they can be